' M. SOHAIL IQBAL BHATTI, J. --- Through this second appeal, the appellants/Muhammad Afzal and others (legal heirs of Muhammad Akbar) have challenged the impugned judgment and decree dated 02.11.2002 passed by learned Additional District Judge, Burewala through which the learned first Appellate Court accepted the appeal filed by the respondents No, 1 to 4/plaintiffs against the judgment and decree dated 14.10.2000 passed by learned Civil Judge, Burewala who dismissed the suit filed by the respondents No, 1 to 4/plaintiffs.
2. Facts of the case are that the respondents No, 1 to 4/plaintiffs instituted a suit for declaration on the basis of a receipt dated 03.01.1976. The plaint was amended from time to time and lastly the suit for declaration was converted vide order dated 20.10.1997 into suit for specific performance on the basis of receipt dated 03.01.1976 (Ex. P-1).
3. The appellants/defendants appeared and filed contesting written statements to the suit for declaration which was converted afterwards into suit for specific performance.
4. Out of divergent pleadings of the parties, the following issues were framed:---
(1) Whether the defendant No, 1 contracted to sell the suit property to the plaintiffs in consideration of Rs, 50,000/- and received the said amount? OPP
(2) Whether the disputed contract is liable to be specifically performed? OPP
(3) Whether the alienation of the suit property in favour of Akbar Khan deceased is void and ineffective? OPP
(4) Whether the plaintiffs have no cause of action and locus-standi to file the suit? OPD
(5) Whether the suit is time-barred? OPD
(6) Whether the plaintiffs are stopped by their words and conduct to file the suit? OPD
(7) Whether the suit is not maintainable in its present form? OPD
(8) Whether the disputed contract is violation of Sec. 19, Colonization of Govt. Land Act, 1912. If so, its effect? OPD
(9) Whether the admission of defendant No, 1 through his written notice of disputed contract, if so, its effect? OPD
(10) Whether Muhammad Akbar deceased was bona fide purchaser without notice of disputed contract, if so, its effect? OPD
(11) Whether the defendants are entitled to compensatory costs u/s. 35-A, CPC, if so, its effect? OPD
(12) Relief.
5. After recording of oral as well as documentary evidence, learned Trial Court dismissed the suit filed by the respondents No, 1 to 4/plaintiffs vide its judgment and decree, dated 14.10.2000 to the extent of specific performance and decreed the suit for recovery of Rs, 50,000/- against Muhammad Saddique/Defendant No,
1. Appeal filed by the respondents No, 1 to 4 against the said judgment and decree was allowed vide impugned judgment and decree dated 02.11.2002 passed by learned Additional District Judge, Burewala. Hence, this appeal.
6. Learned counsel for the appellants argued that the learned first Appellate Court failed to give proper reasons while reversing the findings of learned Trial Court on issues No, 1, 2 and 3; injunctive order dated 10.04.1978 passed by this Court was granted to the extent of possession only and this order did not affect any sale transaction in favour of predecessor-in-interest of the appellants; impugned judgment and decree dated 02.11.2002 passed by learned first Appellate Court was a result of misreading and non-reading of evidence and also mis-application of settled preposition of law. Learned counsel further argued that receipt dated 03.01.1976 (Ex.P-1) could hardly be considered as agreement to sell; even otherwise agreement to sell do not confer any title; suit filed by respondents No, 1 to 4 was also hit by Section 19 of Colonization of Government Lands (Punjab)
Act, 1912; learned Trial Court committed grave and substantial error while allowing the plaintiff to change the form of suit from suit for declaration into suit for specific performance which act of the learned Trial Court completely changed the nature of the suit and relief claimed, thus learned Trial Court committed a material procedural irregularity.
7. Conversely, learned counsel for the respondents No, 1 to 4 argued that most of facts were admitted by Muhammad Saddique/Defendant No, 1; defendant No, 1 being owner of the land received full consideration through receipt dated 03.01.1976 (Ex. P-1); receipt (Ex. P-1) was proved bearing thumb impression of Muhammad Saddique through report of finger print expert who appeared as CW-1; sale-deed in favour of Muhammad Akbar/predecessor-in-interest of the appellants was executed after passing of restraint order dated 10.04.1978 passed by this Court in CR No, 62 of 1977, thus Muhammad Akbar could not be termed as bona fide purchaser. Learned counsel for the respondents No, 1 to 4 further argued that learned Trial Court has wrongly decided issues No, 1 and 2 by giving precedence to the agreement (Ex. D-1) between Zulfiqar and Muhammad Saddique for the reasons that (Ex. D-1) was not signed by vendees and did not fall within the definition of agreement; respondents No, 1 to 4/plaintiffs were in continuous possession of the suit land, thus provisions of Section 19 of Colonization of Government Lands (Punjab) Act, 1912 were not violated. Learned counsel further argued that second appeal under Section 100, CPC does not lie on a question of fact rather only some error of law committed by Courts below.
8. I have heard the arguments advanced by learned counsel for the parties and minutely examined the record.
9. Right to file second appeal is governed by Section 100 of CPC and it is specifically provided in Section 101 of CPC that no second appeal shall lie except on the grounds mentioned in Section 100, CPC, therefore it would be useful to reproduce the Section 100 of CPC as follows:- "100. Second Appeal. ---- Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:---
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law/for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits".
' From bare perusal of above-quoted provision of law, it becomes explicit that second appeal could only be filed in the following circumstances:-
(i) A decision challenged in second appeal being contrary to law or usage having the force of law;
(ii) Where the decision challenged in second appeal having failed to determine some material issue of law;
(iii) Some substantial error or defect in procedure provided by this Code or by any other law/for the time being in force, which may effect the merits of the case.
10. Therefore, I would only confine myself to the extent of above-said grounds of second appeal and findings of facts would not be discussed.
11. First of all, I have to examine the legal effect of execution of document/receipt dated 03.01.1976 (Ex. P-1). This document (Ex. P-1) was executed by Muhammad Saddique in presence of witnesses in favour of respondents No, 1 to 4 but respondents No, 1 to 4 have not signed the same document (Ex. P-1). To determine the legal value of the document as to whether the document (Ex. P- 1) is a receipt or can be considered as an agreement, it would be useful to reproduce the definition of "agreement" which is provided in Section 2(e) of Contract Act, 1872:- "Agreement. Every promise and every set of promises forming the consideration for each other, is an agreement".
' This definition referred a term "consideration for each other" which requires that both the parties of agreement have to make promise for some lawful act against some lawful consideration.
According to dictum laid down in a judgment reported as Syed Adnan Ashraf v. Syed Azhar-ud-Din through Attorney (2014 MLD 342) an agreement to sell should contain four components, these are as under:-
(i) Identification of seller and purchaser,
(ii) Sale consideration amount,
(iii) Identification of property to be sold,
(iv) Parties to agreement to sell property at consensus ad idem. While definition of receipt is provided in Section 2 sub-section (23) of Stamp Act, 1899.
"Receipt".---"Receipt" includes any note, memorandum or writing----
(a) Whereby any money, or any bill of exchange. Cheque or promissory note is acknowledged to have been received, or
(b) Whereby any other movable property is acknowledged to have been received in satisfaction of a debt, or
(c) Whereby any debt or demand, or any part of a debt or demand is acknowledged to have been satisfied or discharged, or
(d) Which signifies or imports any such acknowledgement, and whether the same is or is nor signed with the name of any person.
' The term receipt has further been defined in Haji Hamzo Panhwar v. Muhammad Ibrahim and another (PLD 1963 (W.P) Karachi 962) that basic purpose of a receipt is the acknowledgement of money, bill of exchange, cheque or movable property etc. Having been received. Essence of a receipt is the acknowledgement of receiving the articles in question.
' The comparison of both the above-referred terms manifests that both these terms are different in their characteristics. Receipt is only an acknowledgement of receiving some articles while agreement to sell comprises of some promise to sell some property against some consideration.
Receipt may be signed and executed by a person having acknowledged that some article have been received but an agreement to sell must contain promises of both the parties to the agreement i.e, vendee and vendor, description of property and consideration to be paid against said property.
' I have observed that in the present case that (Ex.P-1) contained signature of Muhammad Saddique only which could not be given weight more than receipt for receiving Rs, 50,000/-. This document (Ex.P-1) was not signed by vendees/respondents No, 1 to 4; therefore, this document has been misread by both the Courts below.
12. Upon this preposition, learned counsel for the respondents No, 1 to 4 himself mentioned in his written arguments that non-signing of vendees is an important factor because by not signing the agreement, the vendee kept themselves immune from any future claim of vendor and in support of this argument, learned counsel for the respondents No, 1 to 4 also relied upon judgments of Honourable Supreme Court cited as Mst. Guishan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) and Mst. Barkat Bibi and others v. Muhammad Rafique and others (1990 SCMR 28).
' On the strength of this argument as well as above-said definitions of agreement to sell and receipt, the Ex.P-1 could not be considered as agreement to sell and could not be given weight more than a receipt of payment of Rs, 50,000/-.
13. Even otherwise, specific performance of an agreement is a discretionary relief as provided in Section 12 of Specific Relief Act. In order to claim specific performance according to dictum laid down in Abdul Karim v. Muhammad Shafi and another (1973 SCMR 225), following conditions must exist:--- ' There should be a contract enforcement of which is not barred in the Act,
(ii) The act is to be done in respect of trust,
(iii) There is no standard for ascertaining the actual damages caused,
(iv) Pecuniary compensation is not adequate relief,
(v) The Court deems it fit to exercise its discretion in favour of plaintiff.
' Section 22 of Specific Relief Act, 1877 provides that jurisdiction to decree specific performance is only discretionary and the Court is not bound to grant such relief merely because it is lawful to do so.
14. This discretionary relief though is to be granted in a just and reasonable manner guided by judicial principle and in illustrations, it is quite clear that if a performance of a contract would involve some hardship to the defendant, specific performance may be refused.
15. This Court in a judgment reported in City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen (PLD 2008 Lahore 51) has already held that Court is not legally bound to grant such decree even if same is lawful. In cases where agreement is proved, such decree can be refused on equitable grounds. In the present case, learned Trial Court discussed the rights accrued in favour of defendant Muhammad Akbar. It is worth mentioning that Muhammad Akbar purchased the suit land against consideration paid to vendor Muhammad Saddique through a registered sale-deed which was sought to be set aside upon the basis of a receipt (Ex.P-1). As a receipt (Ex.P-1) did not contain a future promise; therefore, it cannot be given preference over the registered sale-deed in favour of Muhammad Akbar (predecessor-in-interest of the appellants).
16. Another important aspect of the case which requires determination is as to whether an amendment in pleadings can be allowed after a considerable period of time which may not only change the nature of relief claimed but also change the entire complexion of the suit. Order VI, Rule 17 of CPC provides that Court may at any stage of either party to alter or amend his pleading in such manner and on such terms, and all such amendments shall be made for determining the real questions in controversy between the parties. However, it is a legal requirement that a party should not take up a new plea to be introduced in its pleadings. In judgment reported as Munawar Mehmood and another v. Nadeem Siddiqui and others (2011 CLC 130), it is held by this Court that party should not be permitted to achieve indirectly which cannot be achieved directly. It is settled principle of law that amendment should be allowed liberally which amendment do not effect the cause of action or nature of the suit. In the present case, the respondents No, 1 to 4/plaintiffs though amended the plaint more than once but did not make a prayer for claiming relief of specific performance. Interim order dated 20.10.1997 clearly reflects that learned Trial Court did not bother to invite the parties for advancing their arguments upon the conversion of nature of the suit and relief claimed. Further the interim order, dated 20.10.1997 was not a speaking order and did not provide the reasons and grounds mentioned in Order VI, Rule 17 of CPC, thus learned Trial Court had committed a serious procedural error during the trial of the case.
17. For what has been discussed above, I am of the view that document (Ex.P-1) is merely a receipt acknowledging the payment of Rs, 50,000/- and could not be given status of agreement to sell, therefore, a decree for specific performance which is otherwise a discretionary relief