' Through this 2nd appeal, the appellant has assailed the legality of judgment and decree dated 11.9.2013 and 17.9.2013 passed by learned 2nd Additional District Judge, Shaheed Benazirabad whereby Civil Appeal No, 113 of 2012, filed by the appellant against judgment and decree dated 17.11.2012 and 21.11.2012 passed in FC Suit No, 255/243 of 2011 by 2nd Senior Civil Judge, Nawabshah, was dismissed.
2. Succinctly, facts are that appellant/plaintiff filed a suit for Specific Performance of Contract wherein pleading that suit land viz. Agricultural land measuring 2.00 acres out of S.No, 47/3 (4.00) situated in Deh Nasrat Taluka Daur was being looked after and managed by Respondent/Defendant No, 1 for self and others being one of the owner/share holder, who entered entered into a contract to sell the suit land with appellant/plaintiff at rate of Rs, 250,000/- per acre for total sale consideration of Rs, 500,000/-; such agreement was executed in presence of witnesses on 17.6.2009. Appellant/plaintiff paid Rs, 350,000/- to Respondent/Defendant No, 1 towards part payment of; sale consideration, who acknowledged receipt in said agreement. As regard remaining consideration it was agreed that appellant/plaintiff will pay the same at time of execution of sale-deed. As per the appellant/plaintiff he was put in possession of the land which, per appellant/plaintiff, he was enjoying as bonafide purchaser. It is further pleaded that appellant/plaintiff was willing and prepared to perform his part of contract but on approach the Respondent/Defendant No, 1 failed to obtain Fardi, Intikhab, NOC, Power of attorney e.t.c.
3. With reference to above pleaded facts, the appellant/ plaintiff sought the following relief (s)-- ' Decree for Specific Performance of the contract be passed in favour of plaintiff and against the Defendant No, 1 whereby Defendant No, 1 to execute and get registered sale-deed in respect of an area of 02.00 acres land out of Survey No, 47/3 (4.00) situated in deh 03 Nasrat Taluka Daur, District Shaheed Benazirabad, in favour of plaintiff after receiving the residue sale consideration from- plaintiff and in case of failure of Defendant No, 1, the Contract be specifically finalized by the Honourable Court through the Nazir of the Court.
(b) Permanent injunction be issued whereby the Defendant No, 1 be restrained permanently from creating or try to create third party interest on suit land viz. An area of 02.00 acres land out of Survey No, 47/3 (4.00) situated in deh 03 Nasrat Taluka Daur, District Shaheed Benazir Abad, or alienating or try to alienate by any mode of alienation to any person except plaintiff or disturbing or try to disturb possession, use, occupation and enjoyment of plaintiff over it and Defendant No, 2 be restrained from issuing Fardi Intikha while rest of defendants be restrained from accepting for registration or registering any document with respect of suit land in favour of any person except plaintiff directly or indirectly by themselves through their subordinates, agents, associates or by any means;
(c) Cost of the suit be awarded to plaintiff;
(d) Any other relief;
4. In response to notice (s) the Defendant/Respondent No, 1 caused a ppearance; filed his written statement wherein denied the claim of the appellant. He pleaded that he never entered into contract of sale with appellant nor received any sale consideration. He further stated that the sale agreement is false document; that the land was joint property and at the time of alleged agreement he was minor and not competent to execute the sale agreement; that an area of 04.00 acres out of S.No, 47/3 was given to appellant/plaintiff on lease in the year 2009 orally by his brother Imran and soon after his brother Imran demanded more amount from appellant on which appellant vacated 02.00 acres of land and retained 02.00 acres on the pretext that soon he would vacate, which is in illegal possession of appellant; agreement of sale is managed and forged; that no cause of action accrued to the appellant to file the suit.
5. Out of the pleadings of the parties, the learned trial Court judge framed following Issues:--
1. Whether Defendant No, 1, being owner, sold the suit land measuring 02.00 acres out of S.No, 47/3 (4.00) acres situated in deh 03 Nasrat Taluka Daur, District Shaheed Benazir Abad to plaintiff at the rate of Rs, 250,000/- per acre in total sale consideration amount of Rs, 500,000/-through sale agreement on 17.6.2009?
2. Whether in pursuance of sale agreement dated 17.6.2009 Defendant No, 1 received earnest amount of Rs, 350,000/- from plaintiff in presence of witnesses?
3. Whether the plaintiff has accrued cause of action for filing the present suit?
4. Whether suit of plaintiff is not maintainable according to law?
5. Whether the plaintiff is entitled to the relief claimed?
7. What should the decree be?
6. In order to prove the case, the appellant/plaintiff examined himself as PW-1 and produced original copy of sale agreement, office copy of legal notice, two original dhal receipts. He also examined Shahabdin Arain and Muhammad Tarique as PW-2 and PW-3 respectively and then side was closed.
7. In rebuttal the Defendant/Respondent No, 1 examined himself as DW-1 and thereafter, side of the Defendant/Respondent No, 1 was closed.
8. Having heard the arguments the trial Court dismissed the suit of the plaintiff/ appellant which the appellant/plaintiff challenged through Civil Appeal but same was also dismissed by judgment and decree of appellate Court which have been assailed through instant 2nd appeal.
9. Learned counsel for appellant has argued that no issue was framed in respect of the findings, given by the learned appellate Court; no issue was framed with regard to age .Of Respondent/Defendant No, 1 hence findings was not legal; report of bailiff was never confronted to the appellant/plaintiff hence was not worth consideration; efforts of the plaintiff/appellant to examine official defendant (Mukhtiarkar) was declined rather plaintiff/appellant was compelled to close his side; both the judgments and decrees of lower Courts. He placed reliance on the case laws, reported as PLD 1964 (W.P) Karachi 116, 2006 YLR lah. 130, NLR 1996 Civil 385 (Supreme Court), 2011 CLC Kar. 622, 2013 SCMR 1570, PLD 2002 SC 702, 1994 CLC Lah. 1628, 1982 SCMR 816, 2007 CLC Kar. 621, PLD 2002 SC 615, 1992 SCMR 1778, PLD 1989 SC 1123.
10. On the other hand, learned counsel for the Defendant/Respondent No, 1 has seriously opposed the appeal. He argued that scope of 2nd appeal is limited; the document of sale, if any, was not an agreement as there was no signature of the plaintiff/appellant and even the Respondent/Defendant No, 1 was not competent to enter into an agreement of sale as had no such authority from other, co-owners/sharers. The concurrent findings of both the Courts below are well reasoned hence not open to an exception. He has relied on the case laws, reported as 1990 SCMR 28, 2007 SCMR 1884, PLD 2005 Lah. 419, 2010 SLJ 1076, PLD 1990 Lah. 229, 2007 YLR 2689, 2004 YLR 1421, PLD 1994 SC 291, 2003 CLC 1640, PLD 1995 Karachi-254.
11. I have heard the respective parties and have examined the available record.
12. At the very outset I would like to endorse that scope of 2nd appeal or that of revision are almost similar because the word 'appeal' would not equate the scope of 2nd appeal to that of legally provided remedy of first appeal which is recognized as continuity of suit and whole case becomes reopen. I am mindful of the fact that while exercising revisional jurisdictional or even under 2nd appeal scope this Court cannot disturb the 'factual controversy' resolved by subordinate Courts unless it is surfaced that impugned judgments are the result of non-reading, misreading and violation of legal principles. Reference can be made to the case reported as 2013 SCMR 1570 wherein it was held: "15. Thus, by reading of this provision, it is apparent that the High Court will be justified to interfere with the decision of the lower Courts when it is contrary to law or failed to determine material issue of law or commits substantial error or defect in the procedure, which may have resulted in error or defect in the decision of the case on merits."
13. The examination of the judgment (s) and decree (s) of lower Courts below would show that both the Court (s) below did err in law while referring the report of the bailiff with regard to the death of the Oath Commissioner although such report was not part and parcel of the 'evidence' nor the report was produced by the Bailiff by appearing into the witness box. A Court is not competent to consider or base its opinion with reference to a document which has not come on record, as required by law of evidence which is always meant to provide a fair opportunity to one wishing the Court to believe a fact so also to one wishing otherwise. A decision or conclusion based on such a document would frustrate the concept of 'fair trial' hence, under no circumstances, can be believed.
' So far as to the plea of learned counsel for the appellant/plaintiff that both the Court (s) below erred in law while giving an incorrect opinion with reference to age of the Defendant/ Respondent No, 1 although no such issue was framed nor parties were conscious to prove or disprove the same.
Candidly issue with regard to age was not framed, however it is matter of record that evidence was led by the defendant/respondent on this aspect. Besides, these errors at the most may be a ground for remand of the case but since the revisional jurisdiction or that of 2nd appeal of this Court are not merely meant to order for remand of the case (s) on mere error (s) but this Court is always competent to see the legal issue (s)/question (s) while deciding the controversy between the parties.
14. It is an undisputed position that the present appellant/plaintiff has filed the instant suit for 'Specific Performance of Contract' which is governed by Section 12 of the Specific Relief Act, 1877. It is also a matter of record that the document of sale was not signed by the appellant/plaintiff although he (plaintiff) claimed to be present at the time of execution of such document as he admitted in his cross-examination that: ' One Bond writer had written the sale agreement, his name is not remembered to me. At that time I, defendant Ramzan, witnesses Shahabdin and Tarique were present.'
' The position, being so, compels me to refer to Section 2(d) and 2(e) of the Contract Act, 1872 which reads as under:--
(d) When, at the desire of the promissory the promise or any other person who had done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise;
(e) Every promise and every set of promises, forming the consideration for each other, is an agreement.
' The reading of underlined portion shows that for a writing to qualify as an 'agreement' it must not only be between two (promissory and promise) but should be for some 'consideration' for each other. The 'consideration' not for each other, would not let a bilateral document to attain status of 'agreement'. In other words a contract, being a bilateral document, has to be reduced into writing by means of an agreement enforceable by law between two i,e. the person who had made the proposal and the one who had accepted the same to do a particular thing or abstinence thereof (lawful consideration). (KLR 2012 (SC Pak) 162(i))
Moreover, the document, in question, cannot be said to be an agreement for the simple reason that it is not a bilateral one as plaintiff/appellant did not sign the same. By not signing the same the plaintiff/appellant himself turned the 'document' into a simple undertaking because such a document could not be enforced against the plaintiff/appellant for simple reason of non-signing of the document by the plaintiff/appellant. At this juncture a reference to Section 23 of the Specific Relief Act, being advantageous, is referred hereunder: Section 23. Who may obtain specific performance.--Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by:--
(a) any party thereto:
(b) the representative-in-interest, or the principal, of any party thereto; provided that, where the learning skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not assigned, his representative-in-interest or his principal shall not entitled to specific performance of the contract, unless where his part thereof has already been performed; (c)
(d)
(e)-- (f)
(g)
(h)
15. The above provision is clear in its nature that competence to seek Specific Performance could be sought by any party' or 'representative-in-interest, or the principal' of any party. Since it is a matter of record that in the instant matter the present appellant plaintiff is not a 'party to document' hence per Section 23 of the Specific Relief Act, the present appellant/plaintiff was not legally competent to seek enforcement of 'specific performance'.
16. Be as it may, the suit of the plaintiff/appellant is also hit by Section 22 of the Specific Relief Act as the Honourable Supreme Court of Pakistan in the case of 'Gulshan Hamid v. Abdul Rehman' (2010 SCMR 334), while dealing similar situation, held that:
6. A perusal of the deed would indicate that it was signed by the appellant Mat. Gulshan Hamid alone and not by any of the three vendees evident from the contents of the deed it created rights and liabilities on both sides. Had there been an occasion for the owner-lady to bring a suit for specific performance. She would not have succeeded because the vendees had not signed the deed so as to accept any of the liabilities. The circumstances under which the contract is made are such that the present plaintiffs are given an unfair advantage over the defendant. Section 22 of the Specific Relief Act. 1877 clearly ances the discretion is not to be exercised in favour of the plaintiffs.
For ready reference Section 22 (clause-I) is reproduced as follows:- "22. Discretion as to decreeing specific performance.-- The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do, so; but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal.
' The following are cases in which the Court may properly exercise a discretion not to decree specific performance:
1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiffs part"
7. This Court in Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 (e) held that the illustrations given in S. 22 are a few instances where, discretion, should not be exercised in favour of specific performance. Rather, these illustrations were held to be not exhaustive and the Courts were at liberty in circumstances as falling within the purview of S. 22 of Specific Relief Act. So far as the case in hand is concerned, it is directly and squarely hit by illustration I of Section 22". (underlining has been supplied for emphasis).
' On above legal defect the suit of the plaintiff/appellant was not maintainable. Not only this, but the document is also defective on the count that the Defendant/Respondent No, 1 was not competent to sell the land in question because he was only a sharer and there were also other owner (s) and this fact was very much in knowledge and notice of the plaintiff/appellant as is evident from the pleadings of the plaintiff/appellant himself which, being material is reproduced hereunder:-- "2. Defendant No, 1 who is looking after and managing the land for self and others being one of the owner/share holder of the suit land entered into contract to sell the suit land to the plaintiff at the rate of Rs, 250,000/- per acre, for total sale consideration of Rs, 500,000/- and an agreement containing terms of contract was duly executed by parties (Defendant No, 1 and plaintiff) was attested by witnesses and Notary public on 17.6.2009. (Photostat copy of Sale agreement annexed as Aunexure "A"
' The above para of the plaint of the plaintiff/appellant is sufficient proof of his active knowledge and notice with regard to status (legal Competence of Defendant/Respondent No, 1) but the document, no where, shows the status of the Defendant/Respondent No, 1 as attorney or authorized person of other owners/sharers'. The position, being so, make me to hold that ' consideration', within meaning of Section 23 of the Contract Act, 1872, was not 'lawful' as a whole. The Section, being relevant is reproduced hereunder:-- What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless -- it is forbidden by law; (See Ss. 26, 27, 28, 30 infra) or: ' is of such a nature that, if permitted, it would defeat the provisions of any law; or ' is fraudulent; or ' involves or implies injury to the person or property of another; or ' The Court regards it as immoral, or opposed to public policy.
' In each case of these cases, the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is a void".
In the instant mater, it is a matter of record that document, prima facie, involves injury to the person and property of other (s) not party to the document. On this count too the document was void.
17. In view of what has been discussed above are sufficient to establish that the suit of the plaintiff/appellant was hit by Sections 22 and 23 of the Specific Relief Act, 1877 and even the document, if any, does not qualify to be an 'agreement' within meaning of the Contract Act, therefore, such a suit, at all material times, was not sustainable under the law. These positions would not change the legal position even if the plaintiff/appellant is provided another chance by remanding the case on points which, in no way, would help the plaintiff/appellant to make his lis 'sustainable'. Accordingly, the instant appeal of the appellant/plaintiff was dismissed by short order dated 04.12.2014. These are the detailed reasons whereof. The parties, however, shall bear their own costs. However, the plaintiff/appellant may avail legal remedies against the Defendant/Respondent No, 1 as provided under Specific Relief Act, if he desires so.