ARSHAD MAHMOOD TABASSUM, J.---This single judgment will dispose of C.R. No.1485 of 2004 and C.R.No.2006 of 2004 as both arise out of the same judgment and decree and involve common questions of law and facts.
2. Through Civil Revision No.1485 of 2004, Fakhar-ud-Din petitioner has assailed the judgment and decree dated 24.4.2004, passed by the learned Additional District Judge, Khushab, whereby he dismissed the appeal filed by the petitioner against the judgment and decree dated 4.3.2003, passed by the learned Civil Judge Noorpur Thal, District Khu$hab, decreeing the suit for specific performance of agreement to sell filed by Muhammad Feroze, respondent herein, whereas through Civil Revision No.2006 of 2004 Muhammad Feroze, petitioner has assailed the said judgment and decree.
3. The grievance of Muhammad Feroze, respondent is that the learned first appellate court instead of granting decree for specific performance of agreement to sell has only granted compensation to him modifying the decree passed by the learned Civil Judge. His claim is that the decree of the learned Civil Judge be restored in its entirety.
4. Briefly, the facts of the case are that Muhammad Feroze, respondent/ plaintiff on 23.2.1999, instituted a suit for specific performance of agreement to sell dated 27.6.1992 averring in the plaint that he entered into the said agreement to sell with the petitioner/defendant for purchase of land measuring 9-Kanals, as per detail mentioned in the plaint, for a sale consideration of Rs.22,500/-; that he had made payment of sale consideration in presence of witnesses in whose presence the agreement to sell was reduced to writing and possession of the land was delivered to him; that subsequently the petitioner backed out from his commitment which necessitated the filing of the suit.
5. The suit was contested by the present petitioner through filing his written statement wherein he denied the execution of any agreement to sell and receipt of sale consideration. The suit was also contested on the ground of limitation.
6. The divergent pleadings of the parties led the learned trial court to frame the following issues:-
1. Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD
2. Whether the suit is barred by limitation? OPD Whether the plaintiff is stopped by his word and conduct to bring this suit? OPD
4. Whether the suit is fictitious, frivolous, mala fide and as such defendant is entitled to recover special cost under section 35-A of C. P.0 ?OPD
5. Whether the agreement dated 27.6.1992 has been executed by the defendant in favour of the plaintiff and has received a sum of Rs.22,500/- as the sale amount? OPP
6. If issue No.5 is proved, is the plaintiff entitled to the specific performance of the agreement to sell? OPP
7. Relief.
7. The respondent/plaintiff produced Sher Muhammad, a marginal witness of the agreement to sell as PW-1, Malik Muhammad Zaman, scribe of the agreement to sell as PW-2, and Molazim Hussain PW3 and he himself entered the witness-box as PW-4. He also produced Nazar Muhammad Mangit, stamp vendor as PW-5.
8. As against this, the petitioner/defendant produced Abdul Sattar as DW-1, Namdar as DW-2 and himself entered the witness-box as DW-3.
Ultimately, the learned trial court decreed the suit as prayed for vide judgment and decree dated 4.3.2003.
9. On appeal the learned first appellate court confirmed the findings of the learned trial court on all the issues. However, instead of confirming the said decree for specific performance of agreement ordered the petitioner-defendant to make payment of Rs.22,400/- as penalty apart from refund of the amount of Rs.22,400/- paid by the respondent/plaintiff as sale consideration of the land in dispute.
10. It is in this background that both the parties have assailed the impugned judgment and decree.
11. Learned counsel for the petitioner, Fakhar-ud-Din, has argued that the respondent/plaintiff had failed to prove valid execution of the agreement to sell as the statements of PWs were full of contradictions and discrepancies; that the suit was hopelessly barred by time, hence both the courts below have erroneously decreed the suit.
12. Conversely learned counsel for respondent Muhammad Feroze has argued that both the courts below have concurrently arrived at the conclusion that the agreement to sell was validly executed by the petitioner/defendant hence the suit was liable to be decreed as prayed for and that the learned first appellate court has unjustifiably modified the decree by ordering the payment of compensation to the respondent/plaintiff.
13. I have heard the arguments of learned counsel for the parties and have myself perused the available record with their able assistance.
14. As regards execution of the A agreement to sell, both the courts below have concurrently arrived at the conclusion that the same was validly executed. The respondent by producing the marginal witness of the agreement to sell in question and the scribe apart from producing the stamp vendor has fully established valid execution of the agreement to sell. The PWs have remained consistent in their depositions and have successfully stood test of cross-examination. The findings of both the learned courts below do not suffer from any mis-reading or non-reading of the evidence nor they have committed any error while appreciating the said evidence.
15. It has been argued by the learned counsel for the petitioner that out of two marginal witnesses of agreement to sell, only one was produced, hence requirements of law have not been fulfilled. In this regard, it is observed that by producing one marginal witness and the scribe of the document, the respondent/plaintiff has proved the execution of document in accordance with law. Non- production of second marginal witness does not in any manner damage the cause of respondent/plaintiff. Reliance in this regard is placed on the case titled "Nazir Ahmad v.
Muhammad Rafiq" (1993 CLC 257j. Relevant portion whereof reads as under:- "I am not persuaded to agree with the contentions raised by the petitioner's learned counsel. In the present case the agreement to sell Exh. P1 was proved through the statement of Javed Sultan, Advocate, who appeared as PW.2 and Bashir Ahmad PW.1, the scribe of the document. Ordinarily, a scribe who merely writes a deed and hands it over to the parties for their signatures and those of the attesting witnesses, does not become a competent attesting witness if the document/deed is executed elsewhere in his absence. The position is different if after writing, the deed is actually executed in the presence of the scribe. In the present case, parties had executed the document in the presence of the scribe and signed it. Even the two attesting witnesses had signed the document in the presence of the scribe. Under these circumstances, the scibe can be treated to be an attesting witness although he has not signed it in that capacity. The requirements of the provisions of Article 79 read with Article 17 of Qanun-e-Shahadat have been substantially complied with. The view that a scribe, in suitable cases, can be treated as an attesting witness, finds support from judgments in the cases of Thakurdas and another v. Topandas and others (AIR 1929 Sindh 217), Loansharking Ingratiating and another v. Mahomed Yacoob (AIR 1933 Sindh 257)."
16. As regards the argument of learned counsel for the petitioner that the suit was barred by time, hence it could not be decreed, suffice it to say that from the contents of agreement to sell itself it stands established that possession of the suit land had been delivered to the respondent/ plaintiff at the time of 'execution of the sale deed. The PWs have also deposed to that effect, hence the respondent being in possession of the suit land could maintain the suit for specific performance and could institute the same'against the petitioner/defendant on his refusal to perform his part of contract. Thus the learned courts below have rightly held the suit within time to which no exception can be taken.
17. The learned trial court has decreed the suit in favour of the respondent/ plaintiff. However, the learned first appellate court has modified the decree considering the amount equal to the amount of sale price to be adequate compensation for breach of contract. In this regard it appears that what found favour with the learned first appellate court in modifying the decree of the learned trial court was that in view of section 12 of the Specific Relief Act, passing of a decree for specific performance of contract was discretionary with the court and that section 19 of the said Act empowered the court to award compensation. To my mind, the view taken by the learned first appellate court is erroneous. There is no cavil with the proposition that granting a decree for specific performance of contract is discretionary with the court, but at the same time it is well settled by now that discretion has to be exercised judiciously and not arbitrarily. Moreover, section 19 of the Act comes into play when the court comes to the conclusion that specific performance ought not to be granted, but there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach. In this case, there was no reason why the court should decide that specific performance ought not to be granted.
18. It is also noteworthy that section 20 of the Act provides that a contract otherwise to be specifically enforced may be thus enforced though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same. In this case, even the party ate fault i.e., petitioner/defendant is not ready to pay the amount of compensation as ordered by the learned first appellate court rather he has assailed the judgment of the learned first appellate court by filing the instant revision petition. It appears that the learned first appellate court while referring to section 12 of the Specific Relief Act has lost sight of the explanation to the said section which reads as under:-- 'Explanation. Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved."
' Similarly section 20 of the Act provides that compensation in terms of money is not adequate relief in a suit for specific performance. The said provision of law reads as under:-- "20. Liquidation of damages not a bar to specific performance. A contract otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same."
' In this regard it has been ruled by this court in the case titled "Muhammad Saleem v. Muhammad Shafi and 4 others" (2004 YLR 1882) as under:-- "20. Liquidation of damages not a bar to specific performance.---A contract, otherwise proper to be specifically enforced, may be thus forced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same.
' Bare reading of the above stated provisions of law would show that the compensation in terms of money is not the adequate relief in a suit for specific performance. In the case of Messrs Pioneer Housing Society (Pvt.) Ltd. PLD 1999 Lahore 193 (supra), this Court while interpreting section 12 of the Specific Relief Act (I of 1877) held that, "Non-performance of an agreement pertaining to immovable property cannot be compensated under section 12 of Specific Relief Act, 1877 in terms of money, therefore, its enforcement cannot be refused unless same causes any extreme hardship to the other side".
19. To my mind, there was no hurdle in granting the decree for specific performance of the agreement, hence the amount of money could not be considered as adequate compensation for breach of contract and mere existence of penal clause in the agreement to sell that in case of nonperformance, the vendor would be liable to pay compensation does not justify modification of the decree passed by the learned trial court. Reliance in this regard may also be placed on the case titled "Mrs.Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189). The relevant portion whereof reads as under:-- "It is true that grant of reliet of specific performance is discretionary with the Court but this discretion cannot be exercised arbitrarily. The relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of plaintiff which dis entitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief, the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely because it is lawful for the Court to refuse it."
Similarly, reliance may be placed on the case titled "Abdul Aziz v. Maqsood Ahmad" (2000 MLD 1875).
20. In the light of above discussion and case law, the modification made by the learned first appellate court in the decree passed by the learned trial court was unjustified because in the instant case there was nothing which could prevent the specific performance of the agreement.
Accordingly Civil Revision No.2006 of 2004 titled "Muhammad Feroze v. Fakharud-Din" succeeds and the same is allowed with costs whereas Civil Revision No.1485 of 2004 titled "Fakhar-ud-Din v.
Muhammad Feroze" is dismissed with costs.