' GULZAR AHMED, J.---Muhammad Sharif, respondent, had filed a suit for specific performance of agreement to sell dated 11.07.2006 in respect of the property mentioned therein against the petitioner. The Trial Court, after framing of issues and recording of evidence of parties, decreed the suit vide judgment and decree dated 29.09.2007. The petitioner filed R.F.A. No,132 of 2007 in the Lahore High Court, Multan Bench, Multan, which by the impugned judgment dated 22.04.2013 of a learned Division Bench was dismissed.
2. Mian Allah Nawaz, learned Senior ASC has firstly contended that the agreement to sell made between the parties was cancelled by Ex.D1 and in order to prove the same, it was essential to have obtained the opinion of finger print expert to ascertain as to whether it contained thumb impression of the respondent. We have considered this submission and find that the Trial Court has taken into consideration the application filed by the petitioner in this respect and in its judgment dated 29.09.2007 has rejected the same for the reason that Ex.D1 could have been proved by other evidence. The High Court too, in the impugned judgment, has adverted to this question and has agreed with the conclusion drawn by the Trial Court. We have also given our consideration to this aspect of the matter and find ourselves in agreement with the decision of the two courts below that Ex.D1 could have been proved by the petitioner by having its scribe and marginal witnesses produced, which he never did. The High Court also found that once agreement to sell Ex.P1 was proved by the respondent, therefore, Ex.D1 would have no bearing on the merit of the case.
3. The second submission of the learned Senior ASC was that the respondent had filed a suit along with an application for injunction. Such application for injunction was granted by the Trial Court vide order, dated 24.02.2007 and it was on petitioner's appeal before the High Court in which vide order dated 26.06.2007 the respondent was directed to deposit the balance amount of sale consideration in the Trial Court. He further contended that balance sale consideration was deposited by the respondent in terms of the order passed by the High Court but while maintaining the decree of the Trial Court the High Court ought to have compensated the petitioner by allowing him escalation of price of property agreed to be sold. In support of this submission learned Senior ASC has relied upon the case of Nirmala Anand v. Advent Corporation Pvt. Ltd. And others [AIR 2002 Supreme Court 2290] and the case of P.S. Ranakrishna Reddy v. M. K. Bhagyalakshmi and another [AIR 2007 Supreme Court 1256]. Learned Senior ASC has also referred to sections 24 and 25 of the Specific Relief Act, 1877 (the Act). We have given our anxious consideration to this argument of learned Senior ASC and have gone through the law referred to by him. So far as the provision of sections 24 and 25 of the Act are concerned, the earlier section deals with a situation where a personal bar to the relief and it enumerates four conditions i.e, (i) specific performance of a contract cannot be enforced in favour of a person, who could not recover compensation for its breach; (ii) specific performance of a contract cannot be enforced in favour of a person, who has become incapable of performing or violates any essential term of the contract that on his part remains to be performed; (iii) specific performance of a contract cannot be enforced in favour of a person, who has already chosen his remedy and obtained satisfaction for the alleged breach of contract; and (iv) specific performance of a contract cannot be enforced in favour of a person, who previously to the contract had notice that a settlement of the subject-matter thereof (though not founded on any valuable consideration) had been made and was then in force. The latter section caters the situation where contracts to sell the property by one who has no title or who is a voluntary settler. In the facts and circumstances of the present case we are unable to find as to how these two sections of the Act have application to the case or at all will create hurdles in respondent's getting a decree of specific performance for that none of the personal bars as mentioned in section 24 of the Act is applicable to the case in hand nor the situation as contemplated in section 25 is applicable for that it was not the case of the petitioner that he has no title to the property or that he was a voluntary settler of the suit property. So far the judgment in the case of Nirmala Anand (supra) is concerned, we find that this case was heard by a two members bench of the Supreme Court of India; one of the learned member namely Doraiswamy, J. Has given opinion that escalation in the price of property agreed to be sold should be allowed and in this respect passed direction of payment of escalation of Rs,40,00,000/- while other learned member namely Ashok Bhan, J. Came to a different conclusion on the point of escalation and ordered that the agreement to sell has to be performed on the price agreed in the agreement. On account of this disagreement between the two members of the bench, the matter was referred to a three members bench of the Supreme Court of India, who gave its judgment dated 30.09.2002 where it was observed as follows: "It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while. Granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.
' In the present case, the suit was filed by the plaintiff within a month of the date when the possession under the agreement was to be delivered to her. By that time, she had already paid more than 50% of the sale consideration. There was no occasion for her to pay the balance consideration to the seller. The courts have concurrently found that the appellant has always been ready and willing to perform her part of the contract and the seller committed breach in not carrying out the terms of the agreement. While others left, the appellant has been single handedly fighting for her rights under the agreement. She has agreed to take the fiat on as-is-where-is basis without claiming any reduction in purchase price and without making the seller liable for anything incomplete in the building. Further the building except the flat in question has been sold by respondents I and 2 to the 7th respondent. For the revival of the building plans, revival of lease and other such steps, the sellers and/or their assignees may have to take steps as per agreement between them but to ask the appellant to pay to respondents Nos. 1 and 2, a sum of Rs, 40,00,000/- would be too onerous and would almost amount to denying her specific performance.
It would also amount to putting a premium on the breach committed by respondents I and 2.
Along with the remaining amount of the sale consideration, the appellant can also be directed to pay to respondents 1 and 2 some reasonable additional amount, they having been deprived of that amount of Rs, 25,000/- during all these years. "
The above quoted observations of a three members bench of the Supreme Court of India has discussed the issue with regard to escalation of price of the suit property during the period it remained in litigation and has come to the conclusion that ordinarily the plaintiff is not to be denied the relief of specific performance only on account of escalation of price during pendency of litigation and that as a general rule it cannot be held that the plaintiff cannot be allowed to have the entire benefit of escalation of price of the suit property during pendency of litigation. The court held that on balancing equities one of the considerations to be kept in view is as to who is the defaulting party and whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant. The totality of the circumstances is required to be seen in this regard. However, ultimately court found that there being no default on the part of the plaintiff and the breach having been committed by the defendant, therefore, the plaintiff could not be burdened with a sum of Rs,40,00,000/- as it would almost amount to denying her specific relief and putting a premium on the breach committed by the defendant. Thus no escalation in price was allowed by the court. In the second case of P.S. Ranakrishna Reddy (supra) a two Members bench of the Supreme Court of India had held that rise in the price of immovable property by itself is not a ground for refusal to enforce the lawful agreement to sell.
4. Keeping in view the facts and circumstances of the present case and the state of law, as discussed above, the courts below have concurrently found that the respondent who has entered into an agreement to purchase the suit property has proved the agreement and thereafter has established, as a fact, that he has not defaulted in complying with any of his obligations under the said agreement and that it was the petitioner alone who has backed out and breached his obligation under the agreement on account of which the respondent immediately filed a suit and on direction of the High Court had parted with and deposited in court whole of the balance consideration for purchasing the suit property. Thus, apparently there was no default on the part of respondent in making compliance of his obligations under the agreement and such being established, he cannot be blamed for nonperformance of the agreement and thus saddled with liability of escalation in price of the suit property during pendency of litigation. We, therefore, are not persuaded to agree with this submission of the learned Senior ASC for the petitioner. The petition has no merit, which is dismissed and leave refused.