The suit for specific performance of agreement to sell alongwith permanent injunction filed by the present appellant was concurrently dismissed by the courts below vide impugned judgments and decrees dated 05.12.2012 and 09.03.2017.
2. The agreement to sell (Exh.P-2) was written on stamp papers and it was established on record that Tahir Mehmood Khatana, who was the stamp vendor, was having no valid license of stamp vending at the time, when the relevant stamp papers were shown to have been purchased. PW-1 Syed Tanvir Urfi, Head Clerk of the office of D.O.R. has brought the register of stamp vending, who deposed that entry in the said register did not show the purpose of issuance of stamp paper and it also did not contain the signature of stamp vendor.
The part of consideration amount in the shape of earnest money was never paid to the relevant hands, rather admittedly it was stated to have been paid to one Malik Nasir Mehmood, who has no direct nexus with the deal stated to have been arrived at through agreement Exh.P-2. Even otherwise, said Malik Nasir Mehmood was not produced by the plaintiff in support of his contention.
PW-2 Muhammad Bashir Ghumman is the scribe of Exh.P-2 during cross-examination candidly admitted that plaintiff never put his hand on Exh.P-2 and an agreement, which is unilateral in nature is held not enforceable by the Hon'ble Supreme Court of Pakistan in case titled "Farzand Ali and another versus Khuda Bakhsh and others" (PLD 2015 Supreme Court 187).
3. Learned counsel for the appellant has contended that the view of the Hon'ble Supreme Court of Pakistan in Farzand Ali's case has been overruled by a Larger Bench of the Apex Court in case titled "Muhammad Sattar and others versus Tariq Javaid and others" (2017 SCM R 98).
4. In order to appreciate the respective contentions of learned counsel for the parties, I have minutely gone through both the esteemed views of the Hon'ble Supreme Court of Pakistan and as per my humble understanding, the view laid down in Farzand Ali's case was neither overruled nor even distinguished by means of the latter view in Muhammad Sattar's case, rather the view taken in Farzand Ali's case has further been elaborated in Muhammad Sattar's case. It is only on account of wrongheaded attitude of the editor giving head notes to the judgment in Muhammad Sattar's case that an impression has been given that perhaps the earlier view in Farzand Ali's case has been distinguished by the Apex Court in Muhammad Sattar's case.
Some extracts from Farzand Ali's case, which are relevant for the purposes of present case are reproduced herein below:-- "9. It is an undisputed fact that appellants agreement has not been signed by them...."
"10. Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun- e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid ..."
And it was concluded by the Apex Court in Farzand Ali's case that where a contract was reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof was also dependent upon the execution of that contract by both the contracting parties i,e, by signing or affixing their thumb impression, so that it should reflect and establish their "consensus ad idem", which obviously was the inherent and basic element of the meeting of the minds, which connoted the mutuality of assent, and reflected and proved the intention of the parties thereto and non-execution (non-signing) of the agreement to sell by the vendee meant that in law and fact there was no contract (agreement).
Now, we have to see as to what has been held by the Apex Court in Muhammad Sattar's case, which is being taken in certain circles as an overruling or distinguishing view to the earlier view in Farzand Ali's case.
For ready reference, some extracts from the authoritative view in Muhammad Sattar's case are reproduced herein below:-- "7. The primary and basic law relating to the contracts is obviously the Contract Act, 1872. The essentials of a valid contract are an offer communicated, the unconditional acceptance of such offer and consideration. There is nothing in the Contract Act, 1872 which requires that such order and acceptance must necessarily be in writing or form a single document. The law i,e, the Contract Act, 1872 envisages a valid enforceable contract, which may even be oral. A perusakot provisions of the said enactment also reveals that both proposal and its acceptance may be expressed or implied, as is apparent from Section 9 thereof, which reads as under: "9. Promise, express and implied.--Insofar as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied."
"9. Be that as it may, there is nothing in the Transfer of Property Act, 1882 or any other law, which requires that an Agreement to Sell of immovable property must necessarily be reduced into writing or be signed by the parties thereto."
In Muhammad Sattar's case, by placing reliance on an earlier view of Hon'ble Supreme Court of Pakistan in case titled "Messer 's Jamal Jute Baling and Co, Dacca v. Messrs M. Sarkies Sorts (Sons), Dacca" (PLD 1971 SC 784), it was held that although there was no written agreement, but subsequent conduct of the parties suggest that they accepted such understanding as a contract by supplying 125 bales of jute.
By referring a judgment from the Supreme Court of India in case titled "Aloka Bose v. Parmatma Devi and others" (AIR 2009 SC 1527), it is held that in case, the contract (agreement) is signed by one side, it would be subsequent conduct of the parties, which would be relevant to give status of such understanding although oral as a contract/agreement.
In Para 19 of Muhammad Sattar's case, impact of Farzand Ali's case has been discussed in detail and while concluding, it was held that an Agreement to Sell even not signed by one of the parties "if proved to have been accepted and acted upon" would be a valid Agreement to Sell and finally it was held that the existence and validity of the Agreement and it being specifically enforceable or otherwise would depend upon the proof of its existence, validity and enforceability in accordance with the Qanun-e-Shahadat Order, 1984, the relevant provisions of the Contract Act, 1872, the Specific Relief Act, 1877 and any other law applicable thereto.
It is also to be kept in mind that in Muhammad Sattar's case, no appeal has finally been decided, rather in fact a preliminary question, which has arisen in all the civil appeals to the effect as to whether such agreements to sell not signed by the vendees were valid and enforceable in law, was answered and while such question was answered, it was directed that Civil Appeals be set down for hearing to be decided separately on the basis of the evidence available on the record in terms of the observations made by the Hon'ble Supreme Court of Pakistan, while dealing with such preliminary legal issue.
For the above reasons, this Court has reached to the conclusion that Muhammad Sattar's case is in fact an elaboration of the earlier view, as was laid down by the Apex Court in Farzand Ali's case, for, still the enforceability and validity of the agreement reduced into writing is held dependent upon the provisions of referred Statutory Laws.
5. In the case in hand, the plaintiffs in the suit for specific performance have relied upon a document in writing, which was prayed for to be treated as an agreement to sell and since existence of such document was specifically denied by the defendants, it was incumbent upon the plaintiff to prove its valid execution within the requirements of the applicable laws. The relevant provisions of The Contract Act, 1872 provided for an enforceable contract are detailed herein below:-- 2(a) "Proposal". When one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.
2(b) "Promise". When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.
2(c) "Promisor" and "promisee". The person making the proposal is call the "promisor", and the person accepting the proposal is called the "promisee".
2(e) "Agreement". Every promise and every set of promises; forming the consideration for each other, is an agreement.
Putting Exh.P-2 on the litmus test on the touchstone of the above provisions, the same would not qualify to be treated as an agreement (contract).
6. Even otherwise, to grant a decree in a suit for specific performance is discretionary and even if the agreement is proved, the courts are not bound to pass a decree for specific performance keeping in view the parameters laid down in Section 22 of The Specific Relied Act, 1877, which reads as under: "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, principle and capable of correction by a Court of Appeal."
7. Both the courts below have rightly appreciated evidence available on record in its true perspective and have rightly proceeded to dismiss the suit of the appellant vide impugned judgments and decrees dated 05.12.2012 and 09.03.2017. No illegality or irregularity has been found in the impugned judgments and decrees passed by the courts below warranting interference by this Court in its appellate jurisdiction.
8. Resultantly, finding no force, this appeal is dismissed.