Sheikh AKHTAR AZIZ vs Mst. SHABNAM BEGUM and others

IJAZ UL AHSAN, J.---Through this single judgment, we propose to decide Civil Appeal No.149-L of 2015 as well as Civil Appeal No.150-L of 2015, as both arise out of the same judgment dated 13.03.2015 of the Lahore High Court, Lahore.

2. Although Civil Appeal No.149-L of 2015 is barred by two days, but the learned counsel for the appellant has moved an' application seeking condonation of delay on various grounds. He has also relied on Sardar Khan v. Muhammad Idrees (PLD 2008 SC 591) in which it has been held that if an appeal against the same consolidated judgment and decree between the same parties is barred by time and another appeal against the same judgment and decree and between the same parties is not, the delay should have ordinarily been condoned. In this view of the matter, we condone the delay of two days occasioned in filing the appeal.

3. Brief facts giving rise to the present appeals are that the appellant/plaintiff filed a suit for specific performance of contract and possession of the property bearing No.S-II-11-S-2/2 measuring 10-1/4 ft. deep 22-1/2 ft. long and 14 ft. ceiling situated at Dhani Ram Road, Nila Gumbad, New Anarkali, Lahore. The suit was directed against the Respondents. It was alleged that Ch. Tariq Iqbal (Respondent No.8) had agreed to sell the property in question for a total consideration of Rs.11,00,000/-. A receipt was executed on 20.06.2002 (Ex.P1). However, the Respondents had refused to perform the agreement. The property in question was owned by Respondents Nos.1 to 7 who were the wife (Respondent No.1), daughters (Respondents Nos.2 to 6) and brother (Respondent No.7) of Respondent No.8. Now they are represented by legal heirs of Respondent No.8.

4. Through the receipt, Respondent No.8 had allegedly received a sum of Rs.50,000/- as earnest money from the appellant and it was agreed that a proper 'agreement to sell would be executed within 10 days. The receipt neither gave any details of the property nor the respective shares of the Respondents in the said property. Further, Respondent No.8 had no authority from his wife, Respondent No.1, his major daughter, Respondent No.2 or his brother, Respondent No.7 to enter into the said agreement. It is also an admitted tact that half of the disputed property was owned by Respondents Nos.1 to 6 and rest was owned by Respondent No.7, who is brother of Respondent No.8.

5. The record indicates and it is also admitted by the learned counsel for the appellant that Respondent No.8 had no written authority either from his wife, his major daughter or his brother to sell the property or enter into an agreement to do the same. Although execution of the receipt was admitted by Respondents Nos.1 to 6 in their written statement, but they asserted that the appellant failed to pay the balance amount of Rs.10,50,000/- besides failing to execute the formal sale agreement. The trial Court decreed the suit which was upheld by the first appellate Court. However, in the second appeal, the learned High Court overturned the findings of the lower fora and dismissed the suit of the. appellant. However, by molding the relief, the High Court decreed the suit against Respondent No.8 declaring the appellant entitled to recover the earnest money of Rs.50,000/- plus mark up at the bank rate with effect from 20.06.2002. The appellant is aggrieved of the said judgment of the High Court and therefore has instituted the present Civil Appeals.

6. The learned counsel for the appellant has vehemently argued that the Respondents had not denied the execution of the receipt. He also submits that Respondent No.8 had correctly executed the receipt and received consideration in view of the fact that he held the property Benami in the names of Respondents Nos.1 to 7. He further maintains that the Respondents never sought dismissal of the suit of the appellant in their written statement. He further points out that Respondent No.8 appeared as a special attorney of the Respondents in proceedings before the lower fora. He maintains that all the above factors were not considered by the High Court whose judgment travels beyond the mandate of section 100, C.P.C. He finally maintains that the judgment of the High Court proceeds beyond the pleadings of the parties and it has granted relief which was not even prayed for.

7. On the other hand, learned counsel for the Respondents has defended the impugned judgment.

He submits that there may have been a receipt showing a desire to sell the property however such receipt specifically stated that a subsequent agreement would be drafted between the parties, which was never done. He further submits that the basic ingredients of a valid contract are offer, acceptance, consideration and consensus ad idem between the parties which was clearly missing in the present case. Further, admittedly, half of the property was owned by Respondent No.7 and one of the Respondents was major whose consent was also never obtained. Respondent No.8 did not have a power of attorney issued by his wife, his major daughter or his brother which clearly shows that there was no consensus between the parties. He submits that Respondent No.8 was neither the owner of the property nor was he authorized to sale the same. Further, he submits that the plea that Respondent No.8 was the real owner of the property and Respondents Nos.1 to 7 were benamidars is not supported by the record.

8. We have heard the learned counsel for the parties and examined the record. The most material document in the entire case is the receipt (Ex.P1). We have examined the original receipt and find that it is a hand written, note on a piece of paper torn out of a diary in which certain things are written by hand. The document itself does not inspire confidence whatsoever. The contents of the document are reproduced below for ease of reference:- "Received Rs. Fifty Thousand Rs. 50,000/ - on behalf of Mrs. Shabnum, Nasushine D. Sahjrish Iqbal Daughter Naurine lqbal D Maddia Iqbal, D Aisha Iqbal from Akhtar Aziz Sheikh. Agreement will be written within Ten days. The property is situated in Anarkali at Dhani Ram Road, settled Amount is Rs.11,00,000/ - Eleven Lakhs Final.

Witness Signature Shahid HameedTariq Iqbal Deal Started 78/A Ahmed Block New Garden Town From Today 20-06-2002 Six months (Thumb impression)

Tariq Iqbal Time 20/12 Witness 20-06-2012"

Features of the above document given below need to be kept in mind:- i) It contains no specific description of the property by metes and bounds. ii) It has been signed by Respondent No.8 without specifically stating that he holds a power of attorney on behalf of Respondents Nos.1 to 7. iii) It suffers from uncertainty. iv) It has not been proved in accordance with the provisions of Qanun-e-Shahadat Order which requires such document to be attested by two male witnesses. v) It has not been stamped in any form.

9. On being asked by us, the learned counsel for the appellant has taken the position that according to him this is the agreement to sell that he relies upon. It can and should be specifically performed and he admits that only one of the two witnesses was produced before the trial Court which falls short of the requirements of the Qanun-e-Shahadat Order. According to the receipt, an amount of Rs.50,000/- had been received by Respondent No.8 but an agreement to sell the suit property was required to be executed ten days later containing all necessary terms and conditions and detailed description of the property in question. It is a common ground between the parties that no such agreement was ever executed between the parties.

10. The learned High Court noted that the subordinate Courts had decreed the suit for specific performance regarding a particular shop, the specification of which was provided by the appellant in the plaint, despite the fact that the same was missing altogether in the receipt (Ex. P 1) .

11.Even according to the receipt, the parties to such receipt had allegedly agreed that a formal and detailed agreement would follow. There is no denial of the fact that no such agreement followed nor was the balance consideration paid to the Respondents within the agreed time. The High Court has rightly observed that a decree for specific performance could not be passed in these circumstances for selling the property by way of specific performance.

12.It is settled law that a contract is an agreement having a lawful object, entered into voluntarily by two or more parties each of whom intends to create one or more legal obligations between them. The basic requirements of a valid and_ enforceable contract are offer, acceptance, exchange of consideration and mutuality of obligations. Further, a fundamentally important ingredient of a valid contract is that it should be between the parties who are competent to contract. The intention of the parties to a contract must be looked at to determine where a contract has come into existence. The essential elements for sale of immovable property are (a) payment of sale price of the property or promise to pay the same by the buyer to the seller, and

(b) delivery of possession of the property. In case, these two essential terms of sale of immovable property can be determined on the basis of contents of the agreement between the parties, with certainty, it may constitute a valid agreement of sale between the parties which, subject to discretion of the Court, can be directed to be specifically performed. The basic test for resolving whether the parties had reached consensus ad idem for concluding a contract is to ascertain where the parties had consensus on all material points at the time the said agreement was executed between the parties.

13.Perusal of the receipt (Ex.P1) does not indicate any consensus between the owners and the buyers and we are in no manner of doubt that there was no meeting of minds. The receipt is just a receipt showing that an amount of Rs.50,000/- had been paid subject to further steps, the most material of which was execution of a formal agreement containing all essential terms of sale. For a receipt to be termed and treated as a contract, if on going through the receipt four basic components can be spelt out without ambiguity namely: i) Identity of seller and purchaser ii) The amount of sale consideration iii) Identity and accurate description of the property agreed to be sold iv) Parties to the agreement to sell an immovable property are at consensus ad idem.

It is clear and obvious to us that the first, third and fourth ingredients were missing from the receipt.

As such it was correctly not treated as an agreement. Further, the receipt envisages execution of a proper agreement to sell. Such agreement was never executed, there was never an agreement in existence whose specific performance could be sought. In order to succeed in a suit for specific performance of a contract, the plaintiff has to assert that a valid and enforceable contract existed between him and the other side besides specifically and clearly pleading the terms and conditions on the basis of which the contract was executed which he desired to be specifically performed.

Where the requisites of a contract are found to be deficient, the plaintiff cannot seek specific performance of a contract. Even otherwise, the decree for specific performance is a discretionary relief which can be refused in case the Court is not satisfied either on the merits or on equities of the case.

14.As far as the argument of the learned counsel for the appellant that the learned High Court had travelled beyond the parameters of section 100, C.P.C., the same in the facts and circumstances of the case has been found by us to be totally misconceived. Although in second appeal, ordinarily the High Court is slow to interfere in the concurrent findings of fact recorded by the lower fora. This is not an absolute rule. The Courts cannot shut their eyes where the lower fora have clearly misread the evidence and came to hasty and illegal conclusions. We have repeatedly observed that if findings of fact arrived by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record, the High Court can in second 'appeal reappraise the evidence and disturb the findings which are based on an incorrect interpretation of the relevant law. We have examined the record and found that the issues have not properly been determined by the lower fora and there are material and substantial errors and defects in the reasoning and conclusions drawn by the trial as well as the first appellate Court which materially affected the outcome of the case on merit. The High Court was therefore, in our opinion, quite justified in interfering with this matter and correcting the errors of the lower fora in order to do complete justice.

15.The learned counsel for the appellant has laid much emphasis on point that even if the receipt is not treated as an agreement, the pleadings of the parties clearly established that there was indeed an agreement to sell the property and the Courts may treat it as an oral agreement. We are unfortunately unable to subscribe to such an assertion. The law relating to oral agreement is quite clear, the terms and conditions which were orally agreed have to be stated in detail in the pleadings and have to G be established through independent evidence which is neither the case of the appellant nor was it so set up before the lower fora. We have carefully examined the contents of the judgments reported as Bashir Ahmed v. Taja Begum (PLD 2010 SC 906), Aziz Ahmed v.

Muhammad Ramzan (2011 SCM R 921), Dilbar Jan v. Sohrab Khan (1992 SCM R 743), Ameer v.

Shahadat (2005 SCM R 1147), Muhammad Yaqoob v. Feroze Khan (2003 SCM R 41) and Mubashir Ahmed v. Muhammad Shah (2011 SCM R 1009). These judgments have been rendered under specific facts and circumstances of the cases, do not proceed to lay down the entire law on the subject and are also clearly distinguishable on facts. The same do not advance the case of the appellant any further.

16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair or inequitable. In the facts and circumstances narrated hereinabove, we are in no manner of doubt that the High Court was quite justified in refusing to exercise discretion in favour of the appellant. However, at the same time, the High Court was careful and circumspect in ensuring that the interest of the appellant was also adequately safeguarded in so far as it directed that the sum of Rs.50,000/- which had admittedly been paid to and received by Respondent No.8 be returned to the appellant along with mark up at the bank rate calculated from the date when it was paid till it was fully recovered. We find that the order of the High Court is well reasoned, supported by the record as well as the principles of law as pronounced by this Court. It merits no interference.

17.Above are the reasons for our short order of even date, whereby the listed Civil Appeals have been dismissed with no order as to costs. The said order, for case of reference, is reproduced below:- For reasons to be recorded later, both these appeals are dismissed with no order as to costs.