WIQAR AHMAD, J. Felt aggrieved from the judgment and decree dated 22.04.2009 passed by learned District Judge Mansehra whereby appeal of respondent No.1 (Haji Zar Badshah) against the judgment and decree dated 20.11.2008 passed by learned Civil Judge Mansehra has been partially accepted to the extent of prayer Jeem, petitioner (Noor Muhammad Anwar) has filed the instant civil revision under Section 115 of the Civil Procedure Code, 1908.
2. Succinctly stated facts leading to filing of instant civil revision are that respondent No.1 / plaintiff namely, Haji Zar Badshah, had filed a suit against the petitioner / defendant No.1 and proforma respondents No.2 to 5 for specific performance of contract, recovery of Rs.4,90,000/- declaration and perpetual injunction, detailed in the heading of the plaint. After being summoned, the petitioner / defendant alongwith proforma respondents No. 5 (Abdul Ghani Siddiqui) appeared and contested the suit by filing their written statements while rest of the proforma respondents / defendants were placed ex parte. Out of divergent pleadings of the parties, ten (10) issues were framed including relief. The learned trial court directed the parties to adduce their evidence and in response thereof both the parties produced their respective evidence. After recording pro and contra evidence and hearing learned counsel for the parties, the learned trial court partially decreed the suit of plaintiff / respondent No.1 to the extent of recovery of Rs.3,10,000/- while his suit to the extent of rest of the prayers had been dismissed. Felt aggrieved from the findings of learned trial court, the plaintiff / respondents No.1 had filed an appeal before the learned District Judge Mansehra, who vide impugned judgment and decree dated 22.04.2009 while setting aside the judgment and decree of learned trial court partially accepted the appeal as follows; "For what has been discussed above, I hereby allow this appeal and set-aside the judgment and decree of the lower court at the result whereof, decree for declaration as claimed by appellant in prayer Jeem is granted in favour of appellant. All the mutations in favour of respondents on behalf of appellant are declared void. However, appellant will pay Rs.4,10,000/- to respondent No.1 and the house transferred in favour of appellant shall stand transferred to respondent No.1. Appellant shall deposit afore-said amount in trial court within 3 months which respondent No.1 will withdraw.
Parties are left to bear their own costs."
Dissatisfied with the judgment of learned appellate court the petitioner / defendant No.1 has filed the instant civil revision.
3. I have heard arguments of learned counsel for the parties and gone the record.
4. Perusal of record reveals that execution of agreement to sell (Ex.PW-1/1) was admitted between the parties. The learned appellate court while finding specific enforcement of the contract unfeasible, made an order which had the effect of reversal of the agreement to sell and putting the parties back in their respective positions where they had been, at the time of entering into the agreement. It this perspective the learned appellate court had also ordered cancellation of mutations No. 10823, 1024 and 10715 dated 24.05.2002, 24.05.2004 and 25.07.2002 respectively. The learned appellate court had also ordered plaintiff / respondent No.1 to pay back sum of Rs.4,10,000/- earlier received by him from petitioner / defendant No.1 at the time of execution of agreement to sell. The learned appellant court while giving its decision has, inter alia, relied upon a fact that petitioner, who was respondent No.1 before the learned appellate court namely, Noor Muhammad Anwar, had not been having the required area in his entitlement in the revenue estate of village Shaheela but even then he while misrepresenting had agreed transferring of 5 Kanals 12 Marlas of land in said area to second party.
5. Under the agreement to sell petitioner / defendant No.1 was supposed to transfer 25 Kanals land situated in village Shaheela bearing Khasra No. 225 to respondent No.1 / plaintiff in lieu of Rs.94,000/- per Kanal while the latter was bound to transfer 14 Kanal land situated at College Doraha bearing Khasra No. 1288, 1290 and 1291 @ Rs.2,00,000/- per Kanal alongwith a constructed house @ Rs.4,50,000/- to the former. Similarly, petitioner / defendant No.1 was bound to transfer his property to respondent No.1 / plaintiff within two (02) months after clearing all its encumbrances.
The total amount of respondent No.1 / plaintiff was Rs.32,50,000/- and petitioner / defendant No.1 was supposed to handover the remaining amount to the former after deducting his due amount.
Besides, the petitioner / defendant No.1 had mutated his bungalow as security to respondent No.1 / plaintiff and after completion of agreement the latter had been made bound to transfer back the same to petitioner / defendant No.1. Furthermore, petitioner / defendant No.1 had handed over Rs.4,10,000/- to respondent No.1 / plaintiff in front of Jirga while the former had been made bound to pay the remaining amount to latter after deduction of amount of security. Respondent No.1 / plaintiff had transferred his property up to the extent of 05 Kanals and 12 Marlas in favour of petitioner / defendant No.1 through mutation in front of Jirga of property dealer (Sangum Motors and Property Dealer).
6. Learned counsel for the petitioner though relied upon the agreement with certain other persons whereby he claimed to have acquired a land in village Shaheela but it is important to be noted that he had not yet become owner in respect of the land in village Shaheela and it was a mere agreement to sell, but keeping said aspect aside, it was even otherwise very difficult to have enforced specific performance of the contract. It was not an agreement simpliciter for sale of some property but same involving number of different transactions, each depending upon another. The mistrust created between the parties had also made it almost impracticable that the agreement was fully performed. In such circumstances if the learned appellate court has reverted back the parties to the original position, this court does not find any illegality in the impugned judgment which was also supported by sound reasons and justification given in the impugned judgment.
7. One of the arguments raised by learned counsel for the petitioner was that mutation No.10715 has been attested on 25.07.2002 while the date on agreement to sell had been mentioned as 13.06.2002, therefore, same could not be treated to have been entered in pursuance to the agreement to sell (Ex.PW-1/1) and that same had wrongly been ordered to be reversed by learned appellate court with reversal of the agreement to sell. It is important in this respect to be noted that before this agreement, there had also been another admitted agreement entered and executed between the parties on 30.10.2001 which was brought in evidence as Ex.DW-1/2. Not only the petitioner / defendant No.1 had mentioned about this agreement in Para-1 of his reply to the plaint (even annexing copy thereof with his written statement) but during the course of his cross- examination also, he had admitted scribing of ibid agreement between the parties by specifically mentioning its date. So the entire matter had started on 30.10.2001. It has also come in evidence that petitioner / defendant No.1 was a Property Dealer and on his instructions the impugned mutation had been entered and executed by respondent No.1 / plaintiff in favour of other persons.
This is also apparent from the fact that the persons in whose favour this mutation had been entered and attested had though been party to the suit i.e. defendants No.2 to 5 as well as parties in appeal but they had not challenged decision of the learned appellate court despite the fact that appellate court had ordered cancellations of the mutations entered and executed in their favour. It was the petitioner only, who has filed civil revision before this court against the impugned judgment of learned appellate court. Even if mutation No. 10715 had preceded the second agreement to sell but same had been part of the overall transactions and in this respect the agreement (Ex.DW-1/2) can well be considered as an answer to the riddle. A related argument of learned counsel for the petitioner was that the amount of Rs.1,00,000/- shown received in pursuance to agreement dated 30.10.2001 had not been ordered to be paid back by the court below but in this respect it is apparent that after all these adjustment the second agreement (Ex.PW-1/1) had been entered and executed wherein it was mentioned that the earlier agreements between the parties would be treated as cancelled and that relations between the parties shall further be governed according to the terms of newly executed agreement (Ex.PW-1/1). In the subsequent agreement a sum of Rs.4,10,000/- has been shown received by respondent No.1 / plaintiff from the petitioner / defendant No.1 and same had duly been ordered to be paid back to the petitioner by the learned appellate court.
8. All these affairs show that the agreement to sell was not a simpliciter agreement to sell but was involving a number of transactions which were also likely to multiply in future and same was also carrying potential of involvement of other persons as vendees. It is a settled proposition of law encapsulated in Sub-clauses (b) and (g) of Section 21 of Specific Relief Act, 1877 that where a transaction runs into numerous details and complexity the court should avoid enforcement of said agreement specifically. Said clauses of Section 21 of the Act ibid is also reproduced for ready reference; "21. Contracts not specifically enforceable. The following contracts cannot be specifically enforced:- (a)________
(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms; (c)________ (d)_______ (e)_______ (f)_________
(g) A contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date."
Hon'ble Supreme Court of Pakistan in the case of "Haji Saindino Khan & another Vs. Mst. Zaib-un- Nisa through legal heirs & another" reported as 1991 SCMR 972 while giving judgment in a case of specific enforcement of a contract where amount of consideration had not been specified, had declined to specifically enforce the contract. Relevant part of observation of the august Court is reproduced hereunder for ready reference; "Now in this case, the lessors were competent to sell the suit land. The purchasers / appellants were competent to purchase the land in dispute. The subject-matter is the land in suit or the agricultural land which the appellants took on lease from the lessors. In my opinion, the lawful consideration i.e the price of agricultural land was an essential term of the contract was not to be found in clause 15. This offer was vague for uncertainty and indefiniteness on the acceptance of which no contract is ever born or comes into being."
9. Learned counsel for the petitioner was heard at length, but he failed to make out a case of material illegality or irregularity in the judgment of learned appellate court below, warranting interference by this court in exercise of its revisional jurisdiction. Resultantly, the instant civil revision, being divested of any merit, is hereby dismissed.