Through this civil revision, the petitioner has challenged the legality of judgment and decree dated 08.06.2011 passed by the learned Civil Judge, Bhalwal who dismissed the suit for specific performance along with permanent injunction filed by the petitioner and judgment and decree dated 09.02.2012 passed by the learned Addl. District Judge, Bhalwal who dismissed the appeal of the petitioner.
2. Brief facts of the case are that the petitioner/plaintiff .filed suit for specific performance of agreement along with permanent injunction against the respondents /defendants contending therein that he purchased land measuring 13-Kanals 16-Marlas fully described in the headnote of the plaint on the basis of agreement to sell, dated 09.01.2003 against consideration of Rs. 1,09,713/- out of which Rs. 65,000/- was paid as earnest money and it was settled that remaining consideration amount of Rs. 44,713/- was to be paid till 15.02.2003 whereafter the respondents received Rs. 27,000/-. The petitioner asked the respondents to attest the registered sale-deed in his favour but they postponed the matter on one pretext or the other. Now Rs. 17,713/- is outstanding and the petitioner is ready to pay the same. Defendants No. 1 to 3 filed contesting written statement and denied the execution of agreement to sell as well as receiving of payment of consideration.
The learned trial Court framed issues, recorded pro and contra evidence of the parties and dismissed the suit of the petitioner vide judgment and decree dated 08.06.2011. The appeal whereof of the petitioner was also dismissed by the learned appellate Court vide judgment and decree dated 09.02.2012. Hence, this civil revision.
3. I have heard the learned counsels for the parties at full length and gone through the record with their assistance.
4. Admittedly, in the headnote of the plaint the petitioner has mentioned that he purchased land measuring 13-Kanals 16-Marlas through agreement to sell dated 09.01.2003 against consideration of Rs. 1,09,713/- but in the alleged agreement to sell (Exh.P-1) he has not mentioned the description of the property and this flaw alone is considered fatal and the plaint of the suit is liable to be rejected. As such, the learned Courts below rightly rejected the claim of the petitioner/plaintiff.
Reliance is placed in a judgment cited as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), the Hon'ble Supreme Court of Pakistan has held as under: "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 property 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."
(emphasis supplied)
5. Furthermore, first page of the agreement to sell dated 09.01.2003 was not signed by either party, as such, it cannot be considered as a valid document. A such like controversy has been resolved by this Court in a judgment cited as Manzoor Hussain vs. Haji Khushi Muhammad (2017 CLC 70), relevant portion whereof is reproduced as under:
6. Notwithstanding above, it is settled principle of law that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the execution of the 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 is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [See Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-1) is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than one page. [See N.S. Bindras' Conveyancing Draftsman and Interpretation of Deeds. 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency dues not establish "consensus ad idem". Thus, on the basis of such type of document, which is non-compliant to the said principle of law, a decree for specific- performance could not be issued. This view finds support from the case of Zafar Iqbal and others vs. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon'ble Supreme Court of Pakistan in Civil Petition No. 391-L of 2012 vide order dated 22.3.2013.
(emphasis supplied)
6. Even otherwise, the grant of decree for specific performance comes within the sole discretionary power of the Court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case, as settled by the Hon'ble Supreme Court of Pakistan in its judgment titled as Sheikh Akhtar Aziz vs. Mst. Shabnam Begum and others (2019 SCMR 524) wherein it is held as under: "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 and inequitable."
And similar principle has been reiterated in the case titled as Muhammad Miskeen vs District Judge Attock and others (2020 SCMR 406).
Keeping in view the aforesaid facts and circumstances of the case, the learned Courts below rightly dismissed the suit as well as appeal of the petitioner/plaintiff.
7. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).
8. In view of above, this civil revision is dismissed being devoid of any force with no order as to costs.