SHAHID BILAL HASSAN, J. Succinctly, predecessor in interest of the respondents namely Muhammad Saleem instituted a suit for specific performance of agreement to sell, possession and permanent injunction against the petitioner maintaining therein that the petitioner being sole owner in possession of the suit property entered into an agreement to sell with him on 28.08.2004 for a consideration of Rs.535,000/-, out of which Rs.361,000/- had purportedly been paid as earnest money and also an amount of Rs.50,000/- was paid to the petitioner in the month of January, 2005, where-after possession of half portion of the suit property was handed over to him; that the date of execution of the sale deed was fixed as 15.03.2006, however, the petitioner allegedly refused to fulfill his part of agreement; hence, the suit.
The petitioner while appearing on issuance of notice contested the suit and controverted the averments of the plaint. Out of the divergent pleadings of the parties, the learned trial Court framed issues.
ISSUES:
1. Whether the plaintiff purchased the suit property from the defendant through an agreement to sell dated 28.08.2004 and this agreement was validly and genuinely executed in favour of the plaintiff? OPP
2. Whether the plaintiff is entitled to get a decree for specific performance as prayed for? OPP
3. Whether the plaintiff has no cause of action to file the instant suit? OPD
4. Whether the suit property is mortgaged with the House Building Finance Corporation, hence the suit is not maintainable and the same is liable to be dismissed? OPD
5. Whether the plaintiff has not come to the court with clean hands? OPD After this, evidence of the parties was invited. The parties adduced and produced their oral as well as documentary evidence in support of their respective contentions. On conclusion of trial, the learned trial Court vide judgment and decree dated 20.11.2012 decreed the suit in favour of the respondent(s) and against the petitioner. The petitioner being aggrieved preferred an appeal.
During the pendency of appeal both the parties filed applications for production of additional evidence. The learned appellate Court allowed the applications as well as appeal on 25.09.2018 and remanded the case to the learned trial Court enabling the parties to produce their additional evidence. After remand, the parties produced additional evidence and on conclusion of trial, the learned trial Court vide impugned judgment and decree dated 12.11.2021 again decreed the suit in favour of the respondent(s) and against the present petitioner. The petitioner being aggrieved and dissatisfied preferred an appeal; however, the learned appellate Court vide impugned judgment and decree dated 24.10.2022 dismissed the appeal; hence, the instant revision petition.
2. Heard.
3. The relevant part of plaint, making foundation of claim of the respondent(s)/plaintiff(s) is reproduced as under:- '1. That the defendant entered into an agreement to sell on 28.08.2004, with the plaintiff in respect of a house comprising Khasra No.510, Khewat No.323 to 779 situated in Revenue Estate of Hadbast Mauza Jhaggian Nagra property No.SW-25-7-S-19 measuring 5-M. Copy of the Agreement to sell is attached herewith.
2. That total consideration against this sale was fixed sum of Rs.5,35,000/- (Rupees Five Lacs and Thirty Five thousand), out of this sum Rs.3,61,000/- was paid as earnest money. It is pertinent to mention here that plaintiff paid a Water and Sewerage/Drainage Bill of Rs.5000/- (Rupees Five Thousand) round figure on 17-12-2004 outstanding against the defendant. A sum of Rs.60,000/- was paid to defendant in the month of January, 2005 orally by the plaintiff. Copy of paid bill is attached herewith.'
The above paragraphs manifest that there is no detail as to time, date, place and names of witnesses in whose presence such bargain was struck in between the parties which otherwise ought to have been pleaded and proved by the respondent(s). Meaning thereby, the foundational elements for a transaction are missing in this case and when the position is as such, the discretionary decree for specific performance can be denied to the respondent(s).
4. Further, in order to prove a document, it is responsibility of the beneficiary to produce two marginal witnesses of the same. However, in this case, the respondent(s) have produced only one marginal witness namely Ahmad Nawaz as P.W.1 and have not produced the second marginal witness namely Muhammad Iqbal son of Siraj Din and even they have not submitted anything showing his (Muhammad Iqbal's) incapability to appear in the witness box. It is notable fact that said Muhammad Iqbal appeared as witness of the present petitioner and denied the execution of agreement to sell and deposed that it was rent agreement. This Court cannot understand that from which document and fact the learned appellate Court reached to the conclusion and observe that C.W.2 Muhammad Iqbal was scribe of the document Ex.P1 besides marginal witness because nothing as such showing that Muhammad Iqbal scribed the said document.
5. Apart from the above, jurisdiction to decree a suit for specific performance is purely discretionary and the Court is not bound to grant such relief merely because it is lawful to do so.
Such discretion of the Court is not arbitrary but is based on sound and reasonable principles.
Reliance is placed on Muhammad Miskeen v. District Judge Attock and others (2020 SCMR 406).
Moreover, in judgment reported as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), the Supreme Court of Pakistan held that:- '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 this view of the matter, if for the sake of arguments it is admitted that respondent(s) have proved their case successfully but as the second marginal witness has not appeared on behalf of the respondent(s), the discretion should not have been exercised in their favour in the shape of granting decree for specific performance.
6. Therefore, the impugned judgments and decrees are nothing but a result of misreading and non-reading of evidence on record, which cannot be allowed to hold field further. This Court has ample powers under section 115, Code of Civil Procedure, 1908 to set aside concurrent findings when the same suffer from misreading, non-reading of evidence and patent error of law. Reliance is placed on Nazim-Ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001), Habib Khan and others v. Mst.
Bakhtmina and others (2004 SCMR 1668) and Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others (2020 SCMR 2046).
7. The crux of the discussion above is that the revision petition in hand is allowed, impugned judgments and decrees dated 12.11.2021 and 24.10.2022, passed by the learned Courts below, respectively, are set aside, consequent whereof suit instituted by the respondent(s) for specific performance of agreement to sell stands dismissed. No order as to the costs.