Concurrent findings of facts recorded by the courts below, whereby a suit for specific performance of contract instituted by Khaliq Zia and Bushra Naheed (hereinafter referred to as "plaintiffs") against Muhammad Usman Farooq Malik ("petitioner") and Malik Ehsan ul Haq (respondent No.3 herein) was decreed by the trial court vide judgment and decree dated 11.10.2023 and appeal filed by petitioner against the said decree was dismissed by the Additional District Judge, Bahawalpur, have been impugned through this revision petition filed under section 115 of CPC.
2. Facts, in brief, leading to the filing of instant petition are that plaintiffs instituted a suit seeking specific performance of contract dated 11.02.2006 qua landed property as detailed in the plaint with the assertion that Malik Ihsan-ul-Haq (defendant No.1 in the suit) and the petitioner established a residential colony in Chak No.12/BC, Canal Garden, Tehsil and District Bahawalpur with the name and style of "Canal Garden Housing Scheme Sector-I" and started selling the plots on installments. Both the parties entered into an agreement to sell qua plot bearing No.137, measuring 01-Kanal and plaintiffs had been paying installments regularly and till the month of May, 2009 an amount to the tune of Rs.6,30,160/- was paid, where-after, respondent No.3 made an offer to the plaintiffs that if remaining total sum is paid in lumpsum, then he would transfer the property by way of registered document and plaintiffs by agreeing to the offer, handed over cheque amounting to Rs.2,63,142/- for payment of remaining total consideration besides giving cash amount to the tune of Rs.31,000/- in lieu of expenses to be incurred on registration of sale deed and in pursuance thereof stamp paper No.405 dated 04.08.2009 was obtained and sale deed was duly written down on the same, however, document could not be got registered as respondent No.3 informed that document would be got registered later on because government had imposed ban on registration of documents. It was further narrated in the plaint that subsequently petitioner and respondent No.3 started dilly-dallying the matter on various pretexts and finally declined to transfer the plot three days prior to the filing of the suit. Petitioner appeared and contested the suit by filing written statement and controverted plaintiffs' stance and came up with the assertion that plaintiffs did not pay any amount to him, therefore, suit to his extent is liable to be dismissed.
Respondent No.3 did not enter appearance before the trial court despite issuance of process and adopting of all methods for his service, as such he was proceeded against ex parte. The trial court, in view of the divergent pleadings of the parties, proceeded to frame seven issues including that of relief and after recording of evidence of the either sides and hearing arguments, proceeded to decree the suit in the following terms:- "in view of my findings on above mentioned issues, the instant suit of the plaintiffs is hereby decreed. Plaintiffs are entitled to get transfer the suit property i.e. 01-kanal in Khata No.131/127, Khatooni No.534 to 538, situated in Chak No.12/BC, Canal Garden, Bahawalpur. The defendants are directed to transfer the suit property in the names of plaintiffs in the light of agreement to sell dated 11.02.2006 ..."
Being dissatisfied, petitioner filed an appeal, which was dismissed by the Additional District Judge, Bahawalpur vide judgment and decree dated 26.04.2024, hence the instant petition.
3. Heard learned counsel for the petitioner.
Record perused.
4 Stance taken by plaintiffs in their plaint that petitioner and respondent No.3 established a residential colony with the name and style of "Canal Garden Housing Scheme Sector-I" and started selling the plots on installments and were owners of residential plot No.137 situated in Chak No.12/BC, Canal Garden, Tehsil and District Bahawalpur, has not at all been denied in specific terms by the petitioner in his written statement. These facts, therefore would be deemed to have been admitted by the petitioner. Similarly, petitioner did not deny his signatures upon agreement to sell dated 11.02.2006 (Exh.P1) whereby suit plot was agreed to be sold to plaintiffs. It is by now a settled principle of law that admitted facts need not to be proved. It is also established principle of law that where a fact pleaded in the plaint is not specifically denied, the same shall be deemed to be accepted as correct in view of the provisions of Order VIII Rule 5 of CPC whereby an evasive denial would be construed as admission. Reliance in this regard may safely be placed on case "Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others"[1]. Version of petitioner, precisely, was that no consideration amount in pursuance of agreement to sell dated 11.02.2006 was ever paid to him. This very stance of petitioner stood contradicted from the contents of documents Exh.P-4 Exh.P-10, Exh.P-13,Exh.P-27, Exh.P-31 to Exh.P-36, Exh.P-40 and Exh.P-41. Petitioner, although came up with the assertion that he did not make any signature on any receipt yet no step was taken by the petitioner to get the signatures available on above hinted receipts compared with his admitted signatures. Mere bald statement of denying signatures on the receipts was not sufficient particularly where signatures available on the above hinted documents on their bare perusal seemed to have been tallied with the signatures on agreement to sell (that is admitted to have been signed by the petitioner). Respondent No.3 did not opt to appear and defend the suit despite issuance of process for his service and he was finally proceeded against ex parte. Plaintiffs' case to the extent of respondent No.3 remained unrebutted throughout. It may further be seen that one of the plaintiffs namely Khaliq Zia when appeared as PW-1, he in his examination-in-chief deposed that he along with his wife Bushra Naheed purchased one plot bearing No.137, measuring 01-Kanal in Khata No.131/127, Canal Garden Housing Scheme Sector-I and had been paying installments regularly and till the month of May, 2009 they paid an amount to the tune of Rs.6,30,160/-. All these depositions which have been made by PW-1 when he was under oath, had not at all been got confronted by the petitioner during the course of cross-examination. It is well- settled principle of law that any piece/part of evidence of a witness deposed in his examination- in-chief if not denied or controverted in cross examination, is presumed to be accepted by the other side. Reliance in this regard may safely be placed on case "Abdul Rehman and another v.
Zia-ul-Haque Makhdoom and others"[2]. Petitioner when appeared as DW-1, he in his examination-in-chief did not at all deny the execution of agreement to sell and even its contents whereby the suit plot was agreed to be sold by the petitioner and respondent No.3 to plaintiffs for the consideration of Rs.9,20,000/- and sale consideration was to be paid through installments.
Petitioner only deposed that amount claimed to have been paid by plaintiffs was never paid to him and his signatures on certain receipts were forged but, at the cost of repetition, petitioner did not at all move any application before the trial court seeking comparison of the signatures available on the said receipts with his admitted signatures. Matter does not end here. Petitioner himself admitted during the course of cross-examination that the price of subject plot was paid by plaintiffs to respondent No.3. Plaintiffs' suit, in view of such admission, was liable to be decreed on the score alone and both the courts below rightly proceeded to decree the suit. According to petitioner, office of Canal Garden Housing scheme was situated at One Unit Chowk and it was respondent No.3 who had been doing whole paperwork regarding sale of plots. These admissions further confirm the fact that both petitioner and respondent No.3 have been dealing with the affairs of Canal Garden Housing Scheme particularly as shown in agreement to sell (Exh.P1) whereby petitioner has been shown as 'First Party' along with respondent No.3 and petitioner even during the course of his evidence admitted his signatures upon agreement to sell Exh.P1. So far as submission of learned counsel for petitioner that suit is barred by time, is concerned, it may be seen that the trial court while dealing with the proposition placed reliance on various authoritative pronouncements on the moot point and rightly came to the conclusion that cause of action was accrued to plaintiffs three days prior to filing of the suit when petitioner and respondent No.3 finally refused to transfer the subject plot in favour of plaintiffs. Question of limitation being mixed question of fact and law has rightly been decided by the trial court and nothing could be pointed out by learned counsel for the petitioner to take any exception to the findings of the trial court.
5. As regards submission of learned counsel for petitioner that in view of novation of contract as claimed by plaintiffs in their plaint, petitioner stood relieved from the original agreement to sell and suit on the basis of agreement to sell (Exh:P1) was not competent against him therefore suit was liable to be dismissed to the extent of petitioner, it may be seen that the assertions made in the plaint qua transfer of subject plot after the payment of whole remaining amount hardly attract the principle of novation as embodied in section 62 of the Contract Act (IX of 1872), which is reproduced hereunder for the facility of ready reference: - "62. Effect of novation, rescission and alteration of contract. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed".
Plain reading of above would show that if parties to a contract have come to an understanding to substitute a new contract either by rescinding or altering the contract, original contract needs not be performed. In case "Muhammad Iftikhar Abbasi v. Mst. Naheed Begum and others"[3], it has been elaborated that the word 'novation' practically and rationally denotes to substitute with a new contract where the obligations under the existing contract are brought to an end or extinguished. While defining the origin, scope and the essential requirements of novation, it was observed by Supreme Court of Pakistan in above referred case as under:- "... The chronicle and etymology of the word "novation" reveals that it was borrowed from Latin word novation, novatio ornovare to make new, renew and replace an existing legal obligation with a new one. Ref: https://www.merriamwebster.com. According to traditional meaning of novatio or novation in English (with some legal use of this Latin concept in England and the United States), the substitution of a new debt or obligation for an old one, which latter is thereby extinguished. It is novation if either the debtor, creditor or the obligation be changed. Ref: 137 N. Y. 542; Robinson's Elementary Law Revised edition, 294. https://legaldictionary.lawin.org.Accordin g to Black's Law Dictionary, 2nd Edition: Novation is the substitution of a new debt or obligation for an existing one.
Civ. Code Cal. 1530; Civ. Code Dak. 863; Hard v. Burton, 62 Vt. 314, 20 Atl. 269; McCartney v. Kipp, 171 Pa. 644, 33 Atl. 233; McDonnell v. Alabama Gold L. Ins. Co., 85 Ala. 401, 5 South. 120; Shafer's Appeal, 99 Pa. 246. Novation is a contract, consisting of two stipulations, one to extinguish an existing obligation; the other to substitute a new one in its place. Civ. Code La. art 2185. The term was originally a technical term of the civil law, but is now in very general use in English and American jurisprudence. In the civil law, there are three kinds of novation: (1) Where the debtor and creditor remain the same, but a new debt takes the place of the old one; (2) where the debt remains the same, but a new debtor is substituted; (3) where the debt and debtor remain, but a new creditor is substituted. Adams v. Power, 48 Miss. 451. Ref: https://openjurist.org. Along the lines of "Cheshire and Pifoot's Law of Contract" (Ninth Edition), Novation is a transaction by which, with the consent of all the parties concerned, a new contract is substituted for one that has already been made.
The new contract may be between the original parties, e.g., where a written agreement is later incorporated in a deed; or between different parties, e.g., where a new person is substituted for the original debtor or creditor. Whereas Lindley on the Law of Partnership (Thirteenth Edition), delineates this doctrine as a liability which is originally joint, or joint and several, may be extinguished by being replaced by a liability of a different nature; and this may happen in one of two ways, viz., either by an agreement to that effect come to between the parties liable and the person to whom they are liable, or by virtue of the doctrine of merger, independently of any such agreement. Sometimes called novation (see Commercial Bank of Tasmania v. Jones [1893] A.C.
313, 316). In the case of Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189), the Court held that section 62 of the Contract Act deals with the effect of novation, rescission and alteration of contract. The above provisions make it clear that if the parties to the contract agree to substitute a new contract in place of the original one, then the original contract need not be performed. Therefore, performance of original agreement between the parties is dispensed with only where the parties to the contract agree to substitute the original contract by a new contract.
Whereas the Court in the case of Benjamin Scarf v. Alfred George Jardine ((1882) 7 AC 345)
(HOL), held that in the court of first instance the case was treated really as one of what is called "novation," the term being derived from the civil law that there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties, the consideration mutually being the discharge of the old contract. In the case of Lata Construction and others v. Dr. Rameshchandra Ramniklal Shah and another (AIR 2000 SC 380), the Court held that one of the essential requirements of "novation" as contemplated by section 62 is that there should be complete substitution of a new contract in place of the old.
Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract has to be by agreement between the parties. The substituted contract should rescind or alter or extinguish the previous contract."
The stance taken by plaintiffs in their plaint regarding an offer made by respondent No.3 qua payment of the total remaining sale consideration amounting to Rs.2,89,840/- in lumpsum so as to get registered sale deed executed, can hardly be considered as novation of contract. At the most, it can be counted as a slight modification in the contract for the simple reason that original contract was neither substituted by another contract nor rescinded. Slight modification qua the mode of payment would not come under the definition of novation as contained in section 62 of Contract Act, 1872. In case "Bank Alfalah Limited, Lahore through Muhammad Rafiq and Syed Aqeel Abbas v. Punjab Small Industries Corporation through Managing Director"[4], while referring to various authoritative pronouncements of the superior court, it has been elaborated as under: - "... There is difference between alteration and novation of contract in section 62 of the Contract Act. The Novation is the complete substitution of the original contract with a new contract. The original contract remains no more in existence and the parties are not required to perform that.
Contrarily an alteration of a contract is variation, modification or change in one or more respects which introduces new elements into the details of the contract, cancels some of them but leaves the general purpose and effect undisturbed. Generally the modifications are read into and become part of the original contract. The original terms also continue to be part of the contract and are not rescinded and/or superseded except in so far as they are inconsistent with the modifications. However, those of the original terms which cannot make sense when read with the alterations must be rejected.
18. Same is the distinction between alteration and rescission of the Contract. The alteration may produce two consequences. Firstly, where the modified contract possesses an independent contractual force, or enables the parties to sue upon the second contract alone as if the original contract does not exist, it will be deemed that the original contract is rescinded. Secondly, where the modified contract does not possess any independent contractual force or does not enable the parties to sue upon the modified arrangement, then the modifications are read into and become part of the original contract. The original terms also continue to be part of the contract and are not rescinded and/or superseded except in so far as they are inconsistent with the modifications"
It has further been observed in the above referred case law that when parties to a contract agree to substitute a new contract in place of previous one, performance of original contract would be dispensed with and where parties without any intention of rescinding or replacing the original contract only bring about any change or amendment in the original contract, the same will become part and parcel of original contract which would not be novated or rescinded. Even, to prove a novation, following four elements are required to coexist: -
(a) Existing of previous valid agreement;
(b) Consensus of the parties to cancel the first agreement;
(c) Agreement of the parties showing substitution of second agreement with the first one; and
(d) Validity of the second agreement.
In the present case, undeniably original contract remained intact and there was no substitution of fresh contract with the previous one. Mere slight modification qua the payment of remaining sale consideration would not be counted as novation.
6. Learned counsel for petitioner further emphasized that in view of the contents of agreement to sell, it was agreed between the parties that in case of any conflict, the proprietor namely 'Noor Mahal Estate Agency' would be authorized to decide the dispute which would be considered as a final decision, however, the trial court did not frame necessary issue in this regard. This argument of learned counsel for petitioner has no force for the simple reason that petitioner in his written statement did not opt to agitate this ground enabling the trial court to frame necessary issue in that regard. Strangely enough, this plea has never been taken by the petitioner throughout and same has been taken up now while filing the instant revision petition. It is by now a settled principle of law that a party cannot be permitted to raise a ground of attack or defense that has not been taken in the pleadings. As per the provisions of Order VI Rule 2 read with Order VIII Rule 2 CPC, a defendant is required to plead specifically the facts which may either constitute a defense or objection. If any party fails to take up a specific ground of attack in his pleadings, that party would not be permitted to deviate from the pleadings. Such party even cannot be allowed to set up a different and new plea while invoking revisional jurisdiction of this Court. The ground so urged by learned counsel for the petitioner in support of his instant revision petition, undeniably was not taken either before the trial court or before the appellate court, therefore, such plea cannot be taken at the revisional stage for the first time.[5]
7. The case-laws[6] referred to by learned counsel for petitioner have to proceed on the peculiar facts and circumstances of those cases and the same have no bearing whatsoever to the facts and circumstances of the instant case, therefore, the same hardly lend any support to the case of the petitioner.
8. There is no cavil with the proposition that concurrent findings of facts recorded by the courts below can never be treated as sacrosanct and can be interfered with in case of non-reading and misreading of the evidence. Undeniably, granting or refusal of request of specific performance of contract is purely within the discretion of the court. Where discretion of the court has been exercised justly and properly, the same cannot be taken to any exception while exercising limited jurisdiction in revision under section 115 of CPC which primarily is meant for correcting errors made by courts below in relation to existence or exercise of their jurisdiction and no occasion arises to exercise the jurisdiction conferred by section 115 of CPC with regard to a matter which is within the discretion or authority of the court concerned. The powers conferred under section 115 of CPC, therefore, should never be exercised so as to usurp the discretion or the authority of the courts below[7]. Learned counsel for the petitioner, however, remained utterly unable to point out a single circumstance of misreading and non-reading of evidence by the courts below while passing the impugned judgments and decrees. In the face of evidence so produced by the parties at trial, the trial court was left with no other option but to decree the suit and so rightly decreed in favour of plaintiffs. Finding of the appellate court too is unexceptionable. Learned counsel for the petitioner remained unable to point out even a single circumstance suggesting illegal assumption, non- exercise, or irregular exercise of jurisdiction by the courts below while passing the impugned judgments and decrees. Where concurrent findings of both the courts below on a question of fact is based on proper appreciation of evidence available on the record and does not suffer from any illegality or material irregularity affecting the merits of the case, the same cannot be taken to any exception at revisional stage. Reliance in this regard may safely be placed on cases reported as "Sultan Muhammad and another v. Muhammad Qasim and others"[8] and "Abdul Khaliq (Deceased) through L.R.s. and others Vs. Ch. Rehmat Ali (Deceased) through L.R.s. and others"[9]. In case titled Salamat Ali and others v. Muhammad Din and others[10], it has invariably been held that: - "Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below".
9. The sequel of above discussion is that instant was a fit case for the grant of relief of specific performance of contract to plaintiffs and both the courts below rightly decreed the suit, therefore, findings of both the courts below cannot be disturbed while invoking the provisions of 115 of CPC.
Petition in hand is without any force; the same is dismissed in limine.
2. 2012 SCMR 954
3. 2022 SCMR 1074
4. 2023 CLD 14
5. Major (Retd) Barkat Ali and others Vs. Qaim Din and others (2006 SCMR 562), Mst. Kulsoom and 6 others Vs. Mrs. Marium and 6 others (1988 CLC 870), Mst. Jannat Bibi Vs Sher Muhammad and others (1988 SCMR 1696), Bank of Punjab Vs. Amjad Latif Rana and another (2005 CLD 1678), Faqir Muhammad Vs. Shabbir Haider (2005 YLR 2873).
6. Saif-ur-Rehman Vs. Ijaz and another (2023 SCMR 2133), Abdul Sattar Vs. Mst. Anar Bibi and others (PLD 2007 Supreme Court 609) and Abdul Qadir Vs. Mrs. Ameer Zadi and 8 others (2020 MLD 213).
7. Qazi Abdul Kafil Vs. Abdul Qayum Khan and others (PLD 1969 Peshawar 294)
8. 2010 SCMR
10. PLJ 2023 SC 8