Sultan Tanvir Ahmad, J:- On 22.06.2007 the appellant filed a suit for specific performance of agreement dated 21.04.2007 (the 'agreement'), which was contested by the predecessor of the respondents. After framing of issues the parties produced their evidence. The learned trial Court vide judgment and decree dated 22.04.2011 refused to allow specific performance of the agreem ent, however, the appellant was permitted to recover Rs. 50,000/- (earnest money) and Rs.
100,000/- in the shape of damages. Appeals No. 133 of 2011 and 139 of 2011 were filed, which were dismissed on 03.10.2013. Being aggrieved from the same, the present second appeal has been filed.
2. Ch. Muhammad Ashraf Jalal, learned Advocate for the appellant has submitted that the learned Courts below have failed to properly exercise the jurisdiction. He added that since the agreement was proved, therefore, refusal to grant specific performance is not justified. Conversely, Mr. Attiq- ur-Rehman Mughal, learned Advocate for the respondents has stated that discretion has been exercised on sound judicial principles and decree is affirmed in first appeal, thus, this Court should not interfere.
3. The agreem ent is on record as Exh. P-2. A perusal of the agreem ent reflects that the same does not provide any measurement of the land that was agreed to be sold. It simply stipulates that Rs.5,000/- per m arla is fixed for residential property, whereas, the consideration for agriculture land subject to sale is Rs.280,000/-. It lacks description of land in shape of killa, square or khasra numbers. The land is not specified with any certainty. One Bashir Ahmad appeared as PW-1, being special attorney of the appellant, who stated that he even cannot recall khasra number of the suit land.
4. Section 21(c) of the Specific Relief Act, 1877 (the 'Act') does not permit to specifically enforce a contract the terms of which the Court cannot find with reasonable certainty. In Muhammad Miskeen case[1] agreement not describing the property under sale by metes and bounds was refused to be enforced. It is settled that in order to succeed in a suit for specific performance of a contract, claimant has to assert a valid and enforceable contract existed between him and the other side beside clearly pleading the terms and conditions on the basis of which the contract was executed which he desired to be specifically performed[2].
5. Learned counsel for the respondents has made reference to section 22 of the Act, which provides that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principle and capable of correction by a Court of appeal. This provision is repeatedly interpreted and no cavil is left to the proposition that specific performance is by no means an absolute right but one which rest entirely in judicial discretion and always with reference to facts of a particular case. Where trial Court has, exercised its discretion in one way, which is judicially exercised on sound principles and the decree is affirmed by the learned Appellate Court, then this Court in second appeal should not interfere with this discretion, unless the same is contrary to law or usage having force of law[3].
6. After hearing the arguments and examining the record, I am of the opinion that while refusing specific performance of the agreem ent the learned trial Court has exercised the discretion on sound and reasonable basis, which has been upheld by the learned first Appellate Court and the same requires no interference in second appeal. This appeal lacking any merit is dismissed. No order as to costs.
[1]"Muhammad Miskeen versus District Judge Attock and others" (2020 SCMR 406)
[2](i)"Sheikh Akhtar Aziz versus Mst. Shabnam and others" (2019 SCMR 524) (ii) "Mian Muhammad Saleem and others versus Mst. Hameeda Begum and others" (1987 SCMR 624)
[3]"Naseer Ahmed Siddique through Legal Heirs versus Aftab Alam and another" (PLD 2011 Supreme Court 323)