1. NASIM HASAN SHAH, JThis is a direct appeal under Article 195 (2) of the Constitution of 1973 against the judgment and decree judgment and decree of the Civil Judge Lyallpur (now Faisalabad) dated 7-4-1976 was reversed and set aside.
2. The relevant facts are that Mubarak Ali he appellant herein instituted a suit for specific performance on agreement of sale dated 25-3-1974 whereby the defendant respondent had agreed to sell land measuring 69 Kanals and 2 Marlas comprising Source No 66 Killa Nos.
3. 9,10,16,17,18,19,23, and 24 situated Chack No. 66 Killa Nos and District Layallpur (now Faisalabad ) belonging to him for a consideration of Rupees on lac and fourteen thousand and received is suit of Rs. 8,000 at the the of the execution of the sale agreement.
4. The learned trial Court, vide its judgment dated 17-4-1976 decreed the suit of the appellant/plaintiff subject to payment of the remaining consideration of Rs 1,06,000 (Rupees 8,000 having already been paid as earnest money) but on appeal to the High Court was set aside vide its judgment and decree of the learned trial Court was set aside vide and decree dated 23-12-1976. In the result the sort of the appellant plaintiff for specific performance was dismissed hence the present appeal in this Court.
5. The case of the appellant/plaintiff was that as per the terms of the agreement of sale dated 25-3- 1974, the sale had to be registered in favour of the vendee (appellant herein) by 30 May, 1974 for which purpose both the parties were to appear before the Sub Registration that date and the vendee was to pay the balance of the sale consideration to the defendant respondent before him .Accordingly the vendee claims that he went to the District Courts on the agreed date and waitedth till 1 p.m. For the vendor in front of the Court of the Sub-Registrar Lyallpur (now Faisalabad) to turn up. Since the vendor did not turn up he.(the vendee) on account of the failure of the vendor to appeared moved an application (Exh. P.1) before the Sub-Registrar praying that his presence may be noted down. The application (Ex.p.1) was written by Maqbool Hussain Petition-Writer (P.W.2)and the vendee affixed his thumb-impression (Exh.p.1/1) on the said application which was presented by Liaquat Hussain Advocate P.W. 1 before the Sub-Registrar Syed Ghulam Raza Naib-Tehsildar P.W.
6. 3 According to the statement of the Sub-Registrar he took up this matter at about 1.10 p.m. And a call for summoning the opposite party was made at that hour and he himself the present of the applicant as evidence by his thumb impression and P.1 / Exh. P.1. Which was certified by Liaqat Hussain Advocate to be the thumb impression of the applicant and which he had been affixed in his presence the plaintiff submitted that as he had done everything that he was obliged to do under the agreement and that it was the defendant who had broken it he was entitled to a decree for specific performance of the agreement in short his case was that he done all what he was obliged under the agreement to do namely to come to the office of the Sub-Registrar for getting the sale registered on the date fixed in the agreement namely, 30-5-1974 and that the branch of he terms of the con6tracotrs was committed by the defendant respondent .Hence the contract should be enforced by the Court.
7. In his plaint he also submitted that the notice issued By Sadiq Ali Advocate on behalf of the defendant on 30-5-1974 Exh. P.4 to the effect that the plaintiff had not turned up before the Sub- Registrar was illegal and unjust since it was not the plaintiff but the defendant who did not appear before the Sub-Registrar for getting the sale-deed registered on 30-5-1974.
8. The averment made in the plaint were refuted by the defendant in his written statement .Who categorically learned that he had not come to the Court of the Sub-Registrar on 30-5-1974 and asserted that it was the plaintiff the was in default in this regard and that the evidence produced by him to prove his presence before. The sub-registrar on that day was forged and fabricated. The pleadings of the parties led to the framing of five issues. Of which the following tow are crucial;--
(3) whether the plaintiff is guilty of the breach of contract if so it effect. O.P.D
(4) whether the plaintiff is entitled to specific performance of the agreement of sale dated 25-3- 1974 if no so what terms? O.P.D.
9. The learned trial Court found Issue No. 3 in favour of Mubarak Ali plaintiff holding that he was indeed reading and willing to carry out the agreement in he had appeared before the Sub- Registrar on 30-5-1975. For this purpose and that it was the defendant who had made a default in this respect. Hence the plaintiff appellant was not guilty of the breach of contract but it was the defendant who was guilty of his breach.
10. As regards issue No.4 namely whether the plaintiff is entitled to specific performance of the agreement of sale dated 25-3-1974? If so, on what terms?, it was held that since the plaintiff was not guilty of breach of contract, therefore, he was entitled to the specific performance of the agreement of sale dated 25-3-1974. He further held that in so far as the defendant had admitted the execution of the agreement of sale dated 25-3-1974 as also the receipt of a sum of Rs.8,000 as earnest money in his written statement, the plaintiff had to pay Rs.1,06,000 to the defendant as the remaining consideration of the suit land and was entitled to the specific performance of the agreement of sale dated 25-3-1974 on his doing so. The suit of the plaintiff /appellant was decreed in these terms.
11. On appeal to the High Court by the defendant, the learned Judges of the High Court after carefully reviewing the evidence led by the parties came to the conclusion that, in fact, it was Mubarak Ali (plaintiff /appellant) who had committed the breach of the contract. In this connection, they noted that the plaintiff /appellant Mubarak Ali had deliberately not appeared in the witness-box in support of his suit to avoid having to answer awkward questions and instead a so-called attorney, Muhammad Iqbal, had appeared in his behalf. It was further observed that the admitted thumb- impression of the plaintiff on his stay application and those on the application Exh.P.1 were clearly of to different persons and neither the evidence of Maqbool Hussain, Petition-Writer, nor that of Liaqat Hussain, Advocate, who were the first cousins of the plaintiff and known to him from their forefathers, could be relied upon, as it was in conflict with the to thumb-- impressions. It was found as a fact that Mubarak Ali had not himself appeared before the Sub-Registrar on 30-5-1974 and in coming to this conclusion several other circumstances were noted which supported this conclusion. In view of the above finding, it was held that the plaintiff/ appellant had failed to perform the essentials of the agreement and was not, therefore, entitled to the relief for specific performance. In this connection, reference was made to section 21(d) and section 24(h) of the Specific Relief Act and it was observed that as according to these provisions a contract cannot be specifically enforced when it is revocable or any essential term of the contract is violated, the learned trial Court was not justified in granting a decree for specific performance. As a result of these findings, the appeal of the defendant was accepted, the judgment and decree of the trial Court set aside and the suit of the plaintiff dismissed.
12. The main submission of Dr. Abdul Basit, learned counsel for the appellant, in support of this appeal, was that the finding recorded by the learned Judges of the High Court that the plaintiff /appellant had not appeared before the Sub-Registrar on 30-5-1974 and, therefore, he was guilty of violating an essential term of the agreement, was erroneous and not correct. He took pains to refer to certain pieces of evidence in support of this plea. But we cannot share his view. After having examined the entire evidence and the documents on the record we are satisfied that the finding of fact recorded by the learned Judges of the High Court that Mubarak Ali, plaintiff /appellant, did not appear before the Sub-Registrar on 30-5-1974 in order to get the sale-deed registered and that he had committed a breach of the contract is quite correct and does not suffer from any misreading or non-reading of any evidence. The whole of the plaintiff's case is founded on the fact that he had not committed any breach of the agreement and that he was therefore, entitled to specific performance since he was ready at willing to fulfil its terms but that the defendant had failed to do so. He has not contested the position that in case he had committed the breach of the agreement then, as provided in its terms, the earnest money would be forfeited and the contract would stand rescinded. In view of the finding of the learned Judges of the High Court that he, indeed, was guilty of the breach of the contract, with which finding we are in agreement, no decree of specific performance could be granted to the plaintiff and, accordingly, his suit was rightly dismissed.
13. This appeal must, therefore, fail and is, accordingly, hereby dismissed with costs.