' This revision application under section 115 of the Code of Civil Procedure, 1908, is from the order, dated 21-10-1982, passed by 111 Senior Civil Judge, Hyderabad whereby he dismissed the review application seeking review of the judgment delivered by his predecessor in First Class suit, being Suit No, 65 of I 979, tiled by the applicant against the respondent/defendant for specific performance of a contract in respect of a residentlal house bearing No, 2773 B, in the building situated on the second floor on plot of land bearing city Survey No, 2773, Market Road, Hyderabad.
2. The case of the applicant as set up was that by an agreement of sale, dated 12-11-1978, the respondent agreed to sell the house to the applicant for a consideration of Rs, 60,000 and he paid Rs, 20,000 to the respondent. According to him the sale-deed was to be executed within one month and he sent a notice after arranging the balance amount but the respondent resiled from the contract.
3. The case of the respondent in the written statement was that -he was forced to execute the sale agreement at the police station by the S.H.O. Of the Market Police Station in the circumstances detailed in paragraphs 12 to 18 of the written statement and that he had complained about same in his applications to the Commissioner, Hyderabad Division, Deputy Commissioner, Hyderabad, Police authorities and the Martial Law Authoritits. He further pleaded that the agreement was obtained by coercion and undue influence. He also pleaded that the agreement was void and in any case, voidable and he repudiated the same by the notice, dated 3-12-1978. He further stated that the market value of the flat was Rs, 1,50,000.
4. As regards the plea of coercion and undue influence the respondent averred that the tenament bearing No, A/2773, of the building was purchased by the applicant in the year 1974-75, in the name of his wife. Therefore, the applicant started harassing him. He further averred that the applicant wanted to block the passage and use of stair-case by him and, therefore, he was compelled to file a suit for injunction in July, 1976 against applicant and his wife. The suit was partly decreed on 19.3-1978, and thereupon he filed an appeal which was then pending in the Court of 1st Additional District Judge, Hyderabad. During the pendency of the appeal the applicant offered to purchase his flat but he and his son Aftab refused to sell the flat. Thereafter, he further averred, the applicant used pressure tactics against him and the occupants of the second floor and harassed them in different manner and on 11-11-1978, in the evening when no male member was present in his house the applicant with the aid of his servant finally removed the electric motor and water to the fixed under the stair-case He reported the matter to the police at the Market Police Station, Hyderabad and then the S. H.
0. Mr. Jaskani sent for the applicant to the police station but instead of taking any action against the applicant asked him to sell the second floor/flat to the applicant. On refusal to sell the tenement the S. H.
0. Made him and his son sit at police station and threatened them that in case he did not agree to sell the house he would put him and his son in police lock-up and use third degree method against them, and that they were told that the, following day was Eid day when they would have no time to arrange for the bail and they would have to pass the night and celebrate Eid in police Lock-up. He further stated that although the price of that house at that time was more than Rs, 1,50,000 but the S. H.
0. At the instance of the applicant arbitrarily fixed it at Rs, 60,000 and the S. H.
0. Asked the applicant to get the agreement of sale prepared, it was 4 p.m. The statement goes on to say, when they were allowed to leave the police station with the direction to come to the police station again in the evening In the evening on 12-11-1978, the S. H.
0. Sent for him and he was again taken to the police station when his son Dur Muhammad also accompanied him. At the police station he was forced to sign the agreement which was brought by the applicant. Dur Muhammad was forced to sign the agreement as a witness. It is further averred that the applicant was the Vice-President of the Muslim Commercial Bank Limited at that time and the respondent was then taken by the S. H.
0. To the Bank of the applicant when the cant also accompained them and there a cheque of Rs, 20,000 of the said Bank was got cashed by the applicant and the money was received by the S. H.
0. Who forced the respondent to receive the money. He was further wanted by the S. H.
0. To stick to the agreement. It was in these circumstances it was alleged, that he signed the agreement for sale.
5. On the pleadings of the parties the Court framed the following issues.
(1)Whether the defendant executed agreement for sale, dated 12-11-1978, in respect of the suit property in favour of the plaintiff, if yes, whether the same was done under coercion and undue influence ?
(2)Whether the agreement, dated 12-11-1978, is valid and liable to be specifically enforced against the defendant ?
(3)Whether defendant Hakim received the amount of Rs, 20,000 from S. H.
0. Jaskani forcibly ?
(4)Whether the defendant is Benami owner of the suit property and real owner is his son Aftab ?
(5)Whether the market value of suit property is Rs, 1,50,000 ?
(6)What should the decree be ?
6. The learned Senior Civil Judge after recording evidence of the parties decided Issues Nos. 1 to 5 against the respondent. However, as regards the relief, since the contract contained a term that if the respondent committed any default in the terms and conditions of the agreement he shall be liable to pay a sum of Rs, 20,000 as damages besides the refund of the earnest money of Rs, 20,000 received by him from the applicant, he therefore, decreed the suit for refund of Rs, 20,000 and awarded a sum of Rs, 20,000 as damages, declining to grant a decree for specific performance of the contract. It may be useful to quote the concluding part of the judgment on issue No, 2 which reads :- "As the plaintiff himself prayed for alternate relief of damages, hence in the peculiar circumstances of the agreement between the parties (emphasis supplied) and the prayer of the plaintiff that plaintiff is entitled for the earnest money amounting to Rs, 20,000 alongwith Rs, 20,000 as penalty.
As such in view of the specific stipulation in the body of the agreement and as the plaintiff himself has prayed for the compensation as alternate relief, the plaintiff is entitled for recovery of Rs, 40,000 from the defendant. Though an amount of Rs, 20,000 has been prayed as damages but the plaintiff has failed to adduce any evidence to prove such damages and even it is beyond the stipulated compensation agreed by the parties for the non-performance of the contract hence plaintiff is not entitled for the relief of Rs, 20,000 as damages.
' Conclusively it is held that contract is enforceable to recover Rs, 20,000 of earnest money and Rs, 20,000 as admitted compensation. Issue stands decided accordingly.
7. Aggrieved by the judgment and decree the respondent filed an appeal but the applicant did not file any appeal. He, however, filed an application for review of the judgment which was heard by Mr. Nabi. Sher Junejo the successor Senior Civil Judge, and dismissed by the order dated 21-10-1982, which has given rise to this revision application.
8. I have heard Mr. Jehmat Jethanand learned counsel for the applicant and Mr. Hassan Mahmood Baig learned counsel for the respondent.
9. Mr. Jehmat Jethanand contended that the learned Judge erred in dismissing the application for review as, there is a mistake apparent on the face of the judgment. On the other band, Mr. Hassan Mahmood Baig contended that the revision application is not maintainable as none of the clauses of section 115 of the Code of Civil Procedure, 1908 are attracted.
10. Taking up first the contention of Mr. Hassan Mahmood Bai that the revision application is not maintainable it may be stated that it is settled that the review application would lie from an order rejecting the review application provided the order is without jurisdiction or the Court has failed to exercise jurisdiction vested in it or has acted A in the exercise of its jurisdiction illegally or with material irregularlity. If any precedents are needed reference may he had to Muhammad Khan v.
Government of Pakistan and others (1), Muhammad Rafique v. Mst. . Rashida Begum (2), Mando etc. v. Muhammad Umar etc. (3), Khasomal and others v. Bachoo and another (4), Chintamani and others v. Bebi Prasad (5) and Arya Insurance Co. Ltd. v. Lala Channolal (6).
11. In the first named case it was held by Anwarul Hach C. J. Of Lahore High Court (as he then was), at page 60 of the report : "An order rejecting the review may, however, be brought into question in revision ; but the scope of revision lies within a very narrow compass, for in such a case the applicant has got to jus.Ify his contention that in the exercise of its jurisdiction the Court of first instance in refusing review, acted illegally or with material irregularity.
"Where no such illegality or material irregularity has been found the Court in rejecting the review was of the view that the ground set out by the applicant was not proper and not acceptable, it would not be open to a revisional Court to come to a contrary conclusion on that point."
16. It is not necessary for me to examine the question at any length for 1 am inclined to agree. With the view taken by the Allahabad High Court in the later case of Arya Insurance Co. Ltd. Mentioned above, in terms of sub-rule (I) of rule 7 or Order XLVII of the code no appeal lies against an order refusing to review, and, therefore, there is no legal impediment in the way of a revision petition being entertained in such a case, provided of course that the requirements mentioned in section 115 of the code, for the exercise of the revisional jurisdiction of the High Court, are found to be present. Accorditgly, I now proceed to examine whether any grounds exist for my interference in the matter.
12. However, the question is whether any of the provision of clauses (a) to (c) of section 115, C. P. C.
Are attracted to the present case in this regard it was contended Mr. Jehmat Jethanand that the learned Seni"r Civil Judge ignored the rulings of the Supreme Court and High C, is which were binding on him and thus he acted illegally in the exercise . Jurisdiction. In support he relied on a Supreme Court decision in Faqir Muhammad Khan v. Mir Akbar Shah (7), wherein Hamoodur Rahman, C. J., while delivering the opinion of the Court, observed, that `A judgment of a Full Bench also decides authoritatively for the High Court the point of law referred to it and, therefore, to that extent also declares the law with respect to that point. That declaration of law is binding on all other Benches of the High Court until set aside or reversed by
(1) PLD 1971 B. J. 53 (2) 1979 CLC 823
(3) 1982 CLC 284 (4) AIR 1929 Sind 38
(5) AIR 1934 All. 971 (6) AIR 1957 All. 400
(7) PLD 1973 SC 110 another Full Bench of the same High Court or by a superior Court. Failure to notice such an authoritative decision would, therefore, in my opinion, clearly be an error apparent on the face of the record.' In this case reliance was placed by the learned Chief Justice on Subbier v. Chinnanna Rowth n (I), Natess Naicker v. Samabanda Chettiar (2), Murari Rao v. Balvanth Dikshit (3).
' In the first named case it was held that where a decision is on its face erroneous owing to the attention of the Court not having been called to a decision of the High Court which it was bound to follow.The Court has a discretion in such cases to grant a review'.
13. There cannot be in view of the High authority any cavil with the proposition advanced by Mr. Jehamat Jethanand. However, further question is what rulings were not taken into consideration by the trial Court. In this regard Mr. Jehamat Jethanand referred to Abdul Karim v. Muhammad Shaft and another (4), Mst. Khatija Bai and others v. Muslim Commercial Bank (5), Muhammad Khan v.
Pakistan Through Secretary, Ministry of Interior, Karachi (6), Sakinabai and others v. Kurnool Muhammad Bashir (7) and Metta Rana Bhatlu v. Metta Annayya Bhatlu and others (8).
14. However, before I deal with these cases, it may be stated that under section 22 of the Specific Relief Act the jurisdiction to pass a decree for specific performance of a contract is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so, though there is no doubt, the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles capable of correction by a Court of Appeal. I may here refer to Gh lam Nabi and others v.
Seth Muhammad Yaqub and others (9). In this case M. S. H. Qureshi, J. Who delivered the opinion of the Court at page 357 of the report observed as follows:-
15. "19. And lastly it was urged that the jurisdiction of the Court to decree specific performance being discretionary under section 22 of the Specific Relief Act, the Court ought not to have, considering the plaintiff's conduct, granted such relief. The jurisdiction under section 22 is discretionary only in the sense that it cannot be claimed as a matter of right. As enjoined by the section itself, the exercise of the discretion is not to be arbitrary but sound and reasonable. The exercise of the discretion to grant or refuse to grant relief will, therefore, depend upon the circumstances of the case and the condition of the parties. The Courts below have not found the circumstances of the case or the conduct of the plaintiff to justify a denial of the relief to him, and we see no reason to hold otherwise."
' I may also refer to Dhakka High Court case in Nawab Meah Chowdhury v. Syed Ezizuddin Ahmed and others (10), wherein a Division Bench at page 661 of the report ruled : "In our opinion, the illustrations given in section 22 of the Specific Relief Act are not exhaustive but illustrative and the said section clearly shows that the Court has its discretion to refuse specific performance even though it might be lawful."
(1) AIR 1915 Mad. 1068 (3) I L R 46 Mad. 955 (5) PLD 1978 SC 96 (7) PLD 1967 Kar. 158 (9) PLD 1983 SC 344 (2) AIR 1941 Mad. 918
(4) 1973 SCMR 225
(6) PLD 1959 (W.P.) Kar. 75
(8) AIR 1926 Mad. 144
(10) PLD 1962 Dacca 655
15. It is, therefore, clear that passing of a decree in a suit for specific performance of the contract would depend on the facts of each case for discretion has to be exercised keeping in view the various pleas raised b the defendant upon proof of which the Court may not exercise discretion in favour of the plaintiff and grant a decree for specific performance of the contract accordingly. It follows that a precedent in support of a claim for a decree for specific performance of the contract will not be binding unless the facts of the case in support of which the precedent is cited identical with it.
16. Accordingly, I now proceed to examine the cases cited by Mr. Jehmat Jethanand. In the Supreme Court case of Abdul Karim v. Muhammad Shafi and others (supra) the relevant facts were that parties had entered into a contract of sale of disputed property and it was inter olia provided in the contract that the petitioner (before the Supreme Court) would execute a requisite permission from the Military Estate Officer. The permission and the clearance certificate were, however, never obtained. It was also provided in the contract that the advance of Rs, 1,100 paid by the vandee to the vendor would be refunded to the former and, in addition, a sum of Rs, 1,000 would be paid by the latter as penalty, if vendor failed to get the deed registered. The vendor having failed to transfer the property in terms of the contract, the vendee instituted a suit against the petitioner (before the Supreme Court) and respondent No, 2, a mortgagor, for possession of the suit property through specific performance of the contract. Since the execution of the contract the vendee had paid Rs, 1,100 by way of advance as well as certain other sums by way of paying off the mortgage charges including those of himself and respondent No, 2 in accordance with the contract. Respondent No, 1 was ready to perform his part of the contract. The petitioner contested the suit and stated that vendee himself had refused to pay the remaining sale price although he was asked to do so several times and he had, therefore, no cause of action. The suit was decreed by the Civil Judge and an order was passed for giving possession of the suit property to the plaintiff respondent. The vendor's appeal before the District Judge was partially accepted and the decree of the trial Court was modified to the extent that a sum of Rs, 1,050 which was debited towards the consideration money on the basis of three promissory notes alleged to have been executed by the vendor in favour of the vendee acknowledging receipt of the money by the former, was allowed and the vendee was directed to obtain possession upon payment of Rs, 1,450 only to the vendor.
The petiioner's second appeal was dismissed with the modification that in addition to the sum of Rs, 1,450 the vendee was directed to pay an additional sum of Rs, 1,050 to the vendor, i,e, a total amount of Rs, 2,500.
' It was contended before the Supreme Court that inasmuch as the contract provided for payment of a specific amount on vendor's failing to fulfil the contract and transfer the property to the vendee, no specific performance of the contract could be enforced by the Court. Repelling the contention it was observed by Salahuddin, J. Who delivered the opinion of the Court as follows : "Section 12 provides that the specific performance of the contract may be enforced in the discretion of the Court. Explanation to section 12 of the Act clearly states that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved. Section 19 provides that any person suing for specific performance of a contract may also ask for compensation for its breach either in addition to or in substitution for, such performance. Section 20 says that a contract, otherwise proper to be specifically enforced may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same. Section 22 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 principles and capable of correction by a Court of appeal."
17. It will be seen from the facts of above cited case that the trial Judge had exercised discretion in favour of the vendee in granting decree for specific performance of the contract and since nothing was found wrong with the exercise of discretion by the trial Court and decree was confirmed by two appellate Courts, the Supreme Court upheld the same. The rule laid down by the Supreme Court is that a decree for specific performance of the contract cannot be refused merely because certain amount has been named in the contract to be paid as damages. On breach of the contract. But, in the present case the trial Court has exercised discretion in refusing to grant decree and it did so, keeping in view the various pleas raised by the respondent. I have already quoted the relevant observation of the learned senior Civil Judge and have under lined the same for emphasis which clearly shows that the learned Senior Civil Judge though had decided the issue NO. 1 against tile respondent yet was influenced 'by the peculiar circumstances of the case in refusing to grant the decree for specific performance of the contract. It was stated at the bar that the respondent had filed an appeal against the decree for damages but the applicant had not filed any appeal and the appeal filed by the responder was withdrawn after the application for review was dismissed. Now, a the best it would be a case of improper exercise of discretion which coul be corrected in appeal but it is not a case to which the provision o section 115, C. P. C. Would be attracted.
18. Taking up the second case of the Supreme Court namely, Mst. Khatija Bai and others v. Muslim Commercial Bank Ltd. (supra). In this case it was ruled that a judgment by a High Court could be reviewed, if it is contrary to law declared in an earlier pronouncement of the Court. This case does not help the petitioner for the reason stated above. Further, as stated earlier, grant or refusal of a decree for specific performance of the contract would depend on the facts of each case and this case does not relate to the provisions of Specific Relief Act or to the specific performance of the contract.
19. Considering the case of Muhammad Khan v. Pakistan (supra) it may be stated that in this case the learned Judges had reviewed their earlier order summarily dismissing the writ petition on consideration of the contention that they had proceeded on mistaken view of the law and that was apparent on the face of the record. For the reasons given earlier this case is also distinguishable.
20. Now, taking up the case of Sakina Bai and others v. Kurnool Muhammad Bashir (supra), in this case it was held that the granting specific performance of a contract is a matter discretionary with the Court. Whether in a given case pecuniary compensation is or is not adequate relief is a question to be determined by the Court itself. In terms of the Explanation to section 12 of the Specific Relief Act, 1877, it was further held that the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money". It was also observed that mere fact of a party's willingness to accept compensation in the event of the failure of opposite-party to perform its part of the contract is not sufficient to establish the allegation of fact that compensation in money is actually an adequate relief. Again in the present case the question is one of exercise of discretion and on the facts of the instant case if the discretion was wrongly exercised that could be interfered with in appeal and not in the exercise of revisional jurisdiction.
21. In the Madras's case cited by Mr. Jehmat Jethanand the facts were that in the contract for transfer of property there was a condition -therein for payment of damages in default of performance whether by the vendee or the vendor. There was nothing to show that the clause that refers to the default on the part of the vendor was for any other purpose then to provide a security for performance. The rule contained in section 12 of the Act that "unless and until the contrary is proved the Court shall presume that the breach of the contract to transfer immovable property cannot be adequately relieved by compensation in money" was prima facie held to apply to these facts. As stated earlier, each Lase is to be decided on its own facts and no such plea as raised in the instant case was raised in the cited case. Therefore, this case is also distinguishable.
22. As already noticed the learned senior Civil Judge was influenced by 'the peculiar circumstance of the agreement between the parties', which is my opinion has reference to the plea of coercion and undue influence. Therefore, even if I assume that the conclusion reached by the learned Senior Civil Judge are not correct yet the same could not be a ground for review. (See the opinion of Kaikaus, J. In Muhammad Amir Khan v. Controller of Estate Duty (1). It may be pertinent to quote here some observations of Kaikaus, J. From the cited case which appear at page 354 of th report.
"To permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against it own judgments or perhaps a jurisdiction to one Bench of the Court to hear appeals against other Benches ; and that surely is not the scope of review jurisdiction. No mistake in a considered conclusion, I whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, rule 1, Civil Procedure Code, are implicit in the nature of review jurisdiction. While I would prefer not to accept those limitations as if they placed any technical obstruction in the exercise of the review jurisdiction of this Court I would accept that they embody the principles on 'which this Court would act in the exercise of such jurisdiction. It is not because a conclusion wrong but because something obvious has been overlooked, some
(1) PLD 1962 SC 335 important aspect of the matter has not been considered, that review petition will lie. It is a remedy to be used only in exceptional circumstances."
' The above observations apply with full force to the present case.
23. In any case, the review cannot be claimed as a matter of right even though a ground for review exists. 1 say so on the highest authority of Muhammad Zafarullah Khan v. Muhammad Khan and another (1), wherein Hamoodur Rehman, C. J. Laying down the above rule observed as follows_: ' The only question before us is whether by reason of the fact that one of the findings of the Court was based on an erroneous assumption of fact, we should review that finding or for that matter the previous decision. It is no doubt correct that a decision based on an erroneous assumption of fact is liable to be reviewed, but, even in this connection, it has to be pointed out that the view of this Court, as expressed in the case of Faqir Muhammad Khan v. Akbar Shah (2) is that : "The granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate ground exists but the discretion must, as in the case of all judicial discretion, be exercised upon sound judicial principles."
24. It is also well-settled that the discretionary orders of the subordinate Courts cannot be interfered with unless found fanciful and arbitrary, See Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (3). In the present case I do not find that the discretion was! Exercised fancifully or arbitrarily.
I may reiterate that in the present case the applicant had not filed any appeal against the decree while the respondent who was aggrieved by the same had, because, apparently he was not satisfied with the finding of the learned Civil Judge on the issue of signing the agreement under coercion and undue influence but after dismissal of the review application he seems to have reconciled with decree against him which obliged him to pay Rs, 20,000 as damages. I must mention that it was the respondent's plea that the market value of the property was Rs, 1,50,000 at the time when he was made by the S. H.
0. To sign the agreement to sell the same for Rs, 60,000.
25. In any case, powers under section 115. C. P. C. Are discretionary. See Messrs Ghulam Farid Muha nmad Latif and others v. The Central Bank of India Limited, Lahore (4) and Muhammad Din v. Alta Muhammad and others (5), and on the facts and in circumstances of this case, I am not inclined to exercise my discretion in this case, for it will not result in any grave injustice or hardship to the applicant.
26. In the result I dismiss this revision application leaving the parties, in the circumstances of the case, to bear their respective costs.
(1) 1975 SCMR 473 (2) PLD 1973 SC 110
(3) PLD 1970 SC 139 (4) PLD 1954 Lab. 575
(5) PLD 1957 Lab. 971