1. ' The Applicant has felt aggrieved against the judgment a decree in Appeal dated 30-5-1984, whereby the prayer of respondent Umrao Khan that he should be given a decree of possession and the refund of Rs,7,000/- was allowed. The respondent and applicant appeared to have contracted for sale of house No, 14 plot No, 94, Garden West, Karachi for Rs,7,000/- on 18-9-191 Rs,6,500/- were paid by the respondent to the applicant towards sale consideration. Rs,500/- was to be paid by the respondent to applicant within 3 months from 18-9-1976. It was also provided in agreement itself that in case the first party (applicant) refunded entire of amount of Rs,6,500/- to the second party (responder then second party shall have no right to purchase the said hot from the first party,. {{PAGE CUT}} The respondent filed suit for specific performance and Session or in the alternative for return of part price-paid. The a was resisted by the applicant, who denied the execution of the ract.And also alleged that the price of the house was Rs,30,000/-. Parties led their evidence after framing of issues. The suit was equally decreed by the Civil Judge on 13-3-1980 but he directed applicant to refund the amount to the plaintiff on the ground the value of the house will be much more as it was situated in heart of the town and the defendant/applicant was an aged person the plaintiff had taken undue advantage of his old age, who had ?Ed to sell the house for such a meagre amount.
2. The respondent did not feel satisfied with the award of the rnate prayer of his plaint and sought the sale of the property in favour. The learned Ex Officio A D J, Karachi held that the reasons he trial Court were not supported by the evidence on record. He ?Rved that the respondent had led no evidence and thus there is ling on record to show that the total consideration of Rs,7,000/- meagre amount or that the plaintiff took advantage of the alleged age of the respondent. Mr. Abdul Fahim Khan argued that the learned A.D.J. Has sight of the fact that the applicant had examined himself and stated that the price of the house would be Rs,30,000/- and this very statement was also contained in the written statement. Therefore, argued that the judgment of the Additional District ;'e suffered from non-reading of evidence of the applicant. Further mission of the counsel was that there was alternate prayer in the -It for refund of Rs,6,500/- if the delivery of possession could be allowed. He, therefore, submitted that there was nothing ig in the order of the Civil Judge and the same should not have I interfered with by the appellate court. Mr. Faheem further nitted that the judgment of the Civil Judge was in-line according iections 12(c) and 12(a) of the Specific Relief Act.
3. He placed nce upon PLD 1977 Karachi 191(198).
4. ' Mr. Rasheed Rizvi on the other hand submitted that the ;diction of this Court in revision was to be restricted only to points and, therefore, it should not be exercised because one point had been urged. He placed reliance upon PLD 1983 SC 7). However, in the present case I find that the observation of learned A.D.J. That there was no evidence produced by the icant is not correct. The applicant examined himself and had sed that the value of the house was .Rs,30,000/.-. Since the same been ignored by the learned A.D.J., therefore, the revisional diction of this Court is clearly attracted in the case as there been non-reading of material evidence by the A.D.J. Moreover, the agreement in question had itself provided that in case the cant was prepared to pay Rs,6,500/- then the respondent had sight to purchase the said house clearly indicated that the andent considered the refund of the consideration money as an uate compensation for himself. Moreover, the alternate prayer in plaint further supported the decree which has been passed by learned Civil Judge in the presence of the alternate prayer. It not competent for the learned A.D.J. To change the decree into for possession.
5. ' Mr. Rasheed had further contended that the explanation of Section 12(c) of S. Relief Act placed, a presumption in favour of the proposition that in respect of a contract to transfer immovable property it cannot be adequately relieved by compensation in money. The counsel is certainly right that such a presumption is raised in the explanation but the difficulty for him is that there is a clear stipulation in the agreement of sale itself for the refund of the amount of consideration paid and also the alternate prayer in the plaint sufficiently discharges that presumption which has been raised in the explanation of section 12. Under Section 12(c) it is the duty of the court itself to see that pecuniary compensation for its non-performance would not afford adequate relief. In this case since the contract had itself provided for the refund of the amount and the alternate prayer in the plaint had also sought the refund of the money, therefore, the presumption of the explanation under Section 12 was sufficiently displaced and the contrary was clearly established in the case.
6. Consequently, this revision is allowed and the judgment and decree of the learned A .D.J. Is set aside and the judgment of the trial Court is restored with the further addition that the plaintiff/respondent will also be entitled to 6% interest on the sums of Rs,6,500/- calculated from the date of the suit till the decision of this petition. Moreover, since the applicant/ defendant had adopted a dishonest plea of denying the execution of the agreement, therefore Rs,1,000/- will 15e awarded as special costs against the applicant/defendant.