This is plaintiffs revision petition against the judgment and decree dated 13-6-1988 passed by the learned Addl. District Judge, Sargodha, accepting the appeal of respondents Nos.1 to 11 from judgment and decree dated 17-1-1987 passed by the learned trial Court decreeing the suit of the petitioner for specific performance of agreement.
2. The facts forming the background of this case in brief are that the petitioner filed a suit against the respondents and one Syed Mustafa Hussain Tajdar s/o Khurshid Hussain deceased for specific performance of agreement of sale of the land in dispute. It may be observed that said Syed Mustafa Hussain Tajdar was impleaded as defendant No.13 whereas the present respondent No. 13, Bashir Ahmad, figured as defendant No.14 in the suit. It is admitted position that during the pendency of the suit Syed Mustafa Hussain Tajdar died. According to the allegations as contained in the plaint 2800/32640th share of land measuring 6 kanals comprising Khewat No.69 Khatuni No.113, 113-min and 114--min, Square No.27, killa No.16, Plot No.27/16/7 size 70x40 feet an area of 10 marlas 80 sq. Ft. According to Jamabandi for the year 1975-76 situated in Chak No.46-Shomali Tehsil and District Sargodha was agreed to be sold by respondents Nos.1 to 12 for a consideration of an amount of Rs.40,000 out of which an amount of Rs.4,000 was received by defendant No.13 namely Syed Mustafa Hussain Tajdar deceased through receipt No.106 dated 10-4-1978 and in spite of receipt of remaining amount of Rs.36,000 and preparation of regular sale---deed on 7-12- 1979 the said defendants refused to put their signatures or thumb marked the same in order to complete its execution. Consequent upon their refusal to do so the suit was filed. It has been stated in the plaint that Syed Mustafa Hussain Tajdar defendant No.13 and Bashir defendant No.14 (now respondent No.13) were running business of property Dealer at Sargodha on commission. The defendants contested the suit. Defendants Nos.12 to 3 jointly filed written statement whereas defendants Nos.1, 6 and 12 filed separate joint written statement. Defendants No.13 also separately filed written statement and defendants No-3 to 5 and 7 to 12 also filed separate joint written statement. About factum of agreement of sale defendants Nos. 1 to 3 in para.1 of the written statement on merits stated that neither they knew about this agreement nor they entered into any agreement with the plaintiff. They specifically pleaded that they did not know about any receipt having been issued in favour of the plaintiff. Defendants Nos.1, 6 and 12 in their written statement also stated that they did not know about the receipt. The plea of defendant No.13 in this respect was that there was no concluded agreement of sale, therefore, the suit was liable to be dismissed.
Defendants Nos.3 to 5 and 7 to 12 in their written statement regarding agreement of sale stated that the alleged sale-deed as also the receipt was fabricated, farzi and collusive. On the pleadings of the parties the learned trial Court framed the following issues:- (1)Whether the plaint of plaintiff is liable to rejection? OPD (2)Whether the plaintiff is estopped through his words and conduct from filing this "suit? OPD (3)Whether plaintiff has no cause of action to file this suit? OPD (4)Whether the suit of plaintiff is bad for multifariousness facts.
(5)Whether the plaint is not correctly valued for the purpose of court-fee and jurisdiction?
(6)Whether suit of plaintiff is frivolous and defendants are entitled to special costs?
(7)Whether defendants Nos.1 to 11 made an agreement to sell of the suit land through defendant Nos.13 and 14 with plaintiff in consideration of Rs.40,000? OPP (8)Whether defendant No.13 received a sum of Rs.4,000 from the plaintiff through receipt dated 10- 4-1978?
(9)Whether plaintiff is entitled to decree as prayed for?
(10) Relief.
3. In support of his case the petitioner/plaintiff examined Muhammad Akram Bhatti Petition-Writer as PW.1. Muhammad Bashir Ahmad s/o Ghulam Muhammad as P.W.2, Malik Hameed Asghar s/o Malik Abdur Rehman as PW.3 and he examined himself as his witness as PW.4. Apart from this oral evidence he also produced sale-deed EX.P.1 and a receipt which was marked as "A". As against this the respondents defendants examined Rana Muhammad Ehsan s/o Rana Manzoor Ahmad as D.W.1, Waheed Mohsin defendant No.6 as D.W,2 and Fateh Muhammad s/o Sher Muhammad as DW.3. They also produced photo copy of receipt dated 10-4-1978 as EX.D.1.
4. After appraising the evidence of the parties the learned trial Court decided issues Nos.7, 8 and 9 which were crucial issues in favour of the petitioner and on the basis of findings on these issues the other issues were answered accordingly against the defendants and in consequence thereof the suit of the petitioner was decreed through judgment dated 17-1-1987 and the learned lower appellate Court on appeal set aside the said judgment of the learned trial Court by judgment dated 13-6-1988 and after reversisng the findings of the learned trial Court on issue No.7, the suit has been dismissed.
5. Learned counsel for the petitioner stenuously argued that the learned lower appellate Court misread and misconstrued the material brought on record in evidence by the parties, in reversing the judgment and decree of the learned trial Court in his favour, therefore, the impugned judgment and decree suffer from material irregularity and illegality calling for interference by this Court under Section 115 CPC.
6. Learned counsel for respondents Nos.1 to 13 opposed the revision petition.
7. I have examined the record with the assistance of the learned counsel for the parties in order to satisfy myself whether the learned lower appellate Court was justified in reversing the findings of the learned trial Court and to doing so he has misread or misconstrued the material on record as was being alleged. It emerges from the case made out by the petitioner in evidence that he did not settle the bargain with respondents Nos.1 to 11 directly. His case was that defendant No.13 Syed Mustafa Hussain Tajdar deceased who was running business of property dealership was working on commission basis and on behalf of respondents Nos.1 to 12, he settled the bargain with him and an amount of Rs.4,000 as earnest money was paid to said Tajdar deceased in token of a receipt issued by him and the remaining amount of Rs.36,000 was also paid to him and it was on his instructions that the sale-deed Ex.P.1 was written. Respondents Nos.1 to 12 denied the existence of any agreement between them and the petitioner in the written statement as observed above. This gives rise to a question as to what was the legal status of Tajdar deceased commission agent vis- a-vis respondents Nos.1 to 12 i.e. Whether he was their agent and if so what was the extent of his authority to deal with the matter on their behalf.
8. Viewing the case from this angle now I proceed to discuss the evidence. It is in the evidence of Ahmad Din the petitioner when he appeared as PW.4 that he approached respondent No.1 to settle the bargain who directed him to pay the earnest money to Tajdar deceased and obtain a receipt.
He stated that the bargain of sale was settled at the price of Rs.40,000 out of which an amount of Rs.4,000 was paid against which a receipt was issued which he produced and marked as "A". A photo copy of the same receipt was produced by the defendants as Ex.D.1. He stated that on 5-12- 1979 he took the money with him and paid Rs.5,000 for purchase of stamp paper when he was told that sale-deed would be got registered on 7-12-1979 on which he again went and paid the remaining price of the land and since sixteen sale-deeds were to be got registered therefore, he was asked to come on the next day. When he went on the next day the defendant refused to get the sale deed registered. In the cross-examination he admitted that the agreement was not settled with the owners directly. A suggestion was put to him in cross-examination that he was returned an amount of Rs.4.000 which he denied. The evidence of Rana Muhammad Ihsan DW.1 is sufficiently helpful for ascertaining as to what was the legal status of defendant No.13, Tajdar deceased, owner of Tajdar Estate Corporation who was a Commission Agent. This witness in his statement clearly admitted that the defendants had named their land as Rafi Park Colony. He admitted that to sell all the plots owned by the defendants in this Colony, Tajdar deceased defendant No.13 was employed as commission agent. He expressed ignorance about the fact whether said Tajdar deceased was also authorized to receive money. He, however, stated that when the petitioner paid Rs.4,000 to Tajdar he was not present but Malik Salim (defendant No.1) and Riyasat Cheema were present and further stated that Malik Salim asked said Tajdar to pay back the said earnest money to the petitioner. He admitted that all the plots in Rah Park which were admittedly owned by respondents No.1 to 11 were sold by said Tajdar. It is also in his evidence that after the alleged re--payment of earnest money to the petitioner the receipt already executed in his favour evidencing the said payment was cancelled which cancellation was recorded on the same receipt. Waheed Mohsin defendant No.6 when appeared as DW.2 stated in the examination-in-chief that the rate of the land was Rs.10,000 per marla and he told Ahmad Din the petitioner to receive back the earnest money from Tajdar and said Tajdar told him that he had paid back the earnest money. In cross- examination he explicitly admitted that the name of their Colony was Rafi Park which was owned by them which consisted of approximately 150 plots. He further admitted that their property dealer was Syed Mustafa Hussain Tajdar deceased defendant No.13 who was owner of Estate Corporation.
Regarding the extent of authority given to this property dealer he stated that he used to settle the bargain and also stated that he used to receive the earnest money though they did not execute any power of attorney in his favour. He further admitted that since the price at which the plaintiff wanted to get the sale-deed registered was not correct, therefore, they refused to execute the sale-deed. From the evidence of DW.1 and DW.2 it is demonstrably clear that Tajdar deceased defendant No.13 was authorised by defendants Nos.1 to 12 to enter into agreement on their behalf, settle the terms thereof and receive even the earnest money. The receipt of earnest money by this property dealer through EX.D.1 is fully established which rather is an admitted fact, for, defendant No.6 as D.W.2 took the stand that he asked the petitioner to receive back the said earnest money from Tajdar. This receipt EX.D.1 is on the printed form of Tajdar Estate Corporation, Sargodha. In this receipt the details of the area agreed to be sold with measurement which was in Rafi Park have been specifically given. From this evidence of respondents Nos.1 to 12 it stands fully established that Tajdar deceased defendant No.13 was their duly employed agent and in this respect no doubt can be entertained. Having realized this difficulty learned counsel for the respondents tried to face it by arguing that no power of attorney was executed in his favour by his clients, therefore, he could not bind respondents Nos.1 to 12.
9. The fallacy of this contention consisted in assuming that to employ an ' agent, execution of a document or other formality was legally necessary. No provision of law has been referred to, by the learned counsel for the respondents------..To support this argument. To the contrary it is clearly provided in Section 186 of the Contract Act that the authority of an agent may be express or implied. The authority of agent under the law can even be inferred from circumstances and conduct of the parties and no written instrument is required by law to be executed. This view finds support from judgment reported as Lat and others v. Pon Gating (AIR 1938 Rang. 145) referred to by the learned counsel for the petitioner. From the statement of defendant No.6 as DW.2 as discussed above it was fully established that Tajdar was employed as agent by defendants Nos.1 to 12 for settling the bargain with the intended purchasers of plots in Rafi Park owned by them and the extent of his authority was to settle the terms and conditions of the agreement which means that he had the authority to make agreement on their behalf and also to receive earnest money. It is in the evidence of Muhammad Bahsir Ahmad PW.2 that Tajdar used to receive earnest money as also the total price and after completion and registration of sale-deeds he used to pay it to the owners.
This witness was working with Syed Mustafa Hussain Tajdardeceased as Munshi. This part of his statement was not subjected to cross--examination and according to firmly established rule laid down by the superior I courts, its correctness shall be deemed to have been accepted. Reference may be, made to Syed Iqbal Hussain v. Mst. Sarwari Begum (PLD 1967 Lah. 1138) and Qasim and others v. The State (PLD 1967 Kar. 233). This witness is not related to any of the parties. Learned trial Court rightly placed reliance on the evidence of this witness. It would, therefore, be possible to come to the conclusion that Syed Mustafa Hussain Tajdar as agent of respondents Nos.1 to 12 had the authority not only to enter into agreement of sale in respect of their lands with third person and receive earnest money but was also authorised to receive the total sale price.
10. Learned counsel for the respondents when confronted with this situation argued on the strength of judgment reported as Durga Charan Mitra v Rajendra Narayan Sinha (AIR 1923 Cal. 57) that in construing the legal status of a commission agent to act as an agent of a party strict view should be taken in ascertaining his authority so as to bind the principal for his acts. There is no cavil ' so far as the legal proposition is concerned that in construing authority of an agent to bind the principal the Court has to take strict view of the terms of the authority given to him whether expressly or impliedly. The rule laid down in this judgment is that "an estate or house-agent, authorised to procure a purchaser, has no implied authority to enter into an open contract of sale. There is a substantial difference between an authority to sell and an authority to find a purchaser". In the present case as discussed above the authority given to Syed Mustafa Hussain Tajdar deceased defendant No. 13 was (WOO HEE SODDA KARTA THAA) i.e. To settle the bargain which can safely be construed to mean to enter into contract and receive earnest money on behalf of respondents Nos.1 to 12 which had almost been admitted, as such, there being no doubt in this respect, there is no question of construing it otherwise. His authority to receive total price is also established through evidence of P.W.2. The findings of the learned trial Court on issue No.7 were therefore, perfectly valid based on law and the facts established on the record. The learned lower appellate Court while reversing the said findings after holding that there was no agreement between respondents Nos.1 to 12 and the petitioner, misapprehended this important aspect of the case which has resulted in wrong judgment.
11. Learned counsel for the respondents vainly attempted to argue that PW.2 admitted in his evidence that he was not working with Tajdar when the receipt EX.D.1 was executed and payment of Rs.4,000 as earnest money was made in 1978, therefore, his statement that Tajdar used to receive total sale price on behalf of respondents Nos.1 to 12 cannot be taken into consideration. On face the argument looks attractive but on proper analysis it is likely to fail. The receipt Exh.D.1 was executed in the year 1978. The payment of an amount of Rs.4,000 stands admitted in the statement of D.W.2 when he stated That he asked the petitioner to get back the said earnest money from Tajdar. In respect of authority of Tajdar to receive total sale price on behalf of respondents Nos.1 to 12 the statement of P.W.2 can be given full credence because he stated that he was working with Tajdar on 6-12-1979 as his Munshi and according to him the sale-deeds on behalf of respondents Nos.1 to 12 including one in dispute were executed in his presence in the year 1979 when the total sale price used to be received by Tajdar. This witness was working as Munshi with Tajdar at the time when writing of sale-deeds took place and the remaining total price of sales paid in his presence, therefore, his evidence in this respect is direct evidence and creditworthy. He is an independent witness and there are no reasons to disbelieve him.
12. After having held that Tajdar deceased defendant No.13 was fully competent to enter into agreement of sale, receive earnest money and also the total price on behalf of respondents Nos.1 to 12, the next question which falls for consideration is whether any agreement by said Tajdar as agent of respondents Nos.1 to 12 was in fact made m favour of the petitioner and if so whether the price settled therein was paid by the petitioner to him, to bind respondents Nos. 1 to 12. On this there is evidence of P.W.2 who unambiguously deposed that an amount of Rs.36,000 as the remaining sale price was paid by the petitioner to Tajdar but he did not know whether Tajdar paid the said amount to respondents Nos.1 to 12. According to him Tajdar instructed the petition-writer to recite in the sale-deed EX.P.1 that the owners had received the total amount of Rs.40,000 P.W.1 Muhammad Akram Bhatti the petition-writer deposed that Tajdar Dehlvi in the capacity of property dealer got sale-deed EX.P.1 written from him but this could not be termed as complete sale-deed because the owners of the land did not put their signatures. A suggestion was put to him in cross-examination that the owners of the land demanded price and the petitioner refused to pay from which it can safely be inferred that the case of respondents Nos.1 to 12 was that the price was not in fact paid to them. From this evidence it stands fully established that so far as remaining price of the land i.e. An amount of Rs.36,000 is concerned, it was paid by the petitioner to said Tajdar deceased and one of the reasons for which respondents Nos.1 to 12 refused to put signatures on the sale---deed EX.P.1 was that the price was not paid to them which is manifest from the above suggestion put to PW.1 in cross-examination. If it be so and Tajdar deceased after receiving amount from the petitioner had not paid it to respondents No.1 to 12 it did not affect the rights of the petitioner to get the sale deed executed because that was a matter between respondents Nos.1 to 12 and their agent Tajdar inter se. If the agent did not pay to them the said amount, it was for them to seek remedy against their agent under the law for the recovery of the said amount. From the evidence of D.W.2 it is also clear that they refused to execute sale-deed because the price on which the petitioner wanted the execution of the sale-deed was low as according to him the rate was Rs.10,000 per marla. It is thus clear that it was on account of the desire of respondents Nos."1 to 12 to fetch more money that they refused to execute the sale-deed. If they thought that their agent i.e. Syed Mustafa Hussain Tajdar defendant No.13 settled the bargain at a low price and on account of this act of their agent they had financially suffered, they could seek remedy against their agent for his alleged negligence and could not deny the right of the petitioner to purchase the land at the said price in pursuance to the said agreement. The learned lower appellate Court in recording the finding that there was no proof of execution of agreement, payment of earnest money as also the remaining amount of Rs.36,000 as price grossly misread and misconstrued the record. The findings of the learned trial Court are based on careful and elaborate appraisal of material brought on the record.
13. Learned counsel for the respondents lastly attempted to argue that even if the said earnest money of Rs.4,000 was held to have been paid to Tajdar as agent of respondents Nos.1 to 12, the defendants having led evidence that it was returned, as such, the agreement should be held to have been cancelled.
14. I am afraid the submission cannot stand the test of scrutiny. The conduct of the respondents does not permit for giving any credence to their this plea having been raised for the first tune at the stage of evidence. In their written statements respondents Nos.1 to 12 denied the existence of any agreement and the said receipt EX.D.1. They changed the stand during evidence and took the plea that the said amount was returned to the petitioner agent Tajdar on their instructions which in my view was an afterthought plea. No reliance can be placed on the evidence of the defendants regarding return of earnest money to the petitioner by Tajdar their agent. Rather Tajdar according to PW.2 asked PW.1 petition-writer to recite in EX.P.1 that the entire sale price had been paid.
Evidence of PW.2 has not been successfully dislodged by respondents Nos.1 to 12 who is an independent witness.
15. For the foregoing reasons- the learned lower appellate Court has committed material irregularity and illegality in reversing the findings of the learned trial Court on issue Nos.7, 8 and 9.
As a matter of fact findings on issues Nos. 8 and 9 are dependent on issue No.7, therefore, learned counsel for the parties restricted their arguments on issue No.7 only. The judgment and decree of the learned lower appellate Court is not sustainable in law. This revision petition is accepted, the impugned judgment and decree dated 13-6-1988 passed by the learned lower appellate Court is hereby set aside and that of the learned trial Court restored with no order as to costs.
A.A./A-553/L