MUNIR A. SHEIKH, J.--This is defendant's appeal directed against the judgment and decree, dated 24-11-1984 passed by the learned trial Court whereby the suit instituted by the respondents for specific performance of agreement of sale has been decreed.
2. The dispute relates to property named "Diwana Manzil" bearing No. Block 3-4-5-58 situated in Galla Khojan Mandi, Gujranwala. It was owned by Muhammad Riaz Diwana deceased predecessor-in-interest of the present appellants and respondent No.2 Surriya Begum widow of said Muhammad Riaz Diwana. This property consists of a shop on the ground floor and a `Chaubara' above it. According to the case of respondent No.1/plaintiff as made out in the plaint said Muhammad Riaz executed an agreement of sale on 1-3-1980, agreeing to sell the said property to him for an amount of Rs.3,48,000 as price. According to his allegations they received an amount of Rs.30,000 as earnest money. The plaintiff was tenant in the shop of the property in dispute and in pursuance to the said agreement he was acknowledged to be in possession thereof, therefore, he ceased to be the tenant thereafter. It was also pleaded that the possession of the upper storey of the property was agreed to be delivered at the tune of execution and registration of the sale-deed. It was agreed that the sale-deed would be executed till 30-8-1980. It was also averred in the plaint that after 10 days of the execution of the said agreement, the vendor demanded another amount of Rs.18,000 as earnest money which was paid to him, as such, a total amount of Rs.48,000 stood paid as earnest money. For advancement of this further amount of Rs.18,000, another agreement was executed on 11-3-1980 in addition to the previous agreement specifically providing that the previous agreement would remain intact. According to the plaintiff the vendor changed mind due to rise in the prices of the property and started demanding more money. On the refusal of the plaintiff, a suit for declaration was filed by said Muhammad Riaz Diwana deceased against respondent No.1/plaintiff for declaration that the agreement of sale, dated 1-3-1980 was a fictitious, forged and the result of fraud, therefore, had no effect against his rights. Thereafter, the suit was filed by respondent No.1 for specific performance of the agreement out of which this appeal has arisen. Both the suits were consolidated and since the said suit for declaration filed by Muhammad Riaz Diwana deceased was earlier in time, therefore, the evidence was recorded in the said suit. Both the parties contested both the suits filed against each other and on the pleadings of the parties following consolidated issues were framed:-- (1)Whether the plaintiff executed the agreement to sell dated 1-3-1980 regarding the property in suit in favour of the defendant, and for a consideration of Rs.3,48,000? OPD (2)If the above issue is proved in positive, then whether the plaintiff received the amount of Rs.48,000 as stated by the defendant, as :earnest money under the agreement? OPD (3)Whether the alleged agreement is based on fraud? OPP.
(4)Whether the plaintiff's suit is wrongly valued for the purposes of court fee and jurisdiction? OPD (5)What is the effect if the verification of the plaint (of plaintiffs) is improper? OPD .
(6)Whether the suit (of the plaintiff) is mala fide? OPD (7)Whether the suit (of the plaintiff) in the present form not maintainable? OPD (8)Whether the defendant's suit for specific performance is without any cause of action and locus standi? OPP (9)Whether the defendants' suit is frivolous and vexatious? OPP
(10) Relief.
3. The predecessor-in-interest of the appellants examined Maqsood as P.W.1, Ghulam A.I as P.W.2, and Sh. Riaz Diwana deceased examined himself as P.W.3. Respondent No.1 examined Abdul Aziz deed writer as, Saleh Muhammad, who is also a deed writer as D.W.2, Muhammad SharifD.W.3, Kh.
Muhammad Tufail as D.W.4, Abdul Rashid as D.W.5 and respondentNo.1 examined himself as D.W.6.
4. Apart from this oral evidence the parties also adduced documentary evidence which shall be discussed in detail in the following part of the judgment. The learned trial Court after appraising the evidence of both the parties decided the issues Nos. 1, 2 and 3 against the appellants. Under issue No.4 it was held that the valuation of the suit for declaration filed by Sh. Muhammad Riaz Diwana deceased was proper. Under issue No.5 it was held that though the verification of the plaint in the declaratory suit filed by Muhammad Riaz was not proper but it had not adversely affected the maintainability of the suit. Under issue No.7 a finding was recorded by the learned trial Court that the suit in declaratory form was proper and competent. Issues Nos. 8 and 9 were answered in favour of respondent No.1 and it was held that on the basis of two documents Exhs.D.l and D.2 i.e. The agreements he was entitled to a decree for specific performance of agreement. Under issue No.6 it was found that predecessor-in-interest of the appellants was trying to deviate from his agreement of sale with mala fide intention in order to get enhancement of the sale consideration.
As a consequence of these findings the learned trial Court dismissed the suit filed by Sh.
Muhammad Riaz Diwana deceased for declaration and decreed the suit of respondent No-1 for specific performance of agreement through judgment, dated 24-11-1984 against sale consideration of Rs.3,48,000. It was held that out of the said amount Rs.48,000 had already been paid and the remaining amount was directed to be deposited in Court on or before 23-12-1984.
5, Sh. Muhammad Riaz Diwana deceased predecessor-in-interest of the appellants filed appeal before the learned. District Judge against the judgment and decree dismissing-his suit for declaration and this appeal m this Court has been filed against judgment and decree passed in the suit of respondent NO.1 for specific performance of agreement.
6. Learned counsel for the appellants submitted that Sh. Muhammad Riaz Diwana died during the pendency of the appeal and the appeal filed by him in the Court of learned District Judge was dismissed for non-prosecution. He, however, complained that it was so dismissed in the presence of respondent No.1 who did not bring it to the notice of the Court that Sh. Muhammad Riaz had already died. An application according to the learned counsel was made for restoration of the said appeal which was also dismissed. No further proceedings were taken in that behalf of the appellants. Learned counsel for the appellants challenged the findings of the learned trial Court on issues Nos.1, 2, and 3, as the decision of the case centres around the decision on these issues.
7. Mr. Karamat Nazir Bhandari learned counsel for respondent No.1 raised a preliminary objection regarding maintainability of this appeal. His submission was that the appeal filed by Sh.
Muhammad Riaz deceased in the Court of the learned District Judge against the judgment and decree dismissing his suit for declaration, respecting agreement to dispute having been dismissed for non---prosecution, the findings recorded in the said judgment and decree operate as res judicata qua the suit filed by respondent No.1 for specific performance of contract which has been decreed out of which the present appeal has arisen, therefore, this appeal is liable to be dismissed on that score.
8. On face the argument looks attractive but on proper analysis it is bound to fail. The argument is wholly fallacious. 1n a case where two cross-suits are consolidated and decided by one consolidated judgment and decree, the aggrieved person is not bound to file two separate appeals. The rule is firmly settled that in such a case only one appeal could be maintained. If any authority is required, reference may be made with benefit to Full Bench's judgment reported as Mt.
Lachhmi v. Mst. Bulli AIR 1927 Lah. 289 (FB). This is indeed so, because in such a case it is not possible to decide as to which of the, two suits could be treated to have been decided earlier so that judgment passed in it could operate as res judicata qua the other suit because one of the conditions to attract applicability of section 11 C.P.C. Is that the judgment in the suit decided earlier is to operate as res judicata. Needless to add that the question as to which suit was decided earlier is required to be decided with reference to the date. Of the judgment of the original Court i.e. The trial Court. Had Sh. Riaz deceased not filed any appeal against the judgment and decree dismissing his suit for declaration the same would not have had any adverse affect on the maintainability of present appeal, therefore, if appeal was filed and dismissed in default, it does not make any difference so far as legal position as enunciated above is concerned. Sh. Muhammad Riaz Diwana deceased even otherwise without filing a separate suit for declaration could defend the suit of respondent No.1 for specific performance of agreement on all the grounds available to him under the law against the agreement, its execution and legality. In view of the above legal position there is no bar against adjudicating upon this appeal and the objection of the appellants concerning the agreement m dispute. The objection raised by Mr. Karamat Nazir Bhindari, learned counsel for respondent No.1 is therefore, found to be without merit which is hereby repelled.
9. The main burden of the argument presented on behalf of the appellants by their learned counsel Mr. Ahmad Saeed Kirmani, was that the execution of agreement in dispute by Sh. Muhammad Riaz Diwana has not been proved according to law. We have scrutinized in detail the evidence produced by the parties. The two agreements of sales have been produced by respondent No.1 as Exhs.D.1 and D.2. To prove execution of agreement Exh.D.1 respondent No.1 examined Abdul Aziz petition writer as D.W.1. He deposed that he scribed the agreement Exh.D.1 which was entered in his register at No.1069, dated 1-3-1980. He stated that he wrote this agreement on the instructions of the parties. After completion it was read over to the parties who signed the same alongwith the witnesses. He went on to state that an amount of Rs.30,000 was paid by respondent No.1 in his presence to Riaz. In cross-examination he stated that before writing the document he had seen the document of title i.e. P.T.D. He also stated, when questioned that he mentioned number of P.T.D. In the document. It is in the evidence of this witness in cross-examination that he knew Sharif and Riaz personally. In cross-examination he also gave the details of currency notes. He also stated that the wife of the vendor was also present at the time of execution of Exh.D.1 who witnessed the document. After examining the evidence of this witness we are convinced that the evidence of this witness was not successfully impeached. This witness was an independent witness, therefore, there is no reason to discard his evidence or to doubt his credibility on any ground. The execution of the second agreement i.e. Exh.D.2 was proved through statement of Salah Muhammad petition writer who was examined by respondent No.1 as D.W.2. He deposed that agreement Exh.D.2 was entered by him in his register at serial No.650 on 11-3-1980 and that he wrote this agreement on the instructions of Riaz, in favour of Sharif and that an amount of Rs.18,000 was paid by Sharif to Riaz and the parties put their signatures in his presence on this document. In the cross-examination he stated that he knew the parties personally. He stated that the shop in dispute was in possession of Sharif which was owned by Riaz which was situated at a short distance from his shop and he knew both the parties for the last 4/5 years. He identified Muhammad Riaz, who was present in the Court.
When questioned he stated that Riaz signed the document in English. The evidence of this witness is also credit-worthy as nothing has been brought in the cross-examination against him.
Muhammad Sharif son of Mian Wall Muhammad, D.W.3 is the marginal witness of agreement Exh.D.1 who supported the case of respondent No.1 and the evidence of D.W.1. Kh. Muhammad Tufail son of Khushi Muhammad was examined as D.W.4 who is marginal witness of agreement Exh.D.2.
As against this Kh. Muhammad Riaz Diwana deceased examined Maqsood son of Sh. Habib Ullah as P.W.1, Ghulam A.I son of Allah Ditta as P.W.2 and he examined himself as witness as P.W.3. P.W.1 has stated nothing about these two agreements of sales. He deposed only in respect of receipt Exh.P.I which has been separately discussed. P.W.2 stated that the respondent had taken on rent shop from said Sh. Muhammad Riaz. About 2-1/2 years before when he was going, he saw Muhammad Sharif alongwith 2 or 3 persons sitting with Salah Muhammad petition writer who were talking that they had taken a shop on rent from Diwana and wanted to prepare fabricated document, in respect of the said shop. He stated that he heard this talk while standing there. He informed Diwana about this talk whereupon he filed the present suit. Muhammad Riaz deceased P.W.3 also narrated the same story. He also stated that he did not know English and could sign in Urdu. He produced in evidence photo copy of his Identity Card as Exh.P.2, copy of his Passport consisting of three pages as Exh.P.3. He denied having executed agreement Exhs.D.1 and D.2 as also having received any amount.
10. After elaborate and careful scrutiny of evidence of both the parties we are fully satisfied that Sh.
Muhammad Riaz deceased could not succeed in rebutting overwhelming evidence produced by the respondent.. The witnesses produced by the respondent are independent and their evidence inspires confidence. There is no reason to disbelieve them. On the other hand the evidence of Sh.
Riaz deceased is in general terms and does not inspire confidence. The wife of Sh. Riaz deceased had also witnessed the agreement Exh.D.1. Sh. Riaz deceased did not examine his wife in support of his case regarding denial of execution of agreements. After the death of Sh. Riaz his widow did not join the present appellants to prosecute this appeal, this is why, she has been arrayed as one of the respondents, which means that she was not supporting the case of Sh. Riaz deceased that these agreements were not executed by him. In this Court rather she has made an application that her share of the consideration amount be paid to her which further strengthens the case of respondent No.1 regarding execution of these agreements by Sh. Riaz deceased. Non-production of his wife as witness by Riaz deceased in these circumstances is sufficient to raise a presumption against him that had she been examined as witness, she would not have supported him. Keeping in view all these circumstances and the evidence discussed we are satisfied that the execution of both the agreements of sales has been fully established and the findings of the learned trial Court suffer from no mis-reading or other illegality.
11. Faced with this situation learned counsel for the appellants then argued that the execution of two agreements is highly doubtful because the signatures of Riaz on these documents are in English whereas he could not sign in English. This argument has been adequately met with by Mr. Bhandari, learned counsel for the respondents by referring to documents produced on record in evidence which are Exhs.D.7 and D.8. Exh.D.7 is the registered sale-deed executed in the year 1962 through which Riaz purchased the property. On this document the signatures of Riaz are in English.
It may be mentioned here that this document has been mentioned by Riaz himself in the list of documents filed by him placing reliance on this document in support of his case. Apart from this there is also a receipt Exh.D.8 evidencing receipt of rent of the property on which signatures of Riaz are in English. In the presence of this documentary evidence of unimpeachable character, the argument raised by the learned counsel for the appellants is found to be without substance.
12. Learned counsel for the appellants next argued that Exhs.D.1 and D.2 are void agreements, for Muhammad Riaz Diwana, the predecessor-in-interest of the appellants was a man of unsound mind and he was not in a lit mental condition to understand their contents. We are afraid the argument is absolutely devoid of force and we need not pause to consider its merits, for this plea was neither raised in the suit filed by Muhammad Riaz Diwana himself for declaration, nor in the written statement filed by him in the present suit for specific performance of agreement. So much so the suit for declaration regarding these agreements was filed by Sh. Muhammad Riaz Diwana himself and it is manifest from the plaint of the said suit that the same was not riled through next friend as a suit of plaintiff who is of unsound mind. Sh. Muhammad Riaz Diwana examined himself as P.W.3 and no such pleas were raised by him even during the evidence. This argument is an afterthought and cannot be allowed to be raised at this stage particularly, when otherwise also there is no evidence to support it.
13. Learned counsel for the appellants vainly argued that both the argeements are result of fraud and mis-representation. In support of this argument he submitted that there was another receipt Exh.D.5 which is dated 3-3-1980 evidencing receipt of an amount of Rs.11,500 by respondent No.1 from Riaz which according to the learned counsel has rendered all the transactions doubtful. The precise argument was that there was no occasion for payment of this amount by Riaz to respondent No.1. This receipt was produced by Sh. Muhammad Ijaz Diwana as Exh. P.1 in the suit for declaration filed by him. In respect of this receipt he examined Maqsood son of Habib Ullah as P.W.1 This witness clarified the matter and put it beyond any doubt. He stated that this amount of Rs.11,500 was taken as loan by Diwana from respondent No.1 Muhammad Sharif which was returned by Diwana to Muhammad Sharif in his presence and this receipt Exh.P.1 was executed by Sharif acknowledging the return of the said amount to him. In the presence of evidence of this witness produced by Sh. Muhammad Riaz Diwana himself explaining the circumstances under which the said amount was paid, it is possible to safely conclude that this receipt for the payment of the said amount by Sh. Muhammad Riaz Diwana to respondent No.1 Muhammad Sharif was in connection with absolutely a separate and independent transaction having no connection with or bearing upon, the execution of agreements of sales Exhs.D.1 and D.2, the execution of which have not been in any manner rendered doubtful due to this receipt as canvassed by the learned counsel for the appellants.
14. Learned counsel for the appellants with reference to a clause in the agreement Exh.D.1 providing that Ch. Riaz deceased would return the amount of earnest money and an additional amount equal to that in case he failed to abide by the agreement by 30-8-1980, on the strength of section 21(a) of the Specific Relief Act, argued that the agreement had been rendered unenforceable. In support of this argument he relied upon judgments reported as Abdul Cader Abdeen v. Abdul Careem Muhammad Taheer and others PLD 1958 PC 150, Hari Krishna Agarwala v. K.C. Gupta ILR 1949 All. 735, Messrs Ashrafi (Pvt.) Ltd. And another v. Messrs Karachi Transport Syndicate Limited and another PLD 1973 Notes 119 and Raja Shri Prakash Singh v. The Allahabad Bank Ltd. AIR 1929 PC 19.
15. The fallacy of this argument consisted in assuming that mere incorporation of such a clause in the agreement, brings the agreement within the mischief of section 21(a). This argument cannot be accepted without doing violence to the express provisions of Section 20 of the Act which provided 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, add the party in default is willing to pay the same." The reported judgments on which reliance has been placed by the learned counsel in support of this argument are not applicable to the facts and circumstances of this case. Mr. Bhandari on the other hand relied on the cases reported as Abdul Karim v. Muhammad Shafi and another 1973 SCM R 225 Khuda Bakhsh v. Abdul Jabbar and others PLD 1952 Pesh. 32 and Hakim Ghulam Rasool v. Sh. Imdad Hussain and another PLD 1968 Lah. 501. In Abdul Karim's case the case reported in "PLD 1958 PC page 150" referred to by the learned counsel for the appellants has been discussed and it has been held that the rule laid down in the said case is not applicable in Pakistan in the presence of the express statutory provision in the Specific Relief Act referred to above. This apart, the said clause m the agreement merely provides that Sh. Riaz deceased would return the earnest money alongwith equal sum if he failed to execute the sale-deed by stipulated time i.e. 30- 8-1980. Both these agreements in general and this clause m particular, in terms or by implication do not suggest that the parties settled that this sum would be an adequate compensation in money as a substitution of non-performance of the agreement i.e. In lieu of the transfer of ownership rights. It merely provided that a penalty would be imposed in case the vendor failed to abide by the terms of the agreement in that, if he failed to transfer the property by the stipulated date It rather established the anxiety of respondent No.1 to ensure that the agreement must be performed. It is difficult to accept the argument that this sum should be taken to be adequate compensation in money for non-performance of agreement to attract section 21(a) of the Specific Relief Act, because a penalty to be imposed in case of failure of a party to abide by the agreed cannot be equated with the compensation in lieu of transfer of the property itself. The argument thus has little merit which is hereby repelled.
16. Faced with this situation learned counsel for the appellants next argued that in the suit filed by respondent No. 1 for specific performance of agreement he also made a prayer that any other relief may be granted to him, thereby by implication respondent No.1 admitted that he could be compensated by granting him any relief other than the relief of specific performance of agreement. This argument too is devoid of any force. While advancing this argument learned counsel for the appellants lost sight of the explanation in section 12 of the Specific Relief Act, according to which "unless and until the contrary was proved, the Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money". Apart from this section 19 of the Act permits a plaintiff in a suit for specific performance of agreement to claim compensation for its breach, either in addition to or in substitution for such performance. This section while conferring discretion on the Court to award compensation where specific performance is not to be granted, simultaneously empowers the Court that in addition to specific performance of agreement, the Court could also grant compensation for breach of agreement to meet ends of justice. Respondent No.1 as a plaintiff is bound under the law to ask for all the reliefs available to him under a cause of action whether in addition to or in alternative, of the main relief of specific performance, failure to ask which would have debarred him from suing for any other relief in case his suit for specific performance was dismissed. Section 29 of the Specific Relief Act, expressly enacts this rule of law. Apart from this there are provisions of Order II, Rule 2, C.P.C. In which the same rule has been enacted. After considering all these provisions of law it is explainably clear that merely because respondent asked for any other relief which the justice of the case permitted it did not amount to admission by him that any other relief was adequate compensation for non-performance of agreement.
17. Additionally in our view the defence plea based on provisions of section 21(a) against suit for specific performance of agreement, must has been independently raised speficially fin the written statement and proved; Trough evidence that a particular amount of money was sufficient compensation for non --performance of agreement, independent from the clause in the agreement mentioning a sum to be paid by defaulting party as penalty of such default. Neither any such plea was raised in the written statement by Sh. Muhammad Riaz deceased nor any evidence was led on that, therefore, it is not possible to accept this argument at this stage.
18. Having realized this difficulty learned counsel for the appellants then vaguely argued that the word "harjana-- used in the said clause of agreement can also be construed to mean compensation having been agreed upon between the parties to attract section 21(a) of the Specific Relief Act. To support this contention he has referred to definition of the word `harjana' at page 1438 Urdu Dictionary (Feroz-ul-Loughaat) 3rd Edition in which word `harjana' has been defined as `tawan' (zar-e-nuqsan). This definition does not in any way advance the case of the appellants any further. The clause in itself is very clear from where it can safely be concluded that the parties intended to fix amount to be paid as penalty, in case of failure of vendor to execute sale-deed within the stipulated period and they never intended to fix the said amount as compensation as a substitute of transfer of property itself. In each case it depends upon the terms of the agreement from where intentions of the parties can be gathered. We are in no manner in doubt after having thoroughly examined both the agreements of sales and the evidence that there was no agreement for payment of any amount as compensation in lieu of transfer of property.
19. Learned counsel for the appellants vainly argued that specific performance of agreement to respondent No.1 should be declined in exercise of discretion of this Court because conduct of said respondent was highly unfair inasmuch as he has not made any payment since the date of filing of the suits to Sh. Riaz deceased on account of rent of the shop. We are afraid the argument has little merit. It was settled between the parties as is manifest from Exh.D.1 that possession of the shop which was previously on rent with respondent No.1 was delivered to him in pursuance to the said agreement and he ceased to be tenant thereafter. Apart from this Sh. Riaz deceased had received an amount of Rs.48,000 as earnest money which he utilized, therefore, the very basis that Sh. Riaz deceased was not fairly treated or that he was deprived of rent of the shop does not hold good.
20. Learned counsel for the appellants lastly argued that respondent No.1 while appearing before the learned District Judge in appeal filed by Sh. Muhammad Riaz Diwana which was dismissed in default for his non-appearance, did not bring it to the notice of the said Court though he knew that Sh. Muhammad Riaz had died, as such, due to this conduct also discretionary relief of specific performance of agreement should be refused to him. As has been discussed above no prejudice has been caused to the case of the appellants due to dismissal of the said appeal, as his case has been thoroughly examined in this appeal, therefore, nothing turns on this aspect of the case, as such, the exercise of discretion in favour of refusal of relief of specific performance on the said basis would be without any legal justification.
21. Learned counsel for the appellants attempted to argue that considering over all circumstances of this case it emerges that Sh. Muhammad Riaz Diwana under compulsion of financial needs, was compelled to execute the agreements of sales, therefore, it should be held that he did not execute the agreements with his own free will on account of which the agreements were voidable. This argument is based on conjectures and surmises, and has not impressed us. There is no plea wised in the pleadings or in the evidence to this effect and it was also not proved that the consideration of an amount of Rs.3,48.000 settled for the sale of the property was inadequate so as to establish that the agreements, were executed u rider financial strains as has been canvassed .
22. For the foregoing reasons, no case has been made out for interference by this Court in the impugned judgment and decree, dated 24-11-1984 of the learned trial Court which is hereby upheld. The appeal fails which is dismissed with no order as to costs.
A.A./M-1296/L.