' This appeal is directed against the judgment and decree of the Additional District Judge, Faisalabad dated 2nd March, 1988 whereby while accepting the appeal of the respondents he set aside the decree of the trial Court dated 10th October, 1982 and decreed the suit of the respondents.
2. The dispute between the parties relates to a shop out of property No,5, situate in Ward No,2, Rail Bazar, Faisalabad, which was admittedly owned by the appellants. By virtue of agreement dated 6- 2-1978, they agreed to sell this shop for a consideration of Rs,1,25,000 to Abdur Rauf respondent No,1. A sum of Rs,25,000 was paid at the time of execution of this agreement.
' On 21-6-1978, all the five respondents filed the suit for specific performance of the agreement against the appellants complaining that he was not willing to perform his part of the agreement by transferring the shop. Respondents Nos. 2 to 5 were not parties to the original agreement but were impleaded as plaintiffs in the suit on the assertion that under the agreement, respondent No, 1 was entitled to have the sale-deed executed in his own name or in the name of his nominees and respondent No, 1 had asked the appellants to execute the sale-deed in the names of respondents Nos. 2 to 5, who agreed to do so but subsequently backed out.
' The suit was resisted by the appellants on two main grounds, firstly, that respondents Nos. 2 to 5 had no locus standi to file the suit as they were not parties to the agreement and secondly that the agreement in question had been interpolated and materially altered by the respondents who were, consequently, not entitled to enforce it. It was also pleaded that it was the respondent No, 1 who had failed to perform his part of the agreement which stood cancelled. The trial Court framed the following issues arising out of the pleadings of the parties:--
(1) Whether the plaintiffs have got no cause of action to file the suit? OPD.
(2) Whether the plaintiffs have got no locus standi to file the suit? OPD.
(3) Whether the defendants entered into an agreement to sell the suit property in favour of the plaintiffs, if so, on what terms and conditions? OPP.
(4) Whether the defendants Nos.2 to 5 are not a party to the agreement to sell as alleged by the defendants in preliminary objection No,2, if so, whether they are unnecessary party to the present suit, if so, what effect of their joinder ? OPD.
(5) Whether the plaintiffs are estopped by words or conduct to file the suit ? OPD.
(6) Whether the time is essence of the contract of sale, if so, what is its effect upon the present suit?
OPD.
(7) Whether the plaintiffs are entitled to a decree for specific performance of the contract of sale, if so on what terms and conditions? OPP.
(8) Relief.
' The suit was dismissed by the trial Court on 10-10-1982 on the finding that the plaintiffs/respondents Nos.2 to 5 were strangers to the agreement and not entitled to enforce it; that respondent No,1 had not been ready and willing to perform his part of the agreement and further that the agreement had been interpolated and materially altered inasmuch as the area sought to be sold was, after the execution of the ageement, increased from 150 sq. Ft. To 156-1/4 sq.
Ft. On appeal, the learned Additional District Judge reversed these findings and decreed the suit.
The lower appellate Court held that though there was alteration in the agreement but it was with the knowledge and consent of the appellant and respondents Nos.2 to 5 being assignees of the agreement to sell had a right to specifically enforce it.
3. Syed Raza Hussain Shamsi, learned counsel for the appellants contended that there was no justification for the Additional District Judge to reverse the findings recorded by the trial Court and while doing so, the evidence was misread and material evidence was also ignored. The learned counsel further contended that in law a person not a party to the agreement cannot seek its specific performance.
4. The first question which arises in the present appeal is as to whether the agreement in question had been interpolated or altered by the respondents without the knowledge and consent of the appellants, if so, what is the effect of such an interpolation. The findings of the two Courts below in this respect are at variance. There is no dispute that the agreement, after it had been scribed, was altered but the real difference arises as to when this alteration had taken place and whether it was with the consent and knowledge of the appellants. No particular finding was recorded by the Additional District Judge but from the tenor of his order it seems that he was under the impression that the alteration in the agreement was made with the consent of the appellants which had no material bearing. While coming to this conclusion, the Additional District Judge has acted more on conjectures rather than on evidence. A bare comparison of the original agreement Ex.P-20 with that of copy produced by the appellants (Exh.D-3) clearly proved that the agreement Exh.P-20 was interpolated A subsequent to the execution of the document. In Exh.D-3 the area of the shop agreed to be sold was given 10' X 15' while in Exh.P-20 it is mentioned as 10' X 15-5/8' and the total area sold has been given as 156-1/4'. There is no evidence on the record to show that this alteration was made in the agreement with the knowledge and consent of the appellants. The explanation given by P.W. 11, Abdur Rauf that the area given in the agreement in its very inception was 15-5/8' X 10' cannot be accepted and is belied by the document itself. On no basis, could such finding be arrived at by the Additional District Judge.
5. As regards the finding that the alteration was not material, the Additional District Judge while coming to this conclusion has completely lost sight of the statement of Khurshid All DW.3 who stated that out of the total area of the shop 6-1/4' was retained by the appellants in order to construct a staircase so as to provide access to the upper portion belonging to them as the existing staircase was not their property. The alteration in the agreement was material for, it had the result of increasing the area agreed to be sold and also was an attempt to deprive the appellants 6-1/4' of land which they had kept in order to B construct the staircase. Another fact to be noticed in this behalf is that apart from the area in the sale-deed which was sought to be registered certain other additions like staircase which do not belong to the appellants and electric meter were also made. In these circumstances, there was no justification for the lower appellate Court to have held that the agreement was not materially altered.
6. The next question which arises is as to the effect of interpolation in this agreement. It is to be noticed that the specific performance is an equitable remedy and is in the discretion of the Court.
One of the recognized grounds on C which the relief has been refused consistently by the Court, is the conduct of the plaintiff. In Nathu Lal and others v. Mt. Gomti Kuar and others AIR" 1940 PC 160 at page 163, the Privy Council was pleased to observe that if an alteration, erasure or interpolation is made in the material part of the deed, the deed itself is rendered void and is not capable of being enforced. A Division Bench of this Court in Ghulam Muhammad and others v. Qutab Ali Raza Khan and others 1988 M LD 1299 observed that where the appellant had changed the date of agreement he was not entitled to the relief for specific performance as he had not approached the Court with clean hands. In Rustam Ali and others v. Sheikh Ahider Rahaman Mia 45 CWN 837 and Bindeshri Prasad v. Mahant Jairam Gir ILR 9 Allahabad 705 it was held that if the plaintiff sought specific performance of a contract which was altered by him unilaterally he was not entitled to the relief of specific performance. In these circumstances the trial Court acted D correctly in refusing to decree the suit of the plaintiffs/respondents but the Additional District Judge was clearly in error in holding to the contrary.
7. Reverting to the question as to whether respondents Nos. 2 to 5 were entitled to have the agreement specifically enforced, nothing really turns upon it, for, in the present case, the suit had been filed not only by respondents Nos. 2 to 5 but also by respondent No,
1. It may, however, be observed that under section 27(b) of the Specific Relief Act, the agreement can be specifically enforced not only by the parties but also by their representatives in interest. Though the learned counsel for the appellants is correct in contending that it was nowhere specifically asserted that the respondents were assignees of the contract from the other respondents but it has been averred in the plaint that under the agreement the sale deed could be got executed in the name of any of the nominees of respondent No, 1 and respondents Nos. 2 to 5 were his nominees. Be that as it may, since the suit was filed not by respondents Nos.2 to 5 only but also by respondent No, 1, it is not necessary to determine this question conclusively.
8. In view of what has been stated above, this appeal is accepted, the judgment and decree of the Additional District Judge, Faisalabad dated 2-3-1988 are set aside and that of the trial Court restored. No order as to costs.