' AJMAL MIAN, J.--This is an appeal with the leave of the Court against the judgment dated 12-7- 1984 passed by a learned single Judge of the High Court of Sindh in Civil Revision Application No,70 of 1982, filed by the appellant against the order dated 21-10-1982 passed by the learned IIIrd Senior Civil Judge, Hyderabad, dismissing appellant's review petition whereby review was sought of the judgment and decree dated 8-4-1982 passed by the said Court in Suit No,65 of s.1979, declining the same. Leave to appeal against the above judgment was granted to consider the following questions:--
(a) Whether the discretion exercised by the trial Court in not granting the decree for specific performance was contrary to law?
(b) Whether the High Court had wrongly assumed that the trial Court had declined to grant decree of specific performance on account of peculiar circumstances of the case which had allegedly reference to the plea of coercion and undue influence and if so, what is its effect?
(c) Whether the High Court had erred in refusing to allow the relief prayed for exercising its power under section 115 of the C.P.C. On the ground that the power was discretionary and that the judgment of the trial Court could only have been interfered with if an appeal had been filed against it?
2. The facts to be noted are that the appellant entered into an agreement on 12-11-1978 with the respondent, hereinafter referred to as the agreement, to purchase a residential unit, bearing No,2773/B in the building situated on the second floor on plot of land bearing survey No,2773, Market Road, Hyderabad, hereinafter referred to as the suit house, for a consideration of Rs,60,000.
Against the above sale consideration, the appellant paid a sum of Rs,20,000, balance consideration was to be paid at the time of execution and registration of the sale-deed, which was to be executed and registered within one month. It appears that the respondent did not execute and get a sale-deed registered. The appellant filed aforesaid suit for specific performance of the agreement. In the prayer clause, the following reliefs were claimed:-- "12. The plaintiff prays for following judgment and decree:--
(a) That defendant do specifically perform his part of contract dated 12-11-1978 and be ordered to execute the sale-deed after receiving balance amount of Rs,40,000 from the plaintiff or in case of failure the Nazir of this Hon'ble Court be directed to execute the sale-deed in favour of plaintiff and in the alternate the defendant to return the amount of Rs,20,000 alongwith penalty of Rs,20,000 and the damages of Rs,20,000 which are suffered by the plaintiff.
(b) The costs of the suit be borne by the defendant."
' The above suit was resisted by the respondent, inasmuch as a written statement was filed in which inter alia it was averred that there was no question of resiling from the contract as in fact there was no lawful contract between the parties and that the defendant had refused to sell the suit house, he and his son Aftab were made to sit at the Police Station in the night, where the then S.H.O. Mr. Jiskani threatened them to put them in the police lock-up and also used third-degree methods if they were not to agree to sell the suit house. It was also pleaded that the sale consideration was inadequate. On the basis of pleadings of the parties, the learned trial Court framed the following six issues:-
(1) Whether the defendant executed agreement for sale-deed dated 12-11-1978 in respect of the suit property in favour of the plaintiff. If yes, whether the same was done under the 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 received the amount of Rs,20,000 from S.H.O. Jiskani forcibly?
(4) Whether the defendant is Benami owner of the suit property and the real owner in his son Aftab?
(5) Whether the market value of suit property is Rs,1,50,000?
(6) What should the decree be?
' In support of his claim in the suit, the appellant examined himself (Exh.23) and one Bashir (Exh.17), whereas the respondent examined himself (Exh.63), one Bashir Ahmad, a Clerk of S.D.M. (Exh.47), Liaqat Ali (Exh.49), Abdul Wahid (Exh.51), Dur Muhammad (Exh.52), Mst. Razia (Exh.54), Aftab Ahmad (Exh.59) and Shafi (Exh.72).
3. The learned trial Court, after hearing the arguments of the learned counsel for the parties, held under Issue No,1 that the respondent failed to prove that the agreement was executed under coercion and undue influence, whereas under Issue No,2, it held that the agreement was enforceable, but instead of granting specific performance of the agreement, granted damages. On Issues No,3, 4 and 5, it recorded findings in the negative, whereas under Issue No,6, it decreed the suit through the judgment dated 8-4-1982 for a sum of Rs,40,000 i,e, Rs,20,000 being the earnest money and Rs,20,000 as the agreed amount of liquidated damages. However, it declined to grant a decree for specific performance as stated hereinabove as it was of the view that since the appellant could be compensated with money, the agreement could not be specifically enforced.
4. Thereupon, the appellant, instead of filing an appeal, filed a review petition on 2-5-1982 in the trial Court, which was dismissed through the order dated 21-10-1982. Against the above order, the appellant filed aforesaid civil revision on 10-11-1982 which was declined by the judgment under appeal. After that, the appellant filed a petition for leave, which was granted to consider the above questions.
5. It may also be stated that the respondent filed a regular appeal against the above judgment/decree of the trial Court on 1-7-1982 but before any notice of the above appeal could be served on the appellant, he withdrew the same on 26-10-1982 after the dismissal of the above review petition on 21-10-1986.
6. In support of the above appeal, Mr. Fakhruddin G. Ebrahim, learned Sr. ASC appearing for the appellant, has urged as follows:-
(i) that the learned trial Court in refusing to give a decree of specific performance of the agreement ignored the law declared by the superior Courts including by this Court though the same was binding;
(ii) that the appellant's review petition was to be granted by the trial Court as ignoring of a binding judgment is a recognised ground for the grant of a review petition;
(iii) that the High Court erred in declining the appellant's revision on the ground that the grant of a review petition was a discretionary matter for the trial Court, which discretion could not be interfered with by the High Court in exercise of revisional jurisdiction which is also discretionary jurisdiction.
' On the other hand, Mr. Raja Qureshi, learned ASC appearing for the respondent, has submitted as under:-
(i) that since the appellant had failed to file an appeal, the trial Court could not have reversed its own judgment in a review petition;
(ii) that since the grant of a review petition is a discretionary matter, the trial Court was not bound to grant the same particularly when no ground could have been made out;
(iii) that the High Court could not have interfered with the exercise of the discretion by the trial Court in declining the appellant's review petition as there was no jurisdictional error committed by the trial Court as to attract the provision of section 115, C.P.C. Which was itself a discretionary jurisdiction;
(iv) that the respondent after the dismissal of the appellant's review petition on 21-10-1982 withdrew his appeal on 26-10-1982 which he had filed against the findings of facts recorded by the learned trial Court against the respondent contrary to the material on record and the grant of the review petition of the appellant at this stage would seriously prejudice the respondent.
7. Before dealing with the above contentions on merits, we may deal with the question, whether it was open to the appellant to have filed a review petition instead of invoking appellate jurisdiction.
In this regard, Mr. Fakhruddin G. Ebrahim has invited our attention to Section 114 and Order 47, Rule 1, C.P.C., which read as follows:-- Section 114. C.P.C.
"114. Review.--Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
Order 47 Rule 1. C.P.C.
"1. Application for review of judgment. --(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, ' and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."
From the above-quoted provisions of the C.P.C., it is evident that a review petition is competent even when an appeal is provided. The effect of non-availing of the remedy of an appeal is that a party in a review petition is to confine to the grounds of review mentioned in above Rule 1 of Order XLVII, C.P.C. Namely,
(a) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his (the person invoking the review, jurisdiction) knowledge or could not be produced by him at the time when the decree was passed or order made; or
(b) when the decree or order suffers from some mistake or error apparent on the face of the record; or
(c) other sufficient reason.
8. The scope of a review is very limited. It cannot be used as a substitute for a regular appeal, which is competent on a question of fact and law. The mere fact that a trial Court has taken an erroneous view on the question of fact or on the question of law, would not attract the review jurisdiction, which grounds are eminently amenable in an appeal.
9. The effect of the omission on the part of the appellant to file a regular appeal against the judgment and decree of the trial Court was that it was not open to him to have impugned any fading of fact recorded by the trial Court or to have advanced any ground even on question of law other than which falls within the ambit of above Rule 1 of Order XLVII, C.P.C.
10. Adverting to the above first submission of Mr. Fakhruddin G. Ebrahim, namely, that the learned trial Court in refusing to give a decree of specific performance of the agreement ignored the law declared by the superior Courts including this Court though the same was binding, it may be observed that in furtherance of his above submission, he has referred to the reasons which prevailed with the learned trial Court in declining the relief of specific performance, which read as follows:- "As such it is clear that agreement itself shows that in the agreement there exists a standard for ascertaining the actual damage caused by nonperformance of the act agreed to be done hence according to the provisions of section 12, clause (b) of the Specific Relief Act the plaintiff cannot ask the specific performance of the contract but he can ask for damages as stipulated in the body of the contract.
' Apart from it, according to the provisions of clause (a), section 21 of the Specific Relief Act, such contract for the non-performance of which compensation in money is an adequate relief, can also not be enforced.
' Under these circumstances according to the provision of section 21(a) of the Specific Relief Act the plaintiff cannot seek remedy for specific performance of contract of sale but he can ask for return of earnest money and penalty provided therein.
' As the plaintiff himself prayed for alternate relief of damages hence in the peculiar circumstances the agreement between the parties 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 and even, it is beyond the stipulated compensation agreed to 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."
11. According to Mr. Fakhruddin G. Ebrahim, the above reasons given by the learned trial Court for declining the relief of specific performance of the agreement, are contrary to the law declared by the erstwhile High Court of West Pakistan and by this Court. To re-inforce the above submission, he has referred to the case of Sakinabai and others v. Kurnool Muhammad Bashir PLD 1967 Kar. 158; the case of Abdul Karim v. Muhammad Shafi and another 1973 SCM R 225 and the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344.
In the above first case, Qadeeruddin Ahmad, J. (As his Lordship then was), while decreeing a suit for specific performance, made the following observations on the controversy in issue:- "17. He was right to the extent that specific performance is a discretionary relief, but he did not appear to advance a sound view of the provision of law when he contended that the mere fact of a party's willingness to accept compensation in the event of the failure of the opposite-party to perform its part of the contract, is sufficient to establish the, allegation of fact that compensation in money is actually an adequate.
18. The conclusion to which the discussion leads is that the Court itself has to determine whether compensation in money is an adequate relief in a case like this or not. In this respect the Explanation to section 12 of the Specific Relief Act is of obvious importance. It is as follows:- `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.'
' The above is a legal presumption, and it is to be seen whether it has been rebutted in this case or not. All that has been pointed out to rebut it is the portion of Annexure J that has been reproduced above. That, to my mind, is not a sufficient rebuttal of the presumption. Additionally there is apparently a misdirection of thought in Mr. Zari's interpretation of the above quotation."
' In the above second case, this Court, while declining leave to appeal against the judgment of the Peshawar High Court, whereby the judgment and decree of the trial Court granting specific performance of a contract of sale of an immovable property was affirmed, observed as follows:- "It has been contended before us that inasmuch as the contract provided for payment of a specific amount on the 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. In support of this contention the case reported in PLD 1958 PC 150 was cited on behalf of the petitioner.
' We are unable to accept this contention in view of the clear provisions of the Specific Relief Act which are applicable in this country. 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 sh.,1 I 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.
' The aforesaid provisions thus clearly empower the Court to decree a specific performance of the contract even though a sum be named in the contract as the amount to be paid in case of its breach. The case reported in PLD 1958 PC 150 has no application to the present case inasmuch as the law was apparently different in Ceylon.
' Having regard to the presumption mentioned in explanation to section 12 it was for the petitioner to prove that pecuniary compensation could give adequate relief to the vendee. This the petitioner has failed to do."
' Whereas in the above third case, this Court, while affirming the judgment and decree of the Lahore High Court, whereby the decree of the trial Court for granting specific performance of a contract of an immovable property was affirmed, observed as follows:- "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, guided by judicial principles and capable of correction by a Court of appeal. The exercise of the discretion to grant or refuse to grant relief will, therefore, depend upon the circumstances of the case and the conduct 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."
12. From the above-cited cases and section 12 of the Specific Relief Act, it is evident that there is legal presumption in view of Explanation to section 12 that the breach of a contract to transfer an immovable property cannot be adequately relieved by compensation in money. This initial presumption is not dislodged by the factum that under the sale agreement, a sum is named as the amount of liquidated damages in case the contract is not performed. The burden to dislodge the above legal presumption is on the person who avers contrary to it. In the present case, the learned trial Court had recorded the above reasons which were contrary to the law inter alia declared in the above referred cases.
' The above first two cited cases were very much holding the ground when the trial Court passed the judgment and decree on 8-4-1982 and, therefore, it leads us to the above second submission made by Mr. Fakhruddin G. Ebrahim, namely, that the appellant's review petition was to be granted by the trial Court as ignoring of a binding judgment is a recognised ground for the grant of a review petition. In this regard, he has referred to the case of Faqir Muhammad Khan v. Mir Akbar Shah PLD 1973 SC 110, the case of Muhammad Zafarullah Khan v. Muhammad Khan and another 1975 SCM R 473, the case of Oil and Gas Development Corporation v. Lt.-Col. Shujauddin Ahmed PLD 1970 Kar. 332 and the case of Province of Sindh through Deputy Commissioner, Hyderabad and another v. Muhammad Hashim PLD 1971 Kar.
793.
' In the above first case, Hamoodur Rehman, C.J. While delivering the judgment of this Court, held as follows:- "This decision does not, in my view, indicate that the proposition that an omission to notice an authority like a Full Bench judgment delivered before the judgment sought to be reviewed will not amount to a failure to apply the appropriate law and, therefore, come within the category "of a mistake or error apparent on the face of the record", particularly where the decision left unnoticed is undoubtedly binding on the Court concerned e.g. a judgment of the Privy Council or of the Supreme Court or even of a Full Bench of the High Court.
' Learned counsel for the respondent has conceded that failure to notice a judgment of the Privy Council or of the Supreme Court may amount to an error on the face of the record, because, such judgments declare the law for all concerned and all subordinate Courts are bound to follow that law. I see no difference, therefore, in principle between judgments of these Courts and the judgment of a Full Bench of a High Court. 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 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."
' However, the appeal was not allowed against the judgment of the High Court for the reason that this Court was doubtful about the correctness of the judgment of the Full Bench, which was overlooked by the High Court.
' In the second case, this Court, while declining a review petition, inter alia held that a decision based on erroneous assumption of fact is liable to be reviewed but subject to the observations contained in the above first cited case, namely, "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 discretions, be exercised upon sound judicial principles."
' In the third case, a learned single Judge of the erstwhile High Court of Sindh and Balochistan, while allowing a revision against the grant of an injunction by the appellate Court, inter alia, held that there is ample authority for the proposition that if a subordinate Court fails to take notice or ignores or refuses to follow a decision of a High Court to which it is subordinate, it acts illegally or with material irregularity within the meaning of section 115, C.P.C. To arrive at the above conclusion, reliance was placed on the following judgments of the Indian jurisdiction and of Rangoon High Court:-
(i) Surajman Prasad Misra v. Sadanand Misra and others AIR 1932 Pat. 346;
(ii) Gupteswa r Chandra Deo v. T.V.V. Narsimham and others AIR 1945 Pat. 132; (iii)Kolipakam Penchelu Varadappa Rao v. Chittor Mahadevish and another AIR 1933 Mad. 94;
(iv) U Po Hlaing and another v. Daw Ngwe AIR 1941 Rang.
22.
' In the last case referred to hereinabove at page 14, a learned Single Judge of the erstwhile High Court of Sindh and Balochistan was also of the view that ignoring of authorities by the Additional District Judge, which in law he was bound to follow, was a sufficient ground to interfere with in exercise of revisional jurisdiction. The interlocutory order granted by the Additional District Judge contrary to the law laid down by the superior Courts, was set aside and the order of the Civil Judge declining injunction, was restored.
13. We are inclined to take the view that if a subordinate Court ignores a judgment of a superior Court to which it is subordinate, on a point of law and takes a contrary view, it may furnish a ground for review of the decree/order. However, it will be too dangerous and too broad a proposition to lay down that every failure on the part of a subordinate Court, to take notice of a judgment of a superior Court, to which it is subordinate, will furnish a ground to review a decree/order though the relevant judgment of the superior Court was not brought to its notice. It is true that it is the duty of the Court itself to apply the correct law and a party is not bound to engage a counsel, as has been held by this Court in the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, but a subordinate Court in view of the daily heavy roster is not expected to take upon itself' the research work on the case-law. However, it is supposed to know or to acquire knowledge of the basic principles of law involved in the case before it for adjudication before rendering its judgment thereupon. In the present case, the proposition of law propounded by the learned trial Court, while declining the relief of specific performance of the agreement quoted hereinabove, is contrary to the law enunciated by the superior Courts inter alia in the cases referred to hereinabove in para 11 and founded on Explanation to section 12 of the Specific Relief Act read with the other relevant provisions thereof.
The learned trial Court did not record any finding of fact in favour of the respondent which could have justified declining of specific performance of the agreement.
' In this regard, reference may be made to section 22, which reads as follows:- "22. 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.
' The following are cases in which the Court may properly exercise a discretion not to decree specific performance:-
(I) Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part.
(II) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. .........
' The following is a case in which the Court may properly exercise a discretion to decree specific performance:-
(III) Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance."
14. It may be noticed that according to the above-quoted section the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but sound and reasonable and is to be guided by judicial principles which are amenable to correction by a Court of appeal. It may further be noticed that the above section gives two illustrations which are not exhaustive to demonstrate in which cases the Court may decline to exercise discretion of granting specific performance of a contract, namely, (i) where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiffs part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would not involve such hardship on the plaintiff. It may also be pointed out that the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
15. The respondent did not plead any of the above two grounds or any other ground akin to the above two grounds on which specific performance of a contract can be denied. On the contrary, the plea raised by the respondent was that there was no legal and binding contract as the same was procured by coercion and undue influence and that the consideration was inadequate. Each of the above pleas was found by the trial Court as not proved. It has been held that the respondent had entered into the agreement voluntarily. The amount of consideration was not inadequate. In view of the above state of filings of fact, there was no justifiable ground on which a decree for specific performance could have been declined. It is true that the grant of decree of specific performance is discretionary but as provided in the above section 22 itself that the said discretion is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal. This is so in respect of all judicial discretion, that the same cannot be exercised arbitrarily or capriciously or in fanciful manner. Reference may be made in this behalf to the case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139; the case of Muhammad Din v. Atta Muhammad and others PLD 1957 (W.P.) Lah. 971 and the case of Malik Khuda Bakhsh and another v. Syed Hamid Ali Shah 1981 SCM R 1%.
16. Mr. Raja Qureshi was unable to cite any case-law in which a contrary view to the view what has been held in the above-cited cases, might have been taken. His submission that non-filing of the appeal by the appellant against the judgment and decree of the trial Court warranted dismissal of the review petition for which no ground was made out, seems to be untenable for the reasons already discussed hereinabove.
17. As regards his second submission that since the grant of a review petition is a discretionary matter, the trial Court was not bound to grant the same particularly when no ground could have been made out, it may be observed that there is no doubt that the grant of review petition is a discretionary matter and the Court is not bound to grant the same in every case, but at the same time it is a well-settled principle of law that every judicial discretion is to be exercised reasonably on sound basis and not arbitrarily or capriciously. In the instant case, if a case of review was made out on the ground that the learned trial Court ignored the law laid down by the High Court to which it was subordinate and by this Court which was binding on it, the review petition could have been declined on some sound and reasonable ground, which was lacking in the present case. In the above case of Faqir Muhammad Khan v. Mir Akbar Shah (Supra), this Court maintained the order of declining the review petition by the High Court for the reason that this Court was doubtful about the correctness of the proposition of law laid down in the Full Bench case which was ignored by the High Court. There was no such reason available in the present case.
18. This leads us to the third submission of Mr. Raja Qureshi that the High Court, while exercising revisional jurisdiction under section 115, C.P.C., was not bound to interfere with the discretionary order of the trial Court declining the review. In this regard, it may be observed that under section 115, C.P.C., the High Court has been empowered to call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies and to interfere with the judgment or order of the subordinate Court in the following three cases:
(i) when the subordinate Court has exercised a jurisdiction not vested in it by law; or
(ii) it has failed to exercise a jurisdiction so vested in it; or
(iii) it has acted in exercise of its jurisdiction illegally or with material irregularity.
' In the present case, if a case for review was made out and if there was no reason - on the basis of which the discretion to decline review could have been sustained, the trial Court acted with material irregularity in declining the grant of a review and, therefore, the provision of section 115, C.P.C. Was attracted to rectify the I above material irregularity in exercise of jurisdiction. In the above two Karachi cases, namely, Oil and Gas Development Corporation v. Lt.-Col. Shujauddin Ahmed and Province of Sindh through Deputy Commissioner, Hyderabad and another v.
Muhammad Hashim (Supra), the High Court interfered with the order of the appellate Court in exercise of revisional jurisdiction as it found that the appellate Courts had exercised discretion in granting injunction (though the same was refused by the trial Courts) contrary to the law laid down by the superior Courts which was binding on them.
19. In the instant case, the High Court has maintained the order of review on the ground that there were peculiar circumstances in the case, but the above peculiar circumstances have not been spelt out in order to demonstrate that the same warranted declining of the grant of specific performance of the agreement within the ambit of section 22 of the Specific Relief Act or under any other principle of law. The mere fact that the respondent had raised the pleas of coercion, undue influence and inadequacy of consideration which he failed to substantiate, was not sufficient to warrant the denial of the specific performance of the agreement, nor the factum that respondent had filed an appeal against the judgment and decree of the trial Court, was itself sufficient to nullify the findings of facts recorded by the trial Court against the respondent as to justify the denial of the relief to which the appellant was entitled.
20. Mr.. Raja Qureshi has referred to the case of Noorul Hassan and others v. The Federation of Pakistan PLD 1956 SC 331 to contend that the decisions of the Privy Council though are not binding on the Courts in Pakistan, but being exposition of law by one of the highest judicial tribunals in the world composed of distinguished men having special knowledge of our public law, are entitled to greatest respect. There cannot be any cavil to the above proposition. Then, he referred to the case of N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras AIR 1949 Privy Council 156, wherein it has been highlighted that the jurisdiction of the High Court under section 115, C.P.C. Is limited to the grounds mentioned therein and where no appeal is provided. It is an admitted position that no appeal lies against an order passed upon a review petition and, therefore, a revision was competent in the present case against the order passed upon a review petition by the trial Court if a case could have been made out within the ambit of section 115, C.P.C.
As has been held by Anwarul Haq, C.J. (as his Lordship then was) sitting as S.B. At Baghdadul Jadid Circuit Bench of the Lahore High Court.
21. He has also referred to the following cases:-
(i) Dayaram Chainrai v. Karmumal Kotumal and another AIR 1937 Sindh 263; ' in which, a Bench of the Judicial Commissioner of Sindh held that under section 22 of the Specific Relief Act, discretion in the grant of specific performance of the contract depends on the facts and circumstances of each case and where discretion has been exercised by the first appellate Court on consideration of the evidence recorded, the Judicial Commissioner's Court should not interfere with it unless it is shown that the discretion was perverse and against judicial principles. In the above case, the trial Court had decreed the suit for specific performance of a contract of sale of an immovable property, whereas the first appellate Court set aside the above judgment and decree.
In second appeal, the Judicial Commissioner, while maintaining the decree of the first appellate Court, awarded the amount of damages to the purchaser.
(ii) Beni Madho v. Ram Nath AIR 1941 Oudh 324; ' in which, a learned single Judge of the Oudh High Court held that where the basic findings which ultimately led the trial Court to dismiss the suit for specific performance, are set aside on appeal by the appellate Court and specific performance is decreed, no question of interference by the appellate Court with the exercise of discretion by the trial Court would arise.
(iii) Ramchandra Lalbhai and another v. Chinubhai Lalbhai AIR 1944 Bombay 76; ' wherein a learned single Judge, while dilating upon sections 19, 21 and 22 of the Specific Relief Act, held that the contract of management of agency in respect of a company, could not be specifically enforced as it fell within the prohibition of section 21 of the. Said Act.
(iv) Skinner, R. H. v. Veronica Skinner AIR 1930 Lahore 1004; ' In the above case, a Division Bench of the Lahore High Court, inter alia, held that as provided by section 22 of the Specific Relief Act, the grant of specific performance is discretionary and where the trial Court has exercised discretion, the appellate Court will interfere only if it is shown that this discretion has been exercised perversely or against judicial principles.
20. None of the above-cited cases advances the case of the respondent. The point in issue in the present case is entirely different as highlighted hereinabove. Even in the above cases, it has been held that the discretion to grant or not to grant specific performance can be interfered with if the discretion exercised is perverse or against the judicial principles.
21. The upshot of the above discussion is that the appeal is allowed, the judgments/orders of the two Courts below upon the above review petition and the revision application are set aside. The appellant's review petition is granted and the judgment/decree of the trial Court is modified to the extent of granting relief for specific performance of the agreement as prayed for under clause (a) of para 12 and the money decree is set aside. However, there will be no order as to costs.
…and 13 more citing cases