' RUSTAM S. SIDHWA, J.---This is an appeal by Abdur Rauf and others, appellants, against the judgment of a learned Single Judge of the Lahore High Court, Lahore, dated 23-12-1989 accepting the appeal of Khurshid All and others, respondents, and dismissing the suit of the appellants.
2. The brief facts of the case are that by an agreement dated 6-2-1978, the respondents Khurshid All and others agreed to sell a shop out of property No, 5, situate in Ward No, 2, Rail Bazar, Faisalabad, to Abdur Rauf appellar No, 1 or his nominees for consideration of Rs, 1,20,000. A sum of Rs, 25,000 was paid at the time of execution of this agreement. It appears that Abdur Rauf appellant No,1 was the ostensible purchaser and Muhammad Shafi and others, appellants Nos. 2 to 5 were the actual purchasers and the sale-deed was scribed in their favour, but the respondents refused to execute the same on the ground that their agreement was not with the said appellants but only with Abdur Rauf appellant No, 1.
3. On 21-6-1978, all the five appellants filed a suit for specific performance of the agreement against the respondents complaining that the latter were not willing to perform their part of the agreement by transferring the shop. Appellants Nos. 2 to 5 were not parties to the agreement for sale, but were impleaded as plaintiffs in the suit on the ground that under the agreement, appellant No, 1 was entitled to have the sale-deed executed in his own name or in the nameof his nominees and appellant No, 1 had asked the respondents to execute the sale-deed in the names of appellants Nos. 2 to 5, who had agreed to do so, but had subsequently backed out.
4. The suit was resisted by the respondents on two main grounds. Firstly, that appellants 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 appellants, who were, therefore, not entitled to enforce it. It was also pleaded that it was the appellant No, 1 who had failed to perform his part of the agreement, which thus stood rescinded.
5. 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 condition? OPP.
4. Whether the defendants Nos 2 to 3 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 is the effect of their joinder? OPD.
5. Whether the plaintiffs are estoppel by words or conduct to file the suit? OPD.
6. Whether the time is essence of the contract of sale, if so , what effect upon the present suit? OPP.
7. Whether the plaintiffs are entitled to a declaration for specific performance of the contract of sale; if so on what terms and conditions? OPP.
8. Relief.
6. The suit was dismissed by the trial Court on 10-10-1982 on the finding that the appellants Nos. 2 to 5 were strangers to the agreement and not entitled to enforce it, that appellant 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 agreement, increased from 150 sq. Ft. To 156-1/4 sq. Ft.
7. 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 respondents and appellants. Nos. 1 to 5 and the latter being nominees of the agreement to sell, had a right to specifically enforce it.
8. On Second Appeal a learned Single Judge of the High Court accepted the appeal of the respondents by holding that interpolation had been made in the agreement subsequent to its execution, that there was no evidence on the record to show that this alteration was made in the agreement with the knowledge and consent of the respondents and that the alteration was material, as Khurshid All DW 3, one of the vendors, in his evidence had stated that out of the total area of the shop to be sold 6-1/4 sq. Ft. Was agreed to be retained by them in order to construct a staircase so as to provide an access to the upper portion belonging to them, as the existing staircase was not their property. Relying upon certain legal authorities which held that if an interpolation had been made in a material part of the document, it was rendered void and not capable of enforcement, the learned Judge held that the appellants were disentitled to the specific performance of the contract. The learned Judge found that appellants Nos. 1 to 5:were entitled to sue under the agreement for sale and were competent to institute the suit.
9. Being aggrieved by the above judgment, the appellants have preferred this direct appeal, which is now before us for disposal.
10. On behalf of the appellants it is submitted that what was agreed to be sold by the respondent was the shop which was in the occupation of Muhammad Sharif tenant and whether the area was 10' x 15' or 10' x 15-5/8', was inconsequental, as there was no dispute that the agreement for sale related to a distinct shop in respect of which both the parties were ad idem. It is submitted that claim of Khurshid Ali, DW 3, one of the vendees, that it had been agreed between the parties that they would reserve 6-1/4 sq. Ft. Of the shop area for constructing a staircase in the shop, was a false statement and an afterthought for if that was the case the area mentioned in the agreement for sale would not have been 10' x 15'. The mere fact that 5/8' stood added to 15' only made the length of the shop longer by 7" and did not reserve an area of 6-1/4 sq. Ft. In favour of the vendees.
It is contended that the alteration, whether made contemporaneously or slightly after the agreement for sale was executed, was inconsequental and that it did not call for rescission of the agreement for sale, much less disentitle the appellants to a decree for specific performance. It is also pointed out that Khurshid Ali, respondent No,1 one of the vendees, also had got the sale-deed scribed in which the area of the shop was shown as 10' x 15-5/8' through Saifur Rahman PW 8, that he had also taken the said sale-deed to the office of Capital Gain Tax Authorities, where he had secured No-Objection Certificate Ex. P 21, which also mentioned the area of the shop as 10' x 15-5/8', which showed that the inconsequential amendment made in the agreement for sale was with the consent of the vendors.
11. On behalf of the respondents it is submitted that the photo copy of the agreement for sale Ex. D3 clearly showed that the area of the shop was 10' x 15', whereas in the original agreement for sale Ex.
P 20 the appellants had interpolated the area to read 10' x 15-5/8' (156-1/4 sq. Ft.), which clearly showed that the interpolation had been made later. It is further submitted that from the evidence of Khurshid Ali DW 3, one of the vendors, the parties had agreed that the vendors would reserve 6- 1/4 sq. Ft. Of the shop area so as to construct a staircase to lead to the upper portion of the property and that therefore the interpolation was in respect of a material matter sufficient to vitiate the deed and avoid the decree for specific performance.
12. We have given our anxious consideration to the arguments addressed on behalf of the appellants and the respondents and have perused the record. This direct appeal is barred by 29 days. There is the affidavit of Khalid Javed, Advocate of Faisalabad, that he was under the impression that the judgment could be challenged in the Supreme Court within 60 days and that the mistake on his part was not deliberate. Since the Mufassil lawyer would not have known that a direct appeal lay in this case, we would condone the delay.
13. It is clear that the photo copy Ex. D3 of the original agreement for sale refers to the area of the shop 10' x 15' whereas that in the original agreement for sale Ex. P 20 reads 10' x 15-5/8' (156-1/4 sq.
Ft.). The interpolation therefore appears to live been made after the agreement was executed.
Whether it was immediately altered on the same day or later is not clear.
14. The next question is as to what is the law with regard to interpolation. Commentaries on the Law of Contracts by Joel Prentiss Bishop, 1887 Ed., at page 747 mentions: "Doctrine defined: --If while a written contract remains executory, a party unauthorized so alters it as to vary its legal effect to his advantage, whether he meditates a fraud or not--or, if, with the positive intent to defraud, he makes in it any alteration whatever--or, if another thus alters it under authority from him,--or, if one to whose custody he simply commits it makes in it a material alteration advantageous to him--then, at the election of the other party, he is estopped from relying upon it in a Court of justice. Why ?-- Plainly, in reason, after a party has intentionally altered the contract, thus abandoning it in its original form, he cannot before the tribunal reclaim what in pais he had cast aside; and he cannot rely on the new form of words, because to them the other party had not consented. Though this proposition is a little less broad than the doctrine abovestated, so that on it not quite all the doctrine finds support, the residue rests well on the further reason that, without it there can be no adequate protection of honest parties against the frauds of the dishonest.
Party's Election. In reason, on a question not fully illuminated by the decision, when a written contract has been wrongfully altered in the interest of one party, the other should have his election to repudiate it, to maintain it in its old form, or to accept the altered form; but not, with knowledge of the facts, to do the one as to some of its stipulations and the other as to others. Plainly, on authority as well as reason, he may still rely on the contract as it stood before the alteration, if he will."
15. Thus, if a written contract has been wrongfully altered in favour of one party, the other has the election to repudiate it, accept it in its original form or to accept the altered form, but not a mix of both. Again, if the alteration is material, the alteration impairs the contract. In Nathu Lal v. Gomte Kaus (AIR 1940 P.C. 160) the Privy Council observed that a material alteration rendered the deed void and incapable of enforcement. If the alteration varies the contract, even though minutely, to the prejudice of the other, it is a material alteration. If the correction is made honestly and is not to the prejudice of the other, it is harmless and inconsequential. If it is such that in no degree it varies the legal effect of the writing, it is immaterial. An alteration made by a party whether honestly and in good faith or otherwise, if it is immaterial or of no consequence and does not prejudice the case of the other party, it does not impair the contract. If the alteration is material and to the prejudice of the other, or made with intent to commit fraud, it is a fraud in law. Where the alteration is by consent, it is good and binding. See Pestonji & Co. v. Cox & Co. (AIR 1928 P.C. 231).
16. The next question is whether the interpolation was regarding a material matter or not and whether it was inserted with the consent of the respondents. The contention of the learned counsel for the respondents that the interpolation was in respect of a material matter, because the respondents by agreement with the appellant No, 1 had agreed to reserve 6-1/4 sq. Ft. Of the shop area for constructing a staircase, cannot be accepted, for if the area had been agreed to be reserved, there would have been mention of it in the agreement and the area of the shop would not have been shown as 10' x 15' The mere fact that the length of the shop stood increased from 15' to 15-5/8' only shows that the length had been increased by 7" and not that any reservation of an area of 6-1/4 sq. Ft. Of the shop had been made for the staircase. In the written statement the respondents did not state that appellant No, 1 had agreed to reserve 6-1/4 sq. Ft. Of the shop area for their staircase. Rather, they stated that in the sale-deed the appellants got an area recorded in excess by 6-1/4 sq. Ft. And also added a staircase, which actually did not belong to them. The fact of the matter is that no area of the shop to be demised was agreed to be reserved by appellant No,1 for the respondents' staircase, but that in the sale-deed Ex.P.2 the appellants secured their rights to the use of the Market staircase and the electricity meter. The plea of the counsel for the appellants that there was a staircase in the middle of the Main Market owned by the respondents, of which one shop was being demised to the appellants, to which they secured the right to use it to go to their top first storey portion and also protected themselves by securing rights to the main electricity meter, appears to be true. Again, it is admitted by Khurshid Ali respondent that the shop being demised was that in the occupation of Muhammad Sharif and that its true area was 10' x 15- 5/8'. This clinches the matters; that the alteration of the area in the agreement was nothing but an innocent correction prejudicial to none and therefore immaterial and inconsequential. The agreement and the sale-deed both show the shop to be demised as two storeyed. The use of the Common Market staircase was therefore necessary for the appellants to go to the top portion of their shop. Consequential matter added in the sale-deed like use of the common staircase or access to meter cannot avoid the agreement for sale.
17. Even the evidence clearly shows that the vendees had consented to this inconsequential amendment. When the appellants sent legal notices Exs. P4, P7, P10 and P13 through their Advocate on 29-3-1978 to each of the respondents calling upon them to complete the transaction, the said notices referred to the area of the shop as 10' x 15-5/8'. In his notice Ex. D 2 which Khurshid Ali respondent No 1 sent on 2-4-1978 to Abdur Rauf, appellant No, 1, he only complained that the appellant was not wanting to complete the transaction, but did not refer to the fact that he had made any interpolation in the said agreement. Again in their legal notice Ex. P 16 to the appellant dated 12-4-1978, the respondents' counsel did not refer to any interpolation having been made in the agreement by any of the appellants without their consent. It also appears that on 5-4-1978 the vendors filed an application Ex. D 1 before the Sub-Registrar, Faisalabad, stating that they had executed an agreement for sale in favour of Abdur Rauf, appellant No, 1, that the sale transaction had to be completed by 5-4-1978, that they had asked him to supply the money for purchase of stamp papers to complete the sale, but this had not been done and that they were presenting themselves before the Sub-Registrar to show that they were willing to perform their part of the agreement, which fact may be noted, whereas the appellant No,1 had not turned up. From the evidence it is apparent that Saifur Rehman Petition-writer PW.8 scribed the sale-deed on 27-2-1978 under the instructions of one of the four vendees, whose name he could not recollect, who had presented to him a draft of the sale-deed, which he had copied out on the stamp papers. This sale-deed referred to the area of the shop as 10' x 15-5/8'. According to Ghulam Sabir PW.10, property dealer, and Abdul Rauf PW11, the appellant, Ch. Khurshid respondent, was the person who had got the sale-deed Ex.P.2 scribed. According to the latter .Witness, Khurshid respondent had taken the original scribed sale-deed to the Capital Gains Tax Officer to secure Capital Gain Tax No- Objection Certificate Ex.P.21, which he had secured. This certificate also showed the area of the shop as 10' x 15-5/8'. In fact from the totality of the evidence it would appear that the respondents vendees had consented to the transfer of the shop bearing an area of 10' x 15-5/8' and that it was only when the suit for specific performance of the agreement was instituted that the respondents took up the objection that they were not bound to execute any sale deed in favour of appellants Nos.2 to 5 and that there had been a material interpolation in the agreement for sale-deed without their consent. The reference in the sale-deed Ex.P.2 to the use of the Market staircase or the Main Meter does not defeat the right of the appellants to secure the specific performance of the agreement for sale Ex.P.20. At best the Court can treat this portion as consequential to the sale- deed.
18. It cannot be denied that the interpolation referred to above appears to be of an inconsequential nature. What was agreed to be sold was one of the shops of the respondents occupied by Muhammad Sharif tenant. If the dimensions of the shop were wrong and altered, the alteration was honest and immaterial and prejudiced none. The allegation that the respondents had agreed with appellant No, 1 to reserve 6-1/4 sq. Ft. Of the shop area, is a tissue of lies and must be rejected.
When Khurshid All respondent sent his notice Ex.D.2 on 2-4-1978, when the respondents filed their application Ex. D 1 before the Sub-Registrar on 5-4-1978, when Khurshid All respondent approached the Petition-Writer Saifur Rahman PW 8 on 27-2-1978 and got the sale-deed scribed and when Khurshid Ali respondent took the said sale-deed to the Office of the Capital Gains Tax Authority for getting no-objection certificate, which he did, there was no objection about the agreement being void for any material alteration. Rather, the respondents acted in a manner which clearly showed that they had accepted the area of the shop as 10' x 155/8'. The minor change on the agreement appears therefore to be with the consent of the respondents. In these circumstances, there appears to be no justification for either treating the agreement as vitiated by material fraud or the appellants as being disentitled to the relief of specific performance.
19. The evidence of Nazir Muhammad, Muharrir, Sub-Registrar's Office PW.1, Muhammad All PW.2 who scribed petition Ex.P1, Himayat Khan, Lambardar, PW.3, who accompanied the appellants to the Sub-Registrar's Office on 5-4-1978 to identify them clearly shows that petition Ex. P 1 was filed by the appellants before the Sub-Registrar's office to show they were present to complete the sale-deed, but that the respondents were not prepared to complete the transaction. The failure of the respondents to complete the transaction stands proved.
20. For the foregoing reasons, we accept this appeal, set aside the judgment of the learned Single Judge of the High Court dated 23-12-1989 and restore that of the Additional District Judge, Faisalabad, dated 2-3-1988 decreeing the suit.