1. NASIM HASAN SHAH, J.--- The dispute in this appeal is with regard to the decree for specific performance of an oral agreement dated 30-9-1978 entered into between the appellant and the respondent with regard to the sale of a plot of land bearing No.16-D, Model Town, Lahore, and measuring 6 Kanals 10 sq.Ft. The appellant was owner of this land while the respondent is the party claiming that the land in question was agreed to be sold in his favour and in pursuance of this oral agreement, the appellant accepted Rs.40,000 towards the sale consideration of the land.
2. According to him, the appellant not only did not abide by his promise and implement this agreement but instead sold away 3 Kanals out of the land in question to one Faheem-ul-Islam in March, 1979.
3. The case of the appellant, on the other hand, is that as one of the stipulations of the agreement was that the balance of the sale price would be paid within 3 months and the sale-deed was to be executed only upon the payment of the balance price within three months aforesaid but the respondent did not comply with this condition and did not pay the balance amount within the stipulated period. Accordingly, he had confiscated the earnest money and then sold away 3 Kanals of land to Faheem-ul-Islam on 18-3-1979 out of the total area of 6 Kanals 10 sq.Ft.
4. The suit of the respondent for specific performance was, however, decreed by the trial Court on 5- 6-1983. On appeal to the High Court, the decree was partly modified to the extent of the land sold to Faheem-ul-Islam namely 3 Kanals while the decree as to the remaining 3 Kanals 10 sq.Ft. Passed in his favour was maintained. The respondent did not file any appeal to challenge the exclusion of this area and the decree in favour of Faheem-ulIslam of 3 Kanals has assumed finality.
5. However, the appellant has challenged the decree passed by the High Court whereby the decree with regard to the. Remaining land, measuring 3 Kanals 10 sq.Ft. Has been maintained and contends that as the original agreement for sale was for 6 Kanals 10 sq.Ft. And the decree passed in favour of the respondent is only for 3 Kanals 10 sq.Ft. Such a decree, which is inconsistent with the original agreement and the remaining decree, cannot be specifically performed.
6. We ubserve that this contention was not raised before the High Court where the decree of the trial Court was contested only on the ground that as the respondent had- failed to make payment of the balance price within three months he had committed a breach of the agreement; hence the appellant had justifiably forfeited the earnest money and was also not bound to specifically enforce the contract.
7. The High Court, after carefully examining all the circumstances, came to the conclusion that "on taking overall picture of the case and evidence brought on the record it cannot be held that 3 months time was agreed to work as of the essence of the contract". No contention that the decree for specific performance with regard to the remaining 3 Kanals 10 sq.Ft. Of the land could not be passed, if the sale in favour of Faheem-ul-Islam was considered to be valid as this would result in passing a decree which would be inconsistent with the original agreement and the remaining decree, was ever raised or argued before the High Court.
8. Mr. Zakiuddin Pal, learned counsel for the appellant, frankly concedes that this is so, but he submits that as the question of law it can be raised before this Court even at this stage.
9. It is true that a pure question of law which does not involve an inquiry into facts, even if it is raised for the first time, can be considered by this Court. But this concession is subject to the condition that leave to raise and argue such a point must be granted by this Court. In other words, even a pure question of law, which was not raised earlier, can be canvessed only by the leave of this Court.
10. In the facts and circumstances of this case, when the appellant is resiling from his solemn word and not abiding by the agreement freely made by him with the respondent, we think this is not a fit case in which we should grant leave to take up this fresh point, even though it is one of law, at this stage.
11. No other question has been raisd before us.
12. This appeal, therefore, fails and is dismissed accordingly. But the parties are, in the circumstances, left to bear their own costs.