' Briefly stated facts of the case out of which present Regular Second Appeal has arisen are that vide agreement for sale dated 14-11-1974, respondent agreed to sell land measuring 49 Kanals and 11 Marlas situate in revenue estate of Chak No,319/JB., Tehsil Toba Tak Singh, in favour of the appellants. As per terms of the agreement, sale amount was fixed as Rs,68,200/- and earnest money of Rs,24,000/- was paid at the time of execution of agreement for sale and sale-deed had to be executed up to 14-1-1975 i,e, within two months from the execution of the agreement for sale.
It is alleged in the plaint that the appellants-plaintiffs had arranged the balance sale amount of Rs,44,200/- and had come to the office of the Registrar on 14-1-1975 alongwith the defendant but instead of purchasing the stamp papers, defendant slipped away on the pretext that he will get copy of the Jamabandi from Patwari Halqa. Consequently, an application was submitted by the plaintiffs-appellants to the office of the Registrar whereupon their presence was marked at 3-00 p.m. A decree for specific performance of the aforementioned contract had been prayed for in a suit filed by the appellants in the Court of learned Civil Judge, Toba Tek Singh. This suit was contested by the defendant-respondent on the grounds that it is the plaintiffs who are responsible for the breach of contract and therefore, they have no locus standi to file the suit. It is further alleged in the written statement that the balance sale amount was not arranged by the plaintiffs up to the last date of hearing nor any arrangement was made by the plaintiffs for purchase of the stamp-papers and therefore, the contract came to an end and hence the earnest money stands forfeited and the plaintiffs are not entitled to grant of the decree for specific performance of the contract. On the basis of pleadings of the parties, learned trial Court settled following issues:--
(1) Whether. The defendant received Rs,24,000/- from the plaintiffs in advance as part of agreed sale price? OPP.
(2) Whether the plaintiffs committed breach of the contract? OPD
(3) Relief.
2. In support of their respective contentions, the appellants-plaintiffs examined Muhammad Akhtar All Petition-Writer P.W.1 to prove execution of agreement to sell Exh.P1/1 and payment of earnest money. In cross-examination, this witness proved Exh.D1, an application on behalf of respondent.
He stated that he does not know as to whether the plaintiffs had come to him on 14-1-1975 or not.
Noor Muhammad Petition-Writer has been produced by the appellants-plaintiffs as P.W.2 to prove their application Exh.P2 which was allegedly presented to the Registrar for the purpose of marking of their presence. In cross-examination, this witness has admitted that he does not know Abdul Latif personally and has further stated that after 11th, the entry of 14th is possible. He has also admitted that underneath page 36 there was some space where an entry could have been made, but the entry in question was made on the other page. He, however, denied the suggestion that the page has been added subsequently. Muhammad Aslam son of Sardar Khan has appeared as P.W.3. He has stated that he had never entered into agreement to sell with Niaz Muhammad son of Muhammad Bakhsh. Muhammad Salim son of Abdul Ghafoor has been produced as P.W.4, who has stated that the plaintiffs had demanded Rs,20,000/- from him and he accompanied them for the purpose of registration of the sale-deed but the person with whom agreement for sale had taken place did not turn up. In cross-examination, however, the witness has shown his inability to tell the date on which the plaintiffs had come to collect the amount of Rs,20,000. In cross- examination, he has further stated that an amount of Rs,12,000 belonging to the plaintiffs was lying with him whereas Rs,8,000 was being given by him in excess. He has admitted that he did not obtain any signatures or thumb-impression of the plaintiffs-appellants on any paper 'receipt in token of the payment of Rs,8,000 in addition. Khadim Hussain son of Mehnga has been produced as P.W.5. The witness has stated that he knows father of the plaintiffs who came to him and told that they have to purchase certain property. They went to the Petition-Writer next day, and remained there up to 2-30 or 3-00 p.m. But Riazul Haq respondent did not turn up. Abdul Latif one of the plaintiffs himself has appeared as P.W.6 and has stated that on the last date fixed for execution of sale-deed, they went to the Petition-Writer, but the respondent slipped away. Further that the balance amount had already been arranged by them and the plaintiffs have always been ready and willing to perform their part of contract, but the respondent slipped away and did not perform his part of contract. The witness has further stated that they had waited for the return of the respondent up to 3-00 p.m. But when he did not turn up, they went to Tehsildar and got themselves marked present. Besides .Agreement for sale Exh.P.I and application Exh.P.2, the plaintiffs-appellants also produced in evidence copy of Jamabandi Exh.P.3.As against the above evidence, the respondent has produced Muhammad Munir, Clerk Allied Bank, who has deposed that he accompanied the respondent Riazul Haq on 14-1-1975 to the office of Registrar where the respondent had to collect the amount of Rs,44,200, which had to be deposited in his account in Allied Bank. The witness stated that he alongwith his Gunman went to office of the Registrar, but nobody turned up upto 3-00 p.m. Abdul Rehman Gunman had been produced by the defendant- respondent as D.W.2, who has corroborated the statement made by D.W.1. Mukhtar Ahmad D.W.3 has deposed that the father of the plaintiffs tried to make arrangements for the sale price by mortgaging his land but did not succeed and consequently, plaintiffs did not turn up on the last date fixed in the agreement of sale upto 3-00 p.m. Consequently, Riazul Haq defendant- respondent wrote an application and submitted the same to Tehsildar. According to the witness, the contract came to an end due to non-performance thereof by the plaintiffs.Bashir Ahmad son of Sultan All has been produced as D.W.4. He has also corroborated the statement made by D.W.3 regarding failure of the plaintiffs to turn up, on the last date fixed for execution of the sale deed upto 3-00 p.m. Niaz Muhammad son of Muhammad Bakhsh D.W.5 has made a statement to the effect that there was an agreement for sale between him and the defendant, but the respondent could not arrange the amount due to failure of plaintiffs to pay him the agreed amount and as a result thereof an amount of Rs,10,000, which was the earnest money stood forfeited. Din Muhammad son of Ali Bakhsh has appeared as D.W.6 and has stated that the plaintiffs forcibly took possession of the land-in-question and further that the plaintiffs did not make payment of the balance sale amount as a result whereof, the sale agreement came to an end. Riazul Haq defendant appeared as D.W.7 and corroborated his version in the written statement as well as the statement made by D.Ws. Besides oral evidence, the witness has produced documents Exhs. Dl & D2. Learned trial Court vide judgment and decree dated 18-6-1980 dismissed the suit filed by the appellants holding that the plaintiffs had committed breach of contract. This finding has been recorded by the learned trial Court after an elaborate discussion and scanning of the evidence produced by the parties. Aggrieved by his judgment and decree, plaintiffs-appellants filed Regular First Appeal initially in this Court, which was ultimately transferred to District Court Toba Tak Singh and was dismissed by the learned Additional District Judge Toba Tak Singh vide judgment and decree dated 3-10-1987. The findings of the trial Court on issue No,2 have been upheld after taking into consideration the whole evidence produced by the parties by writing a well-reasoned judgment. It is these two judgments and decree, which have been challenged by the appellants in this Regular Second Appeal.
3. Ch. Abdul Rashid Gujjar, learned counsel appearing for the appellants argued that the two learned Courts below have mis-appreciated the evidence led by the parties and further that the earnest money has illegally been forfeited by the two Courts below. Ch.Muhammad Ilyas Khan, learned counsel for the respondent has emphatically controverted the arguments raised by the learned counsel for the appellants and has argued that the two Courts below have concurrently held that plaintiffs-appellants are responsible for breach of contract and therefore, the appellants have no case for interference in second appeal. Learned counsel has argued that concurrent findings of fact cannot be interfered with in second appeal unless there is misreading or non- reading of evidence or the inference drawn by the Courts below cannot be drawn from the proved facts on record. According to the learned counsel, evidence produced by the parties has been taken into consideration by the two Courts below and it has been concurrently held that it is the plaintiffs who are responsible for breach of contract. Consequently, the judgments and decree passed by the two learned Courts below cannot be interfered with.
4. After the conclusion of the arguments addressed by the learned counsel for the parties, both the learned counsel keeping in view the time spirit of administration of justice in accord with the injunctions of Islam as highlighted in a recent pronouncement by their Lordships of the Supreme Court of Pakistan in a judgment reported as Allah Ditta. v. Barkat All and 3 others, 1992 SCM R 1974, made their utmost efforts to settle the dispute between the parties by compromise so that they could be saved from the rigours of further litigations and could live in peace. In this behalf, learned counsel for the respondent offered that in case the appellants hand over the possession to the respondent, he is ready to return an amount of Rs,24,000/-, the forfeited earnest money. This proposal, however, was not accepted by the appellants in spite of the advice given by their learned counsel and consequently the compromise could not be finalized. At any rate, efforts made by both the learned counsel are appreciable and speak volumes about their conscientiousness of duty towards administration of justice.
5. I have considered the arguments advanced by the learned counsel for the parties and have examined the record including the evidence, oral as well as documentary, produced in the case. I asked a specific question to the learned counsel for the appellants as to whether he can point out any misreading or non-reading of evidence but the learned counsel has frankly conceded that it is not a case of misreading or non-reading. However, learned counsel for the appellants argues that the evidence has not been properly appreciated. I am afraid in second appeal this Court is not competent to interfere with concurrent findings of fact merely on the grounds that the evidence has not been properly appreciated by the two Courts below. Even otherwise, I have gone through the evidence and am of the view that the evidence has not been mis appreciated. The witnesses produced by the respondents are trustworthy and the plaintiffs-appellants have not been able to shake their credit in cross-examination. Evidence led by the plaintiffs is not sufficient to hold that it is the respondent who was at fault. It can also not be said by any stretch of imagination that the two Courts below have drawn wrong inference, from the proved facts of record of the case. As held in judgment reported as Abdul Majid and others v. Khalid Ahmad, PLD 1955 F.C. 38, this Court will not interfere with concurrent findings of fact recorded by the two Courts below unless and until it is shown that it is a case of misreading/nonreading of evidence or the two learned Courts below have drawn inference, which cannot be drawn on proved facts of the record. Learned counsel for the appellants has conceded that this is not the situation in this case. Consequently, it is not a fit case where the concurrent findings of fact recorded by the two Courts below can be interfered with. Learned counsel for the appellants has next argued that time was not of the essence of the contract, hence learned Courts below could not have forfeited the earnest money. The argument is misconceived. The terms of agreement for sale clearly visualize that in case of breach of contract not only the contract is to come to an end but the earnest money is also to be forfeited. In the case in hand admittedly the plaintiffs/appellants have taken over the possession of land in question for the last so many years and they are getting produce of the land since long. Consequently, they have been enjoying fruits of the land and therefore it cannot be said that it was not proper to direct forfeiture of the earnest money after it had been held that it was the plaintiffs-appellants, who are responsible for breach of contract.
' A bare reading of the judgment rendered by the two Courts below clearly demonstrates that the Courts below have fully dilated themselves to the facts and circumstances of the case as well as the evidence produced therein and have written well-reasoned judgments which even otherwise appear to be just and fair under the overall circumstances of the case.
6. In view of the above, this RSA has no merit, same is consequently dismissed with costs throughout.