' House No, 55 situate in Gali No,1, Main Bazar Tajpura, Habib Ganj, Lahore is owned by the respondents Nos, 1, 3 to 5 on 3-8-1975. Mst. Kishwar Begum now deceased-respondent and Mst.
Zainab Begum, both illiterate and aged widows of Sh. Muhammad Abdullah allegedly agreed to sell the house referred to above to the petitioner Sh. Allah Ditta. This sale agreement is alleged to have been executed by respondents Nos, 1, 5 in favour of Sh. Allah Ditta petitioner on their own behalf and also on behalf of minors who are respondents No, 3 and 4 for a consideration of Rs,50,000 out of which Rs,10,000 were allegedly received by the executants as earnest money. As per one of the terms of the agreement Mst. Kishwar Begum respondent No,5 had to obtain guardianship certificate on behalf of the minors for the purpose of execution of sale-deed relating to their share in the house. On failure of the respondents to execute a sale-deed in favour of Sh.
Allah Ditta, he filed a suit for Specific Performance of Contract on 9-9-1983, which was dismissed by the learned trial Court. On appeal, the learned Additional District Judge also dismissed the appeal on the grounds that neither execution of agreement for sale stands proved nor the contract can be enforced even to the extent of shares of respondents No, 1 and 2 and the agreement was joint and having been frustrated cannot be enforced at all.
2. Case of the plaintiff-petitioner is that the respondents Nos, 1, 5 having entered into an agreement for sale and having received earnest money amounting to Rs,10,000 were bound to execute sale- deed in his favour and at any rate, he was entitled to the execution of sale-deed to the extent of shares of the widows-respondents even if, the certificate of guardianship could not be obtained regarding the shares of minoRs, Suit has been contested by the respondent inter alia on the grounds that as the guardianship certificate was not granted by the learned Guardian Judge, the contract as a whole stood frustrated and the amount of Rs,10,000 which was received in pursuance of the agreement for sale and had been entrusted with Sh. Muhammad Abdullah was returned to the petitioner inasmuch as the contract had come to an end and therefore, the petitioner could not ask for specific performance of the contract and that a belated suit has been filed after a period of five years which is barred by time. It is further contended in the written statement that the so- called agreement for sale on behalf of the minors is void and therefore, no suit for specific performance on the basis thereof could be filed and further that the so-called agreement was executed by the old and aged ladies who were not in a fit mental condition at the time of the execution of the deed in question and therefore, on the basis of such an agreement, decree for specific performance cannot be granted in favour of the plaintiff-petitioner. On the basis of pleadings of the parties, learned trial Court framed following issues:- ISSUES:
(1) Whether the suit does not lie in view of preliminary objection No,1, of the written statement?
(2) Whether the guardianship certificate in respect of minor defendants was a condition precedent of the agreement and defendant No,1 intentionally failed to obtain specifically?
(3) Whether the contract can be enforced according to the averments made in the plaint?
(4) Whether the suit is not properly valued for the purposes of court-fees and jurisdiction?
(5) If issue No,4 is proved then what is the correct valuation of the suit?
(6) Whether minor defendants are not bound under the contract as alleged in preliminary objections Nos, 3 and 4 of the written statement?
(7) Relief. and after recording evidence produced by the parties, learned trial Court vide judgment and decree dated 14-4-1985 dismissed the suit filed by the petitioner. Learned trial Court held that the plaintiff has failed to prove issues Nos, 1 and 3 and therefore, they are decided against him.
Regarding issue No,2, learned trial Court held that a guardianship certificate was a condition precedent for the enforcement of the agreement and admittedly this certificate could not be obtained, hence suit could not be decreed. Learned trial Court further held that valuation of the suit for the purposes of court-fee and jurisdiction is correct, and ultimately dismissed the suit on the basis of his findings on issues No, 1 and 3 and further held that defendants No: 4 and 5 were not bound by the contract. Aggrieved by this judgment and decree, the petitioner filed R.FA. In District Court, Lahore, which has been dismissed by the learned Additional District Judge, Lahore vide judgment and decree dated 2341-1987. Before the Appellate Court, the petitioner also moved an application seeking amendment to the prayer in suit claiming a relief to the extent of shares of respondents Nos,1 and 5. This application was considered by the learned First Appellate Court But in view of the findings recorded by the learned First Appellate Court to the effect that the two ladies had never entered into an agreement to sell, therefore, question of allowing amendment in the prayer clause of the plaint will be a futile exercise. Consequently application was dismissed by him.
Aggrieved by this judgment and decree, plaintiff-petitioner has filed this civil revision.
2. In support of his argument, learned counsel for the petitioner has pointed out that the learned First Appellate Court has misread the contents of the written statement while holding that the agreement for sale was never entered into. In this behalf, he has referred to paragraph 2 of the written statement filed by the defendants, wherein agreement for sale dated 30-8-1975 is admitted and similarly receipt of Rs,10,000 as earnest money is also admitted. After pointing out this admission, learned counsel for the petitioner has argued that in view of this admission no other evidence was necessary to be produced in order to prove that agreement for sale had been executed by the respondents. Learned counsel has further pointed out that it also stands established from the record that out of the balance earnest money an amount of Rs, 41,000 had been paid to Sh. Muhammad Abdullah through three cheques which were encashed and payment thereof was received by Sh. Muhammad Abdullah as per statement of Kh. Muhammad Shafi P.W.
2. This amount was admitted to have been received by Mst. Kishwar Begum from Sh. Muhammad Abdullah. Learned counsel stated that the petitioner had always been ready and willing to perform his part of the contract which is clear from Exhs. P7, P8 and P9, and, therefore, it cannot be said that there is any proof of breach of contract on the part of the petitioner. Referring to the title-deed of the respondents Exh.P12, learned counsel stated that having received the whole sale amount, this title deed was handed over to the petitioner, and, therefore, this is a very strong circumstance in favour of the valid execution of agreement for sale. Learned counsel has further argued that from respondents side none has appeared as their own witness and Ghulam Hussain a relation of the respondents has appeared as D.W.1, and this evidence does not constitute a sufficient rebuttal as against the evidence produced by the petitioner. Consequently, according to the learned counsel, the findings recorded by the learned First Appellate Court to the effect that execution of agreement for sale does not stand proved is incorrect and is based upon misreading of evidence and non- reading of the material piece of evidence particularly the admission recorded in para-2 of the written statement filed by the respondents. Regarding the enforceability of the contract in part, learned counsel has relied upon MRs, Anwara Chowdhury v. M. Majid and others PLD 1964 S.C. 807, and has argued that the petitioner is, entitled to the grant of decree for Specific Performance of Contract, at least to the extent of shares of respondents Nos,1,
5. As against the arguments addressed by the learned counsel for the petitioner Pk SA. Rashid, learned counsel for the respondents has argued that the alleged agreement for sale has been procured from aged and illiterate widows at the time when they had no independent advice available to them and therefore, keeping in view the principle of appreciation of evidence for the purpose of determination of the genuineness of the transaction as enunciated by their Lordships of the Supreme Court of Pakistan in case Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, the plaintiff has miserably failed to prove that the respondents who were illiterate and aged widows had consciencely entered into an agreement for sale of a house for a petty amount of Rs,50,000 although the value thereof at that time was more than two lacs rupees. Learned counsel has further argued that admittedly two of the proprietors of the house on whose behalf agreement for sale has been executed were minors and as obtaining of guardianship certificate was a precondition for the enforcement of agreement for sale and as that condition could not be satisfied, the contract as a whole stood frustrated in view of the law laid down in case of Muhammad Ishaq and another v. Mst. Sufia Begum 1992 SCM R 1629. Learned counsel has further argued that the amount of earnest money amounting to Rs,10,000 in fact remained as trust with Sh.
Muhammad Abdullah and was ultimately returned to the petitioner inasmuch as the contract stood frustrated due to non-fulfilment of the pre-condition for the enforcement of the contract.
Regarding payment of Rs,41,000, learned counsel has argued that there is absolutely no evidence to prove that this amount was ever received by the respondents, rather the cheques were admittedly issued in the name of Sh. Muhammad Abdullah and if at all he had got them encashed, it cannot be said that the respondents had received this amount. Consequently, the evidence with regard to the payment of an amount of Rs,41,000 through three cheques is of no avail to the petitioner. Learned counsel further argued that merely because it is mentioned in one para of the written statement that agreement for sale was executed and that the earnest money was received will not prove that the suit can be decreed or that the claim of the petitioner has been admitted by the respondents. Written statement referred as a whole clearly demonstrates that the respondents have denied the claim of the petitioner to seek a decree for Specific Performance of Contract and paragraph 2 of the written statement rather speaks volumes about the truthfulness of the two widows who were illiterate and aged ladies. Consequently, it cannot be said that by virtue of so- called admission in this paragraph, case of the petitioner stands proved. Even otherwise, the plaintiff is to succeed on the strength of his own case and a written statement being not evidence in the case cannot be received as a part of evidence and therefore cannot be relied upon. See Mst.
Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaq and 2 others PLD 1972 SC 25.
4. I have considered the arguments of the learned counsel for the parties and have also gone through the record of the case. I have also gone through the evidence produced by both the parties and the judgments rendered by the two Courts below. Argument of the learned counsel for the petitioner to the effect that it stands established that the respondents had executed a valid agreement for sale in his favour is misconceived. Admittedly, two of the executants are illiterate and old ladies and the other two are minoRs, There is absolutely no evidence on record to prove that the ladies were having independent advice at the time of the execution of so-called agreement for sale. Nobody could have executed an agreement for sale on behalf of the minoRs, Admitted position of the case is that for enforcement of the alleged agreement for sale, a certificate from the Court of learned Guardian Judge had to be obtained and it was a pre- condition for the enforcement of the agreement. This certificate admittedly was not granted.
Keeping in view the latest pronouncement by their Lordships of the Supreme Court of Pakistan for the purposes of appreciation of evidence of genuineness of transaction entered into with the old and illiterate ladies, I do not consider that the plaintiff has discharged necessary onus to the effect that the two ladies had executed agreement for sale with their free mind after having an independent advice at their disposal. Agreement on behalf of the minors being void ab initio, the two learned Courts below have rightly non-suited the plaintiff on the ground that he has failed to prove a valid agreement for sale in his favour. So-called admission in written statement is not evidence in the case in view of the law laid down in case of PLD 1972 SC 25. With regard to the other limb of the argument addressed by the learned counsel for the petitioner to the effect that the agreement can be partly enforced and the plaintiff is entitled to get decree to the extent of the shares of the widows, I hold this argument is also not valid and misconceived. Firstly, I have already held that there is no valid agreement C for sale on the basis whereof a decree for specific performance could be passed and secondly, the agreement having been frustrated in part shall be deemed to have frustrated as a whole in view of the law laid down in case of Muhammad Ishaq and another referred to above, and also being joint and not severable. Consequently, the petitioner cannot claim decree for specific performance even for a portion of the land in question. Keeping in view another aspect of the case grant of decree for specific performance is a discretionary relief.
Two learned Courts below have refused to grant decree in favour of the plaintiff-petitioner. This is a revision petition and hence is a discretionary jurisdiction. To me, it appears that just and fair judgments have been rendered and justice has been done. Consequently, I do not like to interfere in exercise of my discretionary jurisdiction while sitting in revision. However, keeping in view the latest principle laid down by their Lordships of the Supreme Court in case of Allah Ditta v. Barkat All and 3 others 1992 SCM R 1974, which is to the effect that while administering justice whatever is found to be due to a person, it should be seen that it is restored to him. In this case there is evidence and admission to the effect that an amount of Rs,10,000 was received by the E respondents No,1 and 2, and the assertion of return thereof does not stand proved on record of the case. Consequently it would be in the interest of justice if it is directed that this amount is returned to the petitioner. Resultantly, this civil revision is dismissed. However, a decree for payment of Rs, 10,000 is passed in favour of the petitioner against respondents.
' Parties to bear their own costs.