' This order in Civil Revision No,409/91 will also dispose of connected Civil Revision No,457/91 as both arise out of the same judgment and decree of the lower appellate Court.
2. Briefly stated the facts of the case are that Salim Jan and Mahmood Jan brought a suit for a declaration that they are owners of Balakhana No,1700/A and two shops thereunder bearing Nos.1701 and 1702 situated in Koocha Shikarpuryan, Bazar Andar Shehr, Peshawar City. In the alternative, the plaintiffs prayed for specific performance of the contract and/or for the return of an amount of Rs,29,300 which they had paid to Muhammad Hussain as sale consideration. It was alleged in the plaint that Muhammad Hussain, defendant No,1, purchased the suit property in an open auction for which he made partial payment and before the payment of the balance amount, he entered into a sale agreement with the plaintiffs through a registered agreement to sell with regard to the suit property and received an amount of Rs,1,800 in excess to the transfer price, before the Sub-Registrar. Vide said deed it was promised that plaintiff's father defendant No,2 as a general attorney of defendant No,1 would deposit the transfer/sale price of the property in the Settlement Department, and possession of the property was delivered to the plaintiffs. It was asserted in the plaint that as per agreement an irrevocable power of attorney was executed by defendant No,1 in favour of father defendant No,2 to deposit the transfer price and obtain the P.T.D.
Of the property and thereafter execute a registered sale-deed in favour of the plaintiffs. According to the plaintiffs, through their father defendant No,2, after making the entire payment of transfer- sale price to the defendant, when tried to obtain P.T.D. Defendant No,1 started creating problems by filing ejectment applications against defendants 3 and 4, tenants of the plaintiffs. The defendant respondent got the Permanent Transfer Order issued in his favour in contravention of the agreement between the parties and thereby dishonoured his commitments resulting into present litigation. The defendant No,1 contested the suit and denied the execution of any agreement to sell between the parties but admitted the execution of power of attorney in favour of Muhammad Jan, the father of the plaintiffs, to look after the property for some time. The learned trial Judge on the pleadings of the parties framed as many as 8 issues including the relief and after recording the evidence of the parties, pro and contra, granted a preliminary decree for specific performance of the agreement dated 2-4-1962 to the plaintiffs against the defendant on payment of Rs,9,640 with the direction that the said amount be deposited by the plaintiffs in Court within one month, vide judgment and decree dated 8-3-1989.
3. Feeling aggrieved, two appeals were preferred, one by Muhammad Hussain against Salim Jan etc. And the other by Salim Jan etc. Against Muhammad Hussain. Both the appeals were, heard by the learned Additional District Judge, Peshawar who, vide judgment and decree dated 4-6-1991, dismissed both the appeals. Hence the present revision petitions.
4. I have heard the learned counsel for the parties at great length and with their assistance have also perused the record. The learned counsel for the petitioners mainly stressed the question of minority of the plaintiff-respondents that they at the time of execution of the deed were minors and as such, they could not enter into any contract, but as it sounds, it does not have that substance. Admittedly, the plaintiff-respondents at the time of the execution of the registered agreement to sell were minors and whole transaction was transacted by their father, defendant No,2, with defendant No,1, the petitioner herein. Even if it has not been explicitly mentioned in the agreement to sell that plaintiffs' father acted as a guardian for his minor sons, yet it would not have any adverse repercussion on plaintiffs' case as he was their natural guardian and could act for their benefit without being mentioning such status. Mahmood Ali, P.W.2, property dealer and marginal witness of agreement to sell and general power of attorney Exh.P.W.2/1 and Exh.P.W.2/2 respectively, has proved the two documents and their registration. He stated that Muhammad Hussain defendant No,1 executed an agreement to sell in favour of the plaintiffs and after admitting the contents signed the same as executant in his presence. Likewise general power-of-attorney was also executed by Muhammad Hussain in favour of Muhammad Jan; defendant No,2, in his presence. He also affirmed that the documents were written in presence of Muhammad Hussain and Muhammad Jan, father of the plaintiffs. The petitioner even by his own conduct is estopped to raise such a plea as he never objected during the whole process of transaction to the purchase of the property by Muhammad Jan in favour of his minor sons. It is evident on record that the plaintiffs were when agreement deed was executed, minors and it was their father Muhammad Jan who negotiated with the defendant Muhammad Hussain with regard to the purchase of the suit property for the plaintiffs. It was Muhammad Jan who paid the amount of Rs,1,800 to Muhammad Hussain before the Sub-Registrar by personal appearance and it was further promised before the Sub-Registrar that with regard to the remaining sale consideration of Rs,27,500 claims for the said value would be purchased. There is nothing on the record to suggest that at any stage the minors have appeared before any authority or executed any deed themselves or entered into negotiation with the defendant Muhammad Hussain, rather, on the other hand, it has been proved on record that it was Muhammad Jan, father of the minor plaintiffs, who entered into an agreement with the defendants for the benefit of the minors as their guardian.
As such, the said agreement to sell entered into by the guardian on behalf of the minors is enforceable.
6. With regard to the point of limitation a perusal of the agreement to sell would show that it was promised therein that Muhammad Hussain would transfer the property in favour of the plaintiffs after getting the P.T.D. In his favour. The record further shows that the P.T.D. Was issued in favour of the defendant in the year 1978 when pursuant to a notice he deposited the amount of Rs,9,640.
Therefore, the suit which was brought in the year 1979, after the refusal of Muhammad Hussain defendant to transfer the suit property in favour of Salim Jan and Mahmood Jan plaintiffs, is well within time.
7. As regards the controversy of the deposit of Rs,9,640 by the plaintiffs, this has been clearly proved on record that it was Muhammad Hussain defendant who after the service of the notice by.
The Settlement Authorities on him had deposited the said amount of Rs,9,640 where after the P.T.D.
Was issued in his favour, therefore, the plaintiffs are responsible to make payment of Rs,9,640 to the defendant Muhammad Hussain.
8. The finding regarding enforceability of the contract is based upon the usual interpretation of the relevant law but after the insertion of Article 2A in the Constitution of Pakistan, the Courts should be mindful of its provisions and resolve the disputes in such a manner so as to advance justice in accordance with the Islamic norms. The plaintiffs were minors at the time of execution of the agreement to sell and entire exercise was done by their father Muhammad Jan in their names in entering into the deal with Muhammad Hussain, so keeping in view the Injunction of Islam with regard to performance of "Ehd", both the lower Courts have rightly decided the case in hand. The defendant petitioner cannot, on such technical plea which was not taken even in the written statement, wriggle out from his commitment which he had admittedly made vide Exh.P.W.2/1 and Exh.P.W.2/2. It has been ruled by the august Supreme Court of Pakistan in the case of Commissioner of Income Tax, Peshawar v. M/s. Siemen A.G. Reported in PLD 1991 SC 368 that "so long the existing statutes are not brought in conformity with the Injunction of Islam (Article 227 of the Constitution) their interpretation, application and enforcement wherein discretionary judicial elements are involved, only that course would be adopted which is in accord with the Islamic philosophy, its common law and jurisprudence. The most important relevant Injunctions of the Qur'an are contained amongst other in Chapter Maida Verse (1) and Chapter Alisra`a, Verse (34) to the effect that the contracting parties are bound to fulfil their contracts. And that they would remain liable for any contraventions obviously both here and hereafter. There are very strong Commands and have been enforced in various fields". In view of the above, both these revisions, being devoid of merits, deserve dismissal and I order accordingly. However, the parties are left to bear their own costs.