MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This direct appeal has been brought before the Court to call in question a judgment of Division Bench of the High Court of Baluchistan in a suit brought by the appellant against to persons, namely, Haji Syed Muhammad Sharif and his nephew Abdul Aziz.
2. The suit was for specific performance of an agreement to sell certain commercial property in Sarafa Bazar, Quetta, which was executed on 9-7-1988 between respondent No.1/vendor and the appellant/vendee for a sum of Rs.3,000 out of which the receipt of Rs.50,000 was acknowledged.
The remaining amount of Rs.2,50,000 was agreed to be paid to respondent No.1 before 8-8-1988 when the mutation evidencing the transfer of the disputed property would be sanctioned. It was averred in the plaint that the appellant paid Rs.2,50,000 within 15 or 18 days of the execution of agreement to sell, but respondent No. l failed to complete the transaction. In the meantime, respondent No. l through an Advocate served upon the appellant a notice dated 16-2-1989 wherein, despite admitting the execution of the agreement to sell, he maintained that sale consideration had been fixed at Rs.6,000; and that other co-owners of the property were not prepared to sell the property to the appellant. The appellant respondent to the notice controverting both the claim of enhanced sale consideration and the rights of any other co-owner in the disputed property. On the death of Muhammad Naeem brother of respondent No.1, the plaint was amended and his 3 other sons, namely, Syed Abdul Rashid, Syed Abdul Wadood and Syed Abdul Shakoor were also impleaded as defendants.
3. The defendants-respondents contested the suit and, while admitting the execution of the agreement to sell by the respondents, it was pleaded, firstly, that defendant-respondent No.1 was an old man and was also hard of hearing; secondly, that plaintiff-appellant alongwith Usman Ali and Saifullah- had managed to obtain signatures thereon the pretext that he would' be paid a sum of Rs.6,00,000 but not as a single. Penny was paid to him for his share of the property; and, thirdly, that defendants-respondents Nos.2 to 5 had no authorised respondent No. 1 to sell their shares in the property.
4. The trial Court decreed the share with regard to half of the disputed property which represented the respondent No. l for a sum of Rs.1,50,000 and directed him to refund Rs.1,50,000 to the appellant dismissing the suit against respondents Nos.2 to 5 qua their shares. ' The respondents, feeling aggrieved, challenged the judgment and the decree in the High Court by filing Regular First Appeal No.64 of 1992.
5. The learned Judges of the Division Bench upheld the findings of the trial Court that respondent No. l had admitted in terms unequivocal the execution of agreement to sell photo copy Exh.P/1; that notwithstanding the denial by respondent No. 1, a sum of Rs.50,000 seems to have been paid to him by way of earnest money; that rights of respondents Nos.2 to 5 in the disputed property to the extent of half of it had been affirmed had not been challenged. The proposition surviving for determination before the learned Judges in the High Court was whether the relief for specific performance of agreement to sell should at all be granted with reference to the provisions of sections 14 to 17 of the Specific Relief Act (I of 1877), firstly, because it would operate to the unfair advantage to the appellant; and, secondly, because notwithstanding the absence of element of fraud or misrepresentation it would cause hardship to the latter. The perusal of the impugned judgment of the High Court further reveals that, while arriving at the conclusion that respondent No. l "has arbitrarily committed breach of contract Exh.P/1 mainly because value of the suit property has been extraordinarily raised" and further that "the transaction does not suffer from any element of fraud or misrepresentation, yet the circumstances indicate that ultimately same is likely to provide him huge gains and corresponding losses to the appellant. "Nonetheless, the learned Judges were disposed to refuse the relief on the ground that it was discretionary in nature and relying on the law laid down by this Court in Razia Sultana and others v. Muhammad Sharif and others (1993 SCMR 804) declined to grant the relief of specific performance to the appellant. Taking the cognisance of their inability to grant the relief of specific performance of the agreement of sale, the learned Judges proceeded to award to the appellant compensation amounting to Rs.1,00,000 to be paid within a month which had been "voluntarily offered" by respondent No. 1. In case of failure of respondent No.1 to pay that amount within the stipulated period, "the benefit accruing to respondent No.1 would case to be operative whereupon the impugned judgments and decrees would become executable.
6. Mr. Basharatullah, learned counsel for the appellant, contended that the specific performance of the agreement of sale of the property could not be legally declined merely because it was jointly owned by the respondents and that respondents Nos.2 to 5 were not party thereto. In this context, the learned counsel maintained that the learned Judges clearly fell into error to construe sections 14 to 17 of the Specific Relief Act, 1877, in that, where the contract is in subsistence there is nothing to prevent the Court from carrying into effect that portion of it, which is capable of being performed. It was further argued that the learned Judges were not justified in holding that notwithstanding the absence of' element of fraud or misrepresentation on the part of the appellant, the appellant was likely to get huge monetary gain at the cost of corresponding loss to respondent No.1 and that, in any case, it was not a valid ground in denying the relief of specific performance. In this context, it was urged that the guiding principles laid down by this Court in the case of Razia Sultana (supra) for exercising the jurisdiction in the specific performance of sale agreement were not at all attracted to the case in hand. In order to support his contention that specific performance of contract of sale of half share of the premises in dispute belonging to respondent No. 1 could be validly granted. The learned counsel for the appellant placed reliance on the precedents in the cases of (i) Ali Muhammad Khan v. Raizuddin Khera (PLD 1981 Karachi 170), (ii) Irshad Hussain v. Ijaz Hussain and 9 others (PLD 1994 SC 326), (i.e) Mrs. Mussarat Shaukat Ali v. Mst. Safia Khatoon (1994 SCMR 2189) and (iv) Sughran Bibi v. Mst. Aziz Begum and 6 others (1996 SCMR 137).
7. Mr. Tariq Mahmood, learned counsel for the respondents; on the contrary, besides reiterating his contentions which he had advanced before the learned Judges in the High Court, further argued that it was established on the face of the record that respondent No.1 has neither been paid earnest money amounting to Rs.50.000 nor the balance of the alleged sale consideration of Rs.2.50.000. Reference in this behalf was made to the order-sheet dated 17-5--1993 photo copy placed at page-319 of the Paper Book; affidavit of one Syed Ghulam Rasool application of the appellant photo copy placed at page-319 of the Paper Book; and written statement of Haji Syed Muhammad Sharif respondent No. 1. The learned counsel then invited our attention to the authority of Atta Muhammad v. Ali Sher, and others (1989 MLD 4504) to contend that there could be no splitting of the agreement to sell in question which had to be performed either as a whole or not at all in view of sections 15, 16 and 17 of the Specific Relief Act, 1877.
8. It was held by the learned trial Court, which finding had been affirmed by the High Court, that the agreement of sale photo copy Exh.P/1 had been duly executed between the appellant and respondent No.1 under which the later had agreed to transfer the disputed property in favour of the former for a sum of Rs.3,00,000 and that a sum of Rs.50,000 was paid to respondent No.1 as earnest money while the balance of sale consideration was lying in deposit with Syed Usman Shah, a member of the Jirga by consent of the parties which was not being received by respondent No:A.
The plea of fraud and misrepresentation in bringing about the agreement to sell photo copy Exh.P.1 raised by respondent No. l did not find favour either with the trial Court or with the High Court. The sole question to be addressed, therefore, is whether the relief of, specific performance of sale agreement to the extent of half of the disputed property representing the full share of respondent No. 1 could be validly declined in view of what has been described as monetary loss to respondent No.1 and undue monetary gain to the appellant. There is no authority for the proposition that the appreciation in value of the disputed property with effect from July. 1988 till the filing of the suit would be tantamount to monetary loss to the vendor and undue gain to the vendee and that, in any case, appreciation in prices provides no justification for declining the specific performance.
The grant of compensation to the vendee in the event of inability to perform the agreement of sale is permissible. Nonetheless, the law is settled that as a rule specific performance of the sale agreement should be granted in its entirety and not in parts. (See Razia Sultana's case supra).
However, this rule is subject to three exceptions as contained in sections 14, 15 and 16 of the Specific Relief Act. It was, therefore, held in old Indian authorities (AIR 1933 Cal. 98; and 141 Indian Cases 708) that sections 14 to 17 of the aforesaid Act constitutes a complete Code so far as specific performance of part of a contract is concerned. The claim of the appellant is almost covered by illustration (a) to section 15 (ibid), in that, respondent No. l claiming to be the sole owner of the disputed property, had agreed to sell it to the appellant. It turned out later on that half of the property belonged to Syed Muhammad Naeem brother of respondent No. F and predecessor-in- interest of respondents Nos.2 to 5. Half of the property belonging to respondent No. l is capable of being partitioned and the remaining half not being necessary for use or enjoyment of half of the areed to be conveyed to the appellant. The Court could validly order the specific performance qua the half of the property belonging to respondent No. l and in its discretion could order payment of compensation to the appellant which in the instant case the latter had foregone and during the pendency of appeal had offered to accept the share of respondent No. l for a sum of Rs.3,00,000.
9. The objections raised on behalf of respondent No. 1 with regard to non--payment of sale price to respondent No. l had not been accepted by the Courts and rightly so, in that, before refusing to execute the agreement to sell, respondent No. l had not pressed it in the right earnest and, in any case, it was not urged before the High Court, In our considered view, the claim of the appellant is squarely covered by section 15 of the Act. In Razia Sultana's case (supra); while referring to the law laid down by this Court in Wali and others v, Massak Ali and others (PLD 1965 SC 651), it was held that "the appellants cannot ask for specific performance of a part of the agreement unless the case falls within the provisions of sections 14 to 16." In the instant case, we find that case of the appellant falls within the ;orbit of section 15 and, therefore, the ratio deducible from that case is applicable.
10. In specific performance of contract of sale of immovable property, element of hardship after the execution of the agreement is hardly a valid ground for declining specific performance. In Ali Muhammad Khan v. Riazuddin Khera (PLD 1981 Karachi 170) relied upon by the learned counsel for the appellant; the concept of hardship and inadequacy of sale consideration was examined elaborately and it was rightly concluded that in the absence of (i) any circumstance which is so enormously great as to be a conclusive evidence of fraud, or (ii) misrepresentation on the part of the plaintiff which induced the defendant to enter into a contract for sale, or (i.e) circumstances under which the plaintiff took an improper advantage of his position or the difficulties of the defendant making his victim of imposition, specific performance should be granted even if the contract is onerous but not unconscionable. Considering the facts of the case, mere subsequent rise in the price by itself cannot be made a ground for refusing specific performance of the contract.
11. In Atta Muhammad's case (supra) referred to by the learned counsel for the respondents refusal of relief of specific performance was upheld because the findings of the lower Appellate Court that agreement to sell sought to be performed was never executed and thus it was clearly distinguishable.
12. The record of the case reveals that before the impugned judgment was passed by the High Court a sum of Rs.3,00,000 had been deposited in the High Court. Again the appellant had offered to take half of the share of the disputed property belonging to respondent No. l for a sum of Rs.3,00,000. No law was cited by the learned counsel for the respondents prohibiting such a course that all the circumstances brought by the respondents on the record cannot stand on the strength of reliable evidence. No doubt, the relief of specific performance is discretionary. Nonetheless, it has to be exercised judiciously on recognized principles and not arbitrarily or on presumptions or assumptions. In Irshad Hussain v. Ijaz Hussain and others (PLD 1994 SC 326) this Court had held that while exercising discretion the Court must take into account all the facts andcircumstances The respondent in that case was in possession of part of the disputed house and except for Rs.50,000 he had deposited the balance amount in the Court. The appellant therein was held not to be deprived of the benefits which would have accrued if the balance amount would have been deposited in Court at the the of filing of the suit. In the instant case, the entire sale consideration which was earlier fixed for the entire property was deposited with the offer that it should be taken as price for half of it belonging to respondent No. 1.
13. We, therefore, allow this appeal and restore the judgment of the trial Court on the condition that the appellant shall be entitled to the specific performance of agreement of sale of half of the disputed property on payment of Rs.3,00,000 which had already been deposited in the High Court.
There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.