' MUHAMMAD BASHIR JEHANGIRI, J.---This appeal as of right is directed against the order of a learned Division Bench of Peshawar High Court, in appeal filed by respondents Nos.1 and 2 accepting R.F.A.No,107 of 1992, setting aside the judgment and the decree passed by learned Civil Judge in a suit for specific performance of agreement to sell and non-suiting the appellants.
2. It appears that respondents Nos.1 and 2 in person and on behalf of respondents Nos.3 to 15 purported to execute, an agreement to sell for disputed property to the appellants for a consideration of Rs,8,000 per Jareeb. It was, inter alia, provided in the agreement that by the end of January, 1986, the half of the sale consideration would be payable while the remaining consideration would be paid within two years thereafter. It was also provided in the agreement that in case of default of payment of the sale consideration in accordance with the stipulation, the vendees would be liable to pay to the vendors a sum of Rs,1,000 Per Jaraib of the disputed property as penalty. It was further agreed between the parties that the appellants would pay the outstanding lease money for the year 1985 before the completion of the sale transaction. The vendors having failed to transfer the property in accordance with the aforesaid agreement, the appellants instituted the present suit against respondents/coowners of the disputed property through specific performance of the sale agreement. No earnest money/advance was, however, paid by the appellants to the respondents. Respondents Nos.1 and 2 on the one hand and respondents Nos.3 to 7, 9 and 10 on the other, contested the suit in their two separate written statements and traversed the averments made in the plaint including the one that they had executed any agreement to sell in favour of the appellants. The propriety and the legality of the sale agreement was challenged on the grounds of fraud, undue influence and being without consideration and that, therefore, it was without lawful authority and of no legal effect qua the proprietary right of the respondents over the disputed property. The subsequent sale of the property in favour of Umar Wahid and Abdur Razzaq respondents. Was also sought to be annulled.
A few legal objections were also taken.
3. The learned trial Judge, inter alia, held that appellants entitled to the specific performance of the agreement to sell to the extent of the "property belonging to the Mustaqeem Khan and Faridullah Khan respondents Nos.
1. And 2 to the extent of actual area found in their possession in accordance with the agreement".
The learned trial Judge further observed that the agreement between the appellants and respondents Nos.1 and 2 was neither collusive nor had it been obtained by undue influence; that "the defendants Umar Wahid and Abdur Raziq were bona fide purchasers from the real owners Mushtaqeem Khan and Faridullah Khan (respondents Nos.1 and 2 herein) who had no power of attorney to sell the property belonging to others"; that the sale in respect of the property belonging to the other respondents was not sustainable because respondents Nos.1 and 2 had no authority on their behalf to alienate their share of the disputed property; that the appellants had gone to Islamabad to pay the price to the respondents but they refused to receive the consideration; that no notice could be served upon the respondents to execute the sale-deed in favour of the appellants due to paucity of time; that the suit of the appellants was within time; that respondents Nos.1 and 2 had no authority to transfer the property-of other respondents and the sale, if any, of their property in favour of subsequent vendees Umar Wahid and Abdur Raziq was of no legal effect and finally; that only those appellants who are in possession of the property owned by respondents Nos.1 and 2 were entitled to the decree for possession of the land through specific performance of agreement to sell. Thus, the suit was partially decreed in favour of the appellants to the extent of share of respondents Nos.1 and 2 and was dismissed qua the shares of the other respondents.
4. It would be noticed that the learned trial Court has decreed the suit for specific performance of the agreement to sell to the extent of the shares owned by respondents Nos.1 and 2 without any order as to the deposit of the sale consideration or the specific area of the disputed property.
5. The learned Judges of the Division Bench, after perusal of the impugned agreement to sell, reached the conclusion that the actual area of land which respondents Nos.1 and 2 had agreed to sell was not clearly specified in the agreement; that respondents Nos.1 and 2 were not duly authorised by the other respondents/owners to enter into any agreement of sale of the land to the appellant; that there was no evidence whatsoever to establish that half of the amount of consideration had been actually paid by the appellants/tenants to the respondents/landlords and finally that under the provisions of section 22 of the Specific Relief Act (I of 1877) (hereinafter called as the Act), "the jurisdiction to decree the suit for specific performance was discretionary inasmuch as the Court is not bound to grant such relief merely because it is lawful to do so". The learned Judges of the Division Bench in the High Court highlighted the two eventualities where the Court would be competent to decline to grant the relief under section 22 (ibid), namely:-- "(1) Where the circumstances under which the contract is made are such as to give the plaintiffs an unfair advantage be no fraud or misrepresentation on the plaintiff's part.
(2) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff."
7. In view of the above reasoning, the learned Judge of the Division Bench accepted R.F.A. No,107 of 1992, set aside the judgment and decree of the learned trial Court and; non-suited the appellants.
Connected R.F.A. No,116 of 1992 filed by the plaintiffs/appellants herein against the judgment of the trial Court qua the sale of land owned by the respondents other than 1 and 2 was dismissed.
8. In support of this appeal, Mr. Abdul Aziz Kundi, learned Advocate-on Record for the appellants, contends that the view taken by the learned Judges of the Division Bench that under section 22 of the Specific Relief Act (I of 1877) the grant of relief of specific performance is discretionary but the view taken by the learned Judges that in the circumstances of the instant case, the relief of specific performance cannot be granted is not legally sound. According to the learned counsel, the relief of specific performance being an equitable relief, it can be refused only if the equities in the case before the Court are against the claimant. The grievance of the learned counsel is that in the instant case there was no such conduct attributable to the appellants warranting an inference of equities being against them. In support of this proposition, reliance is placed on Mussarat Shoukat Ali v. Safia Khatoon (1994 SCM R 2189). It is, however, note-worthy that in the precedent of Mussarat Shoukat Ali supra, a salutary principle has also been enunciated that it is open to the parties to the contract of sale in respect of an immovable property to provide that time for performance of the agreement will be treated as essehce of the contract. The bare perusal of the contract of sale itself in general and a note appended under the signatures of Mustaqeem Khan respondent would reveal that time for performance of the agreement was to be treated as essence of the contract.
The appellants instead of serving a notice upon the respondents on or about 21-1-1986 and offer the payment of the agreed half of the sale consideration rushed to the Court to file the suit without an offer of deposit thereof in the trial Court. Even the learned trial Court did not care to direct the appellants to deposit in the Court the amount agreed between the parties and it was left to the date of passing the decree. We are, therefore, of the considered view that on the part of the appellant till the end of the month of January, 1986 and till their suit was decreed on 6-10-1992, the appellants were not serious to comply with the stipulation to pay the agreed amount to the respondents. Therefore, specific performance, of the agreement of sale relating to immovable property could not be legally granted to the appellants.
9. The learned- counsel for the appellants next submits that the respondents have miserably failed to establish that appellants had played any fraud upon the respondents in the execution of the impugned agreement to sell. Undoubtedly there are many instances in which, though there is nothing that actually amounts to fraud there is nevertheless a want of equity and fairness in the contract which are essential in order that the Court may exercise its extraordinary jurisdiction in specific performance. In judging of the fairness of a contract the Court will look not merely at the terms of the contract itself but at all the surrounding circumstances. Applying this principle to facts of the case before us we find that beside the weighty considerations that found favour with the learned Judges of the Division Bench in declining the specific performances, of the agreement to sell, it suffered inherently not only from ambiguities as to the area of the land agreed to be sold but also as to the sale consideration. (C.F. 22 I.C. 910: 18 CWN 689)
10. The reasoning that found favour with the learned Judges in the High Court to decline relief to the appellants is that:-- "In the instant case plaintiffs are tenants in possession of land owned, inter alia, by Mustaqeem Khan and Faridullah Khan landlords. There was a dispute between the landlords and tenants about the lease amount. The landlords had instituted a suit against the tenants for recovery of produce.
The plaintiffs had, therefore, unfair advantage over the defendants. Non-performance of contract involved no hardship to them, and performance would involve hardship to the defendants. In the facts and circumstances of the case, the trial Court should not have exercised its discretion in favour of the plaintiff tenants. The plaintiff tenants had not come to the Court with clean hands and as such did not deserve equitable relief of specific performance of contract."
11. No legitimate exception can be taken to the proposition of law enunciated by the learned Judges in the passage quoted above. It is, therefore, apparent from this that the reasoning reproduced above was sound enough for deciding under section 22 of the Specific Relief Act, 1877, the relief of specific performance of the agreement to sell and, therefore, does not warrant our interference under Article 185(3) of the Constitution..
12. There is no substance, therefore, in the contentions raised on behalf of the appellants. This appeal having no merit is dismissed with costs.