GHULAM MAHMOOD QURESHI, J. -- Respondent Ijaz Hussain instituted a suit on 2.1.1992 for specific performance of contract dated 1.12.1990 alleging therein that the appellant had failed to perform his part of contract as the transaction was settled for Rs. 3,50,000/- and Rs. 1,00,000/- was paid as earnest money. One Sabaz A.I also filed a similar suit against the appellant seeking performance of agreement to sell dated 6.7.1990 with regard to the same property, wherein it was alleged that the transaction of portion of the shop in question was settled for Rs. 4,00,000/- and Rs. 3,00,000/- was paid to the appellant as earnest money. In this suit respondent No. 1 Ijaz Hussain was also impleaded as party. Both the suits were contested by the appellant. While submitting written statement in the suit of Ijaz Hussain the stand taken up by the appellant was that he had received Rs. 1,00,000/- from respondent No. 1 and signed a blank paper, which was subsequently converted into an agreement to sell by the said respondent. It is further submitted in the written statement that description and measurement of portion was also changed as against the settlement made between the parties.
2. Led Trial Cowl consolidated both the suits and from the divergent pleadings of the parties the following issues were framed:-
(1) Whether defendant No. 1 Abbas A.I agreed to sell the disputed property to the plaintiff (Ijaz Hussain) for consideration of Rs. 3,50,000!- vide agreement to sell dated 1.12:1990 and also received Rs. 100,000/- as earnest money? OPP
(2) Whether performed his part of the contract? OPP
(3) Whether defendants Abbas A.I and Razia Sultana agreed to sell the disputed property to rival plaintiff Sabaz A.I for consideration of Rs. 4,00,000/- vide agreement to sell dated 6.7.1990 and received Rs. 3,00,000/- as earnest money? OP Rival plaintiff?
(4) Whether rival plaintiff Sabaz A.I performed his part of the contract? OP Rival plaintiff.
(5) Whether plaintiff Ijaz Hussain is estopped to bring the suit by his words and conduct? OPD
(6) Whether plaintiff Ijaz Hussain has neither locus standi nor cause of action to bring the suit? OPD
(7) Whether plaintiff Ijaz Hussain has not come to the Court with clean hands and defendants are entitled to recover special costs? If so to what extent? OPD
(8) Whether plaint is liable to rejection? OPD
(9) Whether suit titled Ijaz Hussain Vs. Abbas A.I' has filed in collusion with defendant No. 1 Abbas A.I? OP Rival plaintiff.
(10) Whether rival plaintiff Sabaz A.I has no cause of action to bring the suit? OPP
(11) Whether the suit 'Sabaz A.I Vs. Abbas All has been filed with the collusion of defendants Nos. 1 and 2? OPP
(12) Whether the disputed agreement to sell dated 6.7.1990 is without consideration and is based on fraud? OPP
(13) Whether Ijaz Hussain plaintiff is entitled to recover special costs? If so, to what extent? OPP.
(14) Relief.
3. Respondent No. 1 in support of his claim examined five witnesses including himself. Abid Hussain PW-2, is a stamp vendor while Bashir Khan and Ghulam Hussain, PW-3 and PW-4, respectively are marginal witnesses of agreement Ex.P-2. On the other hand Sabaz A.I got examined five witnesses and also produced sale agreement in his favour as Ex.D-1. The appellant also appeared as DW-1/1 and produced Muhammad Ayub, whose statement was recorded as DW-1/2. The learned Trial Court decided issues Nos. 1, 2 and 11 in favour of plaintiffs/respondent No. 1. Issues Nos. 3 and 4 were decided against Sabaz A.I, rival plaintiff and issues Nos. 5, 6, 7 and 8 were decided in favour of Ijaz Hussain respondent No. 1 and against the appellant. Issues Nos. 9 and 10 were also decided in favour of Ijaz Hussain and against Sabaz A.I rival plaintiff. Finding on issue No. 12 was also recorded in favour of Ijaz Hussain.
While deciding issue No. 13, the learned Trial Court held that the suit filed by Sabaz All was frivolous, vexatious and same was dismissed with costs. Resultantly, the suit filed by Ijaz Hussain, respondent No. 2 was decreed vide judgment and decree dated 31.1.1996 against the appellant. Hence this appeal.
4. The learned counsel for appellant has contended that the agreement to sell is hit by Section 21 of the Specific Relief Act and the same is expressly barred. It is further submitted that when there was two agreements about the same property, the adequate relief, which could be granted to the plaintiff in such suit was not specific performance of the contract, but compensation in the shape of money was sufficient relief. It is further contended that in presence of arbitration award dated 21.11.1991, delivered by Sarafa Association, in regard to settlement of the disputed property, respondent No. 1 should have resorted to the provisions of Arbitration Act for making it rule of Court instead of filing present suit. '
5. We have heard the learned counsel for appellant and have also gone through the record. Ijaz Hussain respondent No. 1 has produced five witnesses in support of his claim. Abid Hussain, PW-2, is the scribe of Ex.P-2, when appeared in witness-box, has deposed that Ex.P-2 was in his hand writing and it was read over to the parties and thereafter, the parties put their signatures. He has also deposed that both the parties are personally known to him. Other marginal witnesses namely Bashir Ahmad and Ghulam Hussain have also supported the statement of PW-2 and also confirmed that the said agreement was read over to the parties and thereafter they put their signature. Denial by the appellant to the extent that he signed on the blank papers stands belied by the statement made by these witnesses. The plaintiff/appellant has, however, admitted that he received Rs. 1,00,000/- as earnest money from respondent Ijaz Hussain, one of the marginal witnesses of Ex.D-2, who happened to be servant of Abbas A.I, appellant has admitted in his cross- examination that Abbas A.I has signed Ex.P-2 after its completion by petition writer. Mere denial on the part of appellant and that too in half hearted manner is not helpful to him. In para 1 of written statement the appellant/defendant ,admitted that he agreed to sell eastern part of shop, but respondent Ijaz Hussain by committing forgery has also got entered western side of the shop in the agreement. The second agreement to sell, which is placed on record as Ex.D-2 and has been disbelieved by the Trial Court, Sabaz A.I in whose favour the said agreement was executed, never appeared in the witness-box to support the same and instead was represented by one Sultan Shah as his attorney. This agreement stated to be executed by Razia Sultana, wife of appellant as his attorney. If there was any power-of-attorney executed by the appellant in favour of his wife and the wife entered into an agreement that too with her brother, then how it was possible that the same was not in the knowledge of appellant. Both the spouse are residing under the same roof. Mst. Razia Sultana, when appeal ed as DW-1 (witness produced by Sabaz A.I) deposed that she being general attorney of her husband executed Ex.D-2 in favour of her brother, Sabaz A.I, and the sale price was settled as Rs. 4,00,000/-out of which Rs. 3,00,000!- were received as earnest money. She also deposed that at the time, when bargain was settled her husband was not present in the house as he had gone to Lahore. It is strange that after receiving such a huge amount from her brother she did not disclose the same to her husband. It appears that Sabaz A.I was introduced to defeat the claim of respondent Ijaz Hussain over the shop in dispute. So the findings recorded by the learned Trial Court on Issues Nos. 1, 2, 3 and 11 are based on true appreciation of evidence as the evidence produced by the appellant as well as Sabaz All is full of contradictions, but there is no doubt about the execution of agreement Ex.P-2 as the same stands proved by the evidence of PW-2, PW-3, PW-4 and PW-5.
6. Under the Contract Act, when a vendor fails to complete contract of sale of immovable property, the purchaser has two remedies open to him:-
(i) Treat the contract rescinded and sue in equity for restitution of his former position or to sue at law for any money that he was parting with or,
(ii) treat the contract on foot and ask for damages for breach or to seek remedy for specific performance.
The basic point which should be kept in mind is that ordinary damages for breach of contract are recoverable if the seller has no title to the property at the date of contract and fails to complete the sale before the date fixed for completion. The compensation can be awarded for material defect in the title and not material defect in the property. There is no backing out of the agreement unless performance of the contract becomes impossible or impracticable. In either of these events the Court has been empowered by way of mandatory Rule or by exercise of discretion to avoid specific performance of the agreement. Under the Qanun-e-Shahadat, the burden of proof of any particular fact lies on that person, who wishes the Court to believe its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.
7. In the present case the appellant/defendant in order to avoid suit for specific performance tried to create hurdle for respondent, Ijaz Hussain by manipulating a document through his own wife and that too allegedly without knowledge because in that eventuality he would not have executed agreement to sell in favour of Ijaz Hussain dated 1.12.1990. As the appellant has not denied receiving of Rs. 1,00,000/- as earnest money from respondent No. 1. So it clearly shows that by fabricating Ex.D-2, the appellant, at all costs, wanted to defeat the right of respondent No. 1 and for that purpose used his brother-in-law Sabaz A.I, who never appeared as his own witness to rebut the claim of Ijaz Hussain. It can safely be held that Sabaz A.I was only introduced to defeat the right of respondent No. 1. The contention raised by the learned counsel for appellant that the decree for specific performance could not be passed, when the party prays for an alternate relief in the shape of money has no force. Section 19 of the Specific Relief Act, 1877 clearly provides that a person suing for specific performance of the contract can also ask for compensation for its breach either in addition to or in substitution for relief of specific performance. In order to obtain relief by way of specific performance of the contract, the plaintiff has first to allege and prove that he was ever ready and willing to perform his part of contract from the date of contract to the date of suit.
8. The next contention of the learned for the appellant to the effect that in presence of Arbitration Award dated 21.11.1991, delivered by Sarafa Association, in regard to the settlement of property in dispute respondent No. 1 should have resorted to the Provisions of the Arbitration Act for making it as a rule of Court instead of filing the present suit is also devoid of any force because in para 3 of written statement the appellant has specifically mentioned that since the suit of plaintiff/respondent No. I was pending in the Civil Court, he made a request to the Association not to proceed further till the final disposal of that suit. The learned Trial Court has decided the suit on merits. Otherwise too the so-called award is not binding as the same was just a settlement made by Sarafa Association in order to settle the dispute between its two members and cannot be termed as an award. In other words it was merely a settlement made through 'Punchayat' which too was not accepted by the appellant himself as stated above. So the question of making the same as rule of Court does not arise. No other point or issue pressed:
9. In view of what has been discussed above this appeal has no merit and the same is dismissed.
No order as to costs.