' A suit for specific performance was filed by the respondent on the basis of an agreement to sell, dated 16-3-1990 claiming that the appellant/defendant had entered into an agreement to sell the suit land for Rs,1 lac vide the said agreement by receiving an amount of Rs,35,000. According to him, the balance amount was to be paid and sale-deed to be executed till 20-6-1990, but the appellant/defendant failed, therefore, he had to file the suit. In the written statement filed by the appellant, execution of the agreement, as also the receipt of earnest money, was denied. It was his stance that it was lease-arrnagement between the parties for which purpose he had put his thumb-impression, which was turned into an agreement to sell in connivance with the scribe and the marginal witnesses.
2. From the divergent averments of the parties in their pleadings, the learned trial Court framed issues as to "whether the defendant had executed an agreement of sale with the plaintiff on 16-3- 1990 and received a sum of Rs,35,000 as earnest money? And if Issue No,1 is proved, whether the plaintiff is entitled to a decree for specific performance of contract, if so, on what terms?" Evidence in support of their respective pleas was produced by the parties. On consideration of the same, the learned trial Court came to the conclusion and found that agreement to sell, dated 16-3-1990 was proved to have been executed, as also receipt of money of Rs,35,000. Accordingly, the suit was decreed vide judgment, dated 25-9-1995 with a direction to the respondent/plaintiff for payment of the balance amount of Rs,65,000. The first appeal filed by the appellant against the same has been dismissed by the learned Additional District Judge, Hafizabad, on 22-12-1997. He has, thus, filed this second appeal.
3. It is contended by the learned counsel that the concurrent findings recorded by the two Courts below as to the agreement of sale is not fully supported by the evidence on record and that the decree for specific performance could not have been passed in a case of this nature as the respondent/plaintiff had taken the alternate plea of the return of earnest money. Reference has been made to sections 12 and 20 of the Specific Relief Act, 1877 and some precedents on the subject including Sakina Bibi and others v. Kurnool Muhammad Bashir (PLD 1967 Kar. 158) and Hakim Ghulam Rasool v. Imdad Hussain and another (PLD 1968 Lah. 501) that decree for specific performance should not have been granted by the Courts below.
4. On the other hand, the learned counsel for the respondent contends that there are findings of facts by the two Courts below as to the agreement of sale and receipt of the earnest money by the appellant/defendant which findings are duly supported by evidence. It is contended that no special circumstances have been brought out to decline a decree for specific performance in favour of the respondent/plaintiff.
5. Execution of the document as such by the appellant by putting his thumb-impression in the presence of the scribe and the marginal witnesses is not disputed. His explanation, however, is that it was meant for a lease and not agreement to sell. The evidence that has come on record in the nature of the testimony of Malik Nemat Ali, the scribe, Masood Ahmed and Muhammad Ashraf, the marginal witnesses, is consistent that "it was an agreement to sell for which the price was settled and an amount of Rs,35,000 was received by the appellant". No convincing evidence was produced by the appellant/defendant to dislodge the depositions of the above witnesses, including the statement of the respondent/plaintiff. Indeed, the appellant did not enter appearance by himself, and his attorney appeared as D.W.1. The two Courts below have drawn an inference that the appellant by non-appearing as a witness avoided the cross-examination before the Court. Such an inference in the facts and circumstances is not wholly unwarranted. In view of the concurrent view taken by the Courts below from the evidence on record, it cannot be canvassed successfully that the findings were, in any way, baseless. Indeed the same are amply justified by the evidence on record.
6. The contention of the learned counsel that the decree for specific performance of agreement should not have been granted in view of the alternate prayer, is not tenable, inasmuch, as when the execution of an agreement to sell is proved on record it is to be honoured by the parties and to be enforced by the Court unless there are compelling reasons and circumstances for declining such a relief. In Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189) it was observed that:-- "It is true that grant of relief of specific performance is discretionary with the Court but this discretion cannot be exercised arbitrarily. The relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief, the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely because it is lawful for the Court to refuse it."
No such circumstances have been brought on record which could have persuaded the Court to decline the grant of decree for specific performance of the agreement.
7. The precedents cited by the learned counsel for the appellant do not support his contention, inasmuch as the first case from Karachi jurisdiction was on the original side in a suit for specific performance, which was decreed in favour of the plaintiff. The other case of Hakim Ghulam Rasool v. Imdad Hussain and another is a Division Bench judgment of this Court in which the trial Court had declined the decree for specific performance of the contract and a decree for Rs,3 lacs was passed. In appeal the learned Division Bench set aside the judgment of the trial Court and decree for specific performance of the agreement was passed.
' For the above reasons, there is no merit in the second appeal, which is, accordingly, dismissed.