SAEED-UR-REHMAN FARRUKH, J. - This Regular First Appeal by defendant is directed against judgment dated 30.7.1996 passed by Civil Judge, Gujranwala whereby the suit for specific performance of contract filed by respondent was partly decreed.
2. The respondent claimed in his suit that he entered into an agreement with the appellant to purchase land measuring 12 kanals, 2 marlas situated in the revenue estate of Mandiala Waraich, District Gujranwala on 18.2.1993 for a total sale consideration of Rs.20,00,000/- out of which Rs.8,00,000/- were paid as earnest money and an agreement (Ex.P-1) was executed by the parties which contained stipulation that the sale-deed would be executed on 18.9.1993, on payment of the balance of the sale amount.
It was further averred by the respondent that though he had always been ready and willing to perform his part of the contract the appellant had shown reluctance to stick to his obligations with the result that he was forced to file the suit.
3. The appellant resisted the suit. Number of preliminary objection was raised. On facts, it was pleaded that it was in fact the respondent who failed to comply with the terms of die agreement so much so that he did not pay the balance amount of the sale transaction by the stipulated date i.e. 18.9.1993 with the result that the agreement stood frustrated and the earnest money paid to him was forfeited.
Learned Civil Judge framed the following issues, arising out of the pleadings of the parties:-
(1) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD..
(2) Whether the plaintiff has not fulfilled the terms of agreement to sell dated 18.2.1993, hence, the agreement in question stands cancelled? OPD.
(3) Whether the earnest money of Rs.8,00,000/- paid by the plaintiff to the defendant stand forfeited in view of violation of agreement to sell dated 18.2.1993? OPD.
(4) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD.
(5) Whether the suit in hand has been filed with, intention and the defendant is entitled to get special costs under Section 35-A, CPC? OPD.
(6) Whether the plaintiff is entitled to get decree for specific performance of contract in view of agreement to sell dated 18.2.1993? OPP.
(6-A) Whether the agreement in question is not enforceable,, in view of recent amendment? OPD.
(7) Relief.
4. Respondent-plaintiff produced Abdul Khaliq PW-1 who supported him with regard to his plea of entering into bargain with the appellant. Respondent appeared in the witness-box are PW-2.
According to him the appellant had made a representation to him that he owned land measuring 12 kanals, 2 marlas vide Fard Ex.P-2. He had also assured him that any variation in the land holding would be taken care of later on and sale-deed would be registered after getting the land measured/demarcated at the spot. According to him it transpired later on that: the appellant in fact owned only half of the land agreed to be sold by him.
The respondent tendered in evidence copy of mutation Ex.P-5 and Aks- Shijre Ex.P-6 and copy of general power-of-attorney Ex.P-7.
The appellant, in his evidence, produced Ghulam Mustafa, Record Keeper DW-1 who produced record of letter sent through registered post on 13.2.1994. Muhammad Saeed, Postman DW-2 deposed that he tried to deliver a letter addressed to the respondent who refused to receive it with the result that he made report of "refusal" Ex.DW-1/1 on it. Muhammad Anwar son of the appellant appeared as DW-3 and deposed that alongwith the appellant contracted the respondent so as to demand the balance of the sale amount without success as the respondent put them off with the excuse that he was short of funds. Ali Akbar DW-4 entered the witness-box to contend that he never authorised the appellant to sell his land. Muhammad Satdar, another son of the appellant (DW-5) asserted that they had planned to purchase some land owned by one Gulzar out of the sale proceeds of the suit land but that bargain fell through due to the default on the part of the respondent to pay the sale consideration of the suit land. Lastly, the appellant appeared as DW-6 and reiterated the stand taken by him in the written statement. He blamed the respondent for the frustration of the agreement. According to him an effort was made by him to get his presence marked before sub-registrar vide application Ex.D-2, but it was returned without any endorsement.
According to him request for extension of time for performance of the agreement Ex.P-1 was made but he refused to oblige. As regards the alleged bargain with Gulzar, it was conceded by him that it was an oral transaction. He tendered in evidence copy of plaint Ex.D-5.
5. Learned Civil Judge held vide issue No. 2 that the appellant- defendant failed to prove that the respondent-plaintiff had defaulted to perform his part of the contract' It was held that the appellant was not the owner of whole of the suit land and that he alongwith his brother Ali Akbar tried to dupe the respondent into the disputed bargain. It was found that part of the suit land from khasra Nos. 3357 and 3358 had already been alienated on 18.8.1993 by the appellant through his attorney Zahid.
It was also held vide issue No. 6-A that as the respondent-plaintiff was prepared to purchase portion of the suit land which was owned by the appellant he was entitled to decree for specific performance of agreement to that extent.
6. It is contended by the learned counsel for the appellant that the learned Trial; Court was not justified to grant decree for partial performance of agreement of sale, after reaching the conclusion that the appellant was not the owner of the entire suit land. According to him the agreement of sale should have been treated to be incapable of being acted upon.
7. After hearing the learned counsel for the parties as well as perusal of the record we find that this appeal lacks merits. The sole question requiring determination in this appeal is as to whether the respondent is entitled seek enforcement of the agreement, despite the fact that the appellant did not on the whole of the land agreed to be sold.
It is necessary to reproduce para 3 of the plaint and the corresponding reply of the appellant in his written statement; - PARA 3-PLAINT: - That tentatively 18th August, 1993 was fixed for execution and registration of the sale-deed but the time so fixed was. Not made or intended to be of the assence of the contract.
Copy of the agreement referred to above is attached, which inter alia stipulated as under:- PARA NO. 3 WRITTEN STATEMENT:- 18.8.1993^.^1]Vij*/ SS {{urdu text}} 4 7 Since the recital in the agreement j ( I ^LPy) {{Urdu text}}was being challenged by the appellant as being an interpolation it was obligatory for him to prove it,v particularly so when Arif Riaz respondent appearing as PW-2 had deposed specifically that the appellant, in his deposition, did not state that the disputed line in the agreement (noted above) was the result of interpolation. All that he deposed was:- 2 {f jcJC'Ex-PI {{Urdu text}} In the disputed line there is no mention of any ", He thus failed to discharge the onus of proof that the agreement as originally drawn was tampered with later. No effort was made to either summon the scribe or the marginal withness so as to establish the plea of interpolation. We are fully convinced that the disputed line was scribed ab 1 initio, with the consent of the parties, and formed an integral part of the agreement.
8. A false plea, was taken by the appellant to wriggle out of his solemn liability under the agreement in question.
He has already received substantial amount of Rs.8,00,000/- out of the sale consideration. All the equities are in favour of the respondent and he was rightly held entitled to the decrees for specific performance of the agreement, in terms of the finding recorded on issue about relief (Issue No. 2).
9. Resultantly, this appeal, being wholly devoid of force, is dismissed with costs throughout.