Respondent No.1 agreed to sell 521 Kanals of land on his behalf as also on behalf of Hussina Begum, his mother and his four brothers vide agreement executed by him on 21-8-1975. The consideration was settled at Rs.36,470 while a slim of Rs.22,420 was paid as earnest money.
2. On 9-9-1978 the appellant and respondents Nos.2 and 3 filed a suit against respondent No.1 for specific performance of the said agreement to the extent of 96 Kanals, 14 Marlas on payment of Rs.15,651. In the plaint it was stated that respondent No.1 himself and on behalf of the other persons mentioned above executed agreement, dated 21-8-1975 for sale of 521 Kanals of land for Rs.36,470 and received a sum of Rs.22,470 as earnest and delivered possession; that the other persons did not accept the agreement and as such their share is not being claimed; that respondent No.1 has to adjust Rs.6,769 as price of the suit-land i.e. His share and to pay back Rs.15,651. Respondent No.1 in his written statement took the plea that the plaintiffs in the case themselves failed to purchase the land after paying the balance amount as settled in agreement, dated 21-8-1975 and rather insisted that the entire land be transferred on the amount already paid under the agreement which was not acceptable to respondent No.1 and he refused. He insisted that the appellant has failed to perform his part of the agreement and as such the amount of earnest money stands forfeited. He prayed for dismissal of suit. Issues were framed. Evidence of the parties was recorded.
The learned trial Court dismissed the suit vide judgment and decree dated 1-12-1985. A first appeal filed by the appellant was heard by a learned Additional District Judge, Bhakkar who dismissed the same on 20-4-1987."
3. Learned counsel for the appellant with refernce to the judgments in cases of Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807 and Mirza Tasawar A.I Beg v. Abdur Rashid Khan and another 1989 SCM R 868 argues that section 15 of the Specific Relief Act, 1877, has no application to the instant case. According to the learned counsel this was a case where the promisor i.e. Respondent No.1 himself represented that he will be arranging the sale from the other owners and since he failed to arrange the same, the performance could have been ordered to the extent of his share.
4. Learned counsel for respondent No. 1, on the other hand, supports the impugned judgments and decrees by relying upon the judgments in the cases of Haji Muhammad Sadiq v. Haji Syed Muhammad Sharif and others 1997 SCM R 1994, Razia Sultana Bano and 4 others v. Muhammad Sharif and 9 others 1993 SCM R 804 and Wali Jahania and Allah Dad v. Manak A.I, Lal and Murad PLD 1965 SC 651.
5. I have gone through the records of the learned Courts below with the assistance of the learned counsel for the parties. I have examined the record. I find that the case is squarely hit by the bar of partial performance contained in section 17 of the Specific Relief Act, 1877. The cases of Mrs. Anwara Chowdhury and Mirza Tasawar A.I Beg relied upon by the learned counsel for the appellant dealt with a situation where in the second mentioned case a son had not been able to procure a conveyance from his mother as agreed by him in the agreement to sell, while in the said first mentioned case it was found that the husband had proceeded to execute the agreement on behalf of his wife as well without any authority. It was in the said circumstances that the Supreme Court permitted or upheld partial performance which in fact cannot even be termed as partial performance but the only performance that could have been possible in the circumstances of the case.
6. In the instant case it is not the case of respondent No.1 that he had not been able to procure the conveyance from his mother and brothers. On the other hand, he complains in his written statement that the appellant has failed to perform his part of the contract by paying the balance amount therein and getting the land transferred in their favour in accordance with the terms of the agreement, Exh. P.1 on record.
7. There is no question of the appellant and his co-plaintiffs who have not joined him in this R.S.A.
Attributing denial of the performance of the agreement to the persons mentioned in the same, for the simple reason that they have not impleaded them in this suit and never claimed performance against them. The Rule laid down in the said cases relied upon by the learned counsel for the appellant would have become applicable only if upon a trial or at least upon a reading of the pleadings, -wherein the said persons had been a party, it would have been proved or brought on record that the said other persons are not prepared to perform their part of the contract or that they are not acknowledging the agreement having been made on their behalf by respondent No. 1.
On the other hand evidence has been led on record that respondent No.1 had been taking steps for the performance of agreement Exh. P.1. In this view of the matter the suit had rightly been held to be r barred by section 17 of the Specific Relief Act, 1877. The plaintiffs have not taken steps within the meaning of section 15 of the said Act so far. I also agree with the learned Courts below that the conduct is evident from the fact that they themselves claim that the entire land had been delivered to them by I respondent No.1 and yet opted to sue for only the land owned by respondent No.1 and in fact had made a prayer for refund of the excess amount. This is a case where the plaintiffs in the case have undue advantage which is wholly un considerable. I do not find any ground being made out for interference with the judgments and decrees of the learned Courts below. This R.S.A. Is dismissed with costs throughout.