PERVEZ AHMAD, J.---By virtue of this judgment we propose to dispose of Regular First Appeal No,29 of 1991 filed by Abdul Qayyum appellant against Zahid Ahmad and others respondents challenging the dismissal of the suit for specific performance of agreement to sell executed in his favour by the defendants on 8-1-1987 substituted by an agreement to sell dated 16-2-1987.
2. The facts, as stated by the plaintiff in his civil suit, are that the defendants entered into an agreement to sell the land measuring 4 Kanals 10 Marlas out of Khasra No,4194 min situated in Zam Zam Street, Mohallah Mozang, Lahore in favour of the plaintiff for a consideration of Rs,4,25,000 per Kanal and a provisional agreement to sell was written in between the parties on 8-11987. It was also agreed that the plaintiff shall pay the consideration for the purchase of the aforesaid land to the defendants only to the extent of the land, the physical possession of which will be handed over by the defendants after taking measurement at the spot. It was also agreed that the plaintiff would not be liable to pay the price in case there would be no dispute at all in respect of the aforesaid land. The plaintiff made the payment of Rs,20,000 as token money and balance 1/4th of the total price was to be paid as earnest money within 15 days from the delivery of the possession at the spot after taking measurements and raising boundary walls at the spot by the plaintiff at his own costs. The defendants delivered the physical possession of the land to the extent of 4 Kanals, 5 Marlas and the plaintiff raised boundary walls and the defendants then executed another agreement to sell in favour of the plaintiff on 16-2-1987 on the terms and conditions that the defendants shall sell to the plaintiff the aforesaid land in consideration of total price at the rate of Rs,4,25,000 per Kanal and the defendants then received an amount of Rs,5,00,000 on 16-2-1987 including Rs,20,000 which had already been paid and it was agreed that the balance consideration would be paid at the time of registration of the sale-deed within a period of six months i,e, 13-8- 1987. The plaintiff was entitled to make plotting of the land and to sell it at his own cost and also to make agreements to sell with other persons either for the whole land or in portions of the land. It was also agreed that in case of dispute with regard to the title or possession of the said land, the time utilized for clearing the title will be excluded from the period fixed for registration of the sale- deed and the defendants would be duty bound to extend the period. The plaintiff after raising boundary walls also raised foundations of three rooms and one room for his Chowkidar. The plaintiff also obtained water connection for this property. The plaintiff has been willing and ready to perform the part of his contract and to pay the balance consideration upon execution of the sale- deed. It was further alleged that plaintiff in the month of June, 1987 came to know that one Sher Din had obtained an ejectment order dated 7-2-1987 against Abdul Hafeez in respect of the suit- land which matter had been challenged by the defendants before the Court through an application under section 12(2), C.P.C. on the assertions that the said order having been obtained by fraud and misrepresentation. The defendants on 26-12-1987 made forcible attempt to occupy the land and the plaintiff was forced to file a suit for permanent injunction alongwith application for temporary injunction which application was ultimately dismissed with the observation that the plaintiff should file a suit for specific performance. This matter was challenged before the higher forum but it was decided against the. plaintiff. The plaintiff came to know in the month of February, 1988 that a revision petition is pending against the defendants in the Court of Federal Secretary, Government of Pakistan in which the title of suit-land is in question. and in which a stay order had been allowed.
The plaintiff asked the defendants to get their title cleared and to execute sale-deed as agreed or in the alternative they should pay Rs,25,00,000 as damages. The defendants refused to comply with this request as such this suit for specific performance. The defendants contested the suit that the time settled in between the parties had already elapsed due to the failure of the plaintiff to abide by the terms and conditions of the agreement to sell. The plaintiff- himself claiming damages in lieu of specific performance of the contract has disentitled himself to the specific performance and even otherwise the agreement to sell was not. specifically enforceable. The suit was also stated to be hit by principle of res-judicata and barred under the provisions of Order IX, rule 8, C.P.C. The rest of the allegations in the plaint were denied and it was asserted that no where the title of the present defendants with regard to the suit property was in question. On the pleadings of the parties the following issues were framed by the trial Court on 12-2-1990:--
(1) Whether the suit is time-barred? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff is estopped by his words and conduct to file the present suit.? OPD
(4) Whether the suit is pre-mature and is liable to be dismissed? OPD
(5) Whether the suit is hit by the principles of res judicata? OPD
(6) Whether an agreement to sell was executed between the parties? OPP
(7) Whether the plaintiff paid the earnest money of Rs,20,000 to the defendants? OPP
(8) Whether the plaintiff is entitled for the decree of specific performance of agreement to sell ?
OPP
(9) If issue No, 8 proved not in positive the plaintiff is entitled for the damages of 25 lacs rupees from the defendants? OPP (9-A) Whether the suit is barred under the provision under Order IX, rule 8 of C.P.C.? OPD (9-B) Whether the plaintiff paid earnest money amounting to Rs,5,00,000 as to the defendants i,e, Rs,20,000 as token money and Rs,4, 80, 000 as earnest money at the vecution of the second agreement to sell? OPP
(10) Relief.
3. The learned trial Court recorded the evidence of the parties comprising of the statements-of P.W.1 Abdul Ghafoor, P.W. 2 Shahid Bashir, P.W. 3 Syed Sajad, Advocate; P.W. 4 Abdul Ashfaq and the evidence of the defendants comprised of D.W. 1 Iftikhar Hussain, D.W. 2 -Abdul Hafeez, D.W. 3 Safdar Ali and Fazal Ahmad, attorney of the defendants appeared as D.W.
4. The suit was found to be within time and maintainable and accordingly Issues Nos, 1 and 2 were answered in favour of the appellant. Issues Nos, 5 and 9-A were taken up together. It was found that a suit earlier filed for permanent injunction was dismissed for non-prosecution on 20-2-1989 and notwithstanding the fact that the present suit for specific performance was filed before the said dismissal for non- prosecution, both these issues were answered in affirmative. Thereafter, the learned trial Court proceeded to take up Issues Nos, 3, '6, 7, 8 and 9-B together and for reasons, which we find to be not comprehensive all the issues were answered in favour of the respondents. Issue No,9 was answered in negative. It is amazing that under Issue No, 4 it was held that the suit tiled by the appellant is premature, with the said findings the suit was dismissed, vide a judgment and decree dated 30-1-1991.
4. It is a fact that the plaintiff did file a suit for permanent injunction when his possession was threatened to be disturbed by the defendants, which suit ultimately was dismissed for want of prosecution. The question is as to whether in this situation the suit for specific performance can be filed by the plaintiff. The present civil suit was instituted on 10-10-1988 and it is also admitted proposition that the previous suit for permanent injunction filed by the plaintiff was dismissed for want of prosecution under Order IX, rule 8, C.P.C. on 20-2-1989 as such placing reliance on Ghulam Nabi and others v. Seth Muhammad Yaqoob and others (PLD 1983 SC 344) wherein it was observed that when the suit was otherwise barred under section 56 Of the Specific Relief Act and had been incompetent, neither the Provisions of Order II, rule 2 of C.P.C. applied nor it was hit, by res judicata as the relief in case of breach of contract is only specific performance and where a fresh suit . has already been instituted and pending at the time of earlier suit being 'dismissed the fresh suit was not barred as such the learned trial Court has ignored this legal aspect which was crucial for the disposed of the suit in between the parties.
5. As noted by us above, the findings recorded by the learned trial Court on Issues Nos,3, 6, 7, 8 and 9-B are shorn of valid reasons. An examination of the pleadings of the parties would reveal that there is no effective denial on record of the factum of the execution of the agreement in the manner stated in the plaint and payment of the gums thereunder as alleged in the plaint. The question to be decided in 'the case was as to whether on a reading of the agreement time could be said to be essence of the contract; Or was there evidence available on record that the parties intended time to be of such essence. It was in this context that the plea raised by the appellant as to non-payment of balance price as agreed was to be considered. However, we find that on the one hand the learned trial Court, for all purposes, conceded the plea of the appellant while dealing with Issue No,4 and holding the suit to be premature inasmuch as the title was required to be cleared; and on the other hand found the appellant guilty of the breach of contract by non- payment of price on the plea that the title of the respondents was still defective. We may note that here again while concluding the discussion on the said several issues, the learned trial Court has. not cared to determine the said respective pleas of the parties, rather has held that principle of caveat emptor applies and the appellant should have been vigilant. when he entered into agreement. Both the findings on their face are inconsistent, rather destructive of each other.. Yet another ground, which found favour with the learned trial Court was the claim of damages contained in the suit. Here again the learned trial Court has committed error inasmuch as the mere fact that by way of an alternate relief daniages are sought is by itself not a ground to refuse the relief of specific performance. We, therefore, find that the impugned judgment decides nothing and as such cannot be sustained.
6. In view of the above discussion, we have no option but to set aside the impugned judgment and to remand the case back to the learned trial Court for fresh decision.
7. This Regular First Appeal is accordingly' allowed. The impugned judgment and decree dated 30- 1-1991 of the trial Court is set aside. The result would be that the suit filed by the appellant shall be deemed to be pending in the trial Court where the parties shall appear on 30-4-2002. The learned trial Court shall decide all the issues separately except Issues Nos 5 and 9-A, findings whereof have been reversed by us. -The parties shall be free to rely upon the evidence already on record and may, if so requested, be permitted to lead such further evidence as they deem proper. The suit shall then be decided in accordance with the law as also in the light of the observation made above. No order as to costs.