' TANVIR AHMED KHAN, J.-- Leave to appeal is sought against the judgment, dated 1-10-2001 passed by the Lahore High Court, Lahore, whereby R.F.A. No.372 of 1995, filed by the petitioner was dismissed and the judgment of the trial Court was modified to the effect that the respondent instead of making the deposit of remaining consideration amounting to Rs.7,00,000 by virtue of the impugned judgment would deposit Rs.9,00,000.
2. Facts briefly are that the respondent/plaintiff filed a suit for declaration, possession, return of Rs.6,00,000 and specific performance of the agreement, dated 30-3-1993 whereby the petitioner/defendant agreed to sell land measuring 71 Kanals, 8 Marlas for a total, consideration of Rs.10,00,000 out of which a sum of Rs.3,00,000 was paid as earnest money. This suit was resisted by the petitioner/defendant raising certain legal objections stating that the suit was not maintainable in the present form. The petitioner also denied the receipt of Rs.3,00,000 as earnest money and instead admitted that Rs.1,00,000 was paid at the time of execution of the agreement. The petitioner also filed a suit for cancellation of the agreement on the plea that the amount of Rs.1,00,000 was paid as earnest money but fraudulently the same was entered as Rs.3,00,000. Both the suits were consolidated, issues were framed, parties led their evidence and the learned trial Court vide judgment, dated 29-10-1995 decreed the suit directing the respondent to deposit the remaining amount of Rs.7,00,000. The suit for cancellation filed by the petitioner was dismissed. The petitioner filed R.F.A. No.372 of 1995 which was dismissed through judgment, dated 1-10-2001 hence this petition for leave to appeal.
3. We have considered the contentions raised and have gone though the documents appended with this petition for leave to appeal. The plea of the learned counsel that since the petitioner has raised different pleas in his suit as such the same was not maintainable and on this score alone the impugned judgment cannot be sustained, is devoid of any force. We, have noticed that the execution of the agreement was admitted by the petitioner and he has also admitted receipt of Rs.1,00,000. We failed to understand when both the things i.e. Agreement and receipt of earnest money have been admitted then why the agreement was not brought to its normal legal conclusion we asked the learned counsel for the petitioner that why his client is reluctant to perform the execution of the agreement. He could not give any satisfactory reply. The respondent cannot be non-suited simply on technical grounds. The other plea that the respondent paid only Rs.1,00,000 as earnest money and fraudulently entered Rs.3,00,000 as such he should not have been granted this discretionary relief, does not fit in the circumstances of this case. It is to be appreciated that the trial Court concluded that the respondent paid. Rs.3,00,000 as earnest money while the learned Judges of the High Court had determined that only Rs.1,00,000 was paid. In this background when the agreement as well as payment of earnest money have been admitted we do not find it a fit case to interfere in the impugned order. Leave to appeal is refused and petition is dismissed.