Amanullah, petitioner/plaintiff filed suit against the respondents in the Court of learned Senior Civil Judge, Mardan, for specific enforcement of agreement, dated 15-10-1992. The said suit was resisted by respondents by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 5-1- 2000. Feeling aggrieved with the said judgment and decree the petitioner filed Appeal No.31/13 of 2000 in the Court of learned Additional District Judge Mardan, which was also dismissed vide judgment and decree dated 28-10-2000. Being not contented with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.
2. Mr. Iftikhar Mashwani, learned counsel for the petitioner argued that the plaintiff/petitioner had validly proved that respondent No. 1 had entered into an agreement to sell the land in dispute against sale consideration of Rs.4,60,000 and a sum of Rs.100,000 was paid out of total sale consideration on 15-10-1992, on the date the agreement to sell Exh.P.W.1/1 was executed. He then paid Rs.50,000 to Muhammad Arif respondent No.3 son of respondent No.1 vide agreement dated 20-1-1994 Exh. P.W.2/2. The respondents in the written statement filed before the Court categorically denied the execution of both agreements which shows their mala fide from the very beginning.
3. It was also argued that respondent No. 1 in her cross-examination admitted the execution of both the agreements Exh.P.W.1/1 and Exh.P.W.2/2 but the Courts below wrongly exercised discretion in favour of respondents. Reliance in this regard was placed on PLD 1991 SC 905.
4. On the other Mr. Mazullah Barkandi the learned counsel representing respondents Nos. 1 to 7 argued that the petitioner/plaintiff in his plaint has prayed for return of paid money as alternate relief. The Courts below have granted him the said relief according to his prayer.
5. It was also argued that the Courts below have concurrently exercised their jurisdiction as well as discretion in favour of respondents under section 22 of the Specific. Relief Act. There is no misreading or non-- reading of evidence nor any question of jurisdiction of the Courts below was involved, therefore, the provisions of section 115, C.P.C. Are not attracted in the case in hand.
Reliance in this regard was placed on Rabnawaz Khan v. Mustaqim Khan 1999 SCMR 1363.
6. I have heard the learned counsel for the parties and perused the record.
7. In order to prove his case they plaintiff/petitioner examined Salim Khan stamp-vendor as P. W .1, who stated that the original stamp-paper on which the deed dated 15-10-1992 was scribed was issued by him. The same was placed on record as EXh.P.W.I/1. He also examined Zewar Haq Petition Writer as P.W.2 who placed on record copy of agreement to sell, dated 15-10-1992 Exh.P.W.2/1. The said deed was scribed by him and correctly bore his signature. He also placed on record copy of another agreement dated 20-1-1994 Exh.P.W.2/2, which was also scribed by him and correctly bore his signature. A sum or Rs.50,000 was paid in his presence by plaintiff to Muhammad Arif.
8. Khalid Khan Patwari Halqa was examined as P.W.3, who placed on record copy of Fard Jamabandi for the year 1991-92 Exh. P. W .3/ 1, copy of Khasra Girdawari from Rabi 94 to Kharif 95 Exh.P.W.3/2, statement of ownership of defendant Exh.P.W.3/3.
9. Adam Khan appeared as P.W.4. He was marginal witness to deeds Exhs.P.W.2/1 and P.W.2/2.
10. Noor Rehman's was examined as P.W.5. He was also marginal witness to Exhs.P.W.2/1 and 2/2.
11. Abdul Marian was examined as P.W.6. He stated that defendant No.3 received Rs.50,000 in his presence and executed deed Exh. P.W .2/2.
12. Amir Zeb Stamp-vendor appeared as P. W.7 and stated that he had sold the stamp paper on which deed Exh.P.W.2/2 was scribed.
13. Amanullah plaintiff/petitioner appeared as P.W.8 and reiterated the same facts mentioned. In his plaint.
14. Said Badshah, ADK, Mardan was examined as C.W.1. He placed on record Fard Jamabandi for Khata No. 10 for the year 1978-79 Exh.C.W.1/2 and for Khata No.1. Exh. P. W. l /2.
15. Mst. Hamshera was examined as D.W.1. She appeared on her own behalf and as attorney for defendants. With this the evidence of the parties was closed.
16. The petitioner/plaintiff through the above mentioned evidence successfully proved the execution of agreement to sell dated 15-10-1992 Exh.P.W.2/1 as well as agreement dated 20-2-1994 Exh.P.W.2/2. Not only the scribe of both the deeds but their marginal witnesses and stamp vendors were also examined. The marginal witnesses in clear words stated that the deeds Exhs.P.W.2/1 and 2/2 were executed by the parties in their presence and a sum of Rs.100,000 was paid by the petitioner on 15-10-1992 to defendant No.1, whereas 8.50,000 was paid by the petitioner/plaintiff to defendant No.3 on 20-1-1994. What to speakof the evidence of the petitioner/plaintiff the respondent/defendant No.1 when examined as her own witness and as attorney of respondents/defendants Nos.2 to 7 admitted in cross-examination the execution of deed Exhs.D.W.2/1 and 2/2 as well as receipt of the earnest money. She admitted:--
17. It is worth mentioning that the petitioner/plaintiff did not prove the execution of agreement dated 7-2-1995 whereby Rs.5,000 were paid by petitioner/plaintiff because neither the said agreement was placed on record nor its marginal were produced.
18. The question that requires determination in this case is as to whether the Courts below could refuse to pass decree for specific enforcement of agreement dated 15-10-1992 Exh.P.W.1/1 while exercising their discretion under section 22 of the Specific Relief Act, answerto this proposition is in negative. No doubt under the provisions of section 22 of the Specific Relief Act, the jurisdiction to decree the suit for specific performance was discretionary inasmuch as the Court was not bound to grant such relief merely because it was lawful to do so but the minute study of the said, section shows that the Court would be competent to decline or to grant the relief under section 22 ibid when:-- (i)Where the circumstances under which the contract is made or such as to give the plaintiffs an unfair advantage though there could be no fraud or misrepresentation on the plaintiff part.
(ii)Where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff.
19. The perusal of the evidence available on record clearly shows that there existed no circumstances under which the agreement which was made between the parties would give plaintiffs an unfair advantage. Moreover, there was no hardship involved on' the performance of the said agreement. Since the conditions mentioned above were lacking in the case in hand, therefor, the Courts below have wrongly exercised their discretion' in favour of the respondents.
20. Since the petitioner/plaintiff had through convincing evidence proved his case and because there existed no circumstances under which the plaintiff was. Gaining unfair advantage over the defendants and when no hardship was involved in performance of the agreement the discretion exercised by the Courts below in favour of respondents/ defendants was not only unreasonable but was arbitrary also. I, therefore, allow the revision petition in hand, set aside the impugned judgments and decrees of the Courts below and pass decree in favour petitioner/plaintiff for specific performance of agreement, dated 15-10-1992 on payment of Rs.3,10,000. There, shall be no order as to costs.