' PARVEZ AHMAD, J.----The appellants through this Regular First Appeal have challenged the legality of judgment and decree of trial Court dated 11-3-1997 by virtue of which the suit for specific performance brought by the present respondent/plaintiff before the trial Court, was decreed in his favor.
2. The facts giving rise to this appeal are that the present respondent/plaintiff filed a suit for possession through specific performance of an agreement to sell dated 27-12-1993 entered into between the appellants/defendants for sale of Shops Nos.26, 27, 28, 29 and 30, situated in the basement of Asif Yousaf Arcade, Commercial Zone, Liberty Market, Gulberg, Lahore for a total consideration of R.16,50,000, out of which an amount of Rs,12,90,000 was paid as earnest money and the balance sale price of Rs,3,60,000 was agreed to be paid by the plaintiff at the time of registration of the sale-deed before the Sub-Registrar Lahore Cantonment on or before 24-6-1994.
Subsequently, the time limit for the completion of the execution of the sale-deed was extended up to 24-11-1994 with the mutual consent of both the parties. The defendants had been requested and persuaded to complete the requisite sale documents but of no avail. It was further alleged that now it has transpired that the defendants wanted to alienate and transfer the suit property to other persons in utter violation of the terms and conditions laid down in the agreement to sell date 23- 12-1993, hence the present suit. The present appellants/defendants contested the suit on various grounds including that the agreement in question is the result of fraud, mis-representation and it is without consideration. The plaintiff was having business terms with defendant No,1 and for the purpose of securing his investment made in'the business got prepared the so-called agreement to sell for the property in dispute and in due course the plaintiff received his share of investment but even on the demands of defendant No,1 for the return of this agreement failed to return the agreement, rather filed the present suit. The trial Court on the pleadings of the parties framed following issues:--
(1) Whether the plaintiff is entitled to specific performance, of contract dated 27-12-1993 as prayed for? OPP
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the impugned agreement to sell is without consideration and result of fraud? OPP
(4) Whether the plaintiff is not come to the Court with clean hands? OPD ( ) Whether the defendants are entitled to recover special costs from the plaintiff so how much?
OPD
(6) Relief.
' The plaintiff in support of his claim has examined Muhammad Mushtaq as P.W.1 M. Javed as P.W.2, Faiz Pirzada as P.W.4, Karamat Rashid as P.W.5 and himself appeared as P.W.3. The plaintiff has also produced certain documents. On the other hand, the defendants examined Javaid Mehmood as D.W.1 and defendant No,1 appeared as D.W.2. After completion of the evidence of both the parties, the trial Court gave an opportunity of hearing to them and came to the conclusion that the suit of the plaintiff, present respondent, was liable to be decreed in his favor and decreed it accordingly.
The defendants/present appellants feeling themselves aggrieved from this judgment and decree of the trial Court fled the present appeal.
3. Learned counsel for both the parties have been given an opportunity of hearing by us.
' Learned counsel for the appellants has submitted that as the matter in issue was business dealing in between the parties, the amount was advanced for the purpose of investment in the business of construction and this agreement to sell was only got written and executed to be as a security for the return of the amount advanced for investment. No agreement of sale of the suit property was ever executed in between the parties, no consideration was paid as sale amount, and the suit of the plaintiff is false. It is submitted that the plaintiff has failed to prove any agreement to sell the property in his favor and the judgment of the trial Court is based on misreading and non-reading of the evidence. In this behalf he refers to the statements of P.W.4 Faiz Pirzada, D.W.1 and D.W.2. It is submitted that the judgment of the trial Court is no judgment in the eye of law, therefore, the same is liable to be set aside.
4. On the other hand, learned counsel for the respondent submitted that the respondent/plaintiff has successfully proved the execution of agreement to sell and payment of earnest money by production of scribe and marginal witnesses of the agreement to sell. It is also submitted that the agreement was executed for the sole purpose of sale of the suit property and not for the purpose of security of invested amount. It is submitted that even the witnesses of the defendants never denied the execution of the agreement to sell but they mala fide objected to the purpose of execution of agreement. It is submitted that the judgment of the trial Court is based on solid reasoning which is liable to be maintained.
5. We have heard the learned counsel for the parties and perused the material made available before us. The case set up by the present appellants is that the alleged agreement to sell, Exh.P.1, was executed but the object of its execution was to be a security for the return of the amount invested by the respondent in the construction business of the appellants. No suit property was ever agreed to be sold in favor of the respondent/plaintiff. The appellants relied upon the statements of D.W.1 and D.W.2 Javaid Masood D.W.1 made a statement that the amount was invested for profit sharing to the tune of Rs,6,000 per one hundred thousand and then agreement, Exh.D.1, was written over which he affixed his signatures as Exh.D.1/A. After the receipt of the principal amount the agreement in question was always returned to the party executing it and the principal amount alongwith profit was also paid.
Apart from Exh.D.1 similar documents in between different parties on the same consideration for advance of amount for business purpose and as security of the amount was done. The witnesses admitted the execution of the agreement to sell. He never stated that any amount, principal or profit, was ever paid to the respondent in his presence. D.W.2 Muhammad Asif appeared and made a statement that he was got introduced with the plaintiff through Javaid Masood and the amount was advanced for investment purpose and as a security for this amount agreement of sale was executed. It was further stated by him that all repayment of the amount invested in business, the security i,e, the agreement to sell was always delivered back to the party executing it and the agreement Exh.P.1 was also on the same analogy. This witness has not denied the execution of the agreement to sell.
6. On the other hand, the case of the respondent is that no business terms ever existed in between them. No amount was advanced for the purpose of investment in the construction business of the appellants and in fact it was agreed between the parties to sell this property in favor of the respondent/plaintiff and for this purpose the agreement to sell, Exh.P.1 was written and the amount of Rs,12,90,000 was paid as earnest money. Analysing the case of the parties, it is the respondent/plaintiff who came to the civil Court seeking a decree for specific performance of the agreement to sell, Exh.P.1 and for the purpose of proving of Exh.P.1, he produced P.W.1 Muhammad Mushtaq, marginal witnesses of the agreement to sell, who affixed his signatures upon it as Exh.P.1/A. This witness stated that the amount of Rs,12,90,000 was paid by the plaintiff to the defendants as earnest money out of the total sale consideration of Rs,16,50,000. Muhammad Asif defendant before the trial Court in his presence received the said amount and affixed his signatures as well as thumb-impression upon Exh.P.1. It was agreed that the remaining sale price to the tune of Rs,3,60,000 will be paid at the time of registration of the sale-deed. P.W.2 M. Javaid stated that he attested the agreement to sell, Exh.P.1, and his signatures upon it are Exh.P.1/B. The agreement was entered into between the parties for the sale of the property for a consideration of Rs,16,50,000 and out of this consideration an amount of Rs,12,90,000 was paid and the remaining amount was to be paid at the time of registration of the sale-deed. The defendant received the earnest money in his presence and he affixed his signatures over the agreement to sell, Exh.P.l.
P.W.4 Faiz Pirzada is the scribe of the agreement to sell who has corroborated the statements of P.Ws.1 and 2 by stating that the agreement to sell was written by him and it was signed by P.Ws.1 and 2 as marginal witnesses and Muhammad Asif affixed the signatures in his presence.
7. By producing the scribe and marginal witnesses of the agreement to sell, the respondent has proved the agreement. In this situation it had become the bounden duty of the present appellants/defendants to prove that the agreement was executed for investment made by the respondent in the construction business and not for the sale of the suit property as alleged by the plaintiff, the agreement was written only as security for the amount invested in the business. We do not find any evidence in support of the said version. As stated by us above, the case of the appellants was that the amount received by them under the said agreement was returned except a sum of Rs,10,000. However, the appellants have failed to prove the said alleged repayment. We do agree with the learned trial Court in disbelieving the statement of D.W.2 when he states that' he returned the amount without any receipt. The very case set up by the appellants belies the said statement that when the money was advanced an agreement attested by the witnesses was got executed, the appellants in their turn did not demand receipts for the payments being made by them. This being so, we do not find any error in the impugned judgment of the learned trial Court and consequently the findings on all the issues are confirmed.
8. In view of the above discussion, this appeal is dismissed and the judgment and decree of the trial Court is maintained. There is no order as to costs.