' MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide both the petitions arising from the same suit of specific performance of agreement of sale involving identical questions of law and facts.
2. Petitioner No,1 herself and on behalf of her husband as attorney executed an agreement of sale of the property in dispute in favour of the respondent on 24-7-1985 in which the time for completion of the sale fixed was upto 24-10-1985. The amount of consideration fixed in the agreement was Rs,5,18,000 out of which an amount of Rs,3,40,000 was admittedly paid as earnest money. The respondent filed suit for specific performance of this agreement which was contested by the petitioners on the ground that they had .a right to repudiate the contract on the ground that within the stipulated period of three months, the respondent did not comply with the stipulation of payment of the remaining price and get the sale-deed registered. It was also contested on the ground that the respondent as per her commitments in the agreement had failed to make payment of the loan obtained by the petitioners by mortgaging the said property to the House Building Finance Corporation, therefore, it was she who failed to perform her part of the agreement.
3. The trial Court decreed the suit through judgment dated 5-10-1994. It was held that in addition to the payment of an amount of Rs,5,18,000 fixed in the agreement as amount of consideration, the respondent was bound to pay an amount of Rs,4,00,000 to the House Building Finance Corporation against loan obtained by the petitioners. A direction was issued as a condition of the decree of specific performance that the said amount shall be paid to the House Building Finance Corporation. It is also manifest from the record that the respondent was relying upon a note given on the agreement dated 23-10-1985 whereby petitioner No,1 agreed to extend time for completion of the sale upto four months therefrom.
4. The respondent feeling aggrieved against the direction that she should pay an amount of Rs,4,00,000 in addition to the amount of consideration against loan of the petitioners of the House Building Finance Corporation filed appeal before the Lahore High Court whereas the petitioners filed separate appeal challenging the said decree by praying that the suit should be dismissed as the respondent had failed to perform her part of the agreement within the stipulated time.
5. Both these appeals were heard together. The appeal filed by therespondent has been accepted whereas the one filed by the petitioners dismissed through the consolidated judgment impugned in these petitions against which leave is sought.
6. These petitions were filed originally on 20-4-2002. They were returned to the petitioners with the objection that direct appeal should have been filed under Article 185(2)(d) of the Constitution, for the judgment of the trial Court had been varied through the impugned judgment by the High Court. The petitioners refiled these petitions on 13-5-2002 with an application that these may be registered as civil petitions and not as appeals. Learned counsel for the respondent has raised objection that these petitions are not maintainable, for direct appeal should have been filed under Article 185(2)(d) of the Constitution. Learned counsel for the petitioners has referred the_ judgment in the case of Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCM R 2164 in which it was observed that in case a person does not avail remedy of direct appeal under Article 185(2)(d) of the Constitution which though was available but files civil petition for leave to appeal, this Court may direct him to file appeal and dismiss the petition or proceed to hear the petition and decide the same on merits. -
7. In order to do complete justice in these cases, we instead of dismissing the petitions summarily on the ground that appeal should have been filed decided to proceed to hear them on merits.
8. Learned counsel for the petitioners submitted that these petitions when refiled on 13-5-2002 were still within time. The office has also reported that on the said date these petitions were filed within period of sixty days prescribed under the law.
9. Learned counsel for the petitioners argued that on the date i.e, 23-10-1985 when petitioner No,1 recorded a note on the agreement of sale to agree to extend time for four months for completion of sale, her husband i.e, the Principal had died, therefore, he was succeeded by petitioner No,1 as widow and seven minor children, therefore, extension granted by petitioner No,1 would not be binding on the minor children of the husband, therefore, the agreement qua one of the plot which was owned by the husband would not be enforceable.
10. We are afraid, the objection apart from being highly technical in nature does not in any manner adversely affect the merits of the case. Petitioner No,1 as mother was the natural guardian of her minor children. The agreement of sale having been executed during the life time of the husband of petition No,1 by petitioner No,1 as his attorney would be binding on the heirs of the deceased and enforceable against them. Petitioner No,1 was made guardian ad litem in the suit filed by the respondent for specific performance of the said agreement from which these petitions have arisen who defended the same in that capacity, therefore, the extension of time agreed by her under the agreement cannot be said to be against the interest of the minors.
11. We have also gone through the agreement of sale and observed that in the recital though it has been stated that petitioners had obtained a loan of an amount of Rs,1,50,000 from the House Building Finance Corporation except which encumbrance, the property was free from any encumbrances. There was no stipulation that the amount of the said loan whatsoever was agreed to be paid by the respondent-vendee, therefore, the High Court was right in holding that the findings of the trial Court that it was the respondent who was bound to pay the amount of the loan in addition to the amount of consideration agreed between the parties was based on misreading of the said agreement of sale in particular when it was stipulated therein expressly that in case the amount of loan was paid by the vendee, the same would be adjusted against the amount of consideration agreed between the parties in the agreement.
12. The judgments passed by the Courts below have not been shown to have suffered from any legal infirmity such as misreading or misconstruction of any material piece of evidence, therefore, we are not inclined to grant leave to the petitioners in these petitions which are accordingly dismissed and .