This second appeal arises out of suit for a specific performance of the agreement of sale of property No. 276-A/B-IV Depalpur Bazar, Sahiwal executed by the appellants in favour of the respondent.
2. Briefly stated, .The facts are that the respondent-plaintiff filed a suit for specific performance of an agreement stating that the property aforementioned owned by the appellants-defendants was agreed to be sold by them to the respondent for a price of Rs. 18,000; that an agreement dated 16- 5-1973 was entered into between the parties; and that the appellants received a sum of Rs. 1,000 as advance. It was also stated in the plaint that appellant-defendant No. 2, signed the agreement on his own behalf and also on behalf of appellants-defendants Nos. 3 to 6 on the basis of a special power-of-attorney in his favour which was registered on 20-5-1968. Under the aforementioned agreement it was also agreed between the parties that sale-deed shall be registered within one year from the date of execution Thereof on payment of the balance price, i.e. Rs. 17,000, before the Sub-Registrar. According to the plaint, the appellants did not get the sale-deed registered till 16-5- 1974 and sought further time . For completion of the transaction. As a result another agreement dated 29-6-1974 was executed by the appellants in favour of the respondent extending time for registration of the sale-deed up to 30-8-1974. It is further stated in the plaint that later the appellants backed out and did not perform their obligations under the agreements aforementioned dated 16-5-1973 and 29-6-1973 and the respondent was thus compelled to file a suit.
3. The appellants resisted the suit and controverted all the allegations as contained in the plaint.
They, as a preliminary objection, raised the plea that the plaintiff had got no cause of action as the date under the agreement dated 16-5-1973 had expired. They also set up a case that the sale- deed was not registered because the plaintiff could not pay the balance price of Rs. 17,000, and as such. The agreement stood annulled, the earnest money stood confiscated and the agreement was no longer enforceable. They also denied the execution of the subsequent agreement extending the time for registration and dubbed the said document, if any, as bogus and fictitious.
4. On the divergent pleadings of the parties, the following issues were framed:-
(1) Whether plaintiff has got no, locus standi to file this suit? O. P. D.
(2) Whether the parties bad entered. Into an agreement about novation of the original contract? O.
P. P.
(3) Whether plaintiff can halve these agreements enforced specifically? O. P. P.
(4) Relief.
5. The learned Civil Judge First Class, Sahiwal seized of the matter found Issue No. 1 against the appellants-defendants and decided both Issues Nos. 2 and 3 in favour of the plaintiff. Under Issue No. 4, as a relief, he granted a decree in favour of the respondent-plaintiff against the appellants- defendants for specific performance of the agreement aforementioned on payment of Rs. 17,000, by the respondent to the appellant defendants who were directed to have sale-deed executed and registered in favour of the plaintiff and hand over the possession of the property in dispute to him. The appellants-defendants were given one month to do the needful. The parties were left to bear their own costs.
6. Aggrieved by this judgment and decree dated 18-5-1977 the appellants preferred an appeal to the Additional District Judge-111, Sahiwal, who by his judgment dated 1-6-1978, dismissed the appeal and confirming the judgment and decree passed by the learned Civil Judge First Class, Sahiwal, gave one month's time to the appellants to have the sale-deed executed and registered.
He also left the parties to bear their own costs.
7. Feeling dissatisfied with this decree as well the appellants have come up in this second appeal.
8. The first contention raised by the learned counsel for the appellants is that the specific performance of the agreement could not be enforced as the appellants-defendants Nos. 3 to 6 had, vide Exh. P. 3, the special power-of-attorney on the basis of which appellant-defendant No. 2 signed the agreement in question on their behalf, authorized him to sell only Shop No. 276-A/B-IV, Depalpur Razar, Sahiwal and not the house, whereas according to the agreement Exh. P. 2 Shop/House No. 276-A/B-IV, situate in Depalpur Bazar, Sahiwal was agreed to be sold. He submits that in this view of the matter, there being no valid agreement to sell the house, the claim of the respondent-plaintiff in the suit being for sale of the house, the agreement Exh. P. 2, time whereof was allegedly extended by agreement Exh. P. 1 could not be specifically enforced.
9. The contention raised by the learned counsel is devoid of force. Though in the power-of-attorney the shop, bearing No. 276-A/B-1V, Depalpu Bazar, Sahiwal, has been mentioned, but it is commonly known that where the property is situate in a commercial area it is generally denoted by a shop but includes the attached portion as well which may be in the form of a chaubara or an adjoining residential accommodation. The averment in the plaint did not mention the property as a house or a shop, but in para. 1 of the plaint it is described as under : "Property No. 276-A/B-IV comprised of Khewat No. 3069, Khatauni No. 7449 having Khasra No. 9055 with an area of 2 marlas and 4 sarsahis with a share of 1/3 therein which comes to 7 --sarsahfs according to Sakni Jamabandi for the year 1962-63, situate in Depalpu Bazar, Sahiwal."
The boundaries were next given in this para. And the whole of the property was described as property in dispute. In para. 2 again it was described a property in dispute and it was averred that defendants Nos. 3 to 6 had authorized defendant No. 2 through the power-of-attorney aforementioned (marked in the suit as Exh. P/3), to sell the same. Again, in para 3 it is asserted that both defendants Nos. 1 and 2 on their own behalf and defendant No. 2 also as attorney of defendants-appellants Nos. 3 to 6 entered into the agreement (marked in the suit as Exh. P/2) to sell "the property in dispute" to the plaintiff for consideration of the sum of Rs. 18,000. In the written statement filed on behalf of all the defendants, all the contents of paras. 1, 2 and 3 have been admitted as correct without any reservation whatsoever. No. Plea of the nature now being raised that the appellant Nos. 3 to 6 had not authorized the sale of house is to be found in the written statement anywhere even by implication. The grounds of appeal before the lower Appellate Court also do not contain any plea in this regard: Not only that both defendants Nos. 1 and 2 appeared as D. W. 2 and D. W. 1 respectively and they categorically admitted having entered into an agreement for sale of their house, situate in Depalpur Bazar, Sahiwal. D. W. 1 also stated that in connection with the agreement for sale of the house his brothers and sisters gave him the power-of-attorney.
Apparently therefore, the only inference that can be drawn is that this plea is only an afterthought.
The appellants, in fact, had entered into an agreement for sat of whole of the property bearing the above cited number. They cannot, at this stage, in the second appeal, be allowed to raise a plea they have initially not raised before the trial Court and even before the lower Appellate Court. The basic principle is Secundum allegata et probata. Before anything is sought to be proved, it has got to be alleged first. In the context of the above position, I find no merit in this contention and repel the same.
10. The other contention raised by the learned counsel is that the Courts below erred in drawing the conclusion that it was the appellants who failed to fulfill their obligations under Exh. P/2 and Exh. P/1.
The submission is that, in fact, the respondent had no money before the expiry of the period of agreement and as such did not get the sale transaction completed. It is submitted if the respondent-plaintiff had been willing to have the sale-deed registered, he should have sent a notice calling upon the appellants to have the sale-deed registered and since it was agreed that the stamp paper was to be purchased by the respondent, he should have at least purchased the same. According to the learned counsel for the appellants the fact that the respondent did not purchase the stamps for execution of the sale-deed shows that it was the respondent who had committed breach of the agreement. This contention again is without merit. The respondent- plaintiff could purchase the stamps only if the appellants defendants had given him the consent to purchase the, same as the stamps were to be purchased on their behalf.
As to the contention that no notice was served on the appellants by the respondent, calling upon them to have the sale-deed registered, it is neither the law nor has it been specifically stipulated in the agreements that a notice has to be given in writing. In para. 5 of the plaint the plaintiff has clearly stated that he has been asking the appellants to have the sale-deed registered but they had been avoiding the matter on one pretext or the other and that he himself had all along been prepared and ready to pay the balance of the sale price. It is also alleged in para. 6 of the plaint that before the institution of the suit the appellants backed out from the agreement. The agreement Exh. P. 1 extending the time for registration of the sale-deed upto 30-8-1974 and the filing of the suit by the plaintiff within a short span of three months; the suit having been filed on 15- 11-1974, clearly tends to show the eagerness of the plaintiff for having the sale-deed registered. The contentions raised as aforementioned are, therefore, without force.
11. The third contention raised by the learned counsel is that the plea raised by the appellants- defendants as to the agreement Exh. P. 1 being bogus, fictitious and fraudulent, was ignored by both the Courts below. He further submits that the appellants had filed subsequently a separate suit for seeking a declaration to this effect which was still pending and that the trial Court should have stayed this suit pending the decision in that suit. The contention is wholly without merit. The learned counsel while making this submission appears to have lost sight of section 10 of the Code of Civil Procedure. It is the basic and cardinal principle that the subject matter in both the suits is the same and the suit is between the same parties even then the subsequent suit is to be stayed. It is pertinent) to mention here that the plea raised by the appellants-defendants in the written statement about Exh. P. 1 is that they did not execute. The said document and the alternative is that if there was such a document, it is forged, fictitious and incorrect. The evidence led on this point, i.e. In respect of Exh. P/1 is to the following effect: Defendant No. 2 as D. W. 1 stated in his examination-in-chief that the appellants did not enter into any agreement with the plaintiff respondent for extension of time nor did they write any such agreement. He further categorically stated that apart from the first agreement no document was executed or written. In cross-examination, he stated that Exh. P/1 was got scribed by him from Faqir Muhammad Petition Writer, but, again said, that he did not get it written. He denied having executed Exh. Pit in the presence of the witnesses. Further, in his cross-examination, when Exh. P/1 was read over to him and shown to him, he admitted his and his brothers' thumb impressions thereon stating that those were obtained at the shop of Afzaal by the respondent on his representing that he was entering into an agreement with Afzaal and they should thumb mark it as witnesses. Defendant No 1 as D. W. 2 also stated in his examination-in-chief that apart from the first agreement no other agreement was entered into between the appellants-defendants and the respondent-plaintiff. In cross-examination, he also admitted the thumb impressions of both the brothers that is defendants Nos. 1 and 2 on Exh. P/1 but stated that these were obtained as witnesses. Towards the end of his cross-examination he stated that the thumb. Impressions on Exh.
P/1 were obtained fraudulently.
12. It would, thus, be seen that in the written statement the . Plea raised is that Exh. P/1 was not executed .By the appellants and alternatively that it was forged and fictitious. It is not alleged therein that it was obtained fraudulently. In evidence, however, an attempt has been made by the defendants to set up a case that the document Exh. P/1 though bearing their thumb marks was obtained fraudulently and by misrepresentation. Apparently the two pleas cannot go together.
Either the document was not at all executed and was forged and fictitious or it was obtained by fraud and misrepresentation. The appellants-defendants cannot be allowed to blow hot and cold together.
13. Apart altogether from the above position the learned counsel was asked to argue on the plea of forgery, fraud and misrepresentation ,keeping in view the provisions of Order VI, rule 4, C. P. C. He could not proceed further and had to abandon this argument, in view of conspicuous absence of not only the particlrlars but altogether non-mentioning of the alleged fraud and misrepresentation in the written statement. Even the plea of forgery regarding Exh. P/1 in para. 4 of the written statement is by way of a cursory mention. Order VI, rule 4, C. P. C. Reads as under: "Particulars to be given where necessary.-In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates sad items if necessary) shall be stated in the pleading."
It is well settled that a plea of fraud and misrepresentation without particulars is not an adequate plea. General allegations, however strong may be the words in which they are stated are not sufficient even to amount to an averment of fraud, misrepresentation, etc. Of which any Court ought to take notice. The plea of forgery likewise cannot be taken into consideration unless its particulars are set out. There can also be no dispute to the proposition that the general principles upon which the Courts act in requiring particulars to be given of the allegations or matters stated in plaints are applicable equally to defences and the rules relating to the giving of particulars are in general applicable to all pleadings. This plea raised by the learned counsel, therefore, is also without merit.
14. The fourth contention raised by the learned counsel is that no issue was framed regarding Exh.
P/1 being bogus and fictitious. Issue No. 2 related to Exh. P/1 and was framed in the following words:
(2) Whether the parties had entered into an agreement about novation of the original contract? O.
P. P.
The issue is thus there and relates to Exh. P/l. It was never claimed before the trial Court that the issue should be re-cast or that any additional issue be framed as to the bogus and fictitious nature of Exh. P/1. This plea was also not raised before the learned lower Appellate Court. Such a plea cannot be allowed to be raised at this stage. Apart altogether from the above position the framing of an issue in a particular form, or non-framing of a sub-issue which is covered by the general language of the issue itself loses all significance at this stage especially when the parties knew as to the controversy on which they were on trial and had led evidence on the subject, which has been considered by the Courts below. As a result this contention of the learned counsel also fails.
15. The last and the only other contention raised on behalf of the appellants is that time was of the essence of the contract and that the respondent having failed to have the sale deed registered within the period fixed by the contract, Le. By 16-5-1974 he could not have the contract enforced specifically. This contention is also wholly devoid of force. It has no legs to stand on factual plane; it having been held that the time fixed by the first agreement, i.e. Exh. P/2 was extended by execution of a subsequent agreement, I.e. Exh. P/l. The finding on this point of fact being concurrent by both the Courts below is not open to question in second appeal. In addition I also find that the finding has been arrived at after due, appraisal of evidence on record and is thus otherwise also unexceptionable. The reason given in Exh. P/1 for extending the time is the failure of the appellants themselves to perform their part of the contract within the period fixed in Exh. P/2. Strangely enough a premium is being sought on one's own failure. This submission of the learned counsel for the appellant is, therefore, also without merit.
16. For the reasons given above, this, appeal is dismissed with no order as to costs.
S.A.H.