2024 M L D 1127
[Balochistan]
Before Gul Hassan Tareen, J
Syed MUHAMMAD QASIM ---Petitioner
Versus
Syed BASHIR AHMED---Respondent
Civil Revision No. 275 of 2023, decided on 15th November, 2023.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 102 ---Terms of contracts, grants and other disposition of property reduced to form of
document ---Contract of sale ---Oral evidence ---Scope ---No party is debarred under Art.102 of
Qanun- e-Shahadat, 1984, from producing oral evidence to prove that price or a part there
from has not actually been paid for payment of price or part thereof is not term of a contract
but is only a recital of a fact in an instrument ---Party cannot be allowed under Art.102 of
Qanun- e-Shahadat, 1984, to lead oral agreement or statement to contradict, vary, add or
subtract terms of agreement which was reduced into writing but since recital of a fact in a document showing payment of price or part thereof is not term of contract and a party may be allowed to prove that acknowledgment of sale price and subsequent endorsement on sale
deed was incorrect and the vendee had not indeed paid the price to him.
(b) Specific Relief Act (I of 1877) ---
----Ss. 12 & 22 ---Contract Act (IX of 1872), Ss. 51 & 54--- Suit for specific performance of
contract of sale ---Reciprocal promise ---Non -deposit of balance consideration amount ---
Effect ---Suit was filed by respondent / plaintiff seeking specific performance of agreement to
sell---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of
respondent / plaintiff ---Validity ---Failure to deposit balance amount in Court disentitled
respondent / plaintiff to relief of specific performance which according to S.22 of Specific Relief Act, 1877, was a discretionary relief ---Contract of sale was a contract considered of
reciprocal promises to be simultaneously performed and petitioner / defendant was not to perform his promise unless respondent / plaintiff was ready and willing to perform his reciprocal promise i.e. payment of balance amount ---Respondent / plaintiff failed to prove
that he paid or tendered balance amount to petitioner / defendant, therefore, he failed to perform his reciprocal promise ---Respondent / plaintiff failed to prove payment of advance
amount and offer payment of balance amount to petitioner / defendant on stipulated date ---
Respondent / plaintiff even failed to demonstrate his willingness to pay balance amount in Court or for such purpose in Lower Appellate Court ---High Court set aside judgment and
decree passed by Lower Appellate Court and restored that of Trial Court ---Revision was
allowed accordingly.
Ayenati Shikdar v. Mohammad Esmail and others AIR 1929 Cal: 441; Muhammad
Afzal (Deed:) through L.Rs. and others v. Muhammad Bashir and another 2020 SCMR 197; Muhammad Rafique and others v. Manzoor Ahmed and others 2020 SCMR 496 and Iqbal Ahmed v. Col.(R) Abdul Kabir through duly constituted lawful attorney 2019 YLR 89 ref.
Mst. Hussain Jan and 5 others v. Mst. Channo Bi, 1990 CLC 1591; Hamood
Mehmood v. Mst. Shabana Ishaq and others, 2017 SCMR 2022; Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Limited and others, 2020 SCMR 171 and Mst. Rehmat and others v. Mst. Zubaida Begum and others, 2021 SCMR 1534 rel.
Abdul Hadi Tareen for Petitioner.
Mirwais Khan Tareen for Respondent.
Date of hearing: 7th November, 2023.
JUDGMENT
GUL HASSAN TAREEN J. ---Aggrieved from the judgment and decree dated 20
March, 2023 of the learned Additional District Judge, Pishin ('Appellate Court') in Civil
Appeal No.68/2022 (`impugned judgment'), whereby Civil Suit instituted by the respondent was decreed, petitioner has filed the instant Civil Revision Petition under S.115, the Civil Procedure Code, 1908 ('C.P.C').
2. Mr. Abdul Hadi Tareen, learned advocate for the petitioner contends that, though
parties to the instant petition as vendor and vendee (petitioner and respondent, respectively) are not at variance on the question of execution of contract of sale dated 14 July, 2020, but
since, respondent had breached the terms thereof and failed to pay the balance of
Rs.75.00,000/ - (Rupees seventy five lakhs) on or before the stipulated time, therefore, the
Appellate Court was not justified to decree the suit. He next contends that respondent even
failed to prove payment of earnest amount of Rs.16.00,000/ - (Rupees one million and six
hundred thousand) to the petitioner, hence, he was not entitled for the discretionary relief of
specific performance. The learned advocate contends that the PWs in their cross -examination
admitted, that Rs.16.00.000/ - was not paid in their presence by the respondent to the
petitioner. Finally, he contends that the Appellate Court vide impugned judgment has set -
aside a well reasoned judgment of the Trial Court and thus, committed material illegality and
placed reliance on case law reported as Ayenati Shikdar v. Mohammad Esmail and others
(AIR 1929 Cal: 441).
3. Mr. Mirwais Khan Tareen, learned advocate for the respondent contends that the
contract of sale itself states that the petitioner had received Rs.16,00,000/ - from the
petitioner as earnest money. He next contends that respondent, time and again approached the petitioner for receiving of the balance Rs.75,00,000/ - but he avoided and, as such,
breached the terms of the contract. The learned advocate contends that petitioner neither
instituted a Civil Suit for cancellation of contract of sale nor had issued a legal notice requiring the respondent for performance of the contract. He finally contends that the Appellate Court has rightly decreed the suit and the respondent has deposited the balance of Rs.75,00,000/ - in the Civil Court Deposits; as such was entitled to the discretionary/equitable
relief of specific performance and placed reliance on the following case laws:
Muhammad Afzal (Deed:) through L.Rs. and others v. Muhammad Bashir and another 2020 SCMR 197.
Muhammad Rafique and others v. Manzoor Ahmed and others 2020 SCMR 496
Iqbal Ahmed v. Col.(R) Abdul Kabir through duly constituted lawful attorney 2019 YLR 89 [Sindhl]
4. Heard. Record gone through.
5. Respondent had pleaded that vide contract of sale dated 14 July, 2020 (Ex: P/4- A), he
had purchased the suit property, as described in para No.2 of the plaint, in exchange for a price of Rs.91,00,000/ - (Rupees nine million and one hundred thousand) and paid
Rs.16,00,000/ - to the petitioner while the balance was payable on or before 14 July, 2021. He
further pleaded that he approached to the petitioner for, payment of the balance Rs.75,00,000/ - and, conveyance or the suit property but he refused. Petitioner appeared on
oath and admitted the execution of contract of sale. The petitioner in his written statement, however, defended that the petitioner had nither paid Rs.16.00,000/ - to him nor tendered the
balance out of the price.
6. I have gone through the contract of sale (Ex: P/4- A), according to its contents,
Rs.16,00,000/ - as advance/part payment in respect of the suit property was allegedly made to
the petitioner. Though the petitioner in his cross -examination had stated that the contract was
read over to him and he had put his signature when the same was reduced into writing (Q. Nos.3 and 5), but, he had not received Rs.16,00,000/ -.
Though, the petitioner had admitted the receipt of Rs.16,00,000/ - in the contract of
sale and executed the same after going through the same, however, he could have pleaded
beyond such recitals of the contract of sale. Where the terms of a transaction is reduced into
writing, then any party to such writing cannot be allowed to produce oral evidence in contradiction of the terms of the writing under Article 102, the Qanun -e-Shahadat Order -10
of 1984 (`Q.S.O'). Besides, Article 102, all facts except the contents of documents may be proved by oral evidence. (Article 70, the Q.S.O.). However, Article 102, the Q.S.O does not
debar a party from producing oral evidence to prove that the price or a part therefrom had not
actually paid for, payment of price or part thereof is not term of a contract but is only a
recital of a fact in an instrument. Under Article 102, the Q.S.O. a party connot be allowed to lead oral agreement or statement to contradict, vary, add:or subtract the terms of agreement which was reduced into writing but since recital of a fact in a document showing payment of price or part thereof is not term of contract and a party may be allowed to prove that acknowledgement of the sale price and subsequent endorsement on the sale deed was incorrect and the vendee had not indeed paid the price to him. In the instant case, the attesting witnesses of the contract of sale (Ex: P/4 -A) appeared as PW- 2 and PW -3. The PW -
2 in his cross -examination admitted as under:
"Q.No.9. It is correct that Bashir Ahmed has not paid the amount to Muhammad Qasim in my presence."
The second attesting of Ex: P/4- A, Muhammad Khair, in his examination in chief
stated that respondent had paid Rs.16,00.000/ - to the petitioner, however in his cross -
examination, he admitted as under:
"Q.No.9. It is correct that at the time of sale and purchase of disputed land I was not
present, however, has knowledge because after the transaction, they told us and I put
my signature on the contract of transaction."
The respondent appeared on oath and in his examination in chief stated that he had
paid Rs.16,00,000/ -, in cash, to the petitioner in the guest room of Muhammad Khair. The
said Muhammad Khair (PW -3) had not stated that Rs.16,00,000/ - was paid by the respondent
to the petitioner in his guest room. The respondent in his cross -examination admitted as
under:
"Q. No.7. It is correct that I cannot produce any receipt or cheque with regard to payment of Rs.16,00,000/ - to the defendant, voluntarily stated that the brother of
defendant Muhammad Khair and Muhammad Shafi who are witnesses of contract, amount in cash was paid to the defendant."
As earlier mentioned, the attesting witness, Muhammad Shafi, in his cross -
examination had admitted that, no amount was paid in his presence.' The respondent badly failed to prove that he had paid Rs.16,00,000/ - to the petitioner, therefore, he wrongly
pleaded that he had performed his part of contract by payment of Rs.16,00,000/ - to the
petitioner. The Lahore High Court in the case of Mst. Hussain Jan and 5 others v. Mst. Channo Bi, 1990 CLC 1591 [Lahore], held as under:
"-----It was argued that endorsement on the sale -deed containing acknowledgement of
receipt of price attracted presumption of truth and parol evidence was precluded to refute its correctness. Pirla etc. v. Noora etc PLD 1976 Lahore 6 was relied upon and Section 92 of the Evidence Act was pressed in aid. As for precedent which arose from a pre- emption matter, it is sufficient to observe that it did not attract itself to the facts
of the case and in regard to section 92 of the Evidence Act, it does not bar a party to
let in oral evidence to prove that consideration had not actually passed because passing of consideration is not a matter of contract but is only a recital of fact in a document. In Sah Lai Chand v. Indrajit ---I.L.R. 22 Allahabad 370, agreeing with the
High Court, their Lordships of the Privy Council regarded it as settled law that "notwithstanding an admission in a sale -deed that the consideration has been received,
it is open to the vendor to prove that no consideration has been actually paid. I f it was
not so facilities would be afforded for the grossest frauds. The Evidence Act does not say that no statement of fact in a written instrument may be contradicted by oral evidence; but that the terms of the contract may not be varied, and c. The contract was to sell for Rs.30,000 which was erroneously stated to have been paid, and it was competent for the respondent without infringing any provision of the Act to prove a collateral agreement that the purchase- money should remain in the appellant's hands
for the purposes and subject to the conditions stated by the respondent". Therefore, though the sale -deed may contain a recital that the consideration has been paid, yet
there is nothing to prevent the parties from adducing evidence to show that the recital
was untrue and that in fact the consideration was not paid and this will not be barred by section 92 of the Evidence Act. See Baldeo Singh and others v. Dwarika Singh and others AIR 1978 Patna 97. In number of decided cases, it has been held that the acknowledgement of receipt of the whole or part of the sale consideration in a deed of
sale is not a term of the deed of sale and oral evidence may be given to show that the
amount acknowledged or any part of it was not paid. Decisions reported in Pradyaman
Prasad Singh v. Mahadeo Singh and others AIR 1950 Patna 85, Official Receiver of Salem v. Chinna Goundan and another A1R 1957 Madras 630 are in point. When the record is examined from this perspective, it is clear that sufficient evidence was adduced by the plaintiff to prove that the acknowledgement of the sale price and consequent endorsement on the sale -deed were incorrect and that the vendee had not
paid the price to her. Therefore, finding on receipt of price is neither infirm nor faulty...."
A party should come in the Court with clean hands and since, respondent failed to
prove payment of Rs.16,00,000/ - to the petitioner, as such, he had failed to perform his part
of contract and was not entitled for the equitable relief of specific performance of contract.
7. Apart from what has been discussed in the preceding paragraph, a party seeking
specific performance of a contract of sale is essentially required to apply to the Court for getting permission to deposit the balance sale consideration amount on first appearance before the Court. Such payment in Court, a party demonstrates its capability and willingness to perform its part of the contract which is an essential condition precedent to seek specific performance of a contract. Failure to deposit the balance amount in Court disentitles him to
the relief of specific performance which according to S.22, the Specific Relief Act, 1877 is
undoubtedly a pure discretionary relief. In the present case, respondent had pleaded that the
balance amount was payable within one year i.e. on or before, 14 July, 2021 and when he approached the petitioner on 14 July, 2021 and tendered the balance price and require him for completion of the contract, he delayed the matter. Respondent's suit was pending before the Trial Court for a period of almost one year but he failed to demonstrate that he is and was always ready and willing to perform his reciprocal promise to pay the balance from the sale consideration. Where balance amount is not paid earlier, best time to show such readiness to perform his part of contract is to apply the Court for permission to deposit the same in Civil Court Deposits. The contract of sale (Ex: P/4- A) was a contract consisted of reciprocal
promises to be simultaneously performed and petitioner need not to perform his promise unless the respondent was ready and willing to perform his reciprocal promise i.e. payment of balance amount. Respondent failed to prove that he had paid or tendered the balance amount to the petitioner, therefore, failed to perform his reciprocal promise. The respondent failed to perform his part of promise by making payment of balance Rs.75,00,000/ - to the
petitioner within the time contemplated under the contract of sale, so he could have not claimed the performance of the reciprocal promise. In this regard, Ss.51 and 54, the Contract Act, 1872 are relevant, which read as under:
"51. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform. -When contract consists of reciprocal promises to be simultaneously
performed, no Promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise."
"54. Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises.- When a contract consists of reciprocal promises,
such that one of them cannot be performed, or that its performance cannot be claimed till the other had been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non- performance of the contract."
The Supreme Court in the case of Hamood Mehmood v. Mst. Shabana Ishaq and others,
reported in 2017 SCMR 2022 has held as under:
"3. It is mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any
contumacious/omission in this regard would entail in dismissal of the suit or decretal
of the suit, if it is filed by the other side."
The same principle was reiterated by the Supreme Court in the case of Messrs Kuwait
National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Limited and others, (2020 SCMR 171) and Mst. Rehmat and others v. Mst. Zubaida Begum and others, (2021 SCMR 1534).
The respondent was not willing to perform his promise as it was, he has no equity in his favour and the specific performance has to be refused.
8. The Appellate Court failed to keep into consideration that respondent failed to, prove
the payment of advance, Rs.16,00,000/ - and, offer payment of balance amount, to the
petitioner on the stipulated date and even failed to demonstrate his willingness to pay the
balance amount in the Court. For such reason, the Appellate Court has committed material
illegality and irregularity which attract the provisions of S.115 (1), the C.P.C in the instant
Civil Revision Petition.
Consequent upon what has been discussed above, I accept this Civil Revision
Petition, set aside the impugned judgment and decree dated 20 March, 2023 of the learned Additional District Judge, Pishin. Resultantly, the judgment and decree dated December,2022 of the learned Judicial Magistrate- III/ Special Civil Trial Court, Pishin is
maintained. There shall be no order as to costs.
MH/3/Bal. Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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