Mushtaq Ahmad vs Mohsin Iqbal

MASUD ABID NAQVI, J. Through this judgment, I intend to decide instant civil revision alongwith connected Cross Objection No.16293-2020 involving common questions of law and facts.

2. Brief facts necessary for the adjudication of this lis are that the respondent/plaintif f filed a suit for specific performance of an agreement to sell dated 29.07.2009 on the averments that the petitioner/ defendant entered into a written agreement to sell for the sale of suit property for a total sale consideration of Rs.950,000/- and respondent/plaintif f also paid an amount of Rs.150,000/- as earnest money to the petitioner/defendant. On the refusal of petitioner/ defendant to execute sale deed, the respondent/plaintif f was constrained to file instant suit.

The petitioner/defendant filed contesting written statement and raised certain legal as well as factual objections.

Out of divergent pleadings of the parties, issues were framed by the learned Trial Court and the parties led their respective oral and documentary evidence. After hearing the arguments advanced by both the contesting parties, the learned Trial Court vide judgment and decree dated 27.08.2018 decreed the suit. Feeling aggrieved, the petitioner/ defendant preferred an appeal and the learned Additional District Judge, Gujrat partly accepted the appeal vide judgment and decree dated 18.05.2019. Being dissatisfied, the petitioner/defendant has filed the instant civil revision by challenging the validity of the impugned judgments and decrees passed by the learned courts below while respondent/plaintif f also filed cross-objection bearing No.16293-21020 and challenged the validity of the judgment and decree passed by the learned appellate court.

3. I have heard the arguments of learned counsel for the parties and perused the available record as well as have minutely gone through the judgments and decrees passed by the learned courts below .

4. It is imperative to firstly discuss and adjudicate upon the cross objection in the revision petition, filed by the respondent/plaintif f, because the findings in the cross-objection will certainly af fect the fate of revision petition.

Learned appellate court partly accepted the petitioner/ defendant' s appeal vide judgment and decree dated 18.05.2019 with the findings which are reproduced hereunder; "Keeping in view peculiar circumstances of the case, it is directed that respondent shall further pay Rs.3,00,000/- as enhanced consideration amount within 30 days. Consequently the appeal is partly accepted. It is hereby clarified if the respondent fails to pay the enhanced consideration amount of Rs.3,00,000/- within 30 days, the appeal shall be deemed to have been accepted as a whole and respondent would be entitled to return of consideration mount of Rs.9,50, 000/- paid by him."

Instead of challenging the validity of the judgment and decree passed by the learned appellate court, the respondent/plaintif f filed application before learned appellate court for seeking permission to deposit the enhanced consideration amount of Rs.3,00 ,000/- on 07.11.2019 but the same was dismis sed by the learned appellate court on 29.01.2020 because the respondent/plaintif f filed the application with the delay of more than five (05) months while the respondent/ plaintif f was direc ted by the learned appellate court to pay the enhanced consideration amount of Rs.3,00,000/- within 30 days and no reason/ground, whatsoever , is mentioned in the application for the delay . Thereafter , by intentionally concealing the dismissal of his application, the respondent/plaintif f filed cross- objection before this Court on 28.02.2020.

By simply scanning the abovementioned facts, there remains no doubt that by filing application before the learned appellate court, the respondent/plaintif f voluntarily and expressly showed his willingness to pay the decreta l amount for enforcement/implementation of decre e passed by the learned appellate and filing of said application by the respondent/plaintif f amounts to admission of his liability regarding the decretal amount. An admission, even implied, by a party , before the court during the judicial proceedings has to be given sanctity while applying the principle of estoppel as well as to respect moral and ethical rules and if retraction therefrom is allowed as a matter of right, then it will definitely result into distrust of the public litigants over the Judiciary and would damage the sacred image of the Courts that they are not capable to implement the orders passed by them in the judicial proceedings. Any such admission even implied or statement given before the court of law will operate as legal estoppel (words used by the Hon'ble Supreme Court of Pakistan in number of cases) and estoppel by conduct against a party making such admission or giving such a statement or understanding. The doctrine of estoppel enacted in Art. 114 of Qanun-e- Shahadat Order , 1984 is, in fact, an equita ble doctrine, a rule of exclusion, which implies that if a person has by act or omission altered his position, he will be estopped and be precluded or debarred from denying it or take a position so as to alter his position to the determinant of the other person/the opposi te party and prevents the litigant from raising inconsistent plea(s) in judicial proceedings by disallowing the litigant from blowing hot and cold at the same time. Filing of application by the respondent/plaintif f for paying the enhanced consideration amount of Rs.3,00,000/- amounts to not only his admission of liability under the decree but will also be cons idered a voluntary act by a person who is not aggrieve d from the findings of learned appellate court for the enforcement/ implementation of decree. The dismissal of his application also creates legal right in favour of petitioner/defendant.

Hence, after the filing and dismissal of his application before the learned appellate, the petitioner/plaintif f cannot assail the impugned judgment and decree of learned appellate court before this Court through instant cross- objection in the revision petition, therefore, the cross-objection in the revision petition, filed by the respondent/ plaintif f is hereby dismissed.

5. Learned appellate court partly accepted the petitioner/ defendant' s appeal vide judgment and decree dated 18.05.2019 with the clarification that if the respondent fails to pay the enhanced consideration amount of Rs.3,00,000/- within 30 days, the appeal shall be deemed to have been accepted as a whole . In compliance with the direction of learned appellate court for the enforcement/implementation of decree, the respondent/plaintif f filed application for seeking permission to deposit the enhanced consideration amount of Rs.3,00,000/- but the same was dismissed by the learned appellate court and the cross-objection in the instant revision petition, filed by the respondent/plaintif f is also dismissed by this Court through detail discussion, hence, the judgment and decree of learned appellate court will remain intact wherein it is specifically mentioned that on the non-compliance of direction to pay the enhanced amount, the appeal shall be deemed to have been accepted as a whole. Therefore, the instant revision petition is also dismissed being infructuous.