Haji BARKAT ALI Versus TARIQ MAHMOOD

MIAN HAMID FAROOQ, J .‑‑‑This single judgment shall decide the present appeal alongwith the connected appeal (Regular First Appeal No. 230 of 2000) as, common questions of facts and law are involved in both the appeals, they are between the same parties and have arisen out of a consolidated judgment.

2. Through the filing of these two appeals, the appellant, Haji Barkat Ali has called in-question the consolidated judgment dated 11‑5‑2000, whereby the learned trial Court decreed the suit for possession through specific performance of an agreement dated 13‑10‑1997, filed by the respondent, Tariq Mahmood Sajid and simultaneously dismissed the suit for declaration of cancellation of document, filed by the appellant.

3. Facts culminating to the filing of the present appeals' are that Tariq Mahmod Sajid, respondents, on 28‑3‑1998, filed a suit for possession through specific performance of an agreement to sell dated 13‑10‑1997 (Bxh.P‑1), whereby Haji Barkat Ali, the appellant, being the owner of land measuring 24 Acres, 4 Kanals alongwith Kothi/Bungalow including "share Shamlat" situated in Mauza Chhanga Tehsil Narowal (hereinafter referred to suit property) agreed to sell the suit property to the respondent for a consideration of Rs.20 lacs, out of which a sum of Rs.60,000 was paid as earnest money, whereas the remaining amount was to be paid by the respondent/plaintiff at the time of the execution of the registration of sale‑deed and the period stipulated in the agreement for the completion and registration of the sale‑deed was fixed as 30‑6‑1998. It has been averred in the plaint that after the execution of the agreement to sell, although the respondent had been requesting the appellant to receive the balance price and to get sale‑deed executed, but the appellant had been postponing the matter on the pretext that he has to obtain necessary documents from "Patwari Halqa" and thereafter he will execute the sale‑deed. According to the plaintiff, when he came to know that the appellant is trying to alienate the suit property to somebody else, the appellant alongwith respectable of the locality requested the appellant to execute the sale‑deed but he was adamant and refused to perform the agreement to sell. Having thus failed, the respondent/plaintiff filed a suit for possession through the specific performance of agreement to sell, hereinbefore mentioned, with permanent injunction. The appellant contested the suit by way of filing the written statement thereby taking number of preliminary objections. However, on merits it was submitted that sons of the appellants were residing abroad; that plaintiff was living alone in his residence, which is situated upon his agricultural land, and as there was a dacoity committed in the house of the appellant in June, 1996, therefore, he was under depression. The appellant denied the signing and execution of the agreement to sell dated 13‑10‑1997, and asserted that the respondent, alongwith other persons, came to the residence of the appellant on 13‑10‑1997 and asked him to sign the agreement to sell, on his refusal, the respondent threatened him and in this manner the appellant was coerced by the respondent to sign and affix his thumb -impression on the stamp papers and the register of the scribe. It was averred in the written statement that neither any bargain was struck nor earnest money was paid, but the agreement to sell was got executed 'by the respondent from the appellant through undue influence and under the threat of life to the appellant and, therefore, the same is not binding on the rights of the appellant. It was also submitted in the written statement that the appellant had already filed a suit for declaration and cancellation of same agreement to sell dated 13‑10‑1997, which is still pending. Consequent to the above, the learned trial Court, vide order dated 17‑10 -1998, consolidated the suit for declaration and cancellation with the suit for possession through specific performance of an agreement and ordered that the proceedings would be conducted in the suit for specific performance of an agreement. Out of the divergent pleadings of the parties, the learned trial Court on 4‑11‑1998 proceeded to frame the following consolidated issues:‑

(1) Whether there was an agreement to sell the suit property between the parties and the defendant has already received Rs.60.000 from the plaintiff vide Iqrar nama dated 13‑10‑1997? OPP

(2) Whether plaintiff is willing to pay the remaining amount? If so, whether plaintiff is entitled to specific performance of the agreement? OPP

(3) Whether the plaintiff has got no cause of action to file this suit? OPD

(4) Whether the impugned agreement to sell is result of undue influence and based upon fraud and coercion and the same is liable to be cancelled? OPD

(5) Whether plaintiff is estopped to file this suit by his words and conduct? OPD

(5‑A) Whether the suit is not maintainable under section 12 of the Specific Relief Act as the penalty clause is provided in the agreement? OPD

(5‑B) Whether the suit is not proceedable under section 22 of the Specific Relief Act as the same is a discretionary relief? OPD

(5‑C) Whether the plaintiff has got no cause of action and the plaint to be rejected under Order 7 rule 11, C.P.C? OPD

(6) Relief.

4. The learned trial Court after recording the evidence of the parties decreed the suit for possession through specific performance of an agreement dated 13‑10‑1997, filed by the respondent, and directed him to deposit the consideration price amount within a period of one month and in case of non‑deposit of the remaining amount, the suit would be dismissed and simultaneously the suit filed by appellant, for declaration and cancellation of this agreement was dismissed, by virtues of a consolidated judgment dated 28‑3‑1998. Two separate decrees were drawn by the learned Civil Judge, hence the appellants have filed the present two separate appeals.

5. Learned counsel for the appellant has contended that agreement to sell was not validly and legally executed, as the appellant was made to sign the said agreement under coercion and undue influence, which has been proved on record through production of evidence, thus agreement to sell was not specifically enforceable, as such the impugned judgment is not sustainable in law. He reinforced his argument by saying that the respondent was in a dominating position, thus he exercised undue influence and agreement to sell was the result of undue influence. He has further contended that no particulars of property has been given in the plaint, thus it violates the provision of law. He has further submitted that in view of section 22 of the Specific Relief Act, the suit could not have been decreed. Conversely the learned counsel of the respondent, while supporting the impugned judgment and decree, has contended that as the agreement to sell has been proved, according to the parameters set up under the law, therefore, there was no impediment in decreeing the suit, thus, the impugned judgment and decree is unexceptionable and does not call for any interference by this Court.

6. In nutshell the case of the respondent is that the agreement to sell was executed by the appellant for the sale of property in dispute, which was testified by the marginal witnesses and as the appellant is not complying' with the terms of the agreement, therefore, decree for possession through specific performance may be passed. On the other hand the case of the appellant is that although he signed and thumb‑marked the agreement to sell, but the same was the result of undue influence and the agreement was got signed without free consent of the respondent.

7. In the above perspective, in order to prove the agreement to sell, the respondent/plaintiff himself appeared as P.W.1 and produced the agreement to sell dated 13‑10‑1997, which was exhibited as Exh.P‑1, without any objection from the side of the appellant. He deposed in his statement that the agreement to sell was‑scribed by Muhammad Anwar, Advocate and the appellant, while deeming it correct, signed the agreement as well as thumb‑marked it. Ch. Muhammad Anwar, Advocate appeared as P.W.2, who stated that he scribed the agreement to sell, which was written in the presence and at the residence of the appellant. He has further deposed that the appellant was made to understand the contents of the agreement to sell and thereafter the parties as well as attesting witnesses put their signatures and thumb‑marked on the agreement to sell. P.W.3, Muhammad Ishaq, is a marginal witness of the document, who has stated that in his presence agreement to sell was written, earnest money of Rs.60,000 was paid to the appellant and Exh.P‑1 was scribed after the appellant permitted to do so. He further states that Exh.P.1 bears his thumb‑impression. Muhammad Sadiq appeared as P.W.4. He has deposed that on the asking of the appellant, Exh.P‑1 was written, Rs.60,000 were given to him as an earnest money and Exh.P‑1 bears his signatures. Muhammad Ishaq, son of Ali Muhammad appeared as P.W.S and deposed that the bargain between the parties struck at Rs.20 lacs, out of which Rs.60,000 were paid by the respondent to the appellant in his presence. The appellant appeared as D.W.1 wherein, he denied the receipt of the earnest money, however, he admitted that the respondent threatened the appellant that if you will back out from the bargain, you will be disgraced and thus the respondent obtained the signatures and thumb‑impression on the agreement to sell. From the above narrative of the evidence it is proved that the agreement to sell was in fact signed and thumb‑marked by the appellant. The respondent has been able to prove the execution of the agreement to sell by producing P.W.2 the scribe of the agreement to sell, who is an Advocate by profession, and by producing the attesting witnesses of the document i.e. P.W.3 and P.W.4. Apart from this, the respondent by producing all the P.Ws has re‑inforced his stance regarding the execution of the agreement to sell. All the witnesses are in agreement that the appellant executed the agreement to sell in their presence and with his free consent. The marginal witnesses of the document has fully supported the case of the respondent regarding the execution of the agreement and despite the lengthy cross‑examination, none of them could be discredited. In order to disprove the said agreement, the defendant could not produce any cogent evidence. Thus it is proved that in fact agreement to sell was executed and it stands proved beyond any doubt.

8. The main thrust of the, case of the appellant is that although he signed and thumb‑marked the agreement to sell, yet the execution of the same was the result of undue influence and agreement to sell was got executed without his free consent. On this crucial question, issue No.4, was framed onus of which was rightly placed upon the appellant. The appellant in order to prove this issue, himself appeared as D.W.1 and stated that the respondent and other persons extended threats to him by saying that if you will retrieve from bargain you will be disgraced. Apart from this, the appellant did not give any particulars or the details of the exertion of undue influence. It would be advantageous to reproduce the relevant portion of the statement of D.W.1 which is as under:‑

Apart from the said solitary statement of the appellant, he has not been able to produce any evidence on the record to prove the alleged undue influence. Even D. W.2 and D. W.3 have not supported the version of the appellant and they have simply stated that the respondent asked the appellant that he would be humiliated. The D.Ws. are unanimous on the plea that apart from the aforenoted threats no further undue influence was exerted on the appellant, which compelled him to sign and thumb‑mark the agreement to sell. It may be noted that the appellant did not plead in the written statement what he has subsequently stated while appearing as D.W.1. In his written statement with regard to the alleged undue influence, the appellant has stated that the agreement to sell is a result of fraud and undue influence and that when the appellants refused to execute the agreement to sell then the respondent extended threats to his life and property and thereafter made him to sign and thumb‑mark on the stamp papers and the register of the stamp vendor. Relevant portion is reproduced below:‑

9. It is evident from the joint reading of the written statement as well as statement of D.W.1 that although the appellant pleaded about the exercise of under influence in order to set aside the agreement to sell, yet he failed to furnish the necessary details and particulars of the exercise of undue influence. It is evident from the portions of the statement of D.W.1 and the written statement, reproduced above, that no particulars of undue influence have been given either in his statement or in the written statement. Apart from this no other particulars or objections are forthcoming. It has been provided under Order 6, rule 4, C.P.C. that in cases which party pleads misrepresentation, fraud, breach of trust, willful default or undue influence, it must give the particulars and details of such instances in the pleadings. As has been observed above, the appellant did not give any particulars and facts in necessary details in the written statement, which could clearly spell out the case of fraud or undue influence. Honourable Supreme Court of Pakistan in the case of Mst. Wazir Begum v. Muhammad Nazir and others (1999 SCMR 1299), has clearly laid down the parameters for avoiding the transaction on the ground of undue influence. In this regard it has been held in the aforenoted case of Mst. Wazir Begum as follows:‑

"It is well‑established that a party in order to avoid transaction on ground of undue influence has to give full particular circumstances on which the said plea is baled. Not only precise nature of influence exercised, mariner of use influence and unfair advantage obtained by the other party has to be clearly pleaded but also has to be establishes producing reliable and cogent evidence. A fording on issue of undue influence must be based on general as well specific evidence of exercise of undue influence and such evidence must be of the nature establishing a position dominate the will of the other to the extent that the person under influence constrained to do what he would have refused to do if left to exercise his own judgment."

If the case as built up by the appellant placed in juxta‑position with the parameters laid down by Honourable Supreme Court of Pakistan, it would be abundantly clear that the appellant could not prove his case of undue influence. Argument of the learned counsel has no legal foundation.

10. Another aspect of the case v regard to the undue influence is that neither respondent nor any of the witness produced the respondent were cross‑examined on the plea of undue influence. They were not even asked any suggestions in the light of statement given by D.W.1, the appellant. sterio type suggestion was put to the respondent in the end of the crass‑examination which is as follows:‑

Similarly P.W.2, P.W.3 and P.W.4 were put a similar suggestion that they got the Exh.P-1 executed with force and pressure. Apart from this none of the witnesses were asked about any of the details or particulars about the alleged undue influence as pleaded in the written statement and deposed by the appellant.

11. So far as next contention of the learned counsel, regarding the non description of the property in the plaint is concerned, that is also devoid of any force. Firstly the appellant did not raise such a plea in his written statement, not even in his amended written statement, therefore, the, appellant is now precluded from taking the said plea before the Appellate Court. Secondly in this perspective, we have, examined the plaint and we do find that the description of the immovable property, which is subject‑matter of the suit, has clearly been given as envisaged under Order 7, rule 3, C.P.C. and the said description is sufficient to identify the property. In para. one of the plaint, the description of the immovable property has been given as under:‑‑

" Land measuring 24 acres, four Kanal alongwith Kothi/Bungalow including a share Shamlat situated in Maouza Chhanga Tehsil Shakarardh, District Narowal."

Furthermore, the said description of the property is in consonance with the description given in Exh.P‑1 i.e. agreement to sell. Even otherwise under the law, if immovable property is not sufficiently described in the plaint that would not be a ground for the dismissal of the suit. Reliance is placed on Abdus Salam and 2 others v. Crown Radio Corporation Karachi (PLD 1973 Karachi 24) and British India Steam Navigation Company Limited and another v. Adam Corporation Limited (1990 ALD 129).

12. So far as the next contention of the learned counsel regarding the non‑maintainability of the suit on the plea of section 22 of Specific. Relief Act is concerned, suffice it to say that said provision of law is not attracted under the facts and circumstances of the present case. It has been proved on record that the agreement to sell was executed by the appellant for the sale of the property in question, whereby he undertook to perform certain obligations and now there is no legal justification for relieving the appellant from performing the said obligations, more so when we have already held that no undue influence was exerted upon the appellant while executing the agreement to sell. It is true that section 22 of the Specific Relief Act does empower the Court to refuse specific performance in cases where the plaintiff has an un‑fair advantage over the defendant or where the performance of the agreement create some hardship on the defendant. Under the facts and circumstances of the case, none of the two eventualities are attracted in the present case thus, the appellant, that too at this stage. Cannot take benefit out of provision of section 22 of the Specific Relief Act. The hardship contemplated by section 22 of the Specific Relief Act should be of such a nature, which cannot be foreseen by the parties at the time of agreement. After the examination of the record we do not find any such element exist or the appellant has brought the same on record.

13. We have examined the impugned judgment and find that the learned trial Court has discussed the evidence in depth, perused the record of the case and thereafter rendered a speaking arid well‑reasoned judgment and conclusions. The findings arrived at by learned trial Court are legal, unexceptionable and apt to the facts and circumstances of the case and we are not inclined to interfere in the well‑reasoned findings given by the learned trial Court. We have no reasons to disagree either with the reasons advanced by the learned trial Court.

14. In the above perspective and in view of the reasons and findings rendered, herein before, we while dismissing both the appeals maintain the impugned consolidated judgment and decree, dated 11‑5‑2000 passed by the learned trial Court with no order as to costs.

Q.M.H./M.A.K./B‑72/L Appeal dismissed.