SAFIA BEGUM Versus MUHAMMAD ISHAQ

MUHAMMAD ASADULLAH, J.‑‑ The respondents filed a suit for specific performance of the agreement dated 11‑9‑1976 made by the appellant in their favour in respect of the land in dispute for a consideration of Rs.3,00,000. A sum of Rs.30,000 had been paid as earnest money and it was agreed that the sale‑deed will be got executed after the appellant had obtained a no‑objection certificate from the Military Authorities. No‑objection certificate was never issued by the Military Authorities and the respondents filed the suit claiming that the agreement could be performed specifically even without the same. The suit was contested by the appellant. The following issues were framed:‑

(1) Whether the suit property has been wrongly described, if so, what is the correct description? O.P.D.

(2) Whether the defendant has failed to perform her part of the contract? O.P.P.

(3) Whether the defendant has violated the terms of the contract? O.P.P.

(4) Whether the plaintiff is entitled to the specific performance of the contract, if so, on what terms? O.P.P.

(5) Relief.

The issues were decided in favour of the respondents and their suit was decreed by the learned Senior Civil Judge, Sialkot on payment of the remaining sum of Rs.2,70,000 vide judgment dated 4‑7‑1984. This appeal has been filed against the said judgment and decree. We have perused the record and have heard the arguments.

2. Letters EXhS.D.W.l/3, Exh.D.2, Exh.D.3, Exh.D.4, Exh.D.7 to D.9, EXh.D.W.l/5 and EXh.D.W.l/4 are the correspondence between the appellant and the Military Authorities. The same clearly show that the respondents had been requesting them for issuance of a no‑objection certificate. However, the Army Authorities expressly refused and regretted the same on the ground that the property in dispute stood earmarked for Army .constructions. Therefore, it is proved that the no‑objection certificate was refused by the Army Authorities. The question, therefore, arises as to whether the agreement could be performed even without the same: The learned counsel for the respondents has referred to Mst. Bhagan and 2 others v. Sh. Muhammad Latif and 2 others (P L D 1981 Lah. 146) to press the point that no such no‑objection certificate is required for completion of a sale. However, in that case the property consisted of "old grant rights". However, in our case it has not been even alleged that the property in dispute falls in that category. Therefore, the law laid down therein is not applicable to our case. In any case the agreement P. W .1 / 1 makes it clear that the obtaining of a no‑objection certificate was a condition precedent for performance of agreement. The said condition was accepted by both the parties through this agreement because they knew that such a no‑objection certificate was required. Therefore, now the respondents cannot say that no no‑objection certificate was required. Similarly, the making of applica tions by the appellant for issuance of no‑objection certificate and the refusal of the Military Authorities to grant the same also show that such a no‑objection certificate was required. As no such no‑objection certificate could be issued the agreement there and then became incapable of specific performance. ,Again, Muhammad Bashir respondent No.2 gave an undertaking on 14‑3‑1978 that if no no‑objection certifi cate was obtained by the appellant up to 14‑6‑1978 he will withdraw from the bargain agreement and will be entitled only to the earnest money amounting to Rs.30,000. This undertaking Exh.D.W.2/1 was admitted by respondent No.2 as D.W.2. This undertaking suffices to prove that the agreement stood rescinded on 14‑6‑1978. Even if it is taken that the same was to the extent of the rights of respondent No.2 that will make no difference because the appellant could perform the contract only if the same was to be performed by both the respondents and as a whole and not otherwise. Therefore, specific performance of agreement EXh.P.W.l/1 could not be allowed. The findings of the learned trial Court on issues Nos.2 to 4 are, therefore, reversed.

3. There is a condition in the agreement EXh.P.W.l/1 that in case the agreement could not be specifically performed the appellant would pay Rs.60,000 (double the amount of earnest money) to the respondents. The said undertaking Exh.D.W.2/1 also makes it clear that the. appellant had undertaken to do so because through the said undertaking it was agreed that a sum of Rs.30,000 and not Rs.15,000 will be paid to Muhammad Bashir respondent No.2. This amount was only for respondent No. 2 and naturally respondent No. l is also entitled to the same amount for failure of the agreement. The learned counsel for the appellant has offered to pay Rs.60,000 i.e. , Rs.30,000 each, to the respondents in case the specific performance of the agreement is refused. No other point has been raised before us.

4. In view of our above discussion the appeal is partly accepted. The impugned judgment and decree dated 4‑7‑1984 are set aside. The suit of the respondents for specific performance of contract dated 11‑9‑1976 is dismissed. However, a decree for recovery of 1B Rs.60,000 is passed against the appellant and in favour of the respondents (Rs.30,000 each). The parties shall bear their own costs throughout.

S.Q./5‑220/L Appeal partly accepted.