ZAHOOR AHMAD Versus MUHAMMAD AKRAM

This second appeal under section 100 C. P. C. arose out of a suit for possession through specific performance filed on 9‑10‑1969 by Zahoor Ahmad appellant against Muhammad Akram and others.

2. The facts forming background of the litigation briefly stated are that Muhammad Akram who was owner of the house in dispute agreed to sell the same to Zahoor Ahmad appellant for a sum of Rs.3,600 vide agreement to sell dated 14‑4‑1967. He received Rs.400 as earnest money and another sum of Rs.750 was also received later on from Zahoor Ahmad. According to the agreement the balance amounting to Rs.2,450 was agreed to be received on execution of the sale‑deed which according to the agreement was to be completed within a period of one year.

3. Zahoor Ahmad then filed the suit on 24‑9‑1969 on the averments that Muhammad Akram defendant‑respondent had avoided to execute the sale‑deed on one pretext or the other and as he was prepared to perform his part of the sale agreement he was entitled to have the agreement specifically performed through the Court. It was further alleged that Muhammad Akram defendant‑respondent by way of conspiracy with defendant No.2 entered into an agreement to sell the house in dispute on 24‑9‑1969 in spite of service of notice by the appellant‑plaintiff on both the defendants on 10‑9‑1969.

Muhammad Yaqoob defendant died during the pendency of the suit and his legal representatives the other respondents were brought on record.

4. The suit was resisted by Muhammad Yaqoob on the ground that the agreement dated 14‑4‑1967 cannot be got specifically enforced as the appellant‑plaintiff failed to fulfil his part of the agreement because no action was taken despite service of the notice dated 30‑4‑1968 Exh.D2 calling upon him to perform his part of the contract. It was further asserted that the house in dispute was firstly mortgaged for Rs.1,000 in favour of Muhammad Yaqoob defendant No.2 and that later the mortgage money was treated as earnest money and an agreement to sell was also executed in his favour by Muhammad Akram. Both the mortgage deed as well as the agreement to sell seem to have been executed the same day one after the other. A perusal of the agreement to sell dated 24‑9‑1969 Exh.D1 would show that the mortgage deed was executed earlier in time. Muhammad Akram earlier contested the suit by filing a written statement but later on entered into a compromise with Zahoor Ahmad appellant‑plaintiff. Under this compromise he received balance amount of the sale price to the tune of Rs.2,450 on 23‑1‑1971 and the suit was accordingly decreed as against Muhammad Akram by the learned trial Court vide order dated 23‑1‑1971. The suit was ordered to proceed only against Muhammad Yaqoob defendant No.2. The learned trial Court then framed as many as 6 issues and after recording the evidence of the parties dismissed the suit vide judgment and decree dated 1‑10‑1974. The first appeal filed by the appellant‑plaintiff was also dismissed by the learned District Judge, Sheikhupura, vide judgment and decree dated 14‑5‑1976. Hence this second appeal.

5. I have heard the learned counsel for the parties and have also gone through the record. The first point to be noticed is that both the learned Courts below failed to advert to the important aspect of the case viz. the grant of decree as against Muhammad Akram on payment of Rs.2,450. Muhammad Yaqoob did not challenge the order decreeing the suit as against Muhammad Akram either. The anomaly so created remained unnoticed. Both the learned Courts below dismissed the suit as against Muhammad Yaqoob by returning the finding that the time was the essence of the contract, as the period of one year was fixed for having the sale‑deed executed and that within this period despite service of notice dated 30‑4‑1968 the appellant‑plaintiff failed to have sale documents executed by paying the balance sale price and as such the agreement came to an end and the same cannot now be got specifically enforced. As to the mortgage created it was observed that Muhammad Yaqoob defendant had obtained the property in dispute on mortgage through agreement Exh.D1 dated 24‑9‑1969 after serving notice dated 30‑4‑1968 on the appellant‑plaintiff thereby revoking the agreement with the appellant‑plaintiff. The conclusion reached was that agreement in favour of defendant No.2 was, therefore quite lawful and valid. It may be noted that document Exh.D1 is in fact agreement to sell, the mortgage deed has not been produced on record. The agreement to sell Exh.D1 however shows that the mortgage deed was executed to secure the sum of Rs.1,000 and the said mortgage amount was then on the same day treated as earnest money in the agreement to sell Exh.Dl and period of two years was fixed for completing the sale transaction.

6. The finding that the agreement to sell Ex.Dl dated 14‑4‑1967 stood revoked is premised on the observation that the notice of revocation Exh.D2 dated 30‑4‑1968 was served by Muhammad Akram on Zahoor Ahmad appellant‑plaintiff. It was observed that DW Abdul Ghafoor postman stated that he had taken the registered letter to the appellant‑plaintiff but he refused to accept the same and this means that defendant No.1 had given notice to the appellant‑plaintiff on 30‑4‑1968 informing him that he had failed to perform his part of the agreement and to get the sale‑deed of the property in dispute registered in his favour after making the payment of the balance amount. On the above premises it was inferred by the learned first appellate Court that the notice was valid and that the appellant plaintiff had not performed his part of the agreement till 30‑4‑1968 and the defendant was justified to rescind the agreement due to non performance of the same. These inferences have been drawn on non‑existent basis and by misreading the statement of Abdul Ghafoor D.W.2. He in fact had stated that the report regarding the refusal on the notice was not in his handwriting and that he had only reported that the plaintiff was a student of 10th class so service should be effected by the postman of Halqa No.3. He added that the report of refusal was that of another postman. He was Muhammad Rashid postman and he was still in service. In cross‑examination he admitted that he had not gone to the Government High School for serving the notice on the plaintiff. This being the position it is apparent that the report of refusal was not established by producing the postman who had made that report of refusal. The service of notice dated 30‑4‑1968 was thus not proved on record in accordance with law and the same, therefore, does not legally form part of the record. It cannot, therefore, be inferred that the appellant‑plaintiff had failed to perform his part of the contract.

8. The peculiar features of this case are that the suit for specific performance as against Muhammad Akram original owner stands decreed and that decree has not been challenged till date. Muhammad Yaqoob advanced Rs.1,000 on security of the house. The mortgage deed was held to have been executed for consideration and as such binding on Muhammad Akram defendant No.l. If this was really a mortgage then the agreement to sell goes out of the field and the same will be treated as a clog on the right of redemption of the mortgager. Muhammad Yaqoob defendant being the mortgagee cannot resist the suit for specific performance when Muhammad Akram the owner of the house has accepted the balance sale price and has confessed the judgment against himself. Muhammad Yaqoob at best can claim possession of the house till the mortgage is redeemed. Learned counsel for the appellant‑plaintiff has agreed to pay the mortgage money amounting to Rs.1,000 to the legal representatives of Muhammad Yaqoob. The relief of specific performance is an equitable relief. When the appellant‑plaintiff is prepared to discharge the liability by paying off the mortgage money no reasonable objection to the grant of the relief can be raised by the legal representatives of Muhammad Yaqoob. This being the position the judgments of the two Courts below are set aside with the result that the suit of the appellant] plaintiff stands decreed as against the legal representatives of Muhammad Yaqoob deceased defendant also on payment of Rs.1,000 the mortgage money. Zahoor Ahmad appellant plaintiff will deposit Rs.1,000 within two months with the trial Court. The legal representatives of Muhammad Yaqoob will be at liberty to withdraw this amount from the Court. The appeal thus stands accepted in the above terms. The parties are, however, left to bear their own costs.

H.B.T./Z‑37/L Appeal accepted.