Sheikh MUHAMMAD AKHTAR Versus SHAHAB-UD-DIN

This appeal impugns the judgment and decree dated 20-4-1998 passed by learned Additional District Judge, Rawalpindi dismissing the appeal of the appellant filed against the judgment and decree dated 17-2-1997 passed by the Civil Judge, Rawalpindi whereby he dismissed the suit of the appellant-plaintiff to the extent of relief for specific performance of agreement dated 27-11-1991.

2. The appellant being plaintiff filed a suit for specific performance of an agreement, possession and permanent injunction in the Court of learned Civil Judge, Rawalpindi. The defendant-respondent had borrowed a sum of Rs.1 lac from the appellant-plaintiff and executed a receipt as well as an agreement dated 27-11-1991 in which the defendant respondent acknowledged his liability. The defendant-respondent agreed to return the said amount within a period of one year and undertook to hand over physical possession of House No.765/10-E-1, situated at Dheri Hassanabad, Rawalpindi owned by the respondent, to the appellant as security of the amount. It was further agreed that in case the defendant did not deliver the possession of the said house to the appellant-plaintiff, he would pay a sum of Rs.3,000 per month to the appellant as rent and compensation for use and occupation of the house in question. It was alleged that the defendant-respondent did not hand over the physical possession of the house nor returned the principal amount therefore, the borrowed money is to be considered as earnest money and the plaintiff appellant is entitled for the specific performance of payment of the remaining balance price of Rs.1 lac to the defendant. Further it was stated that the defendant paid the rent till September, 1992 and thereafter paid Rs.13,800 and an amount of Rs.70,200 was due from the defendant as rent till the month of January, 1995. On refusal to execute the sale-deed the plaintiff-appellant filed a suit for specific performance, which was resisted by the respondent-defendant by filing a written statement.

3. From the divergent pleadings of the parties, following issues were framed by the learned trial Court:--

(1) Whether the agreement dated 27-11-1991 is an outcome of undue advantage and influence and is thus void document? OPD.

(2) Whether the plaintiff despite the offer made by the defendant, refused to receive back a sum of Rs.1,00,000.00 stipulated time? OPD.

(3) If Issue No.2 is not proved, whether the agreement for all intents and purposes was intended to be an agreement to mortgage? OPD.

(3A) Whether the plaintiff has no cause of action to bring this suit? OPD.

(4) If above issues are not proved whether the plaintiff is entitled to the decree for specific performance of the contract? If so, on what terms and conditions? OPP.

(5) Relief.

4. The defendant-respondent did not produce any evidence therefore, his right to produce evidence was closed. The evidence of the plaintiff was recorded ex parte. The learned Civil Judge recorded the finding on Issue No.4 against the plaintiff and did not grant decree for specific performance in favour of the plaintiff. However, on the basis of his finding on Issue No.3 the learned Civil Judge proceeded to pass a decree for Rs.1,45,200 in favour of the plaintiff and against the defendant. The learned Civil Judge observed that the agreement Mark-A nowhere contains any clause or stipulation that the mortgagor was under any obligation to return the principal amount within one year and if he was unable to do so within one year he was to lose his ownership to the house in dispute. On appeal, the learned Additional District Judge also endorsed the finding of the learned Civil Judge on Issue No.3 and held that the agreement between the parties dated 27-11-1991 was not a sale agreement which could have been specifically enforced. However, the plaintiff was entitled for Rs.1,45,200.

5. The learned counsel for the appellant has raised following grounds:--

(a) That the agreement dated 27-11-1991 is not denied and therefore, being a sale agreement it has to be enforced under the law and the learned Civil Judge fell in error while not granting the decree for specific performance;

(b) That under clause 6 of the agreement, if the defendant did not pay rent nor return the principal amount, then the borrowed money would be considered as earnest money and the plaintiff would get the sale-deed executed.

Reliance has been placed on 1995 CLC 43 and 1993 SCMR 804.

6. The whole reliance in this case has been placed on clause 6 of the agreement Mark-A, admittedly executed between the parties on 27-11-1991. It is a cardinal principle of interpretation of a document that no clause of the agreement will be read in isolation, but the agreement is to be read as a whole. 'In the heading of the admitted agreement dated 27-11-1991 the expressions used are:--

7. The preamble of the agreement is containing following statement:--

8. It is the own case of the appellant in para. 5 of the plaint that the defendant paid the rent and compensation for the use of the house in question to the plaintiff till September, 1992, thereafter the defendant paid only Rs.13,800 m the following manner:--

1. October, 1993

Rs.2,000

2. November

Rs.3,000

3. December, 1993

Rs.5,000

4. January, 1994

Rs.3,000

(through animal fat)

9. It is well-established principle of interpretation of a document that. Court has to keep the document alive and binding according to the intention of the parties. In case of inconsistency effect must be given to that part which is calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole and that part which would defeat it, must be rejected. See case of House Building Finance Corporation v. Shahinshah Humayun Cooperative House building Society and others 1992 SCMR 19. In the above referred case of House Building Finance Corporation the Honourable Supreme Court ruled:--

"Court, while interpreting the terms of contract, has to first ascertain the intention of the parties."

The case reported as Mst. Aisha Bibi and 5 others v. Ghulam Abbas and 5 others 1993 SCMR 804 at 805. Relied upon by the learned counsel for the appellant, is not applicable in the facts and circumstances of the present case, because in the above -referred case interpretation of sections 14, 15, 16 and 17 of the Specific Relief Act (I of 1877) was before the Hon'ble Supreme Court of Pakistan as held that:--

"Section 17, Specific Relief Act, 1877 provides that as a rule specific performance of a contract should be granted in its entirety and not in parts."

In the case in hand, the agreement is not treated as an agreement to sell, therefore, there is no question of its enforcement in entirety or in parts under section 17 of the Specific Relief Act.

10. The next case of Mst. Noor Jehan and others v. Muhammad Rafique and others (1995 CLC 43) from Peshawar jurisdiction is also not applicable to the facts and circumstances of the present case, because while interpreting section 12 of the Specific Relief Act it was ruled that:--

"---Breach of contract to transfer immovable property could not be relieved adequately by compensation in money."

Here, again, the interpretation of the document was not before the court.

For what has been discussed above, I have no option but to say that the document relied upon by the learned counsel for the appellant is not an agreement to sell, therefore, could not have been enforced. Both the Courts below have rightly dismissed the suit filed by the appellant.

Resultantly, this appeal fails and the same is dismissed with costs.

H.B.T./M-1660/L Appeal dismissed.