MUHAMMAD YAQOOB Versus Mst. UMDA BEGUM

This regular second appeal is directed against the judgments and decrees ‑dated 11‑5‑1966 and 8‑12‑1966 passed respectively by the learned Senior Civil Judge, and the learned Additional District Judge, Sahiwal.

2. The dispute relates to shop No. B.1.2. R‑62‑A situate in Okara city. This evacuee shop was allotted to Muhammad Yaqub appellant, a displaced person. The appellant being a non‑claimant was not in possession of any Compensation Book to pay the price of the shop. He, therefore, entered into an agreement with Mst. Umda Begum respondent (since deceased and represented by Muhammad Nasrullah Khan, Mst. Sikandar Sultana, Mst. Zulqarnain Begum, Mst. Qaisar

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3. [Illegible] to, the appellant in accordance with the terms of the agreement.

4. On 13‑5‑1965, the appellant filed a suit against Mst. Umda Begum in the Court of the learned Senior Civil Judge, Sahiwal (then Montgomery) for specific performance of the agreement. In the suit, he alleged that in fact it was agreed between the parties that the appellant would pay price @ Rs. 50 paisa per rupee to Mst. Umda Begum as she was to pay the price of the shop through adjustment against her Compensation Book. He, therefore, pleaded that he was entitled to the re‑transfer of the shop in his favour on payment of Rs. 6,803. He thus claimed decree for specific performance of the agreement and transfer of the shop in question in his favour on payment of Rs. 6,803.28.

5. The suit was resisted by the respondent who pleaded inter alia that there was no agreement to the effect that the appellant would pay price @ 50 paisa per rupee and that in fact she paid Rs.14,093.60 and that the appellant always refused to pay this amount to the respondent and that he has also failed to pay monthly rent in accordance with the terms of the agreement to her.

6. In view of the parties' pleadings, the learned Senior Civil Judge framed the following issues:‑‑

(1) Whether the suit is not within the jurisdiction of this Court? OD.

(2) Whether the agreement to sell is void? OD

(3) Whether the defendant agreed to receive 50% in cash of the claim utilized by the defendant in purchasing the shop? OD

(4) If not, what is the price payable by the plaintiff to the defendant? OD

(5) Whether the above said agreement is not binding or !?ic defendant and is not enforceable against her?

(6) What should be the court‑fee?

(7) Relief.

7. The appellant examined P.W. 1 Ikram‑ul‑Haq Pleader, P.W. Muhammad Amin, U.D.C. Settlement Department, P.W. 3 Abdul Ghafoor and P.W. 4 Muhammad Sharif. He himself also came into the witness‑box as his own witness as P.W. 5.

8. Respondent examined D.W. 2 Habib Ahmad and she herself appeared as her own witness as D.W.1.

9. After considering the parties evidence, the learned Senior Civil Judge, Montgomery, vide his judgment dated 11‑5‑1906, found issues Nos. 1 and 2 against the respondent. As regards issues Nos. 3 and 4, he concluded that there was not an iota of truth in the appellant's allegation that the parties had agreed that the appellant would pay price to the respondent @ Annas 8 to rupee. He, therefore, found that the actual payment made by the respondent to the Settlement Department towards the price of the shop was Rs. 13,481 and the appellant was under obligation to pay this amount to her. In regard to issue No. 5, he recorded findings to the effect that the plaintiff/appellant had to pay an amount of Rs. 13,481 to the respondent within 5 years and he had also to pay continuously t the rent of the shop in question @ Rs. 25 per mensem but he failed to perform both these conditions and was thus not entitled to the relief of the specific performance of the contract. On issue No. 6, the learned Senior Civil Judge held that the court‑fee paid by the appellant was incorrect as he was required to pay court‑fee on the price of the disputed shop, i.e. at Rs, 13,4,51.

10. In the light of above findings, he dismissed the suit of the appellant with costs.

11. The appellant went in appeal and the learned Additional District Judge vide his impugned judgment dated 8‑12‑1906 upheld the: findings recorded by the learned Senior Civil Judge on all the issues and thus he dismissed the appeal.

12. The learned Counsel for the appellant has urged in the first instance that the agreement Exh. P. 2 evidences the transfer of the shop by the appellant in favour of the deceased/respondent Mst. Umda Begum and also the stipulation on her part to re‑transfer the said slap to the appellant on receipt of the price of the shop paid by her. He thus contended that agreement Exh. P. 2 contained stipulations about conveyance and re‑conveyance of the shop and, therefore, the A title of the appellant in regard to the shop did not extinguish altogether. This argument, I am afraid is baseless. As a matter of fact, the shop in dispute was not transferred by Muhammad Yaqoob appellant in favour of Mst. Umda Begum through agreement Exh. P.

2. It was transferred by some other document which has not been produced in evidence by either of the parties. Document Exh. P. 2 is simply an agreement executed by Mst. Umda Begum in favour of Muhammad Yaqoob whereby she agreed to re‑transfer the shop to the appellant within a period of 5 years if he paid the entire price of the shop to her.

13. It has next been urged on behalf of the appellant that she was even prepared to pay the full price viz. Rs. 13,481 to the respondent and that on payment of this amount his suit could be decreed.

14. It appears from the judgment of the learned Additional District Judge, Sahiwal, that at the stage of first appeal, the appellant offered to pay the full price but by that time the stipulated period had expired. According lo the contents of Exh. P. 2 which was executed on 13‑5‑1960 Mst. Umda Begum, the deceased respondent, had ia‑rced to re‑transfer the shop to the appellant within a period of _.;,‑~ ' =t. .. :<ccution of the agreement if Muhammad Yaqub appellant paid the price of the shop to her which she paid to the Settlement Department. The period of 5 years expired on 12‑5‑1965. The appellant filed the suit for specific performance of the contract on 13‑5‑1965 and being conscious of the expiry of the period, he maintained in paragraph 10 of the plaint that on account of Muharram holidays falling on 11/12th May, 1965, his suit was within time. Before the trial Court, 1‑an~: !1; ::;S;sted for decrcc for specific performance of the contract on payment of Rs. 6,803.28 instead of the full price paid by the respondent i.e. Rs, 13,481. According to the contents of the agreement Exh. P. 2, the time in case of this contract was essence of the contract. After the expiry of the stipulated time B the appellant could not be allowed decree for specific performance of the contract on payment of an amount which he was not earlier willing to pay.

15. It has also been half‑heartedly argued on behalf cf the appellant that in fact the period of 5 years in performing the contract, as incorporated in agreement Exh. P. 2, was to commence from the date when the respondent paid the last inhW: :nt of the price of the shop to the Settlement Department. This argument is d:_void of any substance because it is clearly provided in the document (Exh. P. 2) that the price was to be paid by the appellant to the respondent within 5 years of the execution of the agreement and that is why even in para 10 of the plaint, the appellant who filed the suit on 13‑5‑1965 claimed the suit to be within time as 11th and 12th May, 1965, happened to be holidays on account of Muharram.

16. Needless to observe that there is concurrent finding of fact recorded by the Courts below to the effect that according to the agreement Exh. P. 2, the appellant was required to pay the full price paid by the respondent, to the Settlement Department and not at the rate of annas 8 per rupees as claimed by 11Iin in ,fie suit. ;'~ coils) before analysis of the parties' evidence led in this behalf before the learned trial Court, also leads to the same conclusion. The appellant did not produce the scribe and marginal witnesses of Exh. P. 2 before the trial Court and instead examined Abdul Ghafoor and Muhammad Sharif who were unconcerned persons viz‑a‑viz Exh. P. 2.

17. It is also noteworthy that as per terms of agreement Exh. P. 2, the appellant was to pay regularly rent in respect of the shop in question to the respondent @ Rs. 25 p.m. but he failed to do so. Nothing has been urged on behalf of the appellant to justify his failure to fulfil this condition of the agreement.

18. In the light of the above conclusions, there is no merit in this appeal which fails and is accordingly dismissed with costs.

M.Y.H./105/L

Appeal dismissed.