MUHAMMAD SIDDIQUE Versus SYED HUSSAIN
The petitioner, a defendant in a civil suit, sought leave to appeal against the judgment of the Lahore High Court dismissing his second appeal in limine. The plaintiff-respondents had instituted a suit for specific performance of an agreement to sell a shop, which the trial court and the first appellate court decreed after framing issues regarding undue influence, duress, and lack of consideration. The core legal question was whether a variance between the pleaded mode of payment of earnest money (cash versus adjustment of a partnership loan) and the proof thereof vitiated the suit for specific performance when the execution of the agreement and receipt of the amount were admitted by the defendant. The Supreme Court held that the petitioner's unequivocal admission of executing the agreement and receiving the amount rendered the mode of payment immaterial, and a departure in the mode of payment did not defeat the claim for specific performance. The Court laid down that minor variances in the mode of consideration, where the execution of the agreement and receipt of funds are admitted by the promisor, do not invalidate a decree for specific performance.
- Whether a variance between the pleaded mode of payment of consideration and the proof thereof is fatal to a suit for specific performance?
- Does an admission of the execution of an agreement to sell and receipt of consideration cure discrepancies in the pleadings regarding the mode of payment?
- Can a defendant raise a new plea regarding partnership accounts at the appellate stage when it was not made an issue at trial?
ORDER
SHAFIUR RAHMAN, J. --The petitioner, a defendant in a civil suit, seeks leave to appeal against the judgment of the Lahore High Court dated 12-4-1980 whereby his second appeal was dismissed in limine.
2. The plaintiff-respondents sought specific performance of an agreement executed by the petitioner wherein he had undertaken to sell a shop located in Mandi Chuharkana to them on receipt of Rs.6,000. At first the date given for specifically performing the agreement was 5-7-1966 which was later extended by the petitioner to 5-9-1966. In resisting the suit the petitioner pleaded undue influence and duress in executing the agreement and that it was without consideration. Issues were framed accordingly. The trial Court decided both the issues against the petitioner and decreed the suit. The first appellate Court upheld the judgment and decree. The High Court dismissed his second appeal in limine.
3. Mr. Masood Akhtar, Advocate, the learned counsel for the petitioner contended before us that the case of the plaintiff-respondents throughout was that they had paid the earnest money in cash, but not only the evidence but also the finding of the two Courts was that no such amount in cash was ever paid to the petitioner and the satisfaction was claimed by way of adjustment of the outstanding loan owed by the petitioner in a partnership which was earlier dissolved. According to the learned counsel for the petitioner, such a material departure from the pleadings should not have been allowed and the case of the plaintiffs should have been held to be not proved.
4. So far as the merits of the controversy and the decision on the issues framed is concerned, the first appellate Court had summarised the statement of the petitioner himself as hereunder:-
" .....The statement of Muhammad Saddiq appellant would show that the agreement deeds were duly executed by him in favour of respondent and the amount of Rs.26,662.26 was received by the firm of the appellant and his partners from the respondents. The appellant had also admitted that he had affixed his signature on Exhs. P.1 and P.2, which were read over to him in the presence of witnesses. He has also admitted that he was the only owner of the shop in question. It was further admitted by him that when period of first agreement was ended, he executed the second agreement Exh. P.2 in favour of respondent etc. It was further admitted by him that the letter P.3 was written by him to the respondent etc. The statement of appellant referred to above would show that there is nothing on the record to say that the agreements in question were obtained by the respondent etc. under undue influence or without consideration."
5. In view of such an admission, it is established that the petitioner admitted the execution of the agreement to sell and all that was contained in it including the receipt of the amount. He also in that admitted the receipt of the amount. He stands by his statement. For the substance of the controversy, therefore, it would hardly be very/ material as to whether he received it in cash or by way of an adjustment of an admitted liability worked out amongst the partners and accepted by the petitioner.
6. It appears from the arguments addressed at various stages that at first the petitioner pleaded undue influence in getting the deed executed and want of consideration. Subsequently, after admitting the due execution of the agreement, he disputed the legality of the liability thrown on him so far as the partnership account was concerned. It was in that context that want of consideration was pleaded. That matter was not in issue and not having been specifically raised could no be adjudicated upon at the appellate stage. Besides, the contention of the petitioner at this stage appears to be not that there was no consideration fixed or mentioned but that the mode of its payment was different from one that was pleaded and sought to be proved. This would not make much of difference to his liability under the agreement to specifically perform it.
7. There is no merit and the leave to appeal is refused.
M.I./M-209/S Petition dismissed.