BARKAT ULLAH Versus WALI MUHAMMAD

ORDER

SAAD SAOOD JAN, J .‑‑‑Yousaf Ali and Nur Muhammad, predecessor‑in‑interest of the petitioners, entered into an agreement with the predecessor‑in‑interest of the respondents for the sale of a share in the property left by one Rehmatullah, deceased. It may be mentioned that while entering into the agreement Nur Muhammad was also acting on behalf of one of his sisters, namely, Mst. Bashiran. The suit was decreed by the trial Court and the petitioners' first appeal before the Additional District Judge and second appeal before the High Court remained mainly unsuccessful. They now seek leave to appeal from this Court.

2. In support of this petition two contentions have been raised. To begin with it is pointed out that in their plaint the respondents had asked for compensation in the event the relief of specific performance was not granted to them; in view of this position, it is argued, the Court ought not to have insisted upon the respondents to specifically perform the agreement. We find little merit in this contention. It is usual for parties seeking specific performance of an agreement for the sale of land to pray in the alternative for the relief of compensation. But then, the mere fact that a party has asked for compensation as an alternate relief does not imply that it no longer insists upon the specific A performance of the agreement. The position in law in this regard was examined by this Court in the case of Abdul Karim v. Muhammad Shafi (1973 SCMR 225). It was observed:

"We are unable to accept this contention in view of the clear provisions of the Specific Relief Act which is applicable in this country. Section 12 provides that the specific performance of the contract may be enforced in the discretion of the Court. Explanation to section 12 of the Act clearly states that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved. Section 19 provides that any person suing for specific performance of a contract may also ask. for compensation for its breach, either in addition to, or in substitution for, such performance. Section 20 says that a contract, otherwise proper to be specifically enforced, may be‑ thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same. Section 22 provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

The aforesaid provisions thus clearly empower the Court to decree a specific performance of the contract even though a sum be named in the contract as the amount to be paid in case of its breach."

This being the legal position we find no merit in the first contention of the petitioners.

3. It appears that after the agreement for sale had been entered into, Mst. Ghulam Fatima, daughter of Rehmatullah filed a suit, claiming that she was the owner of the entire property under a will executed by her late father. In view of this position the parties to the agreement agreed that the enforcement thereof should be postponed till the decision of the suit. This happened after the death of Mst. Bashiran. The second contention on behalf of the petitioners is that the agreement by which the time for the execution of the 8 agreement was extended was in essence novation of the earlier agreement; as it came into existence after the death of Mst. Bashiran her heirs were not bound by it. This contention was also raised by the petitioners before the High Court but was rejected with the observations that the understanding between the parties with regard to extension in the period of the performance of the agreement to sell did not constitute a new agreement and that the respondents were only seeking performance of the earlier agreement to which Mst. Bashiran was a party through her attorney and brother, Nur Muhammad. We see no reason to take a different view in the matter. This petition is without any merit and is hereby dismissed.

AA./B‑230/S Leave refused.