NASIM AKHTAR Versus ABDUL HAMEED

MUNIR A. SHEIKH, J. ---The petitioner seeks leave to appeal against the judgment dated 30-10-2000 of the Lahore High Court whereby revision petition filed by her against the judgments of the two Courts below in a suit for specific performance of an agreement of sale has been dismissed.

2. The facts of the case as given by the learned counsel for the petitioner are that the petitioner claimed to have purchased the property in dispute measuring 2 Kanals, 10 Marlas bearing Plot No.108 situated within the limits of Sargodha Municipal Corporation from Shahbaz Khan. There was a dispute between Shahbaz Khan and the petitioner. The latter filed a declaratory suit on 27-1-1980 during the pendency of which without intervention of the Court, the dispute was. referred by the parties to Arbitrator who made the award but the Court declined to make the same rule of the Court for want of jurisdiction through judgment dated 3-6-1980.

3. On 12-11-1980, respondent No. l filed a suit under section 9 -of the Specific Relief Act alleging that he, his mother and two brothers had purchased the said property through open auction held by the Settlement Department on 13-11-1967. On the death of his mother, the other heirs transferred the said property to him as such, he was the sole owner thereof. He alleged that the present petitioner had forcibly taken possession of the property which was contested by the petitioner. Respondent No.2 in this petition appeared in the said suit as witness of respondent No. 1 being his attorney on 29-11-1980. In answer to a question put to him in cross- examination as to value of the property, he made the following statement:--

After that, with the permission of the said Court, the petitioner deposited the said amount of Rs.24,000 on .11-11-1982 but before that; respondent No.1 had made an application repudiating the said statement/offer made by his attorney 'praying that the said statement be declared to have been given without any lawful authority, was void, nullity in the-eye of law and was collusive. It was also urged that before making of the said statement/offer, his attorney did not consult him.

4. The trial Court through order, dated 21-1-1982 accepted the said application. It was held that the offer made .by the attorney was merely a supporting offer and its acceptance did not constitute a lawful agreement/contract between the parties and within the contemplation of section 2-A of the Contract Act. This order was challenged by the petitioner by tiling revision petition before the learned District Judge which was dismissed through order, dated 21-6-1983. The relevant portion of this order is reproduced below in extenso for the disposal of this petition revolves around the interpretation and construction as to scope of this order on the rights of the petitioner to claim relief for specific performance of the agreement claimed in the instant suit from which this petition has arisen being a contract for facility of ready reference:-- .

"7. Arguments of the learned counsel for the petitioner that the respondent cannot resile from the compromise and the decree should be passed in terms of the compromise under Order 23, rule 3, C.P.C. are fallacious. He has also contended that the power of attorney in favour of Rashid Iqbal Khan revealed that the attorney had been empowered to prosecute the case on behalf of the respondent and also to effect compromise. Therefore, the offer made by the attorney amounts to an offer on behalf of the respondent and that the respondent cannot revoke that offer. There is nothing on record to show that the respondent No.2 had made that offer after having the specific instruction of the respondent No.1 or after having consultation with him, while the respondent had stated in his application that the disputed offer was made by the attorney without consulting him and without his instruction. The petitioner had attached an affidavit in support of his contention while the respondent had not filed any counter-affidavit. This shows that the attorney had made the disputed offer without having consultation with the respondent. In this way, the respondent was at liberty to repudiate the offer under section 215 of the Contract Act. The manner in which the offer was made did not amount to an offer within the meaning of section 2 of the Contract Act. The trial Court had not committed any illegality or material illegality in passing the impugned order. Hence there is no force in the revision petition, it is hereby dismissed leaving the parties to bear their own costs."

5. The petitioner challenged this order through Writ Petition No.4066 of 1983 before the Lahore High Court which was dismissed through judgment dated 1-10-1983. She did not agitate the matter any further against the order, dated 21-6-1983 and instead filed the instant suit for specific performance of the agreement alleging that the offer made by the attorney of respondent No.1 was binding on him. It having been accepted by the petitioner and the amount deposited, it became a concluded and binding contract between the parties which could be enforced through the Court of law. The suit was contested by respondent No. 1.

6. The trial Court through judgment dated 27-10-1984 dismissed the suit. The appeal filed by the petitioner was also dismissed by the First Appellate Court through judgment, dated 10-12-1984 and revision petition filed by her has also been dismissed by the learned Judge in Chamber of the High Court through the impugned judgment dated 30-10-2000 against which leave is sought.

7. Learned counsel for the petitioner argued that the findings of the Courts in the suit filed by respondent No.1 under section 9 of the Specific Relief Act to the effect that the offer made by respondent No.2 as attorney of respondent No. l which was accepted by the petitioner was merely a supporting offer and covered. by the principle laid down in the judgment reported as Azizur Rahman and others v. Muhammad Afzal Khan and another (PLD 1956 (W.P.) Peshawar 55) and the repudiation made by respondent No.1 through the application was covered by section 215 of the Contract Act were not sustainable in law, for neither the principle laid down in the said reported judgment nor section 215 of the Contract Act was attracted to the offer made by respondent No. 1 and accepted by the petitioner and that the said offer made .by respondent No.2 as attorney of respondent No. l did constitute a valid offer as contemplated by section 2-A of the Contract Act on acceptance by the petitioner's deposit of the amount, a concluded lawful agreement/contract had come into being between the parties which could be enforced through Court.

8. In our considered view, this argument cannot legally be allowed to be raised in the present suit for specific performance of the said offer and acceptance as an agreement, for in the earlier suit under section 9 of the Specific Relief Act in which it was made, it was not given effect to as a lawful agreement between the parties and the Court refused to pass decree in accordance therewith as provided by Order XXIII, Rule 3, C.P.C. by holding that no lawful agreement/contract had come into existence as the offer made by the respondent was merely a supporting offer and was not covered by section 2-A of the Contract Act. The revision petition filed by the petitioner against the order of the trial Court in the said suit allowing the application of the respondent on the aforementioned ground was dismissed with the express finding to the effect that the attorney had made the disputed offer without having consulted the respondent, therefore, the respondent was at liberty to repudiate the said offer under section 215 of the Contract Act. It was also held that the manner in which the offer was made did not amount to an offer within the meaning of section 2-A of the Contract Act, therefore, the trial Court had not committed any illegality or material illegality in passing the impugned order, therefore, the revision petition was liable to be dismissed. With petition filed by the petitioner against the said judgment was admittedly dismissed by the Lahore High Court, therefore, the decision on the question whether the said offer was an offer within the contemplation of section 2-A of the Contract Act or the same could be repudiated even if it was an offer of the nature as provided in section 2-A ibid which brought into existence a lawful agreement/contract between the parties enforcible through Court of law as a contract having been decided against the petitioner had its correctness could not be challenged in the suit for specific performance of the same offer as a contract.

9. Faced with this difficulty, learned counsel for the petitioner tried to overcome it by arguing that:--

(a) The scope of the suit filed under section 9 of the Specific Relief Act was limited to the determination of a question whether the plaintiff in the said suit had been forcibly dispossessed and nothing more.

(b) The learned District Judge while dismissing the revision petition through order, dated 21-6-1983 on which reliance is being placed to debar the petitioner from filing the present suit made the following observation which according to learned counsel had reserved a right in the petitioner to seek remedy of specific performance of the said offer as 'an agreement:--

"With the observation the petitioner could seek separate remedy for this offer even it' advised so."

10. None of the contentions has impressed us. The scope of a suit filed .under section 9 of the Specific Relief Act as to determination of the disputes raised therein may be limited to the only question whether the plaintiff had been forcibly dispossessed but the question whether the said offer had brought into existence any valid lawful agreement between the parties was a question directly involved in the said suit whether the same could be given effect to as compromise within the contemplation of Order XXIII, Rule 3, C.P.C. and the suit decided in terms thereof within the limited scope of the relief claimed in the said suit, therefore, the findings of the said Court on this question as to the legal effect of the offer made by respondent No. l and acceptance by the petitioner are binding on the petitioner and separate suit could not be filed using the same offer as contract. The observation made by the learned District Judge in the concluding part of his judgment, dated 21-6-1983 after holding that the said offer was not an offer within the contemplation of section 2-A of the Contract Act and did not bring into existence any binding contract between the parties cannot be construed to have reserved a right in the petitioner to use the same as contract by seeking independent remedy, therefore, the said observation would only mean that except remedy in relation thereto as a contract, the petitioner could if available pursue any other remedy.

11. Since the present suit was rightly held to be not maintainable in view of the said findings of the Court in the suit under section 9 of the Specific Relief Act, which could neither be gone into nor challenged in the present suit.

12. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave to appeal refused.

Q.M.H./M.A.K./N-67/S Petition dismissed.