Malik LIAQUAT ALI (decd.) Versus Mst. SHARIFAN BEGUM (decd.)
ORDER
NAEEM AKHTER AFGHAN, J.--- In the suit for ejectment and specific performance of agreement, the claim of the predecessor of the petitioners was based on the unilateral agreement to sell dated 15.02.1993 bearing signature of Malik Jamil Iqbal, Advocate as attorney of the defendants. It does not bear signature or thumb impression of the predecessor of the petitioners i.e. Malik Liaqat Ali. The execution of unilateral agreement to sell dated 15.02.1993 has categorically been denied by the defendants in Para-3 of their written statement and they termed the same as fictitious and fraudulent. As per contents of the written statement, previously an Iqrar Nama dated 03.11.1989 was executed between the predecessor of plaintiffs, defendant No.1 and predecessor of defendants Nos.4 to 9 for sale/purchase of the same land for which earnest money of Rs.50,000/- was received with the condition that the remaining sale price shall be paid by the predecessor of the petitioners within 06 months but due to non-fulfilment of the terms and conditions of the Iqrar Nama dated 03.11.1989, the earnest money was forfeited and the deal/transaction stood cancelled.
2. After framing issues arising out of pleadings of the parties and recording evidence, the suit filed by the predecessor of the petitioners was decreed by the learned Senior Civil Judge, Sialkot (the trial court) vide judgment and decree dated 01.04.2002. Feeling aggrieved, the respondents preferred appeal which was accepted by the learned Additional District Judge, Sialkot (first appellate court) vide judgment and decree dated 06.07.2007.
3. Feeling aggrieved by the judgment and decree dated 06.07.2007 passed by the first appellate court, instead of filing revision petition under section 115 of the Code of Civil Procedure (C.P.C.) , the predecessor of the petitioners opted to file second appeal (R.S.A. No. 95 of 2007) under section 100, C.P.C. before the Lahore High Court, Lahore (second appellate court) which has been dismissed vide impugned judgment and decree dated 11.05.2015.
4. In pursuance of notices issued to the respondents on 27.03.2025, learned counsel for respondent Nos. 1(i,iii,iv) appeared on 27.11.2025. Despite service, none appeared on behalf of the remaining respondents and as such they were proceeded against ex-parte by this Court vide order dated 27.11.2025.
5. After hearing learned counsel for the petitioners and learned counsel for respondent Nos.l(i,iii,iv) at length, we have perused the available record. At the time of passing impugned judgment dated 11.05.2015 by the second appellate court, the judgment dated 01.01.2015 passed by two members bench of this Court in the case of Farzand Ali v. Khuda Bux 1 was prevailing/holding the field. Relevant portions of para 9 of the said judgment with regard to the claims based on unilateral agreement are reproduced hereunder:
"9. In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants agreement has not been signed by them ........................ .. ...............................................................................the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which unmistakably means, that an agreement is founded upon offer and acceptance.. ............ .but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. .But in this case this is conspicuously lacking by virtue of nonexecution (non-signing) of the agreement by the appellants, therefore in law and fact it is no contract (agreement).
6. In view of the above judgment dated 01.01.2015 passed by two members bench of this Court in the case of Farzand Ali holding the field and having binding effect under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the impugned judgment dated 11.05.2015 passed by the High Court is not suffering from any illegality.
7. Subsequently while deciding the case of Muhammad Sattar v. Tariq Javed 2 vide judgment dated 11.11.2016, five members bench of this Court laid down as follows with regard to the claims based on unilateral agreement:
"The primary and basic law relating to the contracts is obviously the Contract Act, 1872. The essentials of a valid contract are an offer communicated, the unconditional acceptance of such offer and consideration. There is nothing in the Contract Act, 1872 which requires that such offer and acceptance must necessarily be in writing or form a single document. The law i.e. the Contact Act, 1872 envisages a valid enforceable contract, which may even be oral ..... ...............................................................................Similarly, once an offer is communicated, the performance of the conditions of the proposal or the acceptance of any consideration or part thereof offered with the proposal also constitutes an acceptance so as to bring about a valid binding contract between the parties, as is obvious from the bear reading of section 8 of the Contract Act, 1872... .. No doubt, the Contract Act, 1872 may not be the only law applicable to the transactions enumerating the requisite formalities. Various special laws pertaining to certain specified species of contracts also hold the field and the provisions thereof may envisage certain additional requirements to bring about a valid contract.............................................................. .. The courts in Pakistan, while interpreting the various provisions applicable, more particularly, sections 8 and 9 of the Contract Act, 1872, have repeatedly and consistently held that the contracts in general do not require to be reduced into writing (except where otherwise specifically provided by law) and the offer and acceptance can also be implied from the conduct of the parties in terms of sections 8 and 9 ibid and the absence of formal signatures does not effect the validity or enforceability of the Contract Act, 1872................................................. ...............................................................................It is now a well settled proposition of law that for a valid contract, the same can be oral or it may be through exchange of communication between the parties. Once an offer is communicated, the acceptance thereof can be expressed or implied. Such acceptance of the offer would include accepting the consideration accompanying the offer or acting upon the said bargain. There is no requirement of a formal signature of both or either of the parties. All that is required is an offer and acceptance and consideration between the parties................ ..............................................................................At this juncture it may be pertinent to mention that all valid contracts are not specifically enforceable but nevertheless may give rise to rights and liabilities, and the breach thereof may entitle the offended party to seek compensation/damages in terms of sections 73 and 74 of the Contract Act, 1872.............. ..............................................................................Thus, it appears that the proposition of law that an Agreement to Sell not signed by one of the parties if proved to have been accepted and acted upon would be a valid Agreement to Sell, is a valid contract enforceable in law has in fact been reiterated ...............................................................................In view of the above, it is evident that the proposition that where an Agreement to Sell pertaining to immovable property is not signed by one of the parties thereto, in each and very eventuality, is invalid and not specifically enforceable is fallacious and contrary to the law. The existence and validity of the Agreement and it being specifically enforceable or otherwise would depend upon the proof of its existence validity and enforceability in accordance with the Qanoon-e-Shahadat Order, 1984, the relevant provisions of the Contract Act, 1872, the Specific Relief Act, 1877 and any other law applicable thereto.
8. While relying upon the above dictum laid down by this Court in the case of Muhammad Sattar , learned counsel for the petitioner requested to remand the matter to the second appellate court for deciding the second appeal on merits after dilating upon/re-evaluating the evidence available on record. The request has strongly been opposed by learned counsel for the contesting respondents with the contention that the evidence available on record has rightly been appreciated/re-evaluated in accordance with law by the first appellate court and there is no scope for the second appellate court under section 100, C.P.C. to re-evaluate the evidence of the parties as while deciding second appeal under section 100, C.P.C., the second appellate court has to consider/dilate upon substantial question of law instead of interfering on pure question of facts. Section 100 of the C.P.C. reads as follows:
"Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:-
(a) the decision being contrary to law or usage having the force of law;
(b) The decision having failed to determine some material issue of law or usage having the force of law;
(c) A substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
9. According to the settled principles of law as laid down by this Court in different cases, the jurisdiction of a High Court under section 100, C.P.C. is constricted to appeals encompassing a substantial question of law rather than causing interference on a pure question of fact; while taking cognizance by means of second appeal under section 100, C.P.C. it is a foremost fragment of jurisdiction to formulate the question of law which is inherent in the spirit of such jurisdiction; section 100 of C.P.C. can be set into motion only when the decision is contrary to law, fails to determine some material issue of law and substantial error or defect in the procedure provided by the code or law; in the second appeal provided under section 100, C.P.C., the High Court cannot interfere with the findings of fact recorded by the first appellate court rather the jurisdiction is relatively delineated to the question of law which is sine qua non for exercising the jurisdiction under section 100, C.P.C.; reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100, C.P.C. 3
10. The request made by learned counsel for the petitioner for remanding the matter to the second appellate court for deciding the same afresh after dilating upon/re-evaluating the evidence available on record in the light of the dictum laid down by five members bench of this Court vide judgment dated 11.11.2016 in the case of Muhammad Sattar cannot be accepted as reappraisal of evidence by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C.
11. For safe administration of justice and in the light of dictum laid down by this Court in the case of Muhammad Sattar , we have thoroughly gone through the evidence available on record and have also perused the judgments passed by the trial court as well as the first appellate court which are at variance. The evidence produced by the predecessor of the petitioners is inconsistent and same is suffering from glaring contradictions with regard to purchase of stamp papers, writing/execution of unilateral agreement dated 15.02.1993 as well as the alleged payment of earnest money/consideration. The predecessor of the petitioners had failed to prove the execution of unilateral agreement dated 15.02.1993 as well as payment of earnest money/consideration. It reveals that while decreeing the suit in favour of the predecessor of the petitioners, the trial court had misread and mis-appreciated the evidence available on record. After reevaluating/ properly appreciating the evidence available on record, the first appellate court had rightly dismissed the suit of the predecessor of the petitioners. The judgment and decree passed by the first appellate court is neither contrary to law nor the same is suffering from any substantial error or defect in the procedure. The findings of fact recorded by the first appellate court against the predecessor of the petitioners, being in accordance with law and the evidence available on record, is immune from interference by the second appellate court in exercise of jurisdiction under section 100, C.P.C.
12. In view of all the above, it is concluded that the impugned judgments passed by the first appellate court as well as second appellate court are not suffering from any illegality warranting interference by this Court.
13. The above are the reasons of our short order of even date whereby while refusing leave to appeal, the petition was dismissed.
MH/L-2/SC Petition dismissed.
2 2017 SCMR 98.
3 Bahar Shah v. Manzoor Ahmed (2022 SCMR 284).
Muzaffar Iqbal v. Riffat Parveen (2023 SCMR 1652).
Mir Gul v. Zafar Mehmood (2024 SCMR 1496).
Anwar ud Din v. Raza Haider (PLD 2025 SC 31).
Muhammad Azam v. Muhammad Aijaz (PLD 2025 SC 567).