MUNEER AHMAD And Another vs MUHAMMAD ALI And Another
This matter arises from a petition for leave to appeal against the dismissal of a second appeal by the High Court, which had upheld the first appellate court's judgment decreeing the respondent's suit for specific performance and possession of a half share in a disputed shop. The core legal question concerned whether an agreement to sell executed prior to the issuance of a permanent transfer deed was enforceable, and whether a notice making time the essence of the contract could be raised without prior pleadings or issues. The Supreme Court held that the concurrent findings regarding the non-establishment of the service of notice and the enforceability of the agreement did not warrant interference, especially as no plea had been taken in the written statement nor any issue framed, and evidence could not be re-appraised without the relevant record. The key principle laid down is that a new plea involving the re-appraisal of evidence or matters not pleaded in the written statement and unrepresented by specific issues cannot be entertained at the leave stage before the Supreme Court.
- Whether an agreement to sell entered into before the issuance of a permanent transfer deed is specifically enforceable?
- Can a party raise a plea regarding a notice making time the essence of the contract without having pleaded it in the written statement or framed an issue thereon?
- Will the Supreme Court re-appraise evidence in a petition for leave to appeal when the copy of the evidence has not been furnished?
ORDER
1. M.S.H. QURAISHI, J.--Shop No. P-134 in Ward No. 1, Rail Bazar, Faisalabad, was transferred in favour of Nazir Ahmad (respondent No. 2 herein) who before issue of permanent transfer deed entered into an agreement, on 13-8-1960, with Muhammad Ali (respondent No. 1 herein since dead), the tenant in occupation of the shop, for sale of half share in the shop for consideration of Rs.3,050. The sale was to take place after issue of P.T.D. However, after the issue of P.T.D. On 11-2-1963 in his favour, Nazir Ahmad sold by registered deed, dated 12-8-1964 the entire shop in favour of his son Tariq Mahmood and nephew Muneer Ahmad (petitioner herein) who both were minors at that the.
2. This led to the institution of suit on 25-10-1965 by Muhammad Ali for specific performance of the agreement and for possession of half share in the shop. The suit was dismissed upon a finding, inter alia, that the amount of the consideration had already been re-paid by Nazir Ahmad.
3. Muhammad Ali, however, succeeded in appeal which was accepted and the suit was decreed. A second appeal filed by the petitioners was dismissed by the impugned judgment, dated 30-3- 1980.
2. It is urged that Nazir Ahmad had after the issue of the P.T.D. Sent a notice (Exh.D-10/1) to Muhammad Ali requiring him to perform his part of the contract within thirty days but the same having been refused and the having been made the essence of the contract by the said notice, the contract was no longer enforceable. In this connection it is further submitted that Muhammad Ali did not say a word in rebuttal in regard to the notice. It is to be noted that no such plea had been taken in the written statement nor had any issue been framed in respect of the notice. The first appellate Court and also the High Court have not accepted the fectum of the service of the notice.
4. The contention requires re-appraisal of the evidence and even if such a re-appraisal be permissible, the same cannot be done in the absence of copy of the evidence which has not been furnished. The other contentions raised have already been adequately dealt with by the High Court and no interference is called for in that regard. No case is, therefore, made out for grant of leave to appeal.
5. The petition is dismissed.