7/12/23, 3:44 PM Complete Case Judgment

P L D 2015 Supreme Court 187

 
Present; Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ
 
FARZAND ALI and another---Appellants
 
Versus
 
KHUDA BAKHSH and others---Respondents
 
Civil Appeal No.261-L of 2014, decided on 1st January, 2015.
 
(a) Specific Relief Act (I of 1877)---
 
----Ss. 12 & 22---Specific performance of an agreement to sell---Decree---Discretion of court---Scope---Grant
of specific enforcement of an agreement to sell pertaining to an immovable property was a discretionary
relief---Even in cases where the agreement to sell was validly proved by the plaintiff, the courts may refuse to
allow the relief of specific enforcement---Court was neither obliged to grant the relief of specific performance
nor could the plaintiff claim it as a matter of right.
 
            Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506; Mst. Mehmooda Begum v.
Syed Hassan Saijad and 2 others PLD 2010 SC 952; Shakeel Ahmed v. Mst. Shaheen Kousar 2010 SCMR
1507 and Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900 ref.
 
(b) Specific Relief Act (I of 1877)---
 
----Ss. 12 & 22---Transfer of Property Act (IV of 1882), S. 52---Suit for specific performance---Principle of
lis pendens---Scope---Consent decree, authenticity of---Scope---Agreements to sell---Dispute between two
rival vendees (appellant and respondent) inter se against a common vendor---Both vendees filing suits for
specific performance of their respective agreements against common vendor in respect of the same property---
During pendency of appellant's suit for specific performance, vendor entered into a compromise with the
respondent, whereafter a consent decree was passed in the respondent's suit---Sale deed was executed and
registered by the vendor in favour of the respondent despite pendency of appellant's suit---Legality---
Although appellant was not a party to the suit filed by the respondent, but it was not established that the
respondent was aware of the agreement to sell between appellant and vendor or that appellant was
deliberately not arrayed as a party---Suit filed by respondent was decreed through a compromise between the
respondent and vendor, wherein the vendor expressly and unambiguously acknowledged, accepted and
admitted the agreement to sell between him and the respondent---Subsequent to such consent decree sale deed
was executed and registered by the vendor in favour of the respondent---Even if it was assumed that the
respondent was aware of the suit filed by the appellant for specific performance, no cross-examination was
conducted on the respondent's assertion that he did not file any written statement therein or that he was not
served in the case---Nothing was available on record to suggest that the respondent acted fraudulently and
misrepresented the actual owner, the vendor of the property, in entering into the compromise or procuring the
consent decree and/or ultimately securing the sale deed in his favour---Compromise between respondent and
vendor was a lawful compromise by all means and the sale deed in favour of the respondent was duly
executed by the vendor for lawful consideration---Appellant had not signed his agreement to sell, therefore in
law there was no contract---Besides appellant failed to furnish two attesting witnesses to prove his agreement
to sell---Even otherwise no steps were shown to have been taken by the appellant for the performance of his
obligations under the agreement---Appellant in his plaint never averred that he was ready and willing to pay
the balance consideration to the vendor and have the deal accomplished---Appellant neither made any attempt
to pay the balance amount nor proved that he had the requisite money at the relevant point in time and was in
a position to pay the same---Moreover, appellant's agreement to sell was subsequent in time to the agreement
of the respondent---Appellant did file an application for his impleadment in the suit of the respondent,
however such application was subsequently withdrawn with the plea that it was done for the purpose of filing
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