Summary Of the Case

Citation: 2023 SCMR 1390.

Court: Supreme Court of Pakistan.
Date of Hearing: 17th May, 2023.
Judges: Munib Akhtar and Jamal Khan Mandokhail, JJ.
Parties: Said Rasool (Appellant) Vs. Maqbool Ahmed and others (Respondents)
Advocates: Ch. Iqbal Javed Dhillon, ASC for the Appellant, and Zafar Iqbal Chohan, ASC for the Respondents.
Statues: Contract Act (IX of 1872) … Sections: 2(h) & 10, Qanun-e-Shahadat Order (X of 1984) … Articles: 17(2) & 79,
Specific Relief Act (I of 1877) … Section: 12.
Precedents: PLD 1971 SC 784; 2006 SCMR 721; 2017 SCMR 98 and 2020 SCMR 832 ref.

JUDGMENT
Facts:
The Respondents filed aS suit in a Civil Trial Court for specific performance of an oral and unsigned agreement U/S.
12 of the Specific Relief Act (I of 1877) against the appellant. The Trial Court decreed in the favor of the Respondents.
The Appellant filed an appeal in the District Court, Kamalia against the judgement of the Trial Court. The appeal was
partly entertained by the Additional District Judge.
The Respondent filed a Revision Petition in the Lahore High Court. The court’s decision was again in the favor of the
Respondents.
Here, the Appellant filed an appeal in the Supreme Court U/Ss. 2(h) & 10 of the Contract Act (IX of 1872), and Arts.
17(2) & 79 of the Qanun-e-Shahadat Order (X of 1984).

Issues:
 Whether an unsigned agreement was valid?
 Whether its specific performance could be ordered?

Arguments by the Appellant:

The Appellant had not considered the agreement as a valid contract, for it was not signed by the parties. Thus, the
specific performance cannot be ordered U/S. 2(h) of the Contract Act (IX 0f 1872)1. Since the agreement was not a
contract, it could not be enforced.
Moreover, free and mutual consent is sine qua non for a valid contract U/S. 10 of the Contract Act (IX 0f 1872) 2. As a
written agreement is an instrument to declare parties’ consent, it shall be reduced to writing, and shall be signed by
each party in order to be legally bound.
Besides, the agreement shall be attested by two men, or one man and two women for a valid contract, if it pertains
financial or future obligations, under Art. 17(2) of the Qanun-e-Shahadat Order, 1984. Similarly, the written
document should not be used as evidence until the attesting witnesses are called for the purpose of proving its
execution under Art. 79 of the QSO, 1984.

Arguments by the Respondent:

The situation of the arguments presented by the Appellant, under Art. 17(2) & 79 of the QSO, 1984, is quite different,
because the agreement was to be performed orally and there was no further intention of their agreement to be
reduced in writing.
The agreement performed orally and reduced to writing, but not signed by the either or one of the parties, may still
be valid and enforceable if the requirements of a valid contract are proved through reasonable evidence by the party
relying upon it. [PLD 1971 SC 784]
Thus, the specific performance of the contract can be ordered.
 Answers to the issues.

1: which states that, “An agreement enforceable by law is a contract.”

2: what agreements are contract? free consent and capacity of the parties, lawful consideration, lawful object, not expressly declared void.
Decree of the Court:
 Cross-Examination of the Marginal Witnesses produced by the Appellant have confirmed the
contents of the plaint.
 The appellant’s acceptance of part payment of the consideration to the respondents directed by the
Appellate Court, and other actions indicated his intention to enter into a valid agreement.
On the basis of the foregoing evidences, the Supreme Court held that the findings of the High Court and the
Trial Court were based on proper appreciation of the evidence and material available before them, and
dismissed the appeal.

Conclusion:
A legal maxim “consensus ad idem” states that, ‘agreement or meeting of the mind of the parties and mutual
understanding of the terms is what indispensable for a valid contract.’
An agreement which was not signed by the vendee and was signed only by the vendor was held to be a
concluded contract. The court said that what was necessary for enforceability was ‘consensus ad idem’. Suit
for specific performance can be maintained even on the strength of an oral agreement. [Mohd Abdul
Hakeem vs. Naiyaz Ahmad, (2004) 3 CLT 137 (AP)]
An agreement can be expressed and implied, not necessary to be reduced in writing and signed by the
parties. [S. 9 of the Contract Act, 1872]
Similarly, in Sharia, writing and signing of an agreement is not essential; however, it’s better to write and sign
an agreement to prevent disputes. [Al-Baqarah:282]
Hence, based on all the considerations recorded above, the decision of the Supreme Court was correct.