Muhammad Tayyab Zameer Khan, Advocate for petitioner.

Nadeem Akhtar Ch., and Malik Muhammad Qasim Awan, Advcoates for respondent.

Date of hearing: 16^th May, 2022.

JUDGMENT

Sultan Tanvir Ahmad, J:––Through the present Civil Revision, filed under Section 115 of the Code of Civil Procedure, 1908 (the ‘Code’), the petitioner has assailed the judgment and decree dated 07.07.2021 passed by learned Additional District Judge, Bahawalpur whereby, judgment and decree dated 06.07.2018 passed by learned Civil Judge, 1st Class / Model Civil Court, Bahawalpur in civil suit No. 52 of 2018, has been upheld.

2.           Facts, necessary for the disposal of the present revision, are that respondents No. 1 to 4 being the owner in possession of property measuring 311-Kanals 10-Marlas in Khata No. 1014, as per record of rights pertaining to the year 2003-2004, falling in Mouza Hotwala, Tehsil & District, Bahawalpur, as further detailed in the suit (hereinafter called as the ‘suit property’) entered into sale agreement dated 03.02.2006 with the petitioner, Irshad Azeem and Abid Azeem, (respondents No. 5 and 6) (hereinafter called as the ‘sale agreement’), for consideration of Rs.21,382,110/- and received Rs.1,000,000/ from the petitioner and respondents No. 5 to 6, as earnest money. As per the claim of the petitioner, 58-Kanals and 12-Marlas was purchased by the petitioner and respondents No. 5 to 6 purchased the remaining part of the suit property; that petitioner asked the respondents No. 1 to 4 to receive the consideration of Rs.3,522,445/- and transfer the property measuring 58-Kanals and 12-Marlas from the aforesaid Khasra in the name of the petitioner and upon delay on the part of the said respondents, legal notice was sent, however, when they flatly refused to receive the said legal notice and perform the sale agreement to the extent of land measuring 58-Kanals and 12-Marlas, suit for specific performance was filed on 19.07.2006.

3.           This suit was contested by respondents No. 1 to 4 by filing written statement, raising legal as well as factual objections that resulted into framing of the following eight (08) issues :-

1.     Whether the defendants No.1 to 4 entered into agreement dated 03.02.2006 with the plaintiff and defendants No. 5 and 6 for the sale of land measuring 58-Kanal, 12-Marlas for consideration Rs.40,22,445/- and the plaintiff has paid earnest money Rs. 05,00,000/-? OPP

2.     Whether this suit is not proceedable in its present form? OPD

3.     Whether the plaintiff has not come to the court with bonafide intention? OPD

4.     Whether this civil suit is for the part performance which is not legally allowed, therefore, this suit is liable to be dismissed? OPD

5.     Whether one of the vendees Abid Azeem already had filed a civil suit in the court of Muhammad Jahangeer Wains, learned Civil Judge 1st Class, Bahawalpur which was dismissed as withdrawn on 10.07.2006 and the present plaintiff had not become party to that said civil suit inspite of the fact that he was aware of pendency of that civil suit, therefore, this suit is liable to be dismissed? OPD

6.     Whether this suit is liable to be dismissed on the principle of estoppel? OPD

7.     Whether this suit is liable to be dismissed on the principle of resjudicata? OPD

8.     Whether this suit has been filed on the basis of false and baseless facts and with malafide intention merely to harass the defendants No. 1 to 4, therefore, they are entitled to special costs u/s 35-A of CPC from the plaintiff? OPD

4.           Parties led their respective evidence. Petitioner appeared as PW-2, Arif Mehmood (officer of Faisal Bank), Muhammad Ashraf s/o Umer Din, Ch. Muhammad Jameel, Muhammad Javed s/o Bashir Ahmad, Waqar Nawaz Khan Advocate, Khizar Hussain Shah and Jalil Khan Advocate appeared as PW-1, 3 to 7. As documentary evidence, Exh. P1 to Exh.P20 were brought on record from the petitioner’s side.

5.           Komal Iqbal/respondent No. 4 appeared as DW-1 and one Nadeem Ahmad appeared as DW-2 to support her evidence. As documentary evidence, Exh.D1 to Exh.D11 were placed on record.

6.           Learned trial Court gave detailed findings and dismissed the suit vide judgment and decree dated 06.07.2018. The said judgment and decree was assailed through Civil Appeal No. 89/2021 on 02.06.2021. The learned Appellate Court vide judgment and decree dated 07.07.2021, concurred the findings of the learned trial Court and dismissed the appeal. Aggrieved from the same, present civil revision has been filed.

7.           Mr. Muhammad Tayyab Zameer Khan, learned counsel for the petitioner has submitted that learned Courts below have fell to an error while reaching to the conclusion that the agreement between the parties was not severable and the same cannot be specifically enforced. He has argued that in this regard, learned Courts below have misinterpreted sections 14 to 16 of the Specific Relief Act, 1877 (hereinafter called as ‘the Act’); that the bar contained in section 17 of the Act does not apply as the case falls within the ambit of section 16 of the Act. Learned counsel for the petitioner has relied upon the cases titled “Karim Nawaz and another Versus Habib Ullah Khan”(2013 SCMR 1408), “Sinaullah and Others Versus Muhammad Rafique and Others”(2005 SCMR 1408), “Malik Tanveer Ali and another Versus Sardar Ali Imam and 2 Others”(2010 YLR 1799), “Rao Aqil Ahmad Khan Versus Mst. Ruqiya Begum and 6 Others”(2002 YLR 1053), “Muhammad Anwar and 2 Others Versus Khda Yar and 25 Others”(2008 SCMR 905), “Kartar Lal Pirwani Versus Muhammad Waqar Azeem and 3 Others”(2018 YLR 2219) and “Haji Sultan Yousaf and Others Versus Mastoria and Others”(2012 YLR 398).

8.           Conversely, Muhammad Nadeem Akhtar Ch. learned counsel for the respondents has submitted that respondents No. 1 to 4 have sold the suit property to the petitioner, respondents No. 5 and 6, as single unit and the same cannot be enforced by the petitioner alone; that property falls in common Khatas and Khasras inherited from the mother of the respondents No. 1 to 4 and the sale agreement does not contain any stipulation as to whose share out of the said respondents is to be delivered in case of the performance of the contract with the petitioner alone hence, agreement is not capable of being performed in part and the case clearly attracts the bar under section 17 of the Act. During the course of arguments, learned counsel for the respondents No.1 to 4, has relied upon the cases titled “Shah Nawaz Versus Ferhat Ali Khan and 2 Others”(2001 CLC 1686), “Muhammad Younas Versus Member, Board of Revenue, Punjab Lahore and 4 Others”(2015 CLC 366), “Provicne of Punjab Versus Qaisar Iqbal and Others”(PLD 2018 Lahore 198), “Mst. Imam Hussain Versus Sher Ali Shah and Others” (1994 SCMR 2293), “Muhammad Hussain Versus Sani Hussain and 2 Others”(2000 SCMR 391), “Ghulam Haider Versus Muhammad Ayub”(2001 SCMR 133).

9.           I have heard the arguments and perused the record with the able assistance of the learned counsel of the parties.

10.         The pivotal question that is pressed by the parties and emerges out of the dispute is as to whether the sale agreement could not have been partially enforced against respondents No. 1 to 4 and in favour of the petitioner. Here, it will be beneficial to reproduce the relevant provisions of the Act, which are as follows:-

14.    Specific performance of part of contract where part unperformed is small. Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

15.    Specific performance of part of contract where part unperformed is large. Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of defendant.

16.    Specific performance of independent part of contract. When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part.

17.    Bar in other cases of specific performance of part of contract. The Court shall not direct the specific performance of a part of a contract except in cases coming under one or other of the three last preceding sections.

(Emphasis supplied)

11.         Section 17 above, clearly prohibits decree of performance of part of the contract, unless the case squarely falls under section 14 to 16 of Act. It is settled law that the splitting up of the contract is not permissible and the contracts are to be performed in their entirely. The detailed aspects of the issue were considered by the Honourable Supreme Court of Pakistan in case titled “Sinaullah and Others Versus Muhammad Rafique and Others”(2005 SCMR 1408) and the following observations in the judgment are highly relevant:-

“13. Partial specific performance can be ordered only in the cases strictly falling within the provisions of above sections 14, 15 and 16. Only those contracts can be specifically enforced which are capable of division then the part which can be specifically performed can be ordered to be specifically enforced. However, if an agreement or contract is such which is an indivisible agreement/contract consisting of one single transaction not permitting splitting up of the transaction, then such a case would not be covered by section 14, 15 and 16 of the Specific Relief Act and the agreement or contract could not be ordered to be partially specifically performed”.

(Emphasis supplied) 

12.         As observed by the Honourable Supreme Court of Pakistan in the above case, specific performance of the partial contract can only be ordered when the case strictly falls within the provisions of section 14 to 16 of the Act. Admittedly, section 14 and 15 of the Act have hardly any relevance with the case at hand. Learned counsel for the petitioner has primarily relied upon section 16 to bring his case in the exception to section 17 of the Act however, the same provides that to direct performance of part of the contract, the said part has to “stand on a separate and independent footing from another part”. Though the shares of the purchasers are specified as 5058/6230 and 1172/6230 from whole lot but there is no mention in the sale agreement as to which share out of the joint property inherited by the respondents No. 1 to 4 is to be transferred to any specific purchaser. No part of the sale agreement is “standing on separate and independent footing” or stands in isolation from the other part. There is no stipulation in the sale agreement as to khasra or Khata number(s) from which the 58-Kanals and 12-Marlas out of the joint shares and / or the whole property is to be given to the petitioner, if such situation arises. In case titled “Wali and 2 Others Versus Manak Ali and 2 Others”(PLD 1965 Supreme Court 651), the Honourable Supreme Court of Pakistan in similar situation has clearly observed that the shares of the purchasers even if specified as long as the contract is one, section 17 of the Act bars the splitting of contract as the law contemplate only one decision of the dispute. It will be advantageous to reproduce the relevant part of the said judgment, which is as follows:-

“Admittedly sections 14, 15 and 16 have no relevance in the present case. According to section 17 there can be no partial specific performance of a contract except in cases mentioned in sections 14, 15 and 16. It is clear that the law envisages performance of a contract in its entirety unless for some reason it be not capable of such specific performance at all. Sections 14 to 16 deal with cases where such reasons exist. Apart from those sections a contract must be performed as a whole. The law does not contemplate that with respect to the agreement there should be a decree for specific performance in respect of one promisee and a dismissal of suit as regards another. The only argument put forward by learned counsel for the appellants in this connection is that the agreement for sale should be interpreted as consisting of two agreements one in favour of each vendee. It is not possible for us to accept this contention. There is only one contract between the parties. The shares of the vendees are not specified) in the agreement, but even if they were specified as long as the contract was one section 17 would bar a splitting up of the transaction. This is one of those cases where the law contemplates only one decision of a dispute. The position is similar to that which arises in cases of pre-emption. With respect to one sale deed which is in favour of more than one vendee, there can only be one suit for pre-emption, though a pre-emptor may have a right of pre-emption with respect to a part of the property, and his right cannot be defeated by including property with respect to which he has no right of pre-emption, It cannot be urged in cases of pre-emption that if there be more than one vendee the transaction should be split up”.

(Underlining is added)       

13.         Petitioner appeared as PW-2 and admitted not having any bargain or mutual understanding between the parties regarding transfer of property from any specific Khata or extent or piece of land to which the two set of purchasers are entitled to have transfer in case of independent/separate performance. The relevant part of the cross-examination of petitioner (PW-2) is as under:-

“میں نے کھاتہ جات متدعویہ میں سے کسی ایک مخصوص کھاتہ کا سودا نہ کیا ہے کیونکہ بائعان کے تمام کھاتہ جات مشترکہ تھے یہ درست ہے کہ Ex.P3 میں کسی جگہ یہ وضاحت نہ ہے کہ میں کس کھاتہ سے رقبہ لوں گا اور دیگر مشترکہ مشتریان کن کن کھاتہ جات سے رقبہ لیں گے یہ درست ہے کہ مدعا علہیم 5 تا 6 کے دعوی جات جو دائر ہوئے تھے وہ خارج ہو گئے تھے۔

14.         Respondent No.4 appeared as DW-1 on behalf of herself as well as respondents No.1 to 3 and deposed as follows:-

سودا بیع عابد عظیم کے ساتھ ہوا تھا۔ ارشاد عظیم کو بھی شامل معاہدہ کر دیا تھا ۔ کل جائیداد متعدعویہ کا سودا ہوا تھا جائیداد متعدعویہ میں کسی کے حصے نہ تھے تکمیل معاہدہ کی تاریخ 15- 05 – 06 مقرر ہوئی تھی عابد عظیم کے پاس بقیہ زرِبیع کی ادائیگی کا انتظام نہ ہوا تو پھر اس نے عدالت میں دعویٰ دائر کر دیا ہم نےعدالت میں آکر جواب دعویٰ دیا بقیہ رقم زربیع دے اور تکمیل معاہدہ کروائیں وہ رقم کا انتظام نہ کر سکا تو اس کا دعویٰ خارج ہو گیا اس کے عبد الغفار نے دعویٰ دائر کر دیا۔

15.         During the lengthy cross-examination she stood by her pleadings and statement given in the examination-in-chief. No deal or arrangement to sell the suit property in the parts, could come out during this cross-examination.

16.         Perusal of the sale agreement in the light of evidence further reveals that there was no intention of the parties at the time of execution of the sale agreement as to the separate sale or passing on the title of the property in parts. The only severable/separable element in the contract is that when the entire suit property was to be transferred, the same is to be passed on to the petitioner to the extent of 1172/6230 share in the suit property and respondents No. 5 and 6 would have been entitled to the share equal to 5058/6230 in the joint hole, upon complete payment of the entire sale consideration (i.e. Rs. 21,382,110/-), as further evident from the following parts of the sale agreement:-

اب مامقران فریق اول مورخہ 2006 – 5 – 15 طے شدہ تاریخ فریقین تک بقیہ زرثمن ازانِ مشیران وصول کر کے اراضی زیرِ بیع بنام مشتریان مطابق حصہ حصبِ ضابطہ منتقل کرا دینگے۔

17.         Furthermore, Abdul Azeem/respondent No.6 (out of other set of purchasers) filed two suits; first on 13.05.2006 and second one on 02.03.2011. In response to the first suit (Exh. D1), respondents No. 1 to 4 offered respondent No.6 to pay the entire amount against the transfer of suit property but respondent No. 6 failed to accept the offer. This suit was dismissed. The second suit filed by respondent No.6 met the same fate. This leads to two clear inferences; (i) respondents No. 1 to 4 remained willing to perform their part of obligation and they are not defaulters of the sale agreement and, (ii) both set of purchasers were not in the position to purchase the whole property, therefore, they decided to contribute to purchase the whole property in 5058/6230 and 1172/6230 share, hence, there was no understanding on either side to purchase the property in piecemeal or independent of each other.

18.         It is also observed that the learned two Courts below have used their discretion in the judicious manner and as per the established principle of law and equity. The right of specific execution of contract is not absolute and its enforcement rest on the discretion of the Court. Here it will be appropriate to reproduce the following extract from the case titled “Abdul Rahim and Others Versus Tufan Gazi and Others”(A.I.R 1928 Calcutta 584):-

“Now in a suit for specific performance on a contract of this kind the principle on which the Court will proceed is that a contract for the sale of property in one lot will generally be considered indivisible, and the Court will not, as a general rule, compel specific performance of the contract, unless it can execute the whole contract. Or as Lord Romilly, M.R. expressed it:

This Court cannot specifically perform the contract piecemeal, but it must be performed in its entirety if performed at all; Merchants Trading Co. v. Banner (5).

It is true that there are exceptions to this rule which may be justly made in view of the circumstances of any particular case. Even in cases where the contract is plain and certain in its terms and obligatory on both parties, which cannot readily be said of the contract in the present case, the right to specific execution is not absolute and its enforcement must rest on the sound discretion of the Court, a judicial discretion, to be exercised according to the established principles of equity”.

(Emphasis supplied) 

19.         I have found no mistake or illegality in the impugned order judgment(s) and decree(s) dated 07.07.2021 and dated 06.07.2018 passed by learned two Courts below, necessitating to exercise the jurisdiction under section 115 of the Code. Therefore, the instant petition is dismissed, with no order as to costs.

Petition dismissed