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Civil Petition for Special Leave to Appeal No. 143‑R of 1981, decided on 14th November, 1981.
(On appeal from the judgment, and order of the Peshawar High Court, dated 13‑5‑1981, in R. S. A. No. 2/81).
‑‑‑ S. 27‑Contract of sale‑Specific performance‑Sale allegedly having to be made by all three vendors, having separate shares in relevant Khasra numbers‑Price nevertheless alleged to be paid or promised to be paid to all vendors in lump sum‑Not known in circumstances as to in what proportion or to which extent each vendor had to receive or share same ‑ Contract against one of vendors having fallen through due to such vendor being not a signatory of agreement although alleged to have received advance money alongwith others, contract as such remains one individual contract ‑ Transaction resultantly must stand or fall as a whole‑Price of contract being not capable of befurcation, contract, held, not capable of specific per formance.
Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner
‑Daulat Khan petitioner/plaintiff filed a suit for (i) specific performance of an agreement to sell dated 7‑3‑1969, (ii) as in the meantime the vendors had instead sold away the suit land to other defendants/respondents, therefore, the plaintiff in the first alternative sued for possession of the said land by pre‑emption, and (iii) in the second alternative for refund of Rs. 6,300 which had allegedly been paid by him to the vendors as part of the (advance) sale price.
2. The suit was dismissed qua the prayer for specific performance as according to the learned Civil Judge the relevant witnesses of the so‑called sale contract were not produced, who it may be mentioned, were members of the advisory committee in whose presence the agreement in consolidation preceedings was allegedly signed by the concerned vendors. However, as regards the prayer for pre‑emption, the suit was decreed to an extent of 1 kanal only (Khasra No. 3779) on payment of Rs. 2,617‑40. The second alternative prayer for refund of advance consideration of Rs.6,300 was dismissed as its payment was not proved in any manner on the record.
3. A first and second appeal of the petitioner were dismissed by the learned Additional District Judge and the High Court on 11‑10‑1980 and 13‑5‑1981 respectively.
4. The petitioner has come up in a petition for special leave to appeal against the same to this Court.
5. Before us learned counsel for the petitioner/plaintiff did not press his claim either for pre‑emption or for refund of advance of Rs. 6,300 and his sole emphasis was on the prayer for specific performance of the contract of sale. On second thought he submitted that probably he would not give up his claim for refund of Rs. 6,300 though he could not prove its payment to the vendors.
6. However, we have heard the learned counsel at length. Apart from the fact that the members of the advisory committee in whose presence the alleged agreement was in consolidation proceedings signed by the vendors (respondents) have not been produced, the broad fact remains, that the sale was allegedly to be made by all the three vendors, who no doubt had separate shares in the relevant Khasra numbers, nevertheless the price alleged to be paid or promised to be paid to all the alleged vendors, was mentioned in a lump sum, with the result that it is not known as to in what proportion or to what extent each vendor was to receive or share ii. In this state of affairs when the contract against Mst. Noor Hayat one of the vendors fell through inasmuch as she is not a signatory of the agreement, though she is alleged to have received the advance money along with others, the contract in this respect remains one individual contract with the result that it must stand or fall as a whole. If vis‑a‑vis the price the contract cannot be bifurcated the contract is not capable of specific per formance and this short ground is enough to non‑suit the plaintiff. We hold accordingly.
7. The result is that in our opinion this is not a fit case warranting interference by this Court and the petition for special leave to appeal has no merit and is dismissed hereby.
Petition dismissed.
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