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Civil Petition No. 704 of 1980, decided on 2nd June, 1985.

(From the judgment of the Lahore High Court, dated 30‑3‑1980, passed in Regular Second Appeal No. 751 of 1969).

‑‑‑Art. 185(3)‑‑Suit for specific performance‑‑Pled of having issued notice to perform contract within specific period, not taken in written statement nor any issue framed thereof‑‑Courts below not accepting factum of service of notice‑‑Contention requiring re‑appraisal of evidence but copy of evidence not furnished‑‑Other contentions having been adequately dealt with by High Court, no interference called for‑‑Petition dismissed.

Sh. Ghias Muhammad, Senior Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑on‑Record for Petitioners.

Muhammad Rashid Chughtai, Advocate Supreme Court with Ch. Mehdi Khan Mehtab,

Advocate‑on‑Record for the legal representatives of Respondent No. 1.

Date of hearing: 2nd June, 1985.

‑‑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 time. 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. 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 time 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. 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.

The petition is dismissed.

M.I. Petition dismissed.

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