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Regular Second Appeal No. 185 of 1984, decided on 14th April, 1986.

---S. 100‑Second appeal‑First appellate Court not discussing parties' evidence on issue‑Evidence of appellant's witnesses appearing to be trustworthy while evidence of respondent's witnesses was contradictory and not confidence inspiring‑Trial Court had relied on appellant's evidence while first appellate Court bad rejected the same‑Finding of first appellate Court reversed by High Court in second appeal and restored that of trial Court.

---S. 63‑A‑Mortgage‑Agreement to mortgage property with tenant‑Tenant, subsequent to agreement of mortgage, spending certain amount on repairs of property in question ‑Cost of repair, held, could not be treated as mortgage money having been not mentioned in agreement to mortgage‑Tenant, however, was entitled to recover cost of repair by way of equitable relief.

‑‑ O. VII, r. 7‑Agreement to mortgage with tenant‑tenant, subsequent to agreement to mortgage, spending certain amount on repair of property in question Cost of repair having not been mentioned in agreement to mortgage cannot be treated as mortgage money‑Tenant, held, was entitled to recover cost of repair by way of equitable relief, even though he had not asked for said amount as an independent relief.‑ [Mortgage].

‑‑ S. 21‑Specific performance‑Agreement to mortgage property -Question of allowing or refusing specific performance by Court has to be decided in its own discretion in view of circumstances of each case.

Question of specific performance is to be decided by the Court in its own discretion. In other words, it is in view of the circumstances of each case that the question of allowing or refusing specific performance is to be determined by the Court.

In the instant case, the respondents were permitted to pay back the consideration for which they had agreed to mortgage the disputed property. They in fact, deposited the amount of consideration with the trial Court in pursuance of the direction of the District Judge :

Held, it would look odd if they were directed to withdraw the said sum, execute mortgage deed in favour of the appellant and then take out proceedings for redemption of mortgage. Such a course would obviously result in multiplicity of proceedings and the policy of law is to discourage such multiplicity. Specific performance of agreement will also not yield any appreciable advantage to the appellant because, in the circumstances of case, the respondents were likely to redeem the mortgage immediately after the execution of mortgage deed. Execution of‑ the said deed in this case would, therefore, be nothing but an exercise in futility.

C. A. Rahman for Appellant.

A. W. Butt for Respondents.

Dates of hearing :12th and 14th April, 1986.

Facts giving rise to this regular second appeal, as alleged by the appellant, Nazir Ahmed, are that he was occupying a shop belonging to the respondents, Mo. Hussain Bibi and others, as a tenant when they entered into an agreement to mortgage the shop, in his favour, for Rs. 13,000. Agreement deed, Exh. P. 1, was also executed in this behalf. The said sum was paid by the appellant to the respondents at the time of execution of the agreement deed. Subsequently, however, when he called upon the respondents to execute mortgage deed in his favour they declined to do so. The appellant has spent. Rs. 10,000 on the repairs of the disputed shop. He, therefore, brought a suit for specific performance of the agreement to mortgage and prayed that the respondents be directed to execute mortgage deed in respect of the shop in question, in his favour for Rs. 23,000. Suit was resisted by the respondents denying execution of the agreement deed. It was also not admitted by them that the appellant had repaired the shop at the cost of Rs. l0,OCO. The suit was decreed by a Civil Judge of Gujranwala. The respondents went in appeal before the District Judge, Gujranwala. The learned District Judge found that the appellant had failed to establish that he had spent Rs. 10,000 on the repairs of the shop in dispute. He was also of the view that even if he had done so, he was not entitled to recover Rs. 10,000 because repairs were not carried out with the permission of the respondents. Additionally, it was noted by the learned District Judge that the plea regarding repairs hid nothing to do with the relief of specific performance. As for the appellant's claim for specific performance of agreement to mortgage, it was held by the learned District Judge that the appellant was entitled to the relief ‑of specific performance. It was, however, added by him that if the respondents made payment of Rs. 13,000 even at the stage of proceedings before him they would not be legally obliged to execute the mortgage deed in favour of the appellant and have it registered because that would be a futile exercise. It was also noted by the learned District Judge that on payment of Rs. 13,000 by the respondents "relationship of landlord and tenant between the parties will start as it was before the execution of agreement deed, Exh. P. 1 and in case the mortgage deed is executed, the relationship of landlord and tenant will come to an end and the relationship of mortgagor and mortgagee will come into being." Feeling aggrieved by the judgment and decree of the learned District Judge, the appellant has come up in second appeal to this Court.

2. As for the issue relating to cost of repairs, it was argued by learned counsel for the appellant t13at the learned District Judge had not duly considered the evidence of the parties on the said issue before holding that the appellant had failed to prove the issue. I regret to say that the learned District Judge did not discuss the parties' evidence on the said issue. On that issue, the appellant examined Muhammad Anwar (P. W. 1), Hakim Muhammad Shafi (P. W. 2), Shaukat Ali (P. W. 4) and Muhammad Shaf (P. W. 5), besides himself entering the witness‑box as P. W. 7. It was stated by Muhammad Anwar, Hakim Muhammad Shafi, Shaukat Ali and the appellant that the disputed shop was in dilapidated condition and it was repaired by the appellant, with the permission of the respondents, by spending about Rs. 10,000: Muhammad Shafi is the Draftsman who prepared plan regarding repairs of the disputed shop. In rebuttal, there are the statements of Muhammad Boots (D. W. 1), Muhammad Islam (D. W. 2) and Mst. Hussain Bibi. (D. W. 3). But there are contradictions in the statements of the respondents' witnesses. It was stated by Muhammad Boots that the roof of the shop did not collapse but Muhammad Islam and Mst. Hussain Bibi stated to the contrary. Further, Muhammad Boots said that he was doing business in the Deorhi of the respondents without paying anything to them for using the Deorhi. According to Muhammad Boots. the said indulgence was shown to him by the respondents due to their dealings with the parents of his wife. It was denied by him that Ashiq respondent was his partner in the business. It was. however, stated by Muhammad Islam that Muhammad Boots and Muhammad Sadiq, son of Ashiq respondent, were ding business jointly. As for Mst. Hussain Bibi, who is one of the respondents, it was first stated by her that her son (Ashiq respondent) and Muhammad Boots were doing business jointly but on the next breath she corrected herself and said that they were not doing, so. According to her, Muhammad. Boots was doing business as an employee of the respondents. In view of all this, the respondents' evidence does not inspire confidence. The appellant's evidence appears to be trustworthy, and it was relied upon by the learned, trial Court while answering the issue of repairs in favour of the appellant. I too rely on the appellant's evidence and hold that he carried out repairs with the permission of the respondents at the cost of Rs. 10,000. I therefore, reverse the finding of the learned District Judge and restore that of the learned Civil Judge on the issue of repairs.

3. As for the relief to the appellant due to his success on the issue of repairs I do appreciate that the cost of repairs cannot be treated as mortgage money because the mortgage money mentioned in the agreement to mortgage was Rs. 13,000 only. The appellant as, however, entitled to recover Rs. 10,000 by way of equitable relief, even though he did not ask for the said amount as an independent relief. In taking this view, I am fortified by the provisions of Order VII, rule 7 of the Code of Civil Procedure which read as follow :‑‑

"7. Relief to be specifically stared.‑Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."

4. This brings me to the plea for specific performance. It was contended by learned counsel for the appellant that the learned District Judge should have allowed specific performance without directing the respondents to deposit Rs. 13,000. According to him, the respondents could redeem the mortgage after execution of the mortgage deed. It was also urged by him that the remarks of the learned District Judge that with the deposit of the said amount by the respondents, relationship of landlords and tenant, between the parties, would revive were uncalled for and should not have been passed by him.

5. On the other hand, it was submitted by learned counsel for the respondents that the respondents have already deposited Rs. 13,000 with the trial Court in compliance with the direction of the learned District Judge. It was maintained by him that if the mortgage deed was executed, the respondents would be obliged to withdraw the said sum and then take out proceedings for redemption of mortgage. This, the argument proceeds, would give rise to unnecessary multiplicity of proceedings. It was pleaded by him that it was not a fit case for ordering specific performance.

7. It is not disputed that question of specific performance is to decided by the Court in its own discretion. In other words, it is in vie of the circumstances of each case that the question of allowing or refusing specific performance is to be determined by the Court. In the instant case, the respondents were permitted to pay back the consideration for which they had agreed to mortgage the disputed property. They have, in fact deposited the amount of consideration with the learned trial Court in pursuance of the direction of the learned District Judge. Now, it will look odd if they are directed to withdraw the said sum, execute mortgage deed in favour of the appellant and then take out proceedings for redemption of mortgage. Such a course would obviously result in multiplicity of proceedings and the policy of law is to discourage such multiplicity. Specific performance of agreement will also not yield an appreciable advantage to the appellant because, in the circumstances of this case, the respondents are likely to redeem the mortgage immediately after the execution of mortgage deed. Execution of the said deed in this case would, therefore, be nothing but an exercise in futility. Keeping all this in view, I am not inclined to order specific performance of the agreement in question.

8. In result, I uphold the order of the learned District Judge regarding specific performance of agreement to mortgage. I, however, pass a decree in favour of the appellant and against the respondents for recovery of Rs. 10,000 on aunt of the cost of repairs carried out by the appellant.. He is also permitted to withdraw the sum of Rs. 13,000 deposited by the respondents. As for the remarks of the learned District Judge which have nothing to do with the issue of specific performance or that of repairs, I do agree with the learned counsel for the appellant that they were not called for. This appeal is disposed of accordingly with no order as to costs.

M. B. A. Order accordingly.

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