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Constitution of Pakistan (1973)‑

‑‑Art. 185 (3) ‑Civil Procedure Code (V of 1908), S. 115‑Specific Relief Act (I of 1877), S. 20‑Leave to appeal granted to consider contentions that (i) whether discretion exercised by trial Court in not granting decree for specific performance was contrary to law ; (ii) whether High Court had wrongly assumed that trial Court had declined to grant decree of specific performance on account of peculiar circumstances of case which had, allegedly, reference to plea of coercion and undue influence and if so what was its effect, and (iii) whether High Court had erred in refusing to allow relief prayed for exercising its power under S. 115, C. P. C. on ground that the power was discretionary and that judgment of trial Court could only have been interfered with if appeal had been filed against it.

Abdul Karim v. Muhammad Shafi and another 1973 S C M, R 225 ref.

Fakhruddin G. Ebrahim, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 19th January, 1986.

ORDFR

ASLAM RIAZ HUSSAIN, J

.‑Facts giving rise to this petition briefly are that Abdul Hakim Qureshi respondent agreed to sell a house to Arif Shah petitioner for a sum of Rs. 60,000 vide Agreement Deed dated 12‑11‑1978 A sum of Rs. 20,000 was paid as earnest money by Arif Shah (petitioner) to the vendor and the remaining amount was to be paid on the execution of the sale deed, which was to take place within one month. It was further stipulated in the said agreement :‑

"That if the vendor commits any default in any of the conditions referred to above he shall be liable to pay a sum of Rs. 20,000 (Rupees twenty thousand) as damages besides refunding the earnest money of Rs. 20,000 received by him from the vendee."

The respondent did not fulfil his obligation. The petitioner was, there fore, constrained to file a suit for specific performance of the contract against Abdul Hakim Qureshi (vendor/ respondent). The suit was contested. In his written statement Abdul Hakim Qureshi respondent alleged, inter alia, that the Agreement of Sale in question was brought about under coercion and duress by an S. H. O. named Jaskani.

2. The parties led their respective evidence. The learned trial Court vide its judgment dated 8‑4‑1982, did not enforce the contract but decreed the suit against the. defendant‑respondent to the extent of Rs. 40,000 i. e. Rs. 20,000 given to the defendant/respondent as earnest money at the time of execution of agreement and Rs. 20,000 as damages provided for in the aforementioned term in the agreement.

The petitioner filed an application for review of the judgment before the trial Court which was dismissed by it vide order dated 21‑10‑1982. His application for .review was rejected. He filed a revision petition under section 115 of the C. P. C. before the High Court against the judgment of the trial Court dated 8‑4‑1982 and the order dismissing his application for review dated 21‑10‑1982.

3. The High Court, however, dismissed the revision petition by judgment dated 12‑7‑1984, mainly on the ground that powers under section 115 of the C. P. C. being discretionary he (learned High Court Judge) was not inclined, on the facts and circumstances of this case, to exercise discretion in petitioner's favour (Refer to paragraph 25 of the impugned judgment at page 26 of the Paper Book).

Feeling aggrieved Arif Shah petitioner has filed the present petition for leave to appeal.

4. Learned counsel for the petitioner has referred to section 20 of the Specific Relief Act, which reads as follows :‑

"20. Liquidation of damages riot a bar to specific performance.

‑A contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same "

He argued that according to this section, although an amount may be specified in the contract as the amount to be paid to the vendee in case of its breach, and the party in default is willing to pay the same, yet the Court may, enforce the contract, provided it is otherwise shown that it was not a proper contract to be specifically enforced.

The learned counsel referred to pages 28 and 29 of the judgment (See pages 71 and 72 of the Paper Book) of the learned trial Court and pointed out that the allegation about coercion and undue influence by the S. H. O. or someone else has been repelled by the learned trial Court in the following words :‑

"Therefore, it is clear that the defendant has also failed to establish its contention regarding the undue influence of the S. H. O. or plaintiff.........

All these facts go to show that the defendant's consent in the execu tion of (the contract) was very much there and he had signed it of his own free will."

The counsel then went on to point out that reasons given by the trial Court for holding that the contract was not proper one for specific per formance, are as follows :‑

"As the plaintiff himself prayed for alternate relief of damages, hence in the peculiar circumstances (of) the agreement between the parties (emphasis supplied) and the prayer of the plaintiff that plaintiff is entitled for the earnest money amounting to Rs. 20,000 along with Rs. 20,000 as penalty. As such in view of the specific stipulation in the body of the agreement and as the plaintiff' himself has prayed for the compensation as alternate relief, the plaintiff is entitled for recovery of Rs. 40,000 from the defendant. Though an amount of Rs. 20.000 has been prayed as damages but the plaintiff has failed to adduce any evidence to prove such damages and even it is beyond the stipulated compensation agreed by the parties for the non‑performance of the contract hence plaintiff is not entitled for the relief of Rs. 20,000 as damages."

5. Learned counsel then pointed out that according to the High Court the trial Court has refused to exercise discretion under section 20 of the Specific Relief Act for the following reasons :‑

" But, in the present case the trial Court has exercised discretion in refusing to grant decree and it did so, keeping in view t1fe various pleas raised by the respondent ."

He submitted that the learned High Court has failed to notice that the plea of coercion or undue influence had been disbelieved by the learned trial Court. and that the only ground on which the trial Court held the contract as not being a proper one for enforcement was that the peti tioner had agreed (in the agreement) to accept Rs. 20 000 as damages on failure of the vendor to perform the same. He argued that this reason, by itself, is not sufficient to render the contract improper' for the purpose of being enforced within the meaning of section 20 of the Specific Relief Act. He urged further that the learned High Court as well as the Courts below have erred in refusing to exercise discretion and failed to enforce the contract of sale of the house in question. For this contention he relied on Abdul Karim v. Muhammad Shafi and another (1973 S C M R 225):

Learned counsel also urged that the High Court erred in refusing to entertain the revision petition on the ground that the order of the trial Court could be only‑ interfered with, if the petitioner bad filed an appeal and not in the exercise of revisional jurisdiction under section 115 of the C. P. C.

Leave is therefore granted to consider, inter alia, the following con tentions :‑

(a) Whether the discretion exercised by the trial Court in not granting the decree for specific performance was contrary to law ;

(b) Whether the High Court had wrongly assumed that the trial Court had declined to grant decree of specific performance on account of peculiar circumstances of the case which had, allegedly, reference to the plea of coercion .and undue influence and if so what is its effect ;

(c) Whether the High Court bad erred in refusing to allow the relief prayed for exercising its power under section 115 of the C. P. C on the ground that the power was discretionary and that the judgment of the trial Court could only have been interfered with if an appeal had been filed against it.

Security in the sum of Rs. 2,000.

To be heard on the same record with permission to file additional documents.

M. B. A. Leave granted.

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