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Civil Revision No.228 of 1984, decided on 3rd September, 1986.

---S.12--Specific performance--Suit for possession of house--Court, under S.12, Specific Relief Act, held, has to see itself that pecuniary compensation for non-performance would not afford adequate relief- Agreement providing that in case petitioner was prepared to pay a certain sum then respondent had no right to purchase house--Alternate prayer in plaint also for seeking refund of money--Presumption of explanation under S.12 of Act sufficiently displaced and contrary was clearly established--Order of trial Court decreeing suit of respondent-plaintiff to the extent of alternate remedy sought for refund of money, restored with further addition that he would also be entitled to interest as well as special cost from defendant for adopting dishonest plea of denying the execution of agreement.

Abdul Fahim Khan for Applicant.

Rasheed A. Rizvi for Respondent.

Date of hearing: 31st August, 1986.

The Applicant has felt aggrieved against the judgment and decree in Appeal dated 30-5-1984, whereby the prayer of respondent. Umrao Khan that he should be given a decree of possession and not the refund of Rs.7,000/- was allowed. The respondent and the applicant appeared to have contracted for sale of house No. 14 on plot No. 94, Garden West, Karachi for Rs.7,000/- on 18-9-1976. Rs.6,500/- were paid by the respondent to the applicant towards the sale consideration. Rs.500/- was to be paid by the respondent to the applicant within 3 months from 18-9-1976. It was also provided in the agreement itself that in case the first party (applicant) refunded the entire of amount of Rs.6,500/- to the second party (respondent) then second party shall have no right to purchase the said house from the first party.

The respondent filed suit for specific performance and possession or in the alternative for return of part price-paid. The same was resisted by the applicant, who denied the execution of the contract and also alleged that the price of the house was Rs.30,000/-. The parties led their evidence after framing of issues. The suit was eventually decreed by the Civil Judge on 13-3-1980 but he directed the applicant to refund the amount to the plaintiff on the ground that the value of the house will be much more as it was situated in the heart of the town and the defendant /applicant was an aged person and the plaintiff had taken undue advantage of his old age, who had agreed to sell the house for such a meagre amount.

3. The respondent did not feel satisfied with the award of the alternate prayer of his plaint and sought the sale of the property in 'his favour.

4. The learned Ex Officio A D J, Karachi held that the reasons of the trial Court were not supported by the evidence on record. He observed that the respondent had led no evidence and thus there is nothing on record to show that the total consideration of Rs.7,000/ was meagre amount or that the plaintiff took advantage of the alleged old age of the respondent.

5. Mr. Abdul Fahim Khan argued that the learned A.D.J. has lost sight of the fact that the applicant had examined himself and had stated that the price of the house would be Rs.30,000/- and that .this very statement was also contained in the written statement. He, therefore, argued that the judgment of the Additional District Judge suffered from non-reading of evidence of the applicant. Further submission of the counsel was that there was alternate prayer in the plaint for refund of Rs.6,500/- if the delivery of possession could not be allowed. He, therefore, submitted that there was nothing wrong in the order of the Civil Judge and the same should not have been interfered with by the appellate court. Mr. Faheem further submitted that the judgment of the Civil Judge was in-line according to Sections 12(c) and 12(a) of the Specific Relief Act. He placed reliance upon P L D 1977.Karachi 191(198).

6. Mr. Rasheed Rizvi on the other hand submitted that the jurisdiction of this Court in revision was to be restricted only to legal points and, therefore, it should not be exercised because one law point had been urged. He placed reliance upon P L D 1983 S C 53(57). However, in the present case I find that the observation of the learned A.D.J. that there was no evidence produced by the applicant is not connect. The applicant examined himself and had deposed that the value of the house was Rs.30,000/-. Since the same had been ignored by the learned A . D.J. , therefore, the revisional jurisdiction of this Court is clearly attracted in the case as there has been non-reading of material evidence by the A.D.J. Moreover, since the agreement in question had itself provided that in case the applicant was prepared to pay Rs.6,500/- then the respondent had no right to purchase the said house clearly indicated that the respondent considered the refund of the consideration. money as an adequate compensation for himself. Moreover, the alternate prayer in the plaint further supported the decree which has been passed by the learned Civil Judge in the presence of the alternate prayer. It was not competent for the learned A.D.J. to change the decree into none for possession.

Mr. Rasheed had further contended that the explanation of Section 12(c) of S. Relief Act placed, a presumption in favour of the proposition that in respect of a contract to transfer immovable property it cannot be adequately relieved by compensation in money. The counsel is certainly right that such a presumption is raised in the explanation but the difficulty for him is that there is a clear stipulation in the agreement of sale itself for the refund of the amount of consideration paid and also the alternate prayer in the plaint sufficiently discharges that presumption which has been raised in the explanation of section 12. Under Section 12(c) it is the duty of the court itself to see that pecuniary compensation for its non-performance would not afford adequate relief. In this case since the contract had itself provided for the refund of the amount and the alternate prayer -n the plaint had also sought the refund of the money, therefore, the presumption of the explanation under Section 12 was sufficiently displaced and the contrary was clearly established in the case. Consequently, this revision is allowed and the judgment and decree of the learned A.D.J. is set aside and the judgment of-the trial Court is restored with the further addition that the plaintiff /respondent will also be entitled to 6 interest on the sums of Rs.6,5001- calculated from the date of the suit till the decision of this petition. Moreover, since the applicant/ defendant had adopted a dishonest plea of denying the execution of the agreement, therefore Rs.1,000/- will be awarded as special costs against the applicant /defendant.

M . Y . H . / A-154/K Petition allowed.

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