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Civil Revision No. 106 of 1984, decided on 6th November, 1986.

Specific Relief Act (I of 1877)-

-- S. 24(b)-Contract Act (IX of 1872), Ss. 54, 73 & 74-Civil Procedure Code (V of 1908), S. 115 - Personal bar to relief Reciprocal promises in contract-Respondent granted land under Defence Personal Scheme on installment basis-Respondent later entering into sale agreement with applicant in respect of half of said land--Applicant making investments and bringing land under cultivation but failing to pay installments as per terms and conditions of sale agreement and as a result grant of land cancelled by coloniza tion authorities-Respondent ultimately having got land restored after expiry of 13 years, applicant filing suit for specific performance of sale agreement -Suit contested by respondent on plea that applicant had himself failed to perform his part of agreement by his failure to pay instalments which resulted in cancellation of land he could not therefore claim specific performance of agreement Trial Court dismissing suit and appeal also was dismissed-Held, agreement between parties had come to an end when grant of land was cancelled by Government due to non-payment of instalments by applicant thus having failed to perform first part of contract could not claim performance of reciprocal promise by respondent Fact that respondent with his own efforts and on payment of interest was able to get land regranted or restored, held, would not revive rights of applicant to claim specific performance of sale agreement when he himself failed to perform his part of contract No illegality or impropriety found in impugned judgments to call for interference by High Court in exercise of its revisional jurisdic tion-Petition dismissed.

Gul Bahar Korai, Muhammad Aslam Bhutto and Ali Aslam Jafferi for Petitioner.

Abdul Bari for Respondent No. 1.

Date of hearing: 16th October, 1986.

This civil revision application is directed against the judgment and decree dated 9-9-1982 passed by Senior Civil Judge, Sukkur in Suit No. 106 of 1981 and the subsequent judgment and decree passed in Civil Appeal No. 139 of 1982 on 14-3-1984 by learned First Additional District Judge, Sukkur.

I have heard the learned counsel for the parties and also perused the record and proceedings of the suit as well as the appeal.

The facts leading to this revision in brief are that respondent No. 1 was granted agricultural land measuring 64-14 acres in Deb Bohi, Taluka Panoakil, District Sukkur under the Defence Personnel Scheme by the Colonization Officer, Gudu Barrage, Sukkur vide order dated 31-8-1966 on instalments basis at the rate of Rs. 500 per acre. The first instalment amounting to Rs. 3,200, was paid by respondent No. 1. On 9-11-1966 the present applicant entered into sale agreement with respondent No. 1 in respect of half of the said land. The respondent No. 1 also executed simultaneously affidavit and irrevocable general power of attorney. The applicant made investments and brought the land under cultivation but failed to pay the instalments as per terms and conditions of sale agreement on the ground that the blocks of the land had been wrongly described in the allotment order. As a result of non-payment of instalments the grant of the land was provisionally cancelled by the Colonization authorities on 19-2-1970 and was finally cancelled on 17-4-1972. The applicant also filed a civil suit against Colonization authorities for proper correction of the blocks of land and for injunction and also offered to pay the dues to the Colonization authorities who refused to accept on the ground that civil suit was pending. Under the agreement the applicant was given the possession of entire land for 13 years and general power of attorney was also for 13 years. After the expiry of 13 years the respondent No. 1 got the land restored in 1979. The applicant then filed suit for specific performance of the sale agreement and permanent injunction on 24-12-1979. The respondent No. 1 contested the suit and raised plea that the applicant cannot claim the specific performance of agreement as he himself failed to perform his part of agreement by failing to pay the instalments, which resulted in cancellation of the land. He also raised legal pleas.

On the pleadings of the parties the learned trial Court settled the following issues:-

(1) Whether the suit land consists of B. Nos. 137, 136, 158 of Deh Bohi or B. Nos. 135, 136, 135 and 156

(2) Whether the suit land was uncultivable at the time of its grant

(3) Whether the defendant No. 1 executed agreement to sell and to plaintiff whether he gave power of attorney to plaintiff for this purpose

(4) Whether the plaintiff has paid the instalments towards Malkana

(5) Whether the defendant No. 2 did not accept the instalment from plaintiff.

(6) Whether the grant is now fully paid up

(7) Whether the plaintiff is entitled to half of the land now

(8) Whether plaintiff has no cause of action

(9) Whether plaintiff has no locus stand to file suit

(10) Whether suit is barred under section 42 of Specific Relief Act

(11) Whether the suit is bad for acquiescence and estoppels

(12) Whether the suit is barred by sections 19 and 36 of the Colonization of Government Lands (Punjab) Act, 1912

(13) What should the decree be

The learned trial Court dismissed the suit of the applicant. Appeal was also dismissed by learnad appellate Court. Hence this petition.

The fate of this revision petition hinges upon the interpretation of the sale agreement, which has been produced by the applicant in the trial Court as Exh. 65. As both the parties rely on various conditions laid down in this agreement for the proper appreciation of their submissions it is necessary to reproduce the agreement which reads as under :-

"This Agreement is made at Rawalpindi on this 9th day of November, 1966 between Syed Muhammad Zulfiqar Ali Abidi, son of Sfed Muhammad Hussain Abidi resident of at present P A F Chaklala, Rawalpindi (hereinafter called the 1st party) and Hakim Syed Nasir Ahmed Kazmi son of Syed Sajjad Ali Kazmi resident of Pannu Akhil, District Sukkur (Khairpur Division) (hereinafter called the second party).

< [if supportLists]>(1) Whereas the first party is the owner of land measuring 63 acres at Bohi, Tehsil: Pannu Akhil, Sukkur, about which I had been held entitled vide Assistant Colonization Officer. Pannu Akhil No. 1096 of 1966 dated 31-8-66, on instalments basis and the first instalment had already been paid by the first party of Rs. 3,200.

(2) That the second party is the general attorney and the payments will be made by the name of the first party, and after the completion of all the dues of instalment to the Government and on the full ownership of the land, the Ist party is bound to transfer 1/2 of the land in all respect, in favour of the - 2nd party, in case the first party as his legal heirs, representatives are declined to do so, the 1st party will pay the price of half of land the market value at that time to the 2nd party.

(2-A) That the second party will pay Rs. 20,000, to the first party in case of failing or non-payment of the instalments, or dues to the Government, as a result of which the land had been dispossessed.

(3) That if the second party complete all the instalments of the Government he will pay the revenue tax and will take into the possession until 13 years and will pay all the dues.

(4) That the first party is bound to transfer one-half of the land, when all the dues completed by the second party.

(5) That in case the land take into possession of the Government under the policy, either party will not compensate to each other, and this agreement will remain into force up to 13 years."

There does not appear to be much dispute about the facts. The sale agreement and its terms are admitted. It is not disputed that the applicant did not pay the instalments as a result of which the grant was cancelled. It is also not disputed that the respondent got the grant restored in 1979. However, the applicant contends that he did not pay the instalments because the land was wrongly described in order of grant of the land and, therefore, he filed suit for the correction of the survey block numbers and for shifting of instalments. Both the Courts below have rightly held, while giving their findings on Issue No. 1, that applicant even in his deposition has not stated, that the suit land was described by wrong survey numbers and what were the correct survey numbers. Therefore, both the Courts gave concurrent finding in negative on this plea of the applicant. I have gone through the evidence of the applicant and find that applicant has not deposed a single word about his averment that the land was wrongly described but rather has stated, that land was fund short viz. only 40 acres including 8 acres which were Kabuli land of Kalhoras. It may be pointed that no such plea was raised in the plaint. The Form 'A' in the case file shows the survey numbers of the land as well as the area and also that full payment of the land were made on 24-12-1979. The survey numbers as well as area shown therein are the same as shown in the sale agreement and there is no evidence to the contrary.

The second contention of the learned counsel is, that the applicant had filed civil suit for the correction of the survey numbers as well as shifting of instalments. It may be pointed, that no copy of the plaint has been produced. It is also admitted, that the suit was subsequently dismissed for non-prosecution in 1979 or 1980. It is also contended, that the applicant was willing to perform his part of contract by paying instalments but then the Colonization Officer refused to accept instalments because of pendency of the suit. This plea has also been rightly rejected by both the Courts below because the only evidence produced by the applicant as to his attempt to pay the instalments was letter of Coloniza tion Officer in 1978 informing him that his request for restoration of grant cannot be granted because 'of the pendency of the civil suit, However, as already pointed the grant was provisionally cancelled in 1970 and it was finally cancelled in 1972. The Courts below have rightly held that the applicant has failed to prove that he made any attempt to pay the instalments before the cancellation but it was much after cancellation that be, made his half-hearted attempt.

The second contention of learned counsel is that even if it is held that the applicant failed to pay the instalments the only penalty that he has to pay is what is described in para. 2 of the agreement. It may be pointed that two paras are wrongly numbered as para. 2. The relevant para, which has been numbered by me as para. (2-A) provides:

"That the second party (viz. applicant) will pay Rs. 20,000 to the first party (viz. respondent) in case of failing or non-payment of the instalments or dues to the Government as a result of which the land had been dispossessed."

It is contended that the respondent cannot refuse specific performance of sale agreement but at the most he could claim this amount as damages under section 74 of the Contract Act.

It may be pointed that the suit was not filed for damages for breach of contract but was for specific performance of the sale agreement. The learned counsel for the respondent has contended that the claim of the applicant for specific performance of the agreement was barred under section 24(b) of Specific Relief Act, 1877 and also under section 55 of the Contract Act, 1872. To appreciate the arguments of the parties it is necessary to reproduce the relevant provisions of the law:-

Seetion 24(b), Specific Relief Act

24. Personal bars to the relief.-Specific performance of a contract cannot be enforced in favour of a person-

a) . . . . . . . . . . .

(b) who has become incapable of performing, or violates any essential term of the contract that on his part remains to be performed;

Illustrations :

A contracts to sell B a house and garden in which there are ornamental trees, a material element in the value of the property as a residence. A, with out B's consent fells trees. A cannot enforce specific performance of the contract.

A holding land under a contract with B for a lease, commits waste or treats the land in an unhusband like manner. cannot enforce specific performance of the contract."

Section 54, Contract Act

"54. When a contract consists of reciprocal promises, such that one of them cannot be performer), or that its performance cannot be claimed till the other has been performed, and the promissory of the promise last mentioned fails to perform it, such promissory cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract."

Illustrations

(c) A contracts with B to deliver to him, at a specified price, certain merchandise on board a ship, which cannot arrive for a month, and B engages to pay for the merchandise within a week from the date of the contract. B does not pay within the week. A's promise to deliver need not be performed, and B must make compensation.

(d) A promises B to sell him one hundred bales of merchandise, to be delivered next day, and B promises A to pay for them within a month. A does not deliver according to his promise. B's promise to pay need not be performed, and A must make compensation.

If paras. 2, 3 and 3 of the sale agreement are read together, it would be clear that the burden is shifted upon the applicant to pay all the in stalments to the Government and only after the completion of all the dues of instalments by the applicant and on acquiring the full ownership of the land, the respondent was bound to transfer one-half of the land in all respects in favour of the applicant. In case the respondent declined to do so, he would pay price of half of the land at the market value at that time to the applicant. Thus there can be no doubt that in this agreement there are reciprocal promises. First promise is made by the applicant to pay the instalments and after such payment when all the dues are complete and ownership right was transferred to the respondent, he bound himself to transfer half of the land to the applicant or in default to pay its value at the prevalent market price. The second part of agreement viz. transfer of the land obviously cannot be performed unless the first part of the agreement viz. payment of the due instalments by the applicant was fulfilled. On reading section 54 of Contract Act, it would be seen that in contracts of reciprocal promises such that as one of them cannot be performed till the other has been performed (as in this case) or the promissory of the promise last mentioned fails to perform it, such promissory (as applicant in this case) cannot claim performance of reciprocal promise. Not only that he cannot claim performance of the reciprocal promise but he has also to make compensation to the other party to the contract for any loss which other party may sustain. The penalty as provided in para. 2-A of the agreement in fact refers to damages, which can be claimed by the respondent under section 54. This penalty clause does not entitle the applicant to press for specific performance even after he failed to perform his part of the contract This agreement thus provides stipulation with regard to damages that each party can claim in case of breach of contract from the other party under sections 73 or 74 of the Contract Act.