Stereo HCJAD 38

Judgment Sheet
IN THE LAHORE HIGH COURT
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
Case No. R.S.A. No.2/2003.
Muhammad Afzal, etc.

Versus

Allah Ditta, etc.

JUDGMENT
Dateof hearing: -

24.6.2015.

Appellants by: -

Ch. Muhammad Hussain Jahanian and

Ch. Abdul Ghanni, Advocates.

Respondents No.1 to
4 by:-

Syed Kabir Ahmad Mehmood and Malik

Muhammad Bakhsh Khakhi, Advocates.

M.Sohail Iqbal Bhatti, J:-Through this second appeal, the

appellants/Muhammad Afzal and others (legal heirs of Muhammad
Akbar) have challenged the impugned judgment and decree dated
02.11.2002 passed by learned Additional District Judge, Burewala
through which the learned first appellate court accepted the appeal
filed by the respondents No.1 to 4/plaintiffs against the judgment
and decree dated 14.10.2000 passed by learned Civil Judge,
Burewala who dismissed the suit filed by the respondents No.1 to
4/plaintiffs.
2.

Facts of the case are that the respondents No.1 to 4/plaintiffs

instituted a suit for declaration on the basis of a receipt dated

03.01.1976. The plaint was amended from time to time and lastly

R.S.A. No.2/2003.

the suit for declaration was converted vide order dated 20.10.1997
into suit for specific performance on the basis of receipt dated
03.01.1976 (Ex. P-1).
3.

The appellants/defendants appeared and filed contesting

written statements to the suit for declaration which was converted

afterwards into suit for specific performance.
4.

Out of divergent pleadings of the parties, the following

issues were framed:1.

Whether the defendant No.1 contracted to sell the

suit property to the plaintiffs in consideration of
Rs.50,000/- and received the said amount? OPP

2.

Whether the disputed contract is liable to be

specifically performed? OPP

3.

Whether the alienation of the suit property in favour

of Akbar Khan deceased is void and ineffective?
OPP

4.

Whether the plaintiffs have no cause of action and

locus-standi to file the suit? OPD

5.

Whether the suit is time barred? OPD

6.

Whether the plaintiffs are stopped by their words

and conduct to file the suit? OPD

7.

Whether the suit is not maintainable in its present

form? OPD

8.

Whether the disputed contract is violation of Sec. 19

Colonization of Govt. Land Act 1912. If so, its
effect? OPD

9.

Whether the admission of defendant No.1 through

his written notice of disputed contract, if so, its
effect? OPD

R.S.A. No.2/2003.

10.

Whether Muhammad Akbar deceased was bonafide

purchaser without notice of disputed contract, if so,
its effect? OPD

11.

Whether the defendants are entitled to compensatory

costs u/s 35-A CPC, if so, its effect? OPD

12.
5.

Relief.
After recording of oral as well as documentary evidence,

learned trial court dismissed the suit filed by the respondents No.1
to 4/plaintiffs vide its judgment and decree, dated 14.10.2000 to
the extent of specific performance and decreed the suit for
recovery of Rs.50,000/- against Muhammad Saddique/Defendant
No.1. Appeal filed by the respondents No.1 to 4 against the said
judgment and decree was allowed vide impugned judgment and
decree dated 02.11.2002 passed by learned Additional District
Judge, Burewala. Hence, this appeal.
6.

Learned counsel for the appellants argued that the learned

first appellate court failed to give proper reasons while reversing

the findings of learned trial court on issues No.1, 2 and 3;
injunctive order dated 10.04.1978 passed by this Court was granted
to the extent of possession only and this order did not effect any
sale

transaction in favour of predecessor in interest of the

appellants; impugned judgment and decree dated 02.11.2002

passed by learned first appellate court was a result of misreading
and non-reading of evidence and also mis-application of settled
preposition of law. Learned counsel further argued that receipt
dated 03.01.1976 (Ex. P-1) could hardly be considered as

R.S.A. No.2/2003.

agreement to sell; even otherwise agreement to sell do not confer

any title; suit filed by respondents No.1 to 4 was also hit by section
19 of Colonization of Government Lands (Punjab) Act, 1912;
learned trial court committed grave and substantial error while
allowing the plaintiff to change the form of suit from suit for
declaration into suit for specific performance which act of the
learnedtrial court completely changed the nature of the suit and
relief claimed, thus learned trial court committed a material
procedural irregularity.
7.

Conversely, learned counsel for the respondents No.1 to 4

argued that most of facts were admitted by Muhammad

Saddique/Defendant No.1; defendant No.1 being owner of the land
received full consideration through receipt dated 03.01.1976 (Ex.
P-1); receipt (Ex. P-1) was proved bearing thumb impression of
Muhammad Saddique through report of finger print expert who
appeared as CW-1; sale deed in favour of Muhammad
Akbar/predecessor in interest of the appellants was executed after
passing of restraint order dated 10.04.1978 passed by this Court in
CR No.62 of 1977, thus Muhammad Akbar could not be termed as
bonafide purchaser. Learned counsel for the respondents No.1 to 4
further argued that learned trial court has wrongly decided issues
No.1 and 2 by giving precedence to the agreement (Ex. D-1)
between Zulfiqar and Muhammad Saddique for the reasons that
(Ex. D-1) was not signed by vendees and did not fall within the
definition of agreement; respondents No.1 to 4/plaintiffs were in

R.S.A. No.2/2003.

continuous possession of the suit land, thus provisions of Section

19 of Colonization of Government Lands (Punjab) Act, 1912 were
not violated. Learned counsel further argued that second appeal
under Section 100 CPC does not lie on a question of fact rather
only some error of law committed by courts below.
8.

I have heard the arguments advanced by learned counsel for

the parties and minutely examined the record.

9.

Right to file second appeal is governed by Section 100 of

CPC and it is specifically provided in Section 101 of CPC that no

second appeal shall lie except on the grounds mentioned in Section
100 CPC, therefore it would be useful to reproduce the Section 100
of CPC as follows: 100. Second Appeal. ---- Save where otherwise
expressly provided in the body of this Code or by
any other law for the time being in force, an
appeal shall lie to the High Court from every
decree passed in appeal by any Court
subordinate to a High Court on any of the
following grounds, namely: (a)

the decision being contrary to law or

usage having the force of law;

(b)

the decision having failed to determine

some material issue of law or usage
having the force of law;

(c)

a substantial error or defect in the

procedure provided by this Code or by
any other law/for the time being in
force, which may possibly have
produced error or defect in the decision
of the case upon the merits.

R.S.A. No.2/2003.

From bare perusal of above quoted provision of law, it

becomes explicit that second appeal could only be filed in the
following circumstances;
i)

A decision challenged in second appeal being

contrary to law or usage having the force of law;

ii)

Where the decision challenged in second appeal

having failed to determine some material issue of
law;

iii)

Some substantial error or defect in procedure

provided by this Code or by any other law/for the
time being in force, which may effect the merits of
the case.

10.

Therefore, I would only confine myself to the extent of

above said grounds of second appeal and findings of facts would

not be discussed.
11.

First of all, I have to examine the legal effect of execution of

document/receipt dated 03.01.1976 (Ex. P-1). This document (Ex.

P-1) was executed by Muhammad Saddique in presence of
witnesses in favour of respondents No.1 to 4 but respondents No.1
to 4 have not signed the same document (Ex. P-1). To determine
the legal value of the document as to whether the document (Ex. P1) is a receipt or can be considered as an agreement, it would be
useful to reproduce the definition of agreement which is
provided in Section 2(e) of Contract Act, 1872: Agreement. Every promise and every set of
promises forming the consideration for each
other, is an agreement.

R.S.A. No.2/2003.

This definition referred a term consideration for each

other which requires that both the parties of agreement have to
make promise for some lawful act against some lawful
consideration. According to dictum laid down in a judgment
reported as Syed Adnan Ashraf v. Syed Azhar-ud-Din through
Attorney(2014 MLD 342) an agreement to sell should contain four
components, these are as under: i) Identification of seller and purchaser,
ii) Sale consideration amount,
iii) Identification of property to be sold,
iv) Parties to agreement to sell property at
consensus ad idem.
While definition of receipt is provided in Section 2
sub-section 23 of Stamp Act, 1899.
Receipt.---- Receipt includes any note,
memorandum or writing---(a)

(b)

(c)

(d)

Whereby any money, or any bill of

exchange. Cheque or promissory
note is acknowledged to have been
received, or
Whereby any other movable property
is acknowledged to have been
received in satisfaction of a debt, or
Whereby any debt or demand, or any
part of a debt or demand is
acknowledged to have been satisfied
or discharged, or
Which signifies or imports any such
acknowledgement, and whether the
same is or is nor signed with the
name of any person.

R.S.A. No.2/2003.

The term receipt has further been defined inHaji Hamzo

Panhwar v. Muhammad Ibrahim and another(PLD 1963 (W.P)
Karachi 962)

that basic purpose of

receipt is the

acknowledgement of money, bill of exchange, cheque or movable

property etc. having been received. Essence of a receipt is the
acknowledgement of receiving the articles in question.
The comparison of both the above referred terms manifests
that both these terms are different in their characteristics. Receipt
is only an acknowledgement of receiving some articles while
agreement to sell comprises of some promise to sell some property
against some consideration. Receipt may be signed and executed
by a person having acknowledged that some article have been
received but an agreement to sell must contain promises of both
the parties to the agreement i.e. vendee and vendor, description of
property and consideration to be paid against said property.
I have observed that in the present case that (Ex.P-1)
contained signature of Muhammad Saddique only which could not
be given weight more than receipt for receiving Rs.50,000/-. This
document (Ex.P-1) was not signed by vendees /respondents No.1
to 4; therefore, this document has been misread by both the courts
below.
12.

Upon this preposition, learned counsel for the respondents

No.1 to 4 himself mentioned in his written arguments that nonsigning of vendees is an important factor because by not signing

R.S.A. No.2/2003.

the agreement, the vendee kept themselves immune from any

future claim of vendor and in support of this argument, learned
counsel for the respondents No.1 to 4 also relied upon judgments
of Honourable Supreme Court cited asMst. Gulshan Hamid v. Kh.
Abdul Rehman and others(2010 SCMR 334) andMst. Barkat Bibi
and others v. Muhammad Rafique and others(1990 SCMR 28).
On the strength of this argument as well as above said
definitions of agreement to sell and receipt, the Ex.P-1 could not
be considered as agreement to sell and could not be given weight
more than a receipt of payment of Rs.50,000/-.
13.

Even otherwise, specific performance of an agreement is a

discretionary relief as provided in Section 12 of Specific Relief

Act. In order to claim specific performance according to dictum
laid down inAbdul Karim v. Muhammad Shafi and another(1973
SCMR 225), following conditions must exist;
i. There should be a contract enforcement of
which is not barred in the Act,
ii. The act is to be done in respect of trust,
iii. There is no standard for ascertaining the actual
damages caused,
iv. Pecuniary compensation is not adequate relief,
v. The court deems it fit to exercise its discretion
in favour of plaintiff.
Section 22 of Specific Relief Act, 1877 provides that
jurisdiction to decree specific performance is only discretionary

10

R.S.A. No.2/2003.

and the court is not bound to grant such relief merely because it is
lawful to do so.
14.

This discretionary relief though is to be granted in a just and

reasonable manner guided by judicial principle and in illustrations,

it is quite clear that if a performance of a contract would involve
some hardship to the defendant, specific performance may be
refused.
15.

This Court in a judgment reported inCity Education Board

(Registered)

Sialkot

through

Director

v.

Mst.

Maqbool

Nasreen(PLD 2008 Lahore 51) has already held that court is not
legally bound to grant such decree even if same is lawful. In cases
where agreement is proved, such decree can be refused on
equitable grounds. In the present case, learned trial court discussed
the rights accrued in favour of defendant Muhammad Akbar. It is
worth mentioning that Muhammad Akbar purchased the suit land
against consideration paid to vendor Muhammad Saddique through
a registered sale deed which was sought to be set aside upon the
basis of a receipt (Ex.P-1). As a receipt (Ex.P-1) did not contain a
future promise; therefore, it cannot be given preference over the
registered sale deed in favour of Muhammad Akbar (predecessorin-interest of the appellants).
16.

Another important aspect of the case which requires

determination is as to whether an amendment in pleadings can be

allowed after a considerable period of time which may not only

R.S.A. No.2/2003.

11

change the nature of relief claimed but also change the entire
complexion of the suit. Order VI Rule 17 of CPC provides that
Court may at any stage of proceedings allow either party to alter or
amend his pleading in such manner and on such terms, and all such
amendments shall be made for determining the real questions in
controversy between the parties. However, it is a legal requirement
that a party should not take up a new plea to be introduced in its
pleadings. In judgment reported asMunawar Mehmood and
another v. Nadeem Siddiqui and others(2011 CLC 130), it is held
by this Court that party should not be permitted to achieve
indirectly which cannot be achieved directly. It is settled principle
of law that amendment should be allowed liberally which
amendment do not effect the cause of action or nature of the suit.
In the present case, the respondents No.1 to 4/plaintiffs though
amended the plaint more than once but did not make a prayer for
claiming relief of specific performance. Interim order dated
20.10.1997 clearly reflects that learned trial court did not bother to
invite the parties for advancing their arguments upon the
conversion of nature of the suit and relief claimed. Further the
interim order, dated 20.10.1997 was not a speaking order and did
not provide the reasons and grounds mentioned in Order VI Rule
17 of CPC, thus learned trial court had committed a serious
procedural error during the trial of the case.
17.

For what has been discussed above, I am of the view that

document (Ex.P-1) is merely a receipt acknowledging the payment

12

R.S.A. No.2/2003.

of Rs.50,000/- and could not be given status of agreement to sell,

therefore, a decree for specific performance which is otherwise a
discretionary relief could not be granted in favour of respondents
No.1 to 4/plaintiffs.
18.

However, as this Court has not adverted to the factual

controversy involved and therefore, while accepting the receipt

(Ex.P-1) at its face value, respondents No.1 to 4/plaintiffs are
entitled to recover an amount of Rs.50,000/- from respondent
No.5/defendant No.1 granted by learned trial court in favour of the
respondents No.1 to 4/plaintiffs.
19.

In view of above discussion, it is declared that the judgment

and decree of the first appellate court failed to determine the

material issue of law and the same being contrary to law is set
aside. Resultantly, this appeal is allowed and the judgment and
decree passed by the learned trial court is restored. No order as to
cost.

(M. Sohail Iqbal Bhatti)

Judge
Approved for reporting.

Asghar Shaheen*