13/09/2025
AGREEMNT TO SELL & BURDEN OF PROOF & EX*****ON OF DOCUMENT & TRANSACTION
(I)
2015 CLC 385
Agreement to sell did not by itself create any right, title, interest or any charge on the property...
REFERENCES:;
1. PLD 1978 Lah. 113
2. PLD 1986 Lah. 399
3. 1983 SCMR 1178
4. 1992 SCMR 1832
5. PLD 2008 SC 571
6. 1997 SCMR 1840
7. 1993 SCMR 145
8. 2015 SCMR 58
9. 2017 SCMR 1882
Falak Sher Case
(II)
VALID AGREEMENT & UNILATERAL OFFER
PLD 2015 Lah 681
Rana Surbland Khan Vs B.K. Enterprises
Ibad-UR-Rehman Lodhi,,JJ
Offer and acceptance reduced into writing if had not been signed or thumb-marked by one of parties could not be termed as a valid contract enforceable under law---Revision was dismissed accordingly...
REFERENCES:;
1. 2010 SCMR 334
Gulshan Hamid case
2. 2008 CLC 175
Syed Ahmad case
3. 2013 MLD 955
Faqeer Bakhsh case
4. 2016 CLC 114
5. 2010 SCMR 334
6. 2002 SCMR 1089
Rana Afzal Razzaq advocate
(III)A
2017 SCMR 98
M Sattar Vs Tariq Javaid
Anwar Zaheer Jamali, CJ, Amir Hani Muslim, Sh. Azmat Saeed, Manzoor Ahmad Malik & Faisal Arab,,JJ
Absence of formal signatures did not affect the validity or enforceability of the contract...
[Mst. Gulshan Hamid Vs Kh. Abdul Rehman 2010 SCMR 334] held to be contrary to judicial pronouncements of the Supreme Court...
DISSENT VIEWS:;
1. PLD 1971 SC 784
Jamal Jute Baling case
2. PLD 1975 SC 193
Karachi Gas Dawood Cotton Mills Ltd case
3. 2006 SCMR 721
M.A. Khan case
4. AIR 2009 SC 1527
Aloka Bose case
(III)B
ABSENCE OF SIGNATURE OF PURCHASER
2020 SCMR 832
Sakhi Jan Vs Shah Nawaz
Manzoor Ahmad Malik & Amin-ud-Din Khan,,JJ
Agreement to sell, if proved with reliable and cogent evidence, despite absence of signatures of the purchaser, would be valid in the eyes of law and enforceable...
REFERENCES:;
1. 2017 SCMR 98
Mohammad Sattar case
(IV)A
DOCUMENT EX*****ON PROOF & NUMBER OF ATTESTED WITNESSES
Rana Afzal Razzaq advocate
PLD 2011 SC 241
Hafiz Tassaduq Hussain Vs M Din
In order to bring case within the purview of Article 17 of QSO two ingredients must co-exist firstly there must be an instrument,secondly, it should pertain or relate to a matter either of a financial or future obligations. If such two conditions are met,it is mandated that the instrument must be attested in terms of Article 17 0f QSO. Suit was Decreed.
(IV)B
ALLEGATION OF AGREEMENT AND SIGNATURES ON THEM BEING FAKE
2021 SCMR 415
Sajjad Ahmad Khan Vs M Saleem Alvi
Mazhar Alam Khan Miankhel & Munib Akhtar,,JJ
Section 54 Transfer of Property Act.
Defendant-vendor had alleged that the agreement and his signatures over the the same were fake and fictitious but had not specifically challenged the agreement in question either by way of criminal proceedings id thrilled a civil suit. Simple denial of a document being fake and fictitious was not legally sufficient unless the same facts were proved and established on the record. Petition for leave to appeal was allowed...
Rana Afzal Razzaq advocate
(IV)C
REQUIREMENT OF TWO ATTESTING WITNESSES
2021 SCMR 415
Sajjad Ahmad Khan Vs M Saleem Alvi
Mazhar Alam Khan Miankhel & Munib Akhtar,,JJ
Article 79 Qanun-e-Shahadat.
Proof of ex*****on of document required by law to be attested. Requirement of two attesting witnesses. Provisions of Article 79 of the QSO, were applicable only in those cases where ex*****on of a document was disputed between maker of document and the person in whose favour purportedly the same was executed...
(IV)D
NON-PRODUCTION OF SECOND ATTESTING WITNESSES OF THE AGREEMENT
2021 SCMR 415
Sajjad Ahmad Khan Vs M Saleem Alvi
Mazhar Alam Khan Miankhel & Munib Akhtar,,JJ
Article 79 Qanun-e-Shahadat.
Prime and foremost requirement of Article 79 of the QSO was to prove ex*****on of a document by producing two marginal witnesses in case of denial of its ex*****on. In the presence case when the vendor himself was the author / scribe of the document; when it was an un-rebutted fact that the second witness being abroad was not capable of giving evidence; when the stance of Notary Public regarding attestation of agreement went un-shattered, when the first attesting witness not only confirmed the ex*****on of rather gave each and every detail of the transaction between the vendee and the vendor and was also the witness of ex*****on and the entire evidence supported by the vendee himself, then in the given circumstances mere non-production of second attesting witness would be nothing but a hyper technicality and not the violation of Article 79 of the QSO. Petition for leave to appeal was allowed...
Rana Afzal Razzaq advocate
(V)
1998 SCMR 760
Abdul Wali case
Granting Order is not relevant for the proposition in hand as it relates to a document before the enforcement of the order, 1984 when Art.17 was not there...
(VI)
2016 CLC 73
Khuda Bakhsh Vs Mohammad Yar
Atir Mahmood,,JJ
Appearance of one marginal witness of document whose credibility could not be shaken in cross-examination was sufficient to prove existence of valid sale deed which was duly registered with Sub-Registrar...
REFERENCES:;
1. 2003 SCMR 176
Shujahat Hussain case
2. 1994 SCMR 1935
Mst. Aisha Bibi case
3. 2009 CLC 663
M Nawaz case
4. PLD 1992 Lah. 158
Sadiq Ali case
5. 1985 SCMR 359
Ch Abdul Hamid case
6. 1992 CLC 2457
Meraj Din case
7. 1991 CLC 417
Hafiz M Ramzan case
8. PLD 1969 SC 617
Maddan Gopal case
9. PLD 2016 Lah. 130
Bashir Ahmad case
10. 2006 SCMR 1144
Abdul Ghafoor case
11. 2004 YLR 432
Ibrar Hussain case
12. 2013 SCMR 877
Tariq Mehmood case
13. 1999 SCMR 1245
Abdul Majeed case
14. PLD 2011 SC 155
Mubarak Ali case
15. 2013 SCMR 1047
Bashir Ahmed case
16. 2004 SCMR 707
Rasheed Ahmed case
17. 2004 SCMR 1740
Mubarak ali case
18. 2005 SCMR 931
Cooperative Model Town society Case
19. 1972 SCMR 649
Sher Azam case
20. 1988 SCMR 1703
Mst Sahib Noor case
21. 1996 SCMR 336
Binyameen case
Rana Afzal Razzaq advocate
(VII)
QUANTUM OF PROOF IN CIVIL CASES
PLD 2016 Lah. 130
Bashir Ahmad Vs M Bakhsh
Shams Mehmood Mirza,,JJ
Court, in civil cases has to see the cumulative effect of all material placed on record and mere preponderance of probability is sufficient as basis for a decision party, having preponderance of probability, must win the case...
REFERENCES:;
1. 1993 SCMR 356
Mst. Zaniab case
2. PLD 1994 SC 501
Jameel Ahmad case
(VIII)
CIVIL EVIDENCE
2016 SCMR 2163
Abdul Rasheed Vs Syed Fazal Ali Shah
Mian Saqib Nisar & Iqbal Hameedpur Rehman,,JJ
Court was not required to fish for the evidence for a party and to fill up the lacuna of its case, particularly in a matter where the party itself was delinquent to prove its own case...
Rana Afzal Razzaq advocate
(IX)
DOCUMENT TRANSACTION & PROOF
2015 SCMR 1
Beneficiary of a transaction or a document was obliged / duty bound to prove the same. Mere tendering document in evidence had no evidentiary value unless proved in accordance with law...
REFERENCES:;
1. 2015 CLC 107
2. 1992 SCMR 2439
3. 2010 SCMR 1351
4. 1979 SCMR 549
5. PLD 2001 SC 325
6. PLD 1985 SC 341
7. PLD 2002 SC 84
(X)
PARDANASHEEN LADY
2016 SCMR 1225
Phul Peer Shah Vs Hafeez Fatima
Mushir Alam & Dost M Khan,,JJ
Property transaction undertaken by an old, illiterate village “Pardanasheen” lady. Transaction denied by the lady. Burden would shift to the beneficiary of the transaction to prove the same...
(XI)
NOVATION OF AGREEMENT & EFFECT SECTION 62 CONTRACT ACT
2018 SCMR 1586
• Performance of original agreement between the parties when can be dispensed with---where, however, only one of the parties to the agreement alleged novation or alteration in the original agreement but failed to establish the same, mere allegation of novation would not absolve the patties from performing the original agreement. If a party alleges novation of contract, it has to establish such prerequisites...
• Once a party was novated a contract then enforcement of the earlier agreement could not be sought in terms of Section 62 of the Contract Act, 1872 unless it was expressly stipulated in the fresh agreement that his rights in the original agreement would not be prejudiced...
REFERENCES:;
1. 2018 SCMR 1586
2. 1994 SCMR 2189
3. 2016 CLC 351
(XII)
ESSENTIALS OF NOVATION
PLD 2019 LHR 333
Mst. Waris Jan case
Shahid Waheed,,JJ
1. For proving of novation of contract it must be shown that
2. There was existence of a previous valid agreement;
3. There was an agreement of the parties to cancel the first agreement;
4. There was agreement of the parties that second agreement replaced the first one;
5. To prove validity of the second agreement
Novation was a form of affirmative plea & the party who canvassed the same had the burden of proving it by satisfactory evidence. Article 102 of Qanon e Shahadat, 1984 forbade proving contents of writing otherwise than by writing itself and best evidence about contents of a document was the document itself & production of the same was required by law in proof of its contents & basic requirement of law was to see the terms incorporated in such a document..
Rana Afzal Razzaq advocate
REFERENCES:;
1. 1997 SCMR 1570
Hazratullah case
(XIII)
PARTIAL SPECIFIC PERFORMANCE OF AN AGREEMENT TO SELL
2005 SCMR 1408
Where there was only one contract between the vendees and venders and if the shares of the vendees were specified, as long as contract was one, section 17 Specific Relief Act, 1877 would bar splitting up of the transaction...
REFERENCES:;
1. PLD 1964 SC 807
Mrs. Anwara Ch case
(XIV)
2007 YLR 2116
Part performance by delivery of possession No limitation for specific performance...
(XV)
2016 CLC 1245
Zaka Ullah Vs Manzoor Hussain
Ali Baqar Najafi,,JJ
Article 17 & 79 QSO, Order XVI CPC, Section 12 Specific Relief Act.
Witness cannot be introduced to prove a document unless his name exists on the document or is referred by any of the witness in their statements or is named as such in the plaint; therefore, at least, his name is required to be mentioned in the list of witnesses under Order XVI, CPC...
REFERENCES:;
1. PLD 2007 Lah. 254
Mst. Sakina Bibi case
2. PLD 2011 SC 241
Hafiz Tassaduq Hussain case
(XVI)
PLD 2016 Lah. 563
Safdar Hussain Vs Mst. Noshi Gillani
Ali Baqar Najafi,,JJ
Agreement which was not in conflict with any statue could be enforced...
(XVII)
2016 CLC 1744
Faiz M Vs M Boota
Ali Akbar Qureshi,,JJ
Mere registration of document was not sufficient to prove its ex*****on and validity. Courts below had rightly reached the concurrent findings both on facts and on law and there was no reason to interfere with the same. High Court dismissed the petition...
(XVIII)
UNREGISTERED AGREEMENT TO SELL
2017 SCMR 366
M Tanvir case
Umar Ata Bandial Bench
Such an agreement would not confer any title upon the vendee in the immovable property...
(XIX)
ADMINISTRATION OF JUSTICE
2017 SCMR 516
Amam Bakhsh Vs M Butta
A litigant who seeks discretionary power under specific relief act must come with clean hands. Truth attached to judicial proceedings...
(XX)
2007 MLD 703
Before taking any adverse action against a person or his property he is entitled to a notice and to be heard...
(XXI)
REGISTERED DOCUMENTS & PRESUMPTION OF TRUTH ARTICLE 72, 117, 120
2017 CLC 495
M Akram Qurashi case
Arshad Hussain Khan,,JJ
Presumption of truth was attached to said certified copies. Such documents could only be rebutted through strong and cogent evidence...
REFERENCES:;
1. 1993 SCMR 462
Mirza M Sharif
2. 2004 SCMR 1342
Rana Afzal Razzaq advocate
(XXII)
DOCUMENTS AVAILABLE ON RECORD, BUT NOT PRODUCED IN EVIDENCE & EXHIBITED
PLD 2007 Kar. 358
Imam Bux case
Nothing in law prevented court from looking into such documents even if they were not exhibited, provided these had been placed on record by party concerned. Such documents were admissible in evidence...
(XXIII)
UNREGISTERED SALE / DOWER DEED, AND REGISTERED GIFT DEED IN RESPECT OF SAME PROPERTY
2017 SCMR 608
Arshad Hussain case
Where a person in favour of whom an un-registered deed-qua transfer of certain rights in property had been executed, also had possession of the property, he could legally protect his rights in the property and even a registered deed subsequent in time would not affect his / her rights. First proviso to S.50 of the registration act 1908 Provided that such rights in the property could be protected under S.53-A of the Transfer of Property Act 1882...
REFERENCES:;
1. 1999 SCMR 837
2. 2004 SCMR 530
(XXIV)
RULE OF PREPONDERANCE OF EVIDENCE
2017 CLC 564
Jumma Khan case
Agreement of sale was required to be proved by two witnesses of ex*****on of a document. Rule of production of two witnesses as proof of ex*****on of a document was not an absolute rule to be applied in every case. Every case had to be decided on its own merits both of facts and law. Need to provide proof of ex*****on of agreement would arise when the denial had come from the executant of said agreement...
REFERENCES:;
1. 2008 SCMR 398
(XXV)
2014 MLD 1216, 268
Agreement executed not signed by owner
No specific performance...
(XXVI)
2013 MLD 1449
Document inadmissible in evidence can not be seen and looked into by court even it is exhibited without any objection...
(XXVII)
ORAL AGREEMENT
2017 CLC 996
Nazir Abbas case
Ch. M Masood Jahangir,,JJ
Plaintiff alleged that defendant had agreed to sell suit property in his favour on the basis of oral transaction...
REFERENCES:;
1. PLD 2011 SC 241
Hafiz Tassadique Hussain case
2. 1968 SCMR 804
Ch. Brothers LTD Sialkot case
3. PLD 2011 SC 161
Nazir Ahmad case
4. 2013 SCMR 1300
M Nawaz case
(XXVIII)A
PRINCIPLE STIPULATED TIME IS NOT ESSENCE OF CONTRACT DISSENT VIEWS
2017 SCMR 1696
M Abdul Rehman case
Ejaz Afzal Khan,,JJ
In view of the commercial nature of the property business and a widespread trend of rapid increase in prices of immovable properties, a seller could not be left at the mercy of the buyer to bind him in an agreement to sell and then delay completion of the contract for as long as he may wish hiding behind an archaic legal principle that in contracts involving immovable properties, time was generally not of the essence...
(XXVIII)B
TIME ESSENCE OF CONTACT
2021 SCMR 7
Samina Riffar case
Mushir Alam,,JJ
Generally in respect of sale of immovable property, time was not considered as of the essence of contract. However parties may consciously strike a deal to make time essence of the contract by providing certain consequences for breach of reciprocal obligation casted upon them, and in such cases, time was treated as essence of the contract...
REFERENCES:;
1. 2010 SCMR 334
Gulshan Hamid case
(XXIX)
ESSENTIAL ELEMENTS OF SALE
2017 SCMR 1787
M Moizuddin case
Gulzar Ahmad,,JJ
Essential elements of sale were, first, the parties, second, the subject matter; third, the transfer or conveyance; and fourth, price or considerations...
(###)
DEPOSIT OF BALANCE AMOUNT
2017 SCMR 2022
Hamood Mehmood case
Dost Mohammad Khan,,JJ
It was mandatory for such party that on first appearance before the court or on the date of the institution of the suit, it shall apply to the court for permission to deposit the balance amount. Any contumacious / omission in such regard would entail in dismissal of the suit or decretal of the suit, if it was filed by the other side...
Rana Afzal Razzaq advocate
REFERENCES:;
1. 2018 CLC 1409
M Asghar case
2. 2003 SCMR 953
Haji Abdul Hamid case
3. 2015 MLD 49
Syed M Waqar ud Din case
4.2020 SCMR 171
Messrs Kuwait National Real Estate company (Pvt) case
(###I)
2018 CLC 1505
Mohammad Khan case
Mian Gul Hassan AurangZaib,,JJ
• Court in such a suit would neither lose its jurisdiction after grant of a decree for specific performance nor become functus officio...Court retained its power and jurisdiction to deal with the decree of specific performance till the sale deed was expected in ex*****on of decree. Court in such matter had power to enlarge the time to pay an amount or perform the conditions mentioned in the decree for specific performance..
• Order to grant such an extension of time Could not be passed without notice to the other side.. Impugned order was passed in absence of defendants which was violation of principle of natural justice..
(###II)
2018 CLC 1505
Mohammad Khan case
Mian Gul Hasan AurangZaib,,JJ
Court in such a suit would neither lose its jurisdiction after grant of a decree for specific performance nor became functus officio. Court remained...
(###III)
ESCALATION IN PRICE OF SUIT PROPERTY DURING PENDENCY OF LITIGATION
2016 SCMR 1248
Whether such escalation should be considered as a factor to deny the plaintiff a decree of specific performance. Rise in the price of immovable property by itself was not a ground for refusal to enforce a lawful agreement to sell...
(###IV)
ATTESTING / MARGINAL WITNESSES
PLD 2018 Lah. 132
Attesting witness is one who not only sees document being executed but also appends his signature / thumb impression on it after understanding its contents. If attesting witness while appearing in witness box, to prove contents of document, fails to depose about the contents of documents or cannot verify his signature / thumb impression, such person cannot be treated as an attesting witness...
(###V)
2020 CLC 23
Abdul Aziz Nooristani Vs Shams ul Mulk
Syed Arshad Ali,,JJ
Plaintiff had established agreement to sell through two witnesses and had offered a plausible justification for non-production for non-production of one of the marginal witnesses being close relative of defendant. Agreement to sell had been established in circumstances. No mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below...
Rana Afzal Razzaq advocate
REFERENCES:;
1. 1993 CLC 1637
M Ismail case
2. 1993 CLC 334
Pak Carpet Industries Ltd case
3. 1994 SCMR 2189
Mrs. Mussarat Shaukat Ali case
4. 2003 CLC 984
Babu case
5. 2003 YLR 981
Allah Ditta case
6. 1986 MLD 141
Danishmand case
7. PLD 2011 SC 905
M Ashraf Butt case
(###VI)
2020 SCMR 197
M Afzal (Deceased) Vs M Bashir
Faisal Arab & Mazhar Alam Khan Miankhel,,JJ
Reading of Article 81 showed that where the ex*****on of a document was admitted by the executant himself, the examination of attesting witnesses was not necessary. Appeal was dismissed...
REFERENCES:;
1. PLD 2012 SC 241
Hafiz Tassaduq Hussain case
2. AIR 1925 Privy Council 203
Mst. Hira Bibi case
3. AIR 1927 Calcutta 926
Sheik Kachu case
(###VII)
LIMITATION SUBJECT PROPERTY MORTGAGE WITH BANK FIRST SCHEDULE ARTICLE 113 OF LIMITATION ACT 1908
PLD 2018 SC 692
M Sadiq case
Mushir Alam,,JJ
Existence of the mortgage had no bearing on the question of limitation for the specific enforcement of the agreement to sell. High Court erred materially in concluding that limitation did not begin to run till the property was redeemed. Limitation began to run from the date of performance as given in the agreement...
(###VIII)
CORRECTION OF ERROR IN SALE DEED
2018 CLC 1384
M Majeed case
Amin ud Din Khan,,JJ
Section 152, 153 of Civil Procedure Act 1908 & Section 12 of Specific Relief Act 1877. No khasra number of suit land was mentioned either in the agreement to sell or plaint & decree in favour of plaintiff. Agreement to sell was with regard to shops jointly owned by defendants. Decree for specific performance of part of Suit mentioning the area of said property. Sale deed was registered without ensuring that it was in accordance with the judgment passed by the trial court. Limitation could not be a hurdle in the way of dispensation of justice when a wrong had been done by the court...
Rana Afzal Razzaq advocate
(###IX)
DISCRETIONARY RELIEF
2019 SCMR 524
Akhtar Aziz case
Umar Ata Bandail,,JJ
Relief of specific performance was discretionary in nature and despite proof of an agreement to sell, exercise of discretion could be withheld if the Court considered that grant of such relief would be unfair or inequitable...
(XL)
TOKEN RECEIPT DOCUMENT
PLD 2019 Lah 346
Saleem Shahadat case
Amin Ud Din Khan,,JJ
Agreement to sell. Payment of token money. Token receit document. Whether token receipt document amounted to a contract / agreement to sell. case pleaded by the plaintiff was that the defendants agreed to sell the suit property in his favour through the receit of token money that the same terms were to be written on the requisite stamp paper. Perusal of the token receipt document (the document) showed that it was an agreement to sell that its plain language amounted to a contract when offer, acceptance, the detail of property, the full consideration amount, mode of payment, the period of payment, amount of earnest money and the receipt thereof were admitted facts...
(XLI)
2020 CLC 243
Shabbir Ahmed Vs Cholistan Development Authority
Rasaal Hasan Syed,,JJ
Articles 79, 17, 117 & 120 Qanun-e-Shahadat (10 of 1984)
Ex*****on of document. Onus to prove. Person pleading positively existence of transaction, ex*****on of document, thumb impression and signature of alleged executants is under heavy onus to prove the same. Beneficiary of document is required to establish transaction and also alleged ex*****on by producing two attesting / marginal witnesses. In cases of thumb impression, same is done by seeking forensic examination of thumb impression in comparison with admitted thumb impression...
Rana Afzal Razzaq advocate
REFERENCES:;
1. 2018 SCMR 2080
Wali M Khan case
2. 2010 SCMR 1370
Khaliqdad Khan case
3. 2004 SCMR 1043
Fida Hussain case
4. PLD 2015 SC 187
Farzand Ali case
5. PLD 2011 SC 241
Hafiz Tassaduq Hussain case
6. 2013 SCMR 1300
M Nawaz case
(XLII)
DEFICIENCIES IN AGREEMENT TO SELL
2020 SCMR 406
M Miskeen Vs District Judge Attock
Qazi Faez Isa & Sajjad Ali Shah,,JJ
Agreement not specifying details about “metes and bounds” and khasra number, khewat number etc. of the property nor its sale consideration. Held that Trail Court had totally ignored the law on the basis of such an agreement. Trail Court ought to have given convincing reasons for decreeing the suit by allowing specific performance and for ignoring all the deficiencies in the agreement as well as in the plaint...
(XLIII)
DISCRETION OF COURT AS TO DECREEING SPECIFIC PERFORMANCE
2021 SCMR 431
M Riaz Hussain Vs Zahoor Ul Hassan
Umar Ata Bandial & Munib Akhtar,,JJ
Sections 12 & 22 Specific Relief Act.
Remedy for specific performance was discretionary and could not be claimed as of right by a party. Grant of specific performance was not mandatory and could be refused by a Court where the circumstances so required. Instead of mechanically granting the relief of specific performance to every party, Courts should examine the circumstances of each case to ascertain whether such relief was equitable on the facts...
REFERENCES:;
1. PLD 2020 SC 401
Mrs. Zakia Hussain case
2. PLD 2014 SC 506
Liaqat Khan case
Rana Afzal Razzaq advocate
(XLIV)
2022 SCMR 918
Suit for specific performance of an agreement to sell immovable property. Whether the token receipt qualified asan agreement to sell. Held, that document titled “token receipt“ contained all the necessary ingredients essentialy for its to qualify as a valid and lawfully enforceable…
(XLV)
EX*****ON OF DOCUMENTS
2023 CLC 176
Masood Ahmed Khan Vs Khalid Anwar Khan
Provision of Article 79 of Qanun-e-shahadat, 1984 are only applicable in cases where ex*****on of a document is disputed Between maker of document and the person in whose favor purportedly the same is executed. Only then such a document is to be proved by producing 2 marginal witnesses…
REFERENCES:;
1. 2021 SCMR 415
Sajid Ahmed Khan case
(XLVI)
ORAL SALE TRANSACTION
2023 MLD 654
Suit for specific performance of oral contract. Failure to provide essential details with regards to oral sale. Creditability of witnesses. Suit instituted by respondents/plaintiffs/was unanimously decreed by courts below. Appellants asserted that neither any oral sale transaction was settled nor consideration was received, rather false fictitious and concocted story was planted to usurp the valuable land. Imperative for respondents to specifically provide essential details with regard to oral sale transaction. Time, date, venue and names of witnesses were to be specifically provided so as to prove when, where and before whom alleged oral transaction was effected. Object behind said principle was to subvert the gate of frivolous litigation besides to discourage the production of shocking as well as surprising evidence. Perusal of record affirmed that neither time, venue nor names of witnesses were provided in the plaint which alone was fatal to non-suit the respondents / plaintiffs. Evidence on the part of plaintiffs was inconsistent, uncertain and variable, which was not enough to prove the alleged oral transaction…
(XLVI)
2023 MLD 654
Vendors, who by transferring their shares had already stood with the plaintiffs could be best persons to support their stance, but they were withheld, therefore under article 129, illustration (g) of QSO, hostile inference was to be drawn that had they been examined, they might have negated stance of plaintiffs / respondents…
Rana Afzal Razzaq advocate
Outstanding Balance & consideration&
PLD 2023 SC 653
Ijaz Ul Haq vs Mrs. Maroof Begum Ahmed
Specific Relief Act
S. 12---- Suit for specific performance of agreement to sell immovable property-- Capacity of vender to pay the balance amount by the stipulated time--- proof--- In a suit for specific performance, the vendee has to prove that at the appointed time, he had sufficient money with which he could pay the balance amount , or if he did not have such money , he made such arrangements, with the help of which, he could pay as promised.
(XLVII)
Suit for cancellation of un-registered document
2023 MLD 20
Shakeel Qadir vs Mst. Shumaila Umair
Specific Relief Act (I of 1877)---
----S. 39---Transfer of Property Act (IV of 1882), S. 54---Registration Act (XVI of 1908), S. 49---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for cancellation of un-registered document---Rejection of plaint---Scope---Plaintiff filed suit for cancellation of un-registered document---Validity---No right had accrued to the defendant under the un-registered agreement of sale sought to be cancelled through the High Court---Mere agreement of sale did not confer any right in favour of buyer--- Suit was hit by O. VII, R. 11, C.P.C. as no cause of action could ever accrue to the plaintiff to approach court of law for a decree of declaration and cancellation of same---Plaintiff had filed the suit to harass and coerce the buyer through the frivolous suit and might be to pre-empt a suit for specific performance---Such was clear abuse of process of Court, therefore, the suit was dismissed with costs.
Reference:
Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367 and Khalid Khan Haji Muhammad Anwar and 2 others 2015 YLR 1845 .
Rana Afzal Razzaq advocate
(XLVII)
Balance amount
2024 SCMR 1496
Meer Gul
versus
Raja Zafar Mehmood through legal heirs and others.
Initial burden lies on the Plaintiff (vendee) to show his willingness and readiness unequivocally, and while asserting for any injunction relief or otherwise, during the pending adjudication, the Plaintiff may offer to deposit the balance amount in Court and at the same, the Court has to consider bona fide of the Plaintiff example, whether he is ready and willing to perform his part of the contract, if the Plaintiff does not offer to deposit the balance sale consideration in Court, even then, the Court in order to determine and find out the seriousness or unseriousness or bona fide or mala fide of the Plaintiff who lodged the claim of specfic performance of contract, may pass an order for depositing the amount in Court to protect the interest of the defendant as a check and balance with a certain timeline for compliance of such order with adverse consequences on account of non-compliance within the stipulated time.
Reference:
1) Messrs DW Pakistan (Private) Limited v Begum Anisa Fazl-i-Mahmood 2023 SCMR 555.
(XLVII)
Property mentioned in agreement not specific
2023 SCMR 344
Muhammad Ghaffar (Deceased) through LRs and others
versus
Arif Muhammad
b) Specific Relief Act (I of 1877):
Ss. 12 and 21 --- Suit for specfic agreement performance of an agreement to sell immovable property --- Agreement to sell --- Property mentioned in agreement not specfic --- Effect --- When the property is not Specfic Relief no decree can be passed in the light of Section 21 of the Specfic Relief Act 1877 --- Court will refuse to specifically enforce a contract where it suffers from uncertainty.
References:
1) Hari Saindino Khan and another v Mst. Zaibunnissa through Legal heirs and another 1991 SCMR 972.
