Citation Name: 2023 CLC 2019 PESHAWAR-HIGH-COURTBookmark this Case SAHIB GUL vs SOUCHA GUL Ss

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Citation Name: 2023 CLC 2019 PESHAWAR-HIGH-COURTBookmark this Case SAHIB GUL VS SOUCHA GUL Ss. 12, 42 & 54---Transfer of Property Act (VI of 1882), S. 53-A---Suit for specific performance of agreement to sell, declaration and permanent injunction---Specific enforcement of an agreement to sell, grant of---Possession of suit-property having been delivered to the vendee/plaintiff---Effect---Balance consideration, non-payment of---Claim of the plaintiff was that part payment of consideration remained unpaid owing to the absence of the vendors/defendants being involved in criminal case---Trial Court passed conditional decree in favour of the plaintiff by directing him to pay the balance amount, which judgment and decree were maintained by the Appellate Court---Contention of the petitioners/defendants was that the suit-property was given on rent to the respondent /plaintiff---Validity---There was no evidence` on record that petitioners / defendants had raised any objection or had filed any criminal proceedings against the respondent/plaintiff for usurping their property---Even otherwise, the contention of the petitioners/defendants was beyond their pleadings because the same was never asserted in the written-statement that the respondent/plaintiff was in possession of suit-property being their tenant---Grant of specific performance of an agreement to sell pertaining to immoveable property had always remained a discretionary relief and even in the cases where the agreement to sell was established before the Court, the relief of specific performance was refused on equitable consideration, however, the Court was not denuded of the authority to consider the conduct of parties to the agreement and balance of convenience and inconvenience of the parties while adjudicating the enforceability of an agreement, subject-matter of the lis---Plaintiff was in permissive possession of the suit-property and was running his ice-factory on the same---During the period when he was installing factory at the premises, the petitioners/defendants never objected---Balance consideration of the agreement, having been executed more than twenty years ago, had remained unpaid---High Court modified the decree to the extent of balance consideration by holding that respondent / plaintiff was bound to compensate the petitioners/ defendants by paying amount according to the present market value (of that portion of property for which the consideration remained unpaid); and that said amount would be ascertained by the Executing Court---Revision was disposed of accordingly. Citation Name: 2023 CLC 2019 PESHAWAR-HIGH-COURTBookmark this Case SAHIB GUL VS SOUCHA GUL Ss. 12, 42 & 54---Transfer of Property Act (VI of 1882), S. 53-A---Suit for specific performance of agreement to sell, declaration and permanent injunction---Consensus ad idem, element of---Possession of suit-property delivered to the vendee/plaintiff---Effect---Agreement not signed by vendors---Inconsequential---Trial Court passed conditional decree in favour of the plaintiff by directing him to pay the balance amount, which judgment and decree were maintained by the Appellate Court---Claim of the plaintiff was that part payment of consideration remained unpaid owing to absence of the vendors/defendants being involved in criminal case---Validity---Evidence adduced in the present case showed that agreement-in-question was not signed by the petitioners/defendants but facts and circumstances of the case , more particularly the transfer of possession of the suit-property to the respondent/plaintiff, installation of ice factory, obtaining of electricity connection etc by him (respondent/plaintiff), clearly showed that the said transaction (execution) was, although executed by someone else (defendant other than the petitioners) but with the approval of the petitioners---Even the respondent/ plaintiff was able to establish the part-payment to one of the petitioners by producing two marginal witnesses---In such circumstances, non-signing of agreement by all the petitioners/defendants was of no consequence when the respondent/plaintiff was able to establish 'consensus ad idem' between the parties being the basic inherit element relating to execution of agreement, thus there was clarity regarding the disputed property and its consideration---High Court modified the decree to the extent of balance consideration by holding that respondent/plaintiff was bound to compensate the petitioners/defendants by paying amount according to the present market value (of that portion of property for which the consideration remained unpaid more than twenty years ago); and that said amount would be ascertained by the Executing Court---Revision was disposed of accordingly.

Citation Name: 2023 CLC 2019 PESHAWAR-HIGH-COURTBookmark this Case SAHIB GUL vs SOUCHA GUL Ss — 2023 CLC 2019 PESHAWAR-HIGH-COURT

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