IN THE SUPREME COURT OF PAKISTAN 
  
 
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
 
 
MR. JUSTICE ANWAR ZAHEER JAMALI, CJ 
 
 
MR. JUSTICE AMIR HANI MUSLIM 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE MANZOOR AHMAD MALIK 
 
 
MR. JUSTICE FAISAL ARAB 
 
CIVIL APPEAL NO.56 OF 2011, CMA NO.6863 OF 2014 IN 
CIVIL APPEAL NO.56 OF 2011, CIVIL APPEAL NO.462-L OF 
2009 AND CIVIL APPEAL NO.11-L OF 2013 
(On appeal from judgment dated 30.11.2010, 19.10.2004 & 
19.12.2012, passed by the Lahore High Court, Lahore & Lahore 
High Court, Bahawalpur Bench, in C.R. No.897/2009, R.S.A. 
No.41/1997 & C.R. No.347-D/2006 (BWP), respectively) 
 
 
CA.56/2011 
 
Muhammad Sattar Vs. Tariq Javaid and 
others 
 
 
 
CMA.6863/2014 
in CA.56/2011 
 
Muhammad Sattar Vs. Tariq Javaid and 
others 
 
 
 
CA.462-L/2009 
 
Raja Muhammad Iqbal Vs. Muhammad 
Sadiq (decd) through L.Rs., etc. 
 
 
 
CA.11-L/2013 
 
Muhammad 
Anwar 
Vs. 
Muhammad 
Akram, etc. 
 
For the Appellant (s) : Ch. Mushtaq Ahmed Khan, Sr. ASC 
 
Syed Rifaqat Hussain Shah,  
AOR (absent) 
(in CA.56/2011) 
 
Moulvi Anwar-ul-Haq, ASC 
(in CA.462-L/2009) 
 
Mian Allah Nawaz, Sr. ASC 
(in CA.11-L/2013 
 
 
 
For Respondents 
No.1-4 and 6-8) 
: Malik Muhammad Kabir, ASC 
 
Mr. Ahmed Nawaz Ch., AOR (absent) 
(in CA.56/2011) 
 
 
 
For Respondents 
: Sardar Muhammad Aslam, ASC 
(in CA.462-L/2009) 
 
Ch. Aamir Rehman, ASC 
(in CA.11-L/2013) 
CAs.56 of 2011, etc. 
2 
 
 
 
Date of Hearing 
: 15 and 16.06.2016 
  
 
JUDGMENT  
 
  
 
SH. AZMAT SAEED, J.- Civil Appeal No.56 of 
2011, Civil Misc. Application No.6863 of 2014 in Civil 
Appeal No.56 of 2011 and Civil Appeals No.462-L of 2009 
& No.11-L of 2013 have arisen out of Civil Suits, wherein 
the Plaintiffs therein variously claimed relief of Specific 
Performance 
of 
Agreements 
to 
Sell 
pertaining 
to 
immovable property. In each of the aforesaid cases, the 
Agreement to Sell in question was purportedly signed and 
executed by the Vendors but did not bear the signatures 
of the Vendees, who were the Plaintiffs in their respective 
Civil Suits. A common question which has arisen in all the 
aforesaid Civil Appeals is whether such Agreements to Sell 
not signed by the Vendees were valid and enforceable in 
law. The learned High Court in its judgment dated 
30.11.2010 impugned in the Civil Appeal No.56 of 2011 
and in the judgment dated 19.12.2012 by relying upon the 
judgment of this Court, reported as Mst. Gulshan Hamid 
v. Kh. Abdul Rehman and others (2010 SCMR 334) held 
that such an Agreement to Sell not signed by the 
Vendee/Plaintiff was not enforceable in law. A similar 
argument was also canvassed at the bar in Civil Appeal 
CAs.56 of 2011, etc. 
3 
No.452-L of 2009. Reference was also made to another 
judgment of this Court, reported as Farzand Ali and 
another v.  Khuda Bakhsh and others (PLD 2015 SC 187) 
to assert that the Agreement to Sell not signed by one of 
the parties was invalid. 
2. 
 
The learned counsels appearing for both sides of 
aisle were brisling with arguments based upon the entire 
factual and legal spectrum of their respective cases but 
were asked to restrict themselves to the legal proposition 
noted above, as we initially propose only to decide the 
aforesaid question of law leaving the merits of the 
individual case, including all other issues of fact and law 
to be adjudicated upon separately on a case to case basis. 
3. 
 
Mian Allah Nawaz, learned Sr. ASC leading the 
charge on behalf of the Appellant in Civil Appeal No.11-L of 
2013 contended that the learned High Court has failed to 
take into consideration the provisions of Sections 8 and 9 
of the Contract Act, 1872, and a bare reading thereof leaves 
no manner of doubt that a concluded enforceable 
agreement can come about, even in the absence of formal 
signatures by one of the parties. It was added that there is 
nothing in the Contract Act, 1872, which prohibits an oral 
agreement, which is obviously not signed by either party. It 
was further added that the learned High Court has failed to 
CAs.56 of 2011, etc. 
4 
take into consideration the law laid down by this Court in 
the judgment, reported as Messer’s Jamal Jute Baling & 
Co, Dacca v. Messrs M. Sarkies & Sorts (Sons), Dacca (PLD 
1971 SC 784), wherein it has been held that an Agreement 
reduced into writing and accepted by both the parties is 
enforceable in law, even if, one of the parties has not 
appended its signatures thereupon. The learned counsel 
further relied upon the judgment of this Court, reported as 
Karachi Gas Co, Ltd v. Dawood Cotton Mills Ltd. (PLD 1975 
SC 193) to assert that a valid agreement can be based upon 
an implied proposal and acceptance and, in this behalf, 
writing is not necessary. The learned counsel also placed 
reliance upon the judgments, reported as RTS Flexible 
Systems Limited v. Molkerei Alois Muller GmbH and Co. 
KG (2012 SCMR 1027), Messrs Habib Bank Limited v. 
Abdul Wahid Khan (1996 CLC 698), Jugal Kishore 
Rameshwardas Vs. Mrs. Goolbai Hormusji (AIR 1955 SC 
812) and Banarsi Das Vs. Cane Commissioner, Uttar 
Pradesh and another (AIR 1963 SC 1417). With regard to 
the judgments of this Court, reported as Mst. Gulshan 
Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) 
and Farzand Ali and another v. Khuda Bakhsh and others 
(PLD 2015 SC 187), it was contended that the same are not 
only distinguishable on facts but also do not lay down the 
CAs.56 of 2011, etc. 
5 
entire law on the subject and cannot be construed to run 
contrary to the express provisions of Sections 8 and 9 of 
the Contract Act, 1872 and the settled law on the subject, 
as laid down by this Court, including in the judgments 
referred to above.  
4. 
 
The 
other 
learned 
counsels 
adopted 
and 
supported the contentions raised on behalf of the learned 
counsel for the Appellants referred to above.  
5. 
 
The learned counsel for the opposite side 
controverted the contentions raised by Mian Allah Nawaz, 
learned Sr. ASC by contending that mutuality is a sine 
qua non for an enforceable agreement and the absence of 
the signatures of one of the parties thereto for all intends 
and purposes conclusively determine the absence of such 
mutuality. It was further contended that the same is even 
more vital in an executory agreement containing reciprocal 
promises. The learned counsel placed reliance upon the 
judgments of this Court in the cases, reported as 
Sirbaland Vs. Allah Loke and others (1996 SCMR 575) 
Messrs M.A. Khan and Co. through Sole Proprietor 
Muhammad Ali Khan Vs. Messrs Pakistan Railway 
Employees Cooperative Housing Society Ltd. Through 
Principal Officer/Secretary, Karachi (2006 SCMR 721), 
Mst. Gulshan Hamid (supra), Alleged Corruption in Rental 
CAs.56 of 2011, etc. 
6 
Power Plants Etc. :In the matter of (Iftikhar Muhammad 
Chaudhry, CJ) (2012 SCMR 773) and Farzand Ali and 
another (supra).  
6. 
 
Heard and perused the available record.  
7. 
 
The primary and basic law relating to the 
contracts is obviously the Contract Act, 1872. The 
essentials of a valid contract are an offer communicated, 
the 
unconditional 
acceptance 
of 
such 
offer 
and 
consideration. There is nothing in the Contract Act, 1872 
which requires that such offer and acceptance must 
necessarily be in writing or form a single document. The 
law i.e. the Contract Act, 1872 envisages a valid 
enforceable contract, which may even be oral. A perusal of 
the provisions of the said enactment also reveals that both 
the proposal and its acceptance may be expressed or 
implied, as is apparent from Section 9 thereof, which 
reads as under: 
  
“9. 
Promises, express and implied.- In 
so far as the proposal or acceptance of any 
promise is made in words, the promise is 
said to be express. In so far as such 
proposal or acceptance is made otherwise 
than in words, the promise is said to be 
implied.” 
 
8. 
 
Similarly, once an offer is communicated, the 
performance of the conditions of the proposal or the 
acceptance of any consideration or part thereof offered 
CAs.56 of 2011, etc. 
7 
with the proposal also constitutes an acceptance so as to 
bring about a valid binding contract between the parties, 
as is obvious from the bare reading of Section 8 of the 
Contract Act, 1872, which is reproduced hereunder for 
ease of reference: 
  
“8. 
Acceptance 
by 
performing 
conditions or receiving consideration.- 
Performance 
of 
the 
conditions 
of 
a 
proposal, 
or 
the 
acceptance 
of 
any 
consideration for a reciprocal promise 
which may be offered with a proposal, is 
an acceptance of the proposal.” 
  
9. 
 
No doubt, the Contract Act, 1872 may not be the 
only law applicable to the transactions enumerating the 
requisite formalities. Various special laws pertaining to 
certain specified species of contracts also hold the field 
and the provisions thereof may envisage certain additional 
requirements to bring about a valid contract. An obvious 
example is Section 54 of the Transfer of Property Act, 
1882, which requires that a contract of sale of immovable 
property of a value of more than one hundred rupees must 
necessarily be reduced in writing. This condition only 
applies where the Transfer of Property Act, 1882 is 
applicable through a Notification in terms of Section 1 
thereof. The said provision of the Transfer of Property Act, 
1882 is not applicable to the entire length and breadth of 
Pakistan and oral sales are recognized and enforced in 
CAs.56 of 2011, etc. 
8 
various parts of Pakistan. Be that as it may, there is 
nothing in the Transfer of Property Act, 1882 or any other 
law, which requires that an Agreement to Sell of 
immovable property must necessarily be reduced into 
writing or be signed by the parties thereto. 
10.  
The Courts in Pakistan, while interpreting the 
various provisions applicable, more particularly, Sections 
8 and 9 of the Contract Act, 1872, have repeatedly and 
consistently held that the contracts in general do not 
require to be reduced into writing (except where otherwise 
specifically provided by law) and the offer and acceptance 
can also be implied from the conduct of the parties in 
terms of Sections 8 and 9 ibid and the absence of formal 
signatures does not effect the validity or enforceability of 
the Contract Act, 1872.  
11.  
This Court in the judgment, reported as Messer’s 
Jamal Jute Baling & Co, Dacca v. Messrs M. Sarkies & 
Sorts (Sons), Dacca (PLD 1971 SC 784) held as follows: 
“Even if it be assumed for the sake of 
argument that the contract was not 
properly signed even otherwise in my 
opinion, the contract between the parties 
was quite valid and binding on them. It 
has been rightly pointed out by the Civil 
Judge that the appellant-sellers have 
accepted the contract. There is also 
evidence that after the conclusion of the 
contract the appellant-firm had partially 
acted upon it for supplying 125 bales of 
CAs.56 of 2011, etc. 
9 
jute. Mr. Bhattacharjee, learned counsel 
for the respondent has referred to two 
Indian 
decisions, 
Jugal 
Kishore 
Rameshwardas v. Mrs. Goolbai Hormusji 
(1) 
and 
Banarsi 
Das 
v. 
 
Cane 
Commissioner, Uttar Pardesh and another 
(2). It was held in these cases that even if 
signature is not there and acceptance is 
established it is a proper agreement 
between the parties. In the case of Jugal 
Kishore Rameshawardas, it was held as 
under :- 
 
 
 
 
“But it is settled law that to 
constitute 
an 
arbitration 
agreement in writing it is not 
necessary that it should be signed 
by the parties, and that it is 
sufficient if the terms are reduced 
to writing and the agreement of 
the parties thereto is established.” 
 
The same view was expressed in the case 
of Banarsi Das. If the fact of the present 
case is considered in the light of these 
principles, it is proved that the agreement 
between the parties was reduced to 
writing. Both the parties accepted its 
terms and have partially carried them out. 
In view of this the contract in dispute is 
established 
between 
them 
and 
the 
respondents are entitled to enforce it. 
Having regards to these facts, I am 
satisfied that there was a valid reference to 
arbitration 
and 
the 
Arbitrators 
were 
competent to enter on the reference in 
order to decide the dispute between the 
parties. I would, therefore, repel the 
contention of the appellant in this behalf.” 
  
 
 
 
(emphasis supplied) 
 
  
In the case of Karachi Gas Co, Ltd v. Dawood Cotton 
Mills Ltd. (PLD 1975 SC 193), it has been observed as 
follows: 
“The customer did not raise any objection 
to this principle of charging interest. On 
the basis of these facts, the Privy Council 
CAs.56 of 2011, etc. 
10 
following the principle laid down in (1813) 
3 Camp 487 observed at p. 23 as follows:-  
 
 
“… the fact that the defendant had 
not 
objected 
to 
a 
change 
of 
compound interest in accounts 
which for several years, he had 
annually received from the plaintiff 
bank offered sufficient evidence of 
a promise by him to pay interest in 
that manner.” 
 
 
In the case of Messers M. A. Khan & Co. through Sole 
Proprietor Muhammad Ali Khan v. Messers Pakistan 
Railways Employees Cooperative Housing Society Ltd. 
Through Principal Officer/Secretary, Karachi, (2006 SCMR 
721), it was held as under:  
“… The acceptance of the offer may be 
express or implied or it can be gathered 
from the conduct of parties and the 
circumstance of the case. The acceptance 
of an offer would give rise to an agreement 
which if is enforceable in law is a valid 
contract and the contract is complete as 
soon as the offer is accepted and the terms 
of contract required to be reduced in 
writing would be only incidental to the 
completion of contract. In a contract by 
correspondence if the acceptance of offer is 
established through the letters, the non-
execution of the formal agreement would 
not be essential to constitute a valid 
contract. 
The 
letters 
of 
offer 
and 
acceptance indicating the term agreed 
upon by the parties would constitute a 
valid contract which would not be affected 
by subsequent negotiation and the terms 
of the contract would necessarily be 
judged from the letter of acceptance.”  
  
CAs.56 of 2011, etc. 
11 
12.  
The controversy with regard to the validity of the 
contract, which does not bear the signatures of one of the 
parties thereof also cropped up in the Indian Jurisdiction 
and was settled by the Supreme Court of India in the 
judgment, reported as Aloka Bose v. Parmatma Devi & 
Ors. (AIR 2009 SC 1527), it was held as follows: 
“All agreements of sale are bilateral 
contracts as promises are made by both – 
the vendor agreeing to sell and the 
purchaser agreeing to purchase. On the 
other hand, the observation in S.M. Gopal 
Chetty (supra) that unless agreement is 
signed both by the vendor and purchaser, 
it is not a valid contract is also not sound. 
An agreement of sale comes into existence 
when the vendor agrees to sell and the 
purchaser agrees to purchase, for an 
agreed consideration on agreed terms. It 
can be oral. It can be by exchange of 
communications which may or may not be 
signed. It may be by a single document 
signed by both parties. It can also be by a 
document in two parts, each party signing 
one copy and then exchanging the signed 
copy as a consequence of which the 
purchaser has the copy signed by the 
vendor and a vendor has a copy signed by 
the purchaser. … Therefore, even an oral 
agreement to sell is valid. If so, a written 
agreement signed by one of the parties, if 
it evidences such an oral agreement will 
also be valid. In any agreement of sale, the 
terms are always negotiated and thereafter 
reduced in the form of an agreement of 
sale and signed by both parties or the 
vendor alone unless it is by a series of 
offers and counter-offers by letters or other 
modes of recognized communication. In 
India, an agreement of sale signed by the 
vendor 
alone 
and 
delivered 
to 
the 
purchaser, and accepted by the purchaser, 
has always been considered to be a valid 
contract. In the event of breach by the 
CAs.56 of 2011, etc. 
12 
vendor, it can be specifically enforced by 
the purchaser. There is, however, no 
practice of purchaser alone signing an 
agreement of sale.” 
 
13.  
The aforesaid would make it clear that it is now 
a well settled proposition of law that for a valid contract, 
the same can be oral or it may be through exchange of 
communication between the parties. Once an offer is 
communicated, the acceptance thereof can be expressed 
or implied. Such acceptance of the offer would include 
accepting the consideration accompanying the offer or 
acting upon the said bargain. There is no requirement of a 
formal signature of both or either of the parties. All that is 
required is an offer and acceptance and consideration 
between the parties.  
14.   
At this juncture, it may be pertinent to mention 
that all valid contracts are not specifically enforceable but 
nevertheless may give rise to rights and liabilities, and the 
breach thereof may entitle the offended party to seek 
compensation/damages in terms of Sections 73 and 74 of 
the Contract Act, 1872.  
15.  
The question of Specific Performance of a 
contract is dealt with in the Specific Relief Act, 1877. The 
reference to this aspect of the matter has been 
CAs.56 of 2011, etc. 
13 
necessitated in view of the fact that in the judgments 
relied upon by the learned counsel i.e. Mst. Gulshan 
Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) 
and Farzand Ali and another Vs. Khuda Bakhsh and 
others (PLD 2015 SC 187), a reference has been made to 
Section 22 of the Specific Relief Act, 1877. The aforesaid 
provision is reproduced hereunder for ease of reference: 
“22. Discretion as to decreeing specific 
performance: The jurisdiction to decree 
specific performance is discretionary, and 
the Court is not bound to grant such relief 
merely because it is lawful to do so; but 
the discretion of the Court is not arbitrary 
but sound and reasonable, guided by 
judicial 
principles 
and 
capable 
of 
correction by a Court of appeal. The 
following are cases in which the Court may 
properly exercise a discretion not to decree 
specific performance: 
 
I. 
Where 
the 
circumstances 
under 
which the contract is made are such as to 
give the plaintiff an unfair advantage over 
the defendant, though there may be no 
fraud 
or 
misrepresentation 
on 
the 
plaintiff’s part. 
 
Illustrations 
 
(a)  A, tenant for life of certain property, 
assigns his interest therein to B.  C 
contracts to buy, and B contracts to sell 
that interest. Before the contract is 
completed. A receives a mortal injury from 
the effects of which he dies the day after 
the contract is executed. If B and C were 
equally ignorant or equally aware of the 
fact. B is entitled to specific performance 
of the contract. If B knew the fact, and C 
did not, specific performance of the 
contract should be refused to B. 
CAs.56 of 2011, etc. 
14 
 
(b) A contracts to sell to B the interest of C 
in certain stock-in-trade. It is stipulated 
that the sale shall stand good, even 
though it should turn out that C’s interest 
is worth nothing. In fact, the value of C’s 
interest depends on the result of certain 
partnership- accounts, on which he is 
heavily in debt to his partners. This 
indebtedness is known to A, but not to B. 
Specific 
performance 
of 
the 
contract 
should be refused to A. 
 
(c) A contracts to sell and B contracts to 
buy certain land. To protect the land from 
floods, it is necessary for its owner to 
maintain and expensive embankment. B 
does not know of this circumstance, and A 
conceals it from him. Specific performance 
of the contract should be refused to A. 
 
(d)  A’s property is put up to auction. B 
requests C, A’s attorney, to bid for him. C 
does this inadvertently and in good faith. 
The persons present, seeing the vendor’s 
attorney bidding, think that he is a mere 
puffer and cease to compete. The lot is 
knocked down to B at a low price. Specific 
performance of the contract should he 
refused to B.” 
 
16.  
A perusal of the aforesaid provision leaves no 
manner of doubt that it does not pertain to validity of the 
contract but to its Specific Performance. In fact it 
presupposes a lawful contract as mentioned therein. It 
also presupposes that the agreement/contract in question 
contains all the necessary attributes mentioned in Section 
12 of the Specific Relief Act, 1877 entitling a party to its 
Specific Performance. It also presupposes that the said 
agreement does not suffer from any of the disabilities 
CAs.56 of 2011, etc. 
15 
mentioned in the preceding Section 21 of the Specific 
Relief Act, 1877, which prohibit its Specific Performance. 
Section 22 only comes into play as a residuary provision 
authorizing the Court to decline Specific Performance on 
equitable grounds.  
The 
aforesaid 
provision 
has 
come 
up 
for 
interpretation regularly before this Court variously, 
included in the following cases. 
 
In the case of Ghulam Nabi and others v. Seth 
Muhammad Yaqub and others (PLD 1983 SC 344), it was 
held as under:  
“19. And lastly it was urged that the 
jurisdiction of the Court to decree specific 
performance being discretionary under 
section 22 of the Specific Relief Act, the 
Court ought not to have, considering the 
plaintiff's conduct, granted such relief. The 
jurisdiction 
under 
section 
22 
is 
discretionary only in the sense that it 
cannot be claimed as a matter of right. As 
enjoined by the section itself, the exercise 
of the discretion is not to be arbitrary but 
sound and reasonable, guided by judicial 
principles and capable of correction by a 
Court of appeal. The exercise of the 
discretion to grant or refuse to grant relief 
will, 
therefore, 
depend 
upon 
the 
circumstances of the case and the conduct 
of the parties. The Courts below have not 
found the circumstances of the case or the 
conduct of the plaintiff to justify a denial 
of the relief to him, and we see no reason 
to hold otherwise.”  
 
CAs.56 of 2011, etc. 
16 
  
In the case of Syed Arif Shah v. Abdul Hakeem 
Qureshi (PLD 1991 SC 905), it was observed as under: 
“14. It may be noticed that according to 
the above-quoted section the jurisdiction 
to 
decree 
specific 
performance 
is 
discretionary and the Court is not bound 
to grant such relief merely because it is 
lawful. However, the discretion of the 
Court is not arbitrary but sound and 
reasonable and is to be guided by judicial 
principles 
which 
are 
amenable 
to 
correction by a Court of appeal. It may 
further be noticed that the above section 
gives two illustrations which are not 
exhaustive to demonstrate in which cases 
the 
Court 
may 
decline 
to 
exercise 
discretion of granting specific performance 
of a contract, namely, (i) where the 
circumstances under which the contract is 
made are such as to give the plaintiff an 
unfair  advantage over the defendant 
though there may not be fraud or 
misrepresentation on the plaintiffs part; 
and (ii) where the performance of the 
contract would involve some hardship on 
the defendant which he did not foresee 
whereas its non-performance would not 
involve such hardship on the plaintiff. It 
may also be pointed out that the above 
section provides that the Court may 
properly exercise discretion to decree 
specific performance where the plaintiff 
has done substantial acts or suffered 
losses in consequence of a contract 
capable of specific performance.” 
(emphasis supplied) 
 
In the case of Mrs. Mussarat Shaukat Ali v. Mrs. 
Safia Khatoon and others (1994 SCMR 2189) (at page 
2209), it was observed as follows: 
“… It is true that grant of relief of specific 
performance is discretionary with the 
CAs.56 of 2011, etc. 
17 
Court but this discretion cannot be 
exercised arbitrarily. The relief of specific 
performance being an equitable relief, it 
can be refused by the Court only if the 
equities in the case are against the 
plaintiff. The Court while refusing to grant 
a decree for specific performance to a 
plaintiff must find some thing in the 
conduct of plaintiff which disentitled him 
to the grant of equitable relief of specific 
performance, or the Court reaches the 
conclusion that on account of delay in 
seeking the relief, the circumstances have 
so materially changed that it would be 
unjust 
to 
enforce 
the 
agreement 
specifically. The specific performance of a 
contract cannot be refused merely because 
it is lawful for the Court to refuse it. 
Section 22 of the Specific Relief Act, 
though not exhaustive provides some 
instances in which the specific relief of a 
contract may be refused by the Court in 
its discretion. …” 
 
 
In the case of Rab Nawaz and 13 others v. 
Mustaqeem Khan and 14 others (1999 SCMR 1362), it was 
stated as under: 
“9. 
… 
Undoubtedly 
there 
are 
many 
instances in which, though there is 
nothing that actually amounts to fraud 
there is nevertheless a want of equity and 
fairness 
in 
the 
contract 
which 
are 
essential in order that the Court may 
exercise its extraordinary jurisdiction in 
specific performance. In judging of the 
fairness of a contract the Court will look 
not merely at the terms of the contract 
itself 
but 
at 
all 
the 
surrounding 
circumstances. …” 
 
In the case of Bashir Ahmed through L.Rs. and 
another v. Muhammad Ali through L.Rs and another 
CAs.56 of 2011, etc. 
18 
(2007 SCMR 1047), it was held as under: 
“5. It is a settled law that grant of specific 
relief is always discretionary in character 
and the Court is not always bound to 
decree the suit of specific performance in 
cases where the agreement is proved. It is 
a settled law that Court has to exercise 
discretion judicially and not arbitrarily. 
Reference can be made to the following 
judgments:- 
Arif Shah's case PLD 1991 SC 905, 
Mussarat Shaukat Ali's case PLD 
1994 SCMR 2189, Ameena Bibi's 
case PLD 2003 SC 430 and Jethalal 
Nanshah 
Modi 
v. 
Bachu 
and 
another AIR 1945 Bom. 481. 
The ratio of the aforesaid precedents 
is as follows:-- 
Where the circumstances under 
which a contract is made are such 
as to give the plaintiff an unfair 
advantage 
over 
the 
defendant, 
though there may be no fraud or 
misrepresentation on the plaintiff's 
part or relief may be denied where 
the plaintiff has been negligent or as 
acquiesced in the injury." 
 
  
In the case of Mst. Mehmooda Begum v. Syed 
Hassan Sajjad and 2 others (PLD 2010 SC 952), it was 
observed as follows: 
“7. … Now here at this juncture the 
question would arise as to whether the 
amount of consideration can be enhanced 
or otherwise? Before dilating upon the 
said question, it may be kept in view that 
"section 22 provides that the jurisdiction 
to 
decree 
specific 
performance 
is 
discretionary, and the Court is not bound 
to grant such relief merely because it is 
lawful to do so, but the discretion of the 
CAs.56 of 2011, etc. 
19 
Court is not arbitrary but sound and 
reasonable guided by judicial principles 
and capable of correction by a Court of 
appeal." (Abdul Karim v. Muhammad 
Shafi 1973 SCMR 225). It hardly needs 
any elaboration that "grant of decree for 
specific performance of a contract is a 
discretionary relief and the Court is not 
bound to decree such a suit merely 
because it is lawful. The Court has also to 
see the conduct of the person asking for 
such relief as also his readiness and 
willingness 
and 
capacity 
to 
make 
payment. 
"(Emphasis 
provided). 
Ali 
Muhammad v. Shah Mohammad PLD 
1987 Lah. 607, Bank of Bahawalpur, Ltd. 
v. Punjab Tanneries, Wazirabad Ltd. PLD 
1971 Lah. 199 and Sree Lal v. Hariram 
AIR 1926 Cal. 181). 
 
17.  
A perusal of Section 22 of the Specific Relief Act, 
1877 as interpreted by this Court in the judgments 
reproduced hereinabove makes it clear and obvious that 
the said provision has no bearing on the validity of the 
contract. It only recognizes the discretion vested with the 
Court to decline the Specific Performance of an Agreement 
even in the absence of any impediment, in this behalf, as 
enumerated in Section 21 of the Specific Relief Act, 1877 
and in spite of the fact that such Agreement may possess 
the necessary attributes entitling the Specific Performance 
of Section 12 of the said Act of 1877. It declares that the 
Specific Performance is essentially an equitable relief 
which can be declined if it is unjust or inequitable to do 
so. For determining whether the Relief or Specific 
CAs.56 of 2011, etc. 
20 
Performance is to be granted the circumstances under 
which the contract is executed and the contract of the 
parties at that time and thereafter may be taken into 
account. The illustrated examples pertain to unforeseen 
circumstances and hardships which may be inflicted upon 
a party through Specific Performance in contradistinction 
to the lack of such hardships as a consequence of the 
failure 
to 
specifically 
perform 
the 
contract. 
The 
illustrations appended to the provision are not exhaustive 
but indicate the discretion available with the Court. Such 
discretion must necessarily be exercised on the basis of 
sound judicial principles. At the end of the day, the 
discretion 
must 
necessarily 
be 
relatable 
to 
the 
circumstances in which agreement came about or to the 
Specific 
Performance 
of 
the 
contract 
and 
the 
consequences of grant or refusal of the relief of specific 
performance. It does not appear possible to invoke Section 
22 of the Specific Relief Act, 1877 to determine the validity 
of the agreement.   
18.   
Furthermore, there is nothing in Section 22 nor 
its illustrations or the interpretation thereof as handed 
down by this Court in the various judgments referred to 
and reproduced hereinabove to indicate that the relief of 
Specific Performance is relatable to or has any connection 
CAs.56 of 2011, etc. 
21 
with quantity or quality of the evidence required to be 
produced by either of the parties seeking or resisting such 
Specific Performance. Obviously a valid enforceable 
agreement alongwith factors entitling a person to Specific 
Performance, would be required to be proved through 
relevant and admissible evidence in terms of the Qanun-e-
Shahadat Order, 1984. In this behalf, reference was made 
to Article 17 of the Qanun-e-Shahadat Order, 1984, which 
is reproduced hereunder for ease of reference: 
 
“17. Competence 
and 
number 
of 
witness.-(1) The competence of a person to 
testify, and the number of witnesses 
required in any case shall be determined 
in accordance with the injunctions of 
Islam as laid down in the Holy Quran and 
Sunnah. 
 
(2) 
Unless otherwise provided in any law 
relating to the enforcement of Hudood or 
any other special law. 
 
(a) 
in matters pertaining to financial 
or future obligations, if reduced to 
writing, the instrument shall be 
attested by two men, or one man 
and two women, so that one may 
remind the other, if necessary and 
evidence shall be led accordingly; 
and 
 
(b) 
in all other matters, the Court may 
accept, or act on, the testimony of 
one man or one woman or such 
other 
evidence 
as 
the 
circumstances of the case may 
warrant.” 
 
 
CAs.56 of 2011, etc. 
22 
This Court in the judgment, reported as Mst. 
Rasheeda Begum and others v. Muhammad Yousaf and 
others (2002 SCMR 1089), has been held as follows:  
“12. It is true that before promulgation of 
Qanun-e-Shahadat 
Order, 
1984 
an 
agreement to sell was not required by any 
law to be attested by witnesses. It is, 
however, a matter of common knowledge 
that 
during 
that 
period 
also 
the 
agreements to sell were by and large 
reduced 
to 
writing 
and 
attested 
by 
witnesses 
in 
spite 
of 
absence 
of 
a 
legislative provision and the mode attained 
the status of an established practice by 
efflux of time. This mode, in all probability, 
was adopted by way of abundant caution 
and to procure documentary evidence 
inasmuch 
as 
in 
a 
suit 
for 
specific 
performance of contract based on an 
agreement to sell the onus is on the 
plaintiff to prove the contract unless its 
existence is admitted by the defendant. 
The interest of justice, therefore, demands 
that the form of proof should be in line 
with the format of the document executed 
by the parties to the contract. It would 
thus follow that where an agreement to 
sell executed prior to promulgation of 
Qanun-e-Shahadat Order, 1984 has been 
reduced into writing and attested by 
witnesses its execution must be proved in 
accordance with the provisions of section 
68 (Article 79) of the erstwhile Evidence 
Act notwithstanding the fact that the ` 
tame apply only to that document which is 
required by law to be attested. 
Prop of the aforementioned legal vacuum 
cannot be taken to offset the effect of 
failure to prove the execution of an 
agreement to sell in accordance with the 
said mode. However, where an agreement 
to sell has been reduced to writing but not 
attested by witnesses its execution and the 
contract embodied therein can be proved 
by other strong evidence and attending 
CAs.56 of 2011, etc. 
23 
circumstances which may vary from case 
to case. Needless to mention that such 
evidence can also be produced in the first 
category of cases as supporting evidence. 
 
A perusal of the aforesaid provision as interpreted by this 
Court makes it clear and obvious that the rigors of 
Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, 
would be attracted even if an Agreement to Sell is 
purportedly signed by both the parties but its execution is 
denied. Furthermore, the said provision pertains to the 
mode of proof of the document not its validity in terms of 
the Contract Act, 1872 nor its Specific Performance in 
terms of the Specific Relief Act, 1877. A failure to prove 
the existence of the Agreement would obviously deprive 
the Plaintiff of such relief but any difficulty, in this behalf, 
would not attract the provisions of Section 22 of the 
Specific Relief Act, 1877, as such difficulty may have no 
nexus with the circumstances under which the agreement 
came about or the conduct of the parties or the hardship 
flowing from the grant of such relief. The observations in 
the case of Mst. Gulshan Hamid v. Kh. Abdul Rehman 
and others (2010 SCMR 334) do not appear to be in 
consonance with the letter and spirit of Section 22 ibid 
and runs contrary to the judicial pronouncements of this 
Court.  
CAs.56 of 2011, etc. 
24 
19.  
A great emphasis was laid upon the judgment of 
this Court, reported as Farzand Ali and another (supra), in 
an attempt to persuade us to hold that an Agreement to 
Sell not signed by the Vendee was not enforceable in law. 
A close scrutiny of the aforesaid judgment reveals that no 
doubt a reference has been made to Section 22 of the 
Specific Relief Act, 1877 to reiterate the settled proposition 
of law that relief of Specific Performance of an Agreement 
to Sell is equitable in nature and the Court has the 
discretion to decline such relief. However, the judgment 
turns upon a finding of fact on the basis of the evidence 
discussed in extenso. In the said case there was an 
absence of “consensus ad idem”. The heart of the 
judgment is embodied in para 9 thereof, the relevant 
portion whereof for ease of reference is reproduced 
hereunder: 
“In the above context, the first and the 
foremost aspect of the case is, if the 
agreement to sell of the appellants was 
valid because if it is not valid the question 
of its enforcement through the process of 
law and the exercise of discretion does not 
arise. It is an undisputed fact that 
appellants agreement has not been signed 
by them. …………………………………………. 
……………..………………………………………. 
the first, and the foremost requisite of a 
contract (agreement) is that the parties 
should have reached agreement, which 
CAs.56 of 2011, etc. 
25 
unmistakably means, that an agreement is 
founded upon offer and acceptance. ……… 
……………………………………………………… 
……………………………………………………… 
but its proof is also dependent upon the 
execution of the contract by both the 
contracting parties i.e. by signing or 
affixing their thumb impression. …………. 
……………………………………………………. 
……………….…………………………………… 
But in this case this is conspicuously 
lacking by virtue of non-execution (non-
signing) 
of 
the 
agreement 
by 
the 
appellants, therefore in law and fact it is 
no contract (agreement). ….”  
 
From the aforesaid, it is clear and obvious that the 
conclusion drawn was that in fact and in law no 
agreement had been arrived at between the parties. It has 
not been laid down that in each and every eventuality 
where an Agreement, not signed by one of the parties, 
irrespective of the provisions of the Contract Act, 1872 
referred to above would be invalid in law. It has also been 
noticed that the settled proposition of law as laid down in 
the judgment of this Court, reported as Messer’s Jamal 
Jute Baling & Co, Dacca v. Messrs M. Sarkies & Sorts 
(Sons), Dacca (PLD 1971 SC 784) has not been overruled. 
The relevant portion thereof in the same paragraph has 
been reproduced hereunder for ease of reference.  
CAs.56 of 2011, etc. 
26 
“9. … learned counsel for the appellants 
has relied upon the judgment reported as 
Messrs Jamal Jute Baling & Co., Dacca v. 
Messrs M. Sarkies & Sorts (Sons), Dacca 
(PLD 1971 SC 784) to argue to the 
contrary, wherein it has been held that 
"terms of agreement reduced into writing 
and proved to have been accepted and 
acted upon by both parties---Agreement, 
proper and valid even if one party had not 
signed such agreement". However the 
conditions are that the agreement should 
be accepted by the parties who are 
actually in dispute qua the validity thereof, 
and the agreement should have been acted 
upon. In this case as explained earlier in 
the light of the facts of the case the real 
dispute is between the appellants and the 
respondent, who (respondent) has never 
admitted the agreement and it has also 
not been acted upon. …” 
 
20.  
Thus, it appears that the proposition of law that 
an Agreement to Sell not signed by one of the parties if 
proved to have been accepted and acted upon would be a 
valid Agreement to Sell, is a valid contract enforceable in 
law has in fact been reiterated. 
21.  
In view of the above, it is evident that the 
proposition that where an Agreement to Sell pertaining to 
immovable property is not signed by one of the parties 
thereto, in each and every eventuality, is invalid and not 
specifically enforceable is fallacious and contrary to the 
law. The existence and validity of the Agreement and it 
being specifically enforceable or otherwise would depend 
upon 
the 
proof 
of 
its 
existence 
validity 
and     
CAs.56 of 2011, etc. 
27 
enforceability in accordance with the Qanun-e-Shahadat 
Order, 1984, the relevant provisions of the Contract Act, 
1872, the Specific Relief Act, 1877 and any other law 
applicable thereto. 
Having settled the preliminary legal issues involved, 
let the above-mentioned Civil Appeals be set down for 
hearing to be decided separately on the basis of the 
evidence available on the record in terms of the 
observations made therein-above. 
 
 
 
Chief Justice 
 
 
 
 
 
      Judge 
 
 
 
 
 
      Judge 
 
 
 
 
 
      Judge 
 
 
 
 
 
   
 
 
      Judge 
APPROVED FOR REPORTING’ 
Mahtab H. Sheikh/* 
 
 
 
Announced on 11.11.2016 at Islamabad  
 
 
 
  
 
 
 
 
 
Judge 
  
