IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice Maqbool Baqar
Mr. Justice Qozi Muhammad Amin Ahmed
Civil Appeal No. 601/2019 & CMA No. 2953/2019
(Against the judgment dated 13.02.2019 of the Lahore High
Court, Lahore passed in RSA No. 4207712017)
Mst. Noor Jehan & another 
Appellate(s)
Versus
Saleem Shahadaf
Respondent(s)
For the Appellate(s) 
Syed Najamul Hassan Kazmi, ASC
For the Respondent(s) 
Maulvi Anwar-ul-Haq, ASC
Dale of Hearing 
18.11,2021
ORDER
Macibool Bagar, .1. A suit filed by the respondents for
specific performance of an agreement for sale of an immoveable
property was dismissed by the Trial Court, so was the first appeal
against such dismissal. The Lahore High Court through the
impugned judgment however allowed the respondents' second
appeal and set aside the said two concurrent judgments.
2. The respondents' case as set out before the Trial Court
was that on 23.04.2004, the appellants who are the owners of a
property, being Bungalow No. 10, Plot No. 14 measuring 1318,50 sq
yards, Shami Road, Lahore Cantt ("the suit property), in terms of an
agreement, titled "token receipt", agreed to sell the suit property to
the respondent for a sale consideration of Rs. 2,30,00,000/- Receipt
of Rs. 5,00,000/- paid by the respondents to the appellants by way
CA No. 60112OIeic
It
of earnest money on the said date i.e. 23.04.2004, was duly
acknowledged by the appellants through the said "token receipt".
The balance sale consideration amount, as stipulated in the "token
receipt", was to be paid in three instalments as follows:
(i)
Rs. 35,00,000/-, on 26.04.2004, on which date a formal
agreement to sell was to be executed between the
parties;
(ii)
Rs. 25,00,000-I within six weeks from ,23.04.2004;
(Hi) 
Rs. 1,65,00,000/- within 13 weeks from 23.04.2004.
3. The "token receipt", according to the respondent, was
duly signed by the appellants and the respondents and also by the
witnesses of the execution thereof, and of the payment
acknowledged therein, namely, Muhammad Ashraf and Liaquat
Khokhar, respectively, who also were the estate agents through
whom the deal was made. However, when the respondents
requested the appellants to execute a formal agreement to sell,
the appellants asked the respondents to pay Rs. 40,00,000/- instead
of Rs. 35,00,000/- as agreed to be then paid in terms of the "token
receipt". The respondents thus obtained a pay order in the sum of
Rs. 40,00,000/-, bearing No. 0402186521 dated 24.04.2004, drawn on
Picic Commercial Bank Limited, Gulberg Lahore, and also
purchased a stamp paper of Rs. 100/- for drawing a formal
agreement to sell, but when on 26.04.2004, the respondents
approached the appellants for execution of the document, the
appellants refused to execute the same, and instead told the
respondent that they shall sell the suit property to some other party
at a higher price. Through a legal notice dated 29.04.2004 served
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CA NO. 601/2019 e Ic
3
by the respondents through his Counsel, the respondents called
Upon the appellants to honour the agreement, but to no avail.
4. Through their written statement the appellants denied
that there has been any agreement to sell between the parties. it
was averred that only verbal negotiations, through a Property
dealer, Muhammad Ashraf were held for the sale of the suit
Property, but no written agreement was executed and Signed by
the appellants. Although receipt of token amount of Rs.5,00,0001
was admitted but it was claimed that the same was paid by
Muhammad Ashraf and not the respondent. It was further claimed H
that the "token receipt" acknowledging such payment was not
signed by the respondent and his signatures appearing on the
Pho
tocopy of the said receipt, annexed to the plaint have been
appended subsequeny. It was averred that the appellants were to
execute a formal agreement to sell, which was to contain the terms
If sale, but was subject to payment of an instalment of
Rs.35,000001 on 26 .04.2004. The appellants further claimed that
they did not know as to whether or not any pay order Was prepared
as the same was never delivered to them, rather the Property
dealer, Muhammad Ashraf, has asked for extension in time, as 
-
according to him, the buyer he was 
representing, has not been
able to arrange the amount, which request was declined. It Was
denied that Muhammad Ashraf contacted the appellants and
claimed that in fact it were the appellants, who on 26.04.2004
contacted and requested Muhammad Ashraf for payment of the
instalment of Rs. 3500,000i However, after two days Muhammad
Ashraf contacted the defendants and requested for refund of the H
4
1.
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CA_No. 60!/2Ofle& 
E
4
token amount as, according to him, his client was not able to
arrange further payment. It was denied that the appellants
requested for enhancement in the amount of instalment from
Rs.35,00,000/ to Rs.40,00,000/-.
5. The respondent in his evidence before the Trial Court
deposed that he negotiated the deal for the purchase of the suit
property with the appellants through Ashraf Estate property dealers,
and after long drawn negotiations, he along with the property
dealers, Muhammad Ashraf and Liaquat Khokhar, on 23.4.2004 at 6
Pm, went to the residence of the appellants, being the suit property,
where the deal was struck for a price of Rs. 2.3 million, and he then
Paid to the appellant a token amount of Rs.5,00,000/-, in presence of
Muhammad Ashraf and Liaquat Khokhar. The respondent also stated
the manner in which the balance sale consideration amount was to
be paid in three instalments, as is stipulated in the "token receipt",]
and produced a photocopy of the "token receipt, as the originalL
thereof has been lost. The token receipt was exhibited, Ex-P-1. He als&J
explained as to how and why he got prepared a pay order of.j
Rs.40,00,000/ instead of Rs. 35,00,000/-, as explained in the plaint, and
noted hereinbefore The respondent further deposed that he also
Purchased a stamp paper for drawing a formal agreement to sell,
and on 26.04.2004 he along with Muhammad Ashraf visited the
appellants at their residence, however, the appellants refused to I
receive the pay order and told them that they have received a higher
offer.
I 
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CA NO, 6GI/2pI9etc 
5
6. Muhammad Ashraf appeared as PW-2 and deposed that
he is engaged in the property business under the name of 
Ashraf
Estate since 1976, and that the appellants have requested him to sell
the suit property, whereas the respondent who was his client wanted
to purchase a house of about 2V2 kanals in the cantonment area, and
after seeing a number of houses through him, the respondent showed
his interest in buying the suit property. The witness thereafter narrated
the details of the meeting arranged by him between the appellants
and the respondent on 23.4.2004, where the deal for the suit property
was made between the parties before him and his partner Liaqat
Khokhar, and the respondent paid to the appellants an amount of Rs.
500,000/- by way of earnest money. He deposed that the "Token 
I
receipt" Ex F-i was signed by the appellants and the respondent,
before him and Liaqat Khokhar, and that he and Liaquat Khokhar also
Signed the document as witnesses thereto. However on 24.4.2004, the
appellants called him on telephone and asked for a pay order of
Rs.40,00,0001 instead of the agreed amount of Rs. 35,00,000/-,as they
were in need of that much amount. The respondent thus obtained a
but when they went to the appellants to
Pay order of Rs.40,00,000/ 
deliver the pay order, the appellants refused to accept the same and
demanded increase in the price as according to them they had
received a higher offer. The appellants, according to the witness,
despite persuasion remained adamant, and declined to honour the
agreement
7. Liaquat Khokar, PW-3, deposed that he is a property
dealer and has been working in Partnership with Muhammad Ashrafj
for the last 21 years. According to him at the time of the agreement in
/
c& NQ, 601/2019&C
April 2004, the parties, being the appellants and the respondent, were
present, the witness verified his signatures and that of Muhammad
Ashraf appended on the token receipt, as witnesses thereof. He
further deposed that the document was signed by the appellants and
the respondent in his presence and that he and Muhammad Ashraf
have facilitated the deal as Estate agents. He also deposed that at
the time of the agreement, the respondent has paid Rs.500,000/- to
the appellants. He explained the purported circumstances under
which the pay order of Rs.40,00,000I- was obtained by the
respondent. The witnesses claimed that
".s 
3 JJi 
S thiC.3.m 26-04-2004
and offered them the pay order, but the appellants declined to
accept it, and refused to honour the agreements and said that they
(the appellants) have received a higher offer. However, during his
cross examination he contradicted himself and stated that it were the
respondent and Muhammad Ashraf who went to deliver the pay
order. He made a further contradiction when he slated that it was on
23.04.2004 that they last went to the appellants.
8. Though appellant No.2 Asifa Bano (DW-1), during her
evidence denied having agreed to sell the suit property, but admitted
having received the token amount. She stated that the "token[
receipt" was signed by her and her sister, the appellant No.1, and by
Muhammad Ashraf and Liaquat Khokhar, but was not signed by
anyone else before them. She further deposed that as per the "token:
receipt" the agreed sale consideration amount was Rs.2,30,00,000/-.
 
She claimed that the token amount was paid by Muhammad Ashraf,'
ft
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7
but also said that Muhammad Ashraf and Liaquat Khokhar were
property dealers. The appellant No. 2 further deposed that since no
further payment was made, they asked for the payment due, but
were told that the amount could not be arranged. She stated that she
has never seen the respondent and claimed they never entered into
any agreement with the respondent. During her cross examination,
I
she disclosed that she is a matriculate and can read Urdu. She
admitted her signature and that of her sister, the appellant No.], on
the token receipt, Ex.P-1, and that they signed the document at their
own volition. She admitted that they accepted the token money, as 
H
they agreed to sell the suit property, and that they had read the
contents of the 'token receipt" before signing it. She also admitted
that the name of the respondent is mentioned in the "token receipt".
Appellant No.2 further admitted that the property was not being
purchased by Muhammad Ashraf himself. She did not deny the
suggestion that as per the token receipt, Ex.P-1, the respondent was
obliged to pay Rs.35,00,000/ within 6 weeks, and also to pay to them:
Rs.1,65,030/ within 13 weeks. She refused to respond to the suggestion
that had the respondent paid to them the agreed sale consideration
amount they would have conveyed the suit Property in favour of the
respondent, but voluntarily said that Ashraf did not proceed in the
matter further. The witness also did not deny the suggestion that, as
per the token receipt, the agreement to sell the suit property was
between the appellants and the respondent, but said that the H
appellant neither meet nor had seen the respondent
CA Np. Ou/2Ol9 etc 
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9 The position that now emerges from the foregoing is
that the respondent through his evidence, and that of his witnesses.
Muhammad Ashraf and Liaquat Khokhar, has proved the execution
of the document described as "Token Receipt", and has likewise
also proved the payment of the token amount to the appellants.
10. 
On the other hand, the appellants also have admitted
the execution of the "Token Receipt". The appellant No. 2, who is
the only witness examined on behalf of the appellants, admitted
that the "Token Receipt" was written at her residence, and that she
has read it before she and her sister the appellant No.], signed the
same. She disclosed that she is a matriculate and can read Urdu,
and further that they, the appellants, have signed the document at
their own volition. She admitted that as per the 'Token Receipt' the
agreed sale consideration amount was 2.3 million. She also
admitted having received the token amount of Rs. 5,00,000/- but
claimed that the same was paid by Muhammad Ashraf, whom she
described as a property dealer. She also admitted that the name of
the respondent is mentioned in the token receipt and further that
the property was not being purchased by Muhammad Ashraf
himself. The appellant No. 1, did not deny the suggestion that as per
the token receipt, Ex.P-1, the respondent was obliged to pay Rs. 3.5
million on 26.4.2004; Rs.2.5 million within 6 weeks, and Rs.10.65 million
.1
within 13 weeks. She refused to respond to the suggestion that in the
event the respondent would have paid the sale consideration
amount the appellants would have conveyed the suit property in
 favour of the respondent. She also did not deny the suggestion that
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CA No. 60112019 etC
9'
in terms of the "token receipt", the agreement to sell the suit
Property was between the appellants and the respondent. She
however said that the token receipt was not signed by the
respondent before them and the signatures appearing thereon
were appended subsequently.
It can therefore be seen that not only the execution of
the "token receipt" was admitted by the appellants but so also
were admitted its contents, as well as the receipt of the payment
acknowledged thereby. The appellants did not deny that in terms
of the 'token receipt", the balance sale consideration amount was
to be paid to them in three instalments as noted herein before, and
further that the receipt also contained the name of the respondent.
So not only the execution of the "token receipt" between the
appellants and the respondent, the contents thereof and the
Payment acknowledged thereby, were proved by the respondent
through his evidence and that of the marginal witness of the
doc
ument, but all the above has been admitted by the appellants
as well. Indeed, the appellants have claimed that the 
signature of
the respondent has been made on the "token receipt"
subsequent'y, they have however not been able to support this
claim in any manner.
12. The document titled "token receipt" contains all the
necessary ing
redients essential for it to qualify as a valid and lawfully
enforceable contract. The document unambiguously contains the
identity of the seller and the purchaser. The Property to be sold has
been described accurately in a well defined manner. If spells out
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In 
CA No. 6O!/2019etc
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the agreed sale consideration amount, and stipulates the manner
of payment thereof. The parties who executed the document are
at consensus in idem. The document clearly manifests the intention
of the appellants to sell and that of the respondent to purchase the
subject property. Nothing crucial was left to be settled which could
have adversely affected the validity of the contract. The specific
performance of the document in the circumstances could not have
been avoided on the pretext that it provided for executing a formal
agreement. The 'token receipt" was in itself a complete, and a
lawfully enforceable agreement to sell. The judgment in the case of
Sheikh AkhtcyrAzjz vs. Mst. Shabnam Begum and others, (2019 SCMR
524) may be referred to in this regard.
13. 
However the respondent has not been able to prove
that he tendered to the appellants the payment due, as in the first
Place neither has he been able to prove that he in fact obtained
the pay order, or that he offered the some to the appellants.
Neither has the respondent produced the original pay order in his
evidence as required in terms of Article 75 of Qanun-e-Shahadat
Order, nor has he laid before the Court any other evidence, or
material that he in fact obtained the pay order from the bank as
claimed, and/or that the some was lost or destroyed, though it was
imperative for the respondent to have proved the loss of the
original, as an essential prerequisite for seeking to produce a
photocopy of the pay order. The respondent also did not even
move an application for permission to produce and exhibit a
photostat copy of the pay order before the Court. He also did not
 
bother to explain, as to when, how and under what circumstances
II;
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CA No. 601/2019 etc
11
the pay order was lost, destroyed or misplaced. The respondent
could have summoned the relevant record and the concerned
officer from the payer bank which he choose not to. He has also not
even claimed having lodged any complaint or FIR regarding the
loss or theft of the pay order. The document was thus rightly not
exhibited. The following judgments may be referred to in this regard,
State Life Insurance Corporation of Pakistan and another vs. Javaid
Iqbal (201] SCMR 1013) and Imam Din and 4 others vs. Bashir
Ahmed and 10 others (PLD 2005 Supreme Court 418).
14. It hardly needs any emphasis to convey that a
document which has not been lawfully produced and exhibited in
the Court is not worthy of being considered as evidence/proof of a
fact. Even otherwise the respondent's evidence with regard to his
tendering the pay order to the appellants does not sound credible.
On the one hand he claims to have visited the appellants with
Muhammad Ashraf and offered them the pay order on 26.4.2004,
whereas on the other his witness Liaquat Khokhar's narration in that
regard conveys that it was not just the respondent and Muhammad
Ashraf who went to the appellants to deliver the pay order to the
appellants but he too accompanied them, and it was in his
presence that the pay order was offered and the appellants
refused to accept it; in fact this witness gave a detailed account as
to what transpired on that occasion on 26.4.2004. A further damage
was caused to the credibility of the whole story regarding the pay
order, when Liaquate Khokhar further contradicted the respondent,
and contradicted himself also; and stated that it was on 23.4.2004
that they last went to the appellants t house.
12
3.
15. 
In the circumstances discussed above, we are of the
firm view that the respondent has failed to prove that he honoured
his commitment and fulfilled his obligation under the "token
receipt", and has, in fact, failed to fender the payment of the very
first instalment that he was required to in terms of the "token
receipt". Even otherwise, it is now well settled that where the vendor
refuses to accept the sale consideration amount, the vendee
seeking specific performance of the agreement to sell is essentially
required to deposit the amount in the Court. The vendee has to
demonstrate that he is and has at all relevant times been ready
and willing to pay the amount, and to show the availability of the
amount with him. A vendee cannot seek enforcement of reciprocal
obligations of the vendor, unless he is able to demonstrate, not only
his willingness, but also his capability to fulfil his obligation under the
contract. Reliance may well be placed on the following judgments
in this regard; Muhammad iamil and others v. Muhammad Arif
(2021 SCMR 1108), Muhammad Yousaf v. Allah Ditta (2021 SCMR
1241), Muhammad Yaqub v. Muhammad Nasrullah Khan and
others (PLD 1986 SC 497), Hamood Mehmood v. MsL Shabana
Ishaque and others (2017 SCMR 2022), inayatullah Khan and others
v. Shabir Ahmad Khan (2021 SCMR 686), MIs Kuwait National Real
Estate Company (Pvt.) Ltd. and others v. MIs Educational
Excellence Ltd., and another (2020 SCMR 171), and Muhammad
Shafiq Ullah and others v, Allah Bakhsh (decd.) through LRs and
others (2021 SCMR 763).
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CA No. 601/2019etC 
13 
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S..
16.
However, in the instant case, not only the respondent
failed in proving that he tendered the payment due, but also did
not deposit the balance sale consideration, or even the amount
due at the time of filing of his suit for specific performance in May,
2004, and obtained an injunctive order, without depositing any
amount. The respondent, as can be seen from the Trial Court's order
dated 07.07.2004, in terms whereof the injunctive order was
confirmed, rather resisted the request/prayer for an order directing
the respondent to deposit the balance sale consideration made by
the appellants through their reply to the former's injunction
application. Such was done on the flimsy ground that the
respondent cannot be burdened with the deposit of the amount as
the subject property was in possession of the appellants.
17.
The respondent thus enjoyed the benefit of the
injunctive order so obtained by him till the time the suit was
dismissed for want of evidence, which dismissal he ultimately
challenged before the Lahore High Court through RFA No.134 of
2010, where on 17.02.2010, through an application, bearing No.]-
C/2010, he obtained an order restraining the appellants from
alienating or encumbering the suit property, but this time the order
was subject to deposit, of Rs. 11.25 million, being fifty percent (50%)
of the balance sale consideration amount within three weeks
thereof, so that it may be invested in some profit bearing scheme.
The order further provided that in case the amount is not deposited
within the time prescribed thereby, the interim order shall stand
vacated. However the respondent still failed to deposit the amount,
and instead made an application, being CM No. 2-C/2010, that the
r
CA No. 60112912 et 
14
amount be allowed to be deposited by some Faisal YounaS, and
also to be invested in the name of said depositor, so that in the
event of the amount being refunded, it may be refunded to Faisal
Younas, and in case of his demise to his legal heirs, and none else.
18. It is not only the above request/prayer made by the
respondent, but also the other contents of his application, that
clearly show that the respondent never had the money to pay or to
deposit as required of him. As the application stated that the
respondent "was to pay the balance amount from sale of his own
house, whereafter he would have shifted to the purchased house
under the agreement but presently there is no house to move into".
It is also relevant to note here that neither the agreement/token
receipt provided for delivery of possession of the suit property to the
respondent before payment of the entire sale consideration
amount, and/or transfer of the property in his favour, nor has he
ever pleaded that he had any such understanding/arrangement
with the appellants. It is interesting to note that the respondent
neither disclosed any particulars, or the value of the property that
he claimed, he would have sold, nor submitted any document
pertaining thereto. The respondent's request for deposit of the sale
consideration amount in the name of the depositor Faisal Younas,
and in a manner that in the event of its being refunded, it be
refunded to Faisal Younas, and in case of his demise to his legal
heirs, and none else, leaves one wondering, as to under what
arrangement the said depositor agreed to deposit the amount, and
as to how and in what manner he secured his amount and/or
interest in the matter, in case of the suit property being ordered to
CA No. 601/2019 el,
15
be conveyed to the respondent; as a person who Was not ready to
rely Upon the respondent for refund of his money and had
deposited the amount under an order securing its refund to him
only, as noted above, can hardly be expected to leave 
his money
or interest in the matter unprotected and insecure in such an event.
However, the respondent's application was allowed and the
amount was thus deposited in the Court on 28.2.2019.
19. 
in the facts and circumstances of the case as
discussed hereinbefore there remains no doubt that the
respondent has not only failed to tender the sale consideration
amount due to the appellants but has also failed/avoided to
deposit the amount in Court as of required of him. The respondent
was therefore not entitled to the discretionary relief of specific
perfo
rmance sought by him. The appeal is accordingly allowed
and the impugned judgment is set aside. The appellants shall within
a month from the date hereof refund to the respondent the token
amount/earnest money paid by him to them under the "token
receipt" CMA No. 2953/2019 stands disposed of.
Announced in open Court or
at IS/arnabad
E!ROfQRREPTING.
