Willingness and Capacity to Pay the Sale Consideration is ‘Sine Qua Non‘ for a Specific Performance Suit: IHC
Islamabad High has recently rendered a significant judgment in a matter of specific performance, asserting that it is essential for the plaintiff to demonstrate with evidence both his willingness and capacity to pay. Bald claims about his willingness, not backed by solid evidence, are insufficient
An interesting case came up before the Court where the plaintiff/vendee had executed an agreement to sell and had purchased a plot owned by the defendant lady/vender. The defendant was a parda nasheen lady. She accepted the execution of the agreement to sell but she denied any payment made to her on the part of the plaintiff/vendee. The plaintiff had promised her that he would transfer his own plot in her name in lieu of a specific portion of consideration of the plot purchased by the plaintiff and he would pay cash amount for the rest of the part.
The contents of the agreement transpired that some of the portion of consideration had been paid at the time of execution of the agreement but when confronted the plaintiff and the witnesses in the cross-examination, it was revealed that nothing has been paid to the vender. Similarly, it was also came to the light that the barter plot which the plaintiff promised to transfer in the name of the defendant in lieu of a portion of consideration was not his own plot, rather the said plot was owned by the father of the plaintiff. This fact was concealed from the court. When the Court asked the plaintiff as to how he would be able to transfer the plot owned by his father in the name of the defendant, he was clueless.
It was also evident from the record of the trial court that the plaintiff/vendee never bother to pay the sale consideration or submit it into the court. The Court draw a conclusion from the facts and circumstances, and the record of the court that the plaintiff/vendee has never been willing to pay neither was he capable to pay the sale consideration to the defendant/vender at any moment of he case. Thus, the Court held that the plaintiff, who was standing before the Court as an appellant against judgment of the trial court, could not meet the criterial for claiming relief in a specific performance suit. Hence, his case was dismissed by the High Court as well. ‘
In this case, the defendant/vender’s counsel was Mr. Khudayar Mohla Advocate High Court who won the case.
Note: the parties in the above text were referred to as Plaintiff and defendant for ease. However, they were standing as appellant and respondent respectively before the High Court.RFA_76_of_17