Beacon Law Associates

2024 SCMR 1271
Registered document --- Proof- ' Standard of evidence ' and ' burden of proof ' --- Scope --- Standard of evidence is not uniform when challenging a registered an unregistered as compared to challenging document --- In disputes relating to registered documents , a common misconception may arise when an executant attempts to dispute the validity of the document through mere denial --- Act of registration is not a perfunctory formality but rather a deliberate and legally binding process --- When a document is registered , it becomes an official record available to the public --- This adds credibility to the authenticity and legal purpose of the transaction --- On the other hand , unregistered documents lack the same level of legal endorsement --- While they may carry evidentiary weight , their value is inherently lessor as compared to the registered document --- Absence of registration renders unregistered documents vulnerable to challenges regarding their authenticity and enforceability --- Moreover , a document duly registered by the Registration Authority in accordance with the law becomes a legal document that carries a presumption as to the genuineness and correctness under Articles 85 ( 5 ) and 129 ( e ) of the Qanun - e - Shahadat , 1984 and which cannot be dispelled by an oral assertion that is insufficient to rebut the said presumption --- Mere denial by the executant of a registered sale deed is insufficient to shift the burden onto the beneficiary of the registered document --- Executant must establish his assertion of fraud or forgery , etc. by producing some evidence other than his denial to shift the burden onto the beneficiary to prove the valid ex*****on of the registered document --- This legal principle reflects recognition of the high evidentiary value attached to registered documents as compared to unregistered documents . ---
C.A.81-K/2022 Mst.Nazeeran & others v. Ali Bux

2024 SCMR 1271
Islamic law --- -Guardian of a minor --- Immoveable property --- Well- established principle of Muslim Law is that a de facto guardian of a minor has no power to transfer any right to or interest in the immovable property of the minor --- Even the principle of estoppel is inapplicable in the case of a minor .
C.A.81-K/2022 Mst.Nazeeran & others v. Ali Bux

2022 CLC 1973
2021 SCMR 1298

مختار عام مختار نامہ کی بنیاد پر مختار دہندہ کی غیر منقولہ اراضی بذریعہ ھبہ یا تملیک( gift)منتقل نہ کر سکتا ھے خواہ مختار نامہ میں اسے بذریعہ ھبہ یا تملیک(gift) اراضی منتقل کرنے کا اختیار بھی کیوں نہ دیا گیا ھو

Gift is a personal action which can be performed by the owner himself only and for that reason, it is now well settled that the agent cannot of his own transfer the immovable property of the principal/owner through gift based on any power of attorney, even if the power of attorney contains the power to transfer the property through gift

لاہور ہائیکورٹ کا تازہ ترین فیصلہ جس میں بذریعہ تتیمہ بیان ملزمان کی نامزدگی، گرفتاری اور جسمانی ریمانڈ کے بارے پولیس، پراسیکیوٹرز اور مجسٹریٹس کو ہدایات جاری کی گئی ہیں
VVVVI. MUST READ JUDGEMENT
(i) Liberty of a person is a fundamental right enshrined in the Constitution and no one can be allowed to curtail the same on the basis of malafide and colourful exercise of authority.

(ii) Supplementary statement recorded by the complainant for involving a particular accused in an incident, without disclosing the source of information, is not per se admissible piece of evidence, as such while recording such statement, the Investigation Officer should insist upon the complainant to disclose his source of information.

(iii) Investigating Officer should not cause arrest of the accused straightaway upon the supplementary statement of the complainant,rather he is duty bound to first collect incriminating piece of evidence in support of such statement and then proceed in accordance with law.

(iv) The request of the Investigating Officer for physical/judicial remand of such accused, must have been accompanied with the opinion of the concerned Prosecutor qua sufficiency of the material against him.

(v) Any request sans of the opinion of the concerned Prosecutor shall not be entertained by the Area Magistrate or the Court as the case may be.

(vi) the The Area Magistrate or the Court, as case may be, shall not grant physical/judicial remand in a mechanical manner, rather record its reasons for according such request.

(vii) If the supplementary statement of the complainant is bereft of source of information for involvement of an accused, the Area Magistratthnne Court as the case may be, may require the presence of the complainant before dealing with such request.

Crl. Misc.27821/24
Mst. Najma Bibi Vs S.H.O. P.S. City Daska etc.
Mr. Justice Asjad Javaid Ghural
13-05-2024
2024 LHC 229

Talaq by husband residing abroad
Procedure.

PLD 2020 Lahore 679 GVC

Where husband is not a Pakistani National or even if both husband and wife are not Pakistani national they can get divorce in Pakistan provided that the marriage is registered in Pakistan by adopting following procedure, in case of husband:-

1. Husband will send a power of attorney to his lawyer;

2. Power of attorney should be attested from the Pakistani embassy or consulate of the country where he is residing;

3. Where a lawyer receives the power of attorney, he will proceed according to law;

4. Proceedings of overseas divorce in Pakistan are conducted in Arbitration council

5. Minimum 90 days proceedings will be conducted by lawyer in arbitration council;

6. After the proceedings of overseas divorce in Pakistan, a divorce certificate will be issued by NADRA through arbitration council and this certificate is considered as sole and only proof of divorce.

2024 PCr.LJ 1212
PLJ 2024 Cr.C 489

The medical evidence in a charge of murder has its own importance and is collected with the sole purpose of enabling the Court for reaching the truth. The doctor who examines the injured or the deceased, in fact makes contribution in the administration of criminal justice. From the medical data placed on record, the court gets an overview about the truth of eyewitnesses in reference to the locales of injuries, the kind of weapons used for the crime, the duration within which the traumas were inflicted and above all the actual cause of death.

[16/07, 1:10 pm] Adv Yasir Badshah: 2024 PCrLJ 1098
PLJ 2023 CrC 575

Whether the offences falling under Section 11 of Prevention of Electronic Crimes Act, 2016 and the offences falling under sections 295-A, 295-B, 295-C & 298-C PPC can be tried together or not.?

It was specifically mentioned in Section 235(2) and Section 4(c) of the Cr.P.C says that charge contains more than one head and that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for, each of such offences. Moreover, Section 235 of the Code speaks of more offences than one committed in the course of the same transaction. As per the allegations leveled in the crime report, the alleged acts constitute offences falling under Section 11 of PECA, 2016, and the offences falling under sections 295-A, 295-B, 295-C & 298-C PPC. The ingredients of Section 11 of PECA, 2016, and under sections 295-A, 295-B, 295-C & 298-C PPC are interlinked, supplementing each other and they are not inconsistent inter-se.
Section 50 of The Prevention of Electronic Crimes Act, 2016 signifies the jurisdiction related to the other laws.

So, the offences under section 11 of PECA, 2016, and sections 295-A, 295B, 295-C & 298-C of the Pakistan Penal Code, 1860 cannot be tried separately because the offences falling under Section 11 of PECA, 2016, and under sections 295-A, 295-B, 295-C & 298-C PPC are interlinked. There is a clear distinction between the “same transaction” and “a similar transaction”. (Bold and underline for emphasis). The continuity of action is not in the sense that one act follows the other without any connection but in the sense of an intimate connection between the different acts. Accused persons committing offences of the same kind but separately may not be regarded as having committed those offences in the course of the same transaction. The series of acts which constitutes a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. The fact of the matter is that the court established under PECA 2016 is designated to adjudge the offence of hate speech under Section 11 of PECA 2016. I have already mentioned above that the allegations have given rise to different offences committed by the petitioners in the same transaction and in this manner, they cannot be separated. Similarly, the same set of persons was proposed to stand as witnesses along with common documents, like FIR, recovery memos, statements of PWs recorded under section 161 of Cr.P.C, etc., to prove the charge of using Whatsapp group by the petitioners and sharing the translation of the Holy Quran, which has been banned and the propagation to other people of such kind of material is illegal. If the allegations were placed before two courts through separate reports under section 173 of Cr.P.C, there would be a possibility of conflicting decisions. Above all, it would put in peril both sides for undergoing the ordeal of separate trials regarding the same transaction and would frustrate spirit of sections 4(c) and 235-A of Cr.P.C.
Crl. Revision
69407/22
Shiraz Ahmed etc Vs The State etc
[22/07, 6:20 pm] Adv Yasir Badshah: P L D 2024 Supreme Court 663
MATLOOB ELLAHI PARACHA Versus Raja ARSHAD MAHMOOD and another
Civil Appeal No.1877 of 2016

Suit to include the whole claim---Order II, Rule 2, C.P.C---Object and scope stated.

Order II, Rule 2, C.P.C is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim that the plaintiff is entitled to make in respect of the cause of action on which he sues and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtlessly to prevent a multiplicity of suits. It is to be noted that this rule does not require that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit.


Agreement to sell immoveable property, cancellation of---Earnest money paid, recovery of---First suit for specific performance of agreement to sell filed by plaintiff (vendee) was withdrawn---Plaintiff filed second suit for recovery of earnest money paid---Whether second suit was maintainable, and whether the cause of action in both suits was different?---Held, that cause of action in the second suit was not the same as in the first suit---First suit was brought alleging that the defendants (vendor and his attorney) illegally got cancelled the agreement to sell, and as such, the plaintiff claimed a decree for possession of the property by specific performance of the said agreement---Whereas the second suit of the plaintiff was based upon the allegations that the agreement to sell was cancelled by mutual consent of the parties, and it was agreed that the defendants would return the earnest money of Rs.5,000,000 to the plaintiff---In support of these allegations, the plaintiff relied on the statement of attorney of the vendor, which he recorded before the Deputy Registrar (Judicial) of the High Court, and the prayer of the plaint was for recovery of earnest money---This relief could not have been claimed by the plaintiff in his first suit for possession of the property by specific performance of the agreement to sell, because the right to possession accrues only when specific performance is decreed---Similarly, the right to refund of earnest money accrues only when specific performance is denied---As such, the facts relating to the denial of specific performance resulting from the cancellation of the agreement to sell, and the settlement agreement in the case constituted a fresh cause of action, and therefore, the second suit for recovery of money based thereon could not be held to be barred under Order II, Rule 2, C.P.C.---Appeal was allowed, and Trial Court was directed to decide the second suit of plaintiff on merits.

Periods of limitation provided in Articles under First Schedule to the Limitation Act, 1908---Interpretation---Law of limitation being a disabling provision, its various Articles are to be construed by its plain language.

First suit for specific performance of agreement to sell filed by plaintiff (vendee) was withdrawn---Plaintiff filed second suit for recovery of earnest money paid - Whether Article 97 or 181 of the Limitation Act, 1908 applied in the case of the second suit?---Held, that the only Article which could have been applied, in the given circumstances of the present case, was Article 97 of the Limitation Act, 1908---This Article deals with a suit "for money paid upon an existing consideration which afterwards fails"---Plain reading of said Article dictates three ingredients for its applicability: firstly, the suit must be for money; secondly, such money must have been paid upon a consideration which was in existence at the time of the payment; and lastly, the said consideration must have afterwards failed---If all these ingredients are established, the application of Article 97 cannot be resisted, and the starting point of limitation of three years under it would not be the date when the money was paid but when the consideration fails---All these three ingredients were fulfilled in this case---Payment of earnest money under the agreement to sell dated 20th of July, 2005, would fall within the meaning of the phrase "for money paid"---Money paid under the agreement was paid for "existing consideration"---Lastly facts stated by the plaintiff in the second suit show that the transaction did not fructify in a completed sale and thus the inevitable conclusion is that the consideration for which the money was paid was extinguished---Thus, all the three requirements of Article 97 were fully met in the present case, and, that being so, the limitation for the plaintiff's second suit would rightly start from the date of failure of the consideration, and the second suit would be within time having been brought within three years of the date of the failure of the consideration, which in this case could be said to have failed only when the first suit was dismissed as withdrawn---Appeal was allowed, and Trial Court was directed to decide the second suit of plaintiff on merits.


Suit for specific performance of an agreement to sell immoveable property---Dismissal of suit---Earnest money paid, recovery of---Suitable amendments proposed by the Supreme Court in the Specific Relief Act, 1877 for refund of earnest money---In the present case the sale agreement was executed on 20th of July, 2005---After that, a suit for specific performance was instituted---Case continued until it was dismissed on 18th of November, 2013, after eight years of litigation---On 13th of February, 2014, the second round of litigation was brought by the plaintiff to recover earnest money, to which the cause of action arose after the dismissal of the first suit for specific performance, and has reached the Supreme Court in appeal 18 years after the agreement---In total, these two rounds of litigation, starting with the same agreement, had almost completed 19 years of litigation---Supreme Court observed that based on empirical study it is advisable to suggest that suitable amendments to the Specific Relief Act, 1877, be made so as to do away with such litigations and reduce the burden on the courts and on parties; that proposed amendments should provide for a provision by which any person suing for the specific performance of a contract for the transfer of immovable property, in appropriate cases, may ask for (i) possession or partition and separate possession, of the property in addition to such performance; or (ii) any other relief to which he is entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

JUDGMENT

-This direct appeal is by the unsuccessful plaintiff and excites two legal questions. The first is whether the plaintiff, after withdrawing his suit for specific performance of the agreement to sell, could file a fresh suit to recover the earnest money paid to the defendants under the said agreement. The second is what the limitation period would be if the second suit is found to be competent.

2. The above questions arise from a suit brought by the plaintiff for recovery of earnest money, which was a sequel to his suit for specific performance. The pivot of both the suits was an agreement to sell dated 20th of July, 2005. The need, therefore, is to state the cause which led the plaintiff to institute both suits so as to find a clear answer to the moot questions. The unvarnished facts constituting the cause in brevity are that defendant No.2, Raja Arshad Mehmood, was the owner of 1200 kanals of land located in Mouza Sihala and Mouza Gagir, Tehsil and District Islamabad. Malik Ghulam Murtaza, now represented by his legal heirs, was his attorney. He was arrayed as defendant No.1 in the suit. On 20th of July, 2005, the plaintiff entered into an agreement with defendant No.1 to purchase the land of defendant No.2 for Rs.785,000 per kanal and paid Rs.5,000,000 as earnest money. After that, certain disputes arose between the parties, the details of which need not be mentioned here, which led to the cancellation of the sale agreement. According to the plaintiff, the cancellation of the agreement was the result of coercion and force exerted on him by the defendants, which became the cause of bringing a suit (the first suit) for declaration, possession and specific performance of agreement dated 20th of July, 2005. This suit was instituted in the original jurisdiction of the Islamabad High Court. There is no denying that on the 6th of May, 2009, defendant No.1 appeared before the Deputy Registrar (Judicial) of the Islamabad High Court and recorded his following statement:

"Statement of Malik Ghulam Murtaza son of Malik Sher Muhammad defendant No.1 on oath:-

The plaintiff had entered into an agreement with me for purchase of suit land. The suit land was owned by Raja Arshad Mehmood, defendant No.2 and I was attorney of defendant No.2. Thereafter, some settlement was made between the plaintiff and defendant No.2 in which it was decided that the agreement executed between me and plaintiff be cancelled, and Arshad Mehmood had promised to refund the earnest money of Rs.50,00,000/- to the plaintiff. I have got no concern with this suit. The Hon'ble Court may decide the suit on merits.

Deputy Registrar, Judicial"

As the other defendants in the case were not present on the date when the above statement was recorded, notices were issued to them. It is also on record that based on the above statement, the plaintiff subsequently applied for withdrawal of the suit with permission to file a fresh one. Notice was issued to the defendants on this application (i.e. C.M No.249 of 2013) vide order dated 3rd of July, 2013, and finally, on 18th of November, 2013, the suit was dismissed as withdrawn; and permission was not given to institute a fresh suit. Here end the facts of the first suit.

3. A perusal of the record indicates that on the 13th of February, 2014, the plaintiff brought his second suit for recovery of Rs.5,000,000. This suit was instituted in the Civil Court, Islamabad (West). It is evident from the contents of the plaint of this suit that it stated the facts up to the withdrawal of the first suit. The cause for instituting this suit was stated to be premised on the statement recorded by defendant No.1 before the Deputy Registrar (Judicial) of the Islamabad High Court, as a result of which a compromise was reached between the parties, and the first suit was withdrawn. Defendant No.1 filed cognovit, while defendant No.2 invoked Order VII, Rule 11, C.P.C., seeking rejection of the plaint on four grounds: firstly, the first suit was to include the whole of the claim, but the plaintiff omitted to sue for the relief of recovery of the amount and only sued for specific performance of the agreement, and as such, the second suit was barred under Order II, Rule 2, C.P.C.; secondly, simple withdrawal of the first suit under Order XXIII, Rule 1, C.P.C. renders the second suit incompetent; thirdly, per Section 19 of the Specific Relief Act, 1877, the plaintiff ought to have claimed compensation in his first suit; and lastly, the second suit was barred by time. The plaintiff, by his reply, contested each of the grounds stated above.

4. Taking stock of the material placed on record and appraising the rival contentions of the parties, the Trial Court came to hold that recording of evidence is necessary to answer the question whether the statement of defendant No.1, recorded before the Deputy Registrar (Judicial), was binding on defendant No.2, and as such, it was premature to say about the question of limitation and applicability of Order II, Rule 2, C.P.C., and Section 19 of the Specific Relief Act, 1877. The application seeking rejection of the plaint was, thus, dismissed by order dated 24th of November, 2015, and defendant No.2 was directed to file a written statement.

5. Defendant No.2 was not satisfied with the findings returned by the Trial Court and, therefore, sought revision. The High Court found merit in the stance of defendant No.2 and proceeded to observe that the relief claimed by the plaintiff was available when filing the first suit, even so, he deliberately chose to file a suit for specific performance of the agreement, and thus, the bar of Order II, Rule 2, C.P.C. was attracted. The suit was found to be out of time, and also incompetent under Order XXIII, Rule 1, C.P.C. However, the High Court did not say anything about Section 19 of the Specific Relief Act, 1877. By judgment dated 27th of May, 2016, the revision was granted.1

6. Having now noted the facts which gave rise to the cause of action of each of the two suits, we have to determine which of the Courts below has correctly dealt with the objections to the maintainability of the second suit. In furtherance of this objective, in the first place, it is to be looked into whether the second suit for recovery of earnest money was barred by the provisions of Order II, Rule 2, C.P.C. It is now old-line that this Rule is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim that the plaintiff is entitled to make in respect of the cause of action on which he sues and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtlessly to prevent a multiplicity of suits. It is to be noted that alongside the above, this rule does not require that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit. This proposition gets strength from Saminathan Chetty v. Planaiappa Chetty,2 in which the Privy Council observed that Rule 2 of Order II, C.P.C. is directed to securing the exhaustion of the relief in respect of a cause of action and not to inclusion in one and the same action of different causes of action, even though they arise from the same transactions. In light of the anatomy of this rule, it is clear that the cause of action in the second suit was not the same as in the first suit. The first suit was brought alleging that the defendants illegally got cancelled an agreement to sell dated 20th of July, 2005, and as such, the plaintiff claimed a decree for possession of the property by specific performance of the said agreement. Whereas the second suit of the plaintiff was based upon the allegations that the agreement to sell dated 20th of July, 2005, was cancelled by mutual consent of the parties, and it was agreed that the defendants would return the earnest money of Rs.5,000,000 to the plaintiff. In support of these allegations, the plaintiff relied on the statement of defendant No.1, which he recorded before the Deputy Registrar (Judicial) of the Islamabad High Court, and the prayer of the plaint was for recovery of earnest money. This relief could not have been claimed by the plaintiff in his first suit for possession of the property by specific performance of the agreement to sell dated 20th of July, 2005, because the right to possession accrues only when specific performance is decreed, similarly, the right to refund of earnest money accrues only when specific performance is denied. As such, the facts relating to the denial of specific performance resulting from the cancellation of the agreement to sell dated 20th of July, 2005, and the settlement agreement in the case constituted a fresh cause of action, and therefore, the second suit for recovery of money based thereon could not be held to be barred under Order II, Rule 2, C.P.C.

7. Apropos of the objection based on the bar contained in the provisions of Order XXIII, Rule 1, C.P.C., it would be enough to say that the subject-matter or claim of the second suit, as stated above, was different from the first suit and, as such, the plaintiff could not be held to be precluded from instituting the second suit.

8. The next objection of the defendants was that the plaintiff could not have instituted a separate suit for specific performance and recovery of earnest money by virtue of the provisions of Sections 19 and 29 of the Specific Relief Act, 1877. Again, this objection was unfounded. Section 19 enables a person claiming specific performance to seek compensation in addition. Section 29 prohibits a suit for compensation after the dismissal of a suit for specific relief. None of these sections have anything to do with the plaintiff's second suit, where the claim is for recovery of earnest money.

9. The last plea raised was that of limitation. The High Court was of the view that Article 181 of the Limitation Act, 1908, was the Article applicable to the facts of the second suit which provided for a period of limitation of three years and was, therefore, barred by time. The High Court concluded that if the cause of action available to the plaintiff was based on 20th of July, 2005, the date of the agreement to sell or 5th of August, 2005, when the said agreement was allegedly cancelled, the period of limitation computing from either of the stated dates had expired. We disagree with this. The law of limitation being a disabling provision, its various Articles is to be construed by its plain language. The suitor approaching the courts for adjudication of his claim is entitled to a trial on the merits unless his claim is time-barred. The provision of Article 181, being a residuary Article, applies to any or all applications for which, specifically, no limitation period is provided elsewhere. It does not apply to any suit.

10. In our view, the only Article which could have been applied, in the given circumstances, was Article 97. This Article deals with a suit "for money paid upon an existing consideration which afterwards fails". We say so because a plain reading of it dictates three ingredients for its applicability: firstly, the suit must be for money; secondly, such money must have been paid upon a consideration which was in existence at the time of the payment; and lastly, the said consideration must have afterwards failed. Be it noted that if all these ingredients are established, the application of Article 97 cannot be resisted, and the starting point of limitation of three years under it would be not the date when the money was paid but when the consideration fails. Now, let us see if these ingredients are fulfilled in this case or not. As to the first ingredient, we would like to point out that payment of earnest money under the agreement to sell dated 20th of July, 2005, would fall within the meaning of the phrase "for money paid". The next factor which must be satisfied is that such money must have been paid upon an existing consideration. It is clarified that money paid under an agreement is paid for "existing consideration". We are, therefore, clearly of the opinion that the present case meets this qualification. Now, it remains to be seen, whether it can be predicated that the consideration for which the money had been paid had afterwards failed. We have no hesitation in holding in the circumstances of the case that it had failed. It may be reasoned that the earnest money is intended to serve as evidence of the buyer's (in this case plaintiff's) bona fide so that the amount will be forfeited if the transaction is terminated due to the buyer's cause, or if this is due to the seller (in this case the defendants) then the money will be refunded. It may also be noted that if the transaction proceeds, the earnest money becomes part of the purchase price. The facts stated by the plaintiff in the second suit show that the transaction did not fructify in a completed sale and thus the inevitable conclusion is that the consideration for which the money was paid was extinguished. Thus, it will be seen that all the three requirements of Article 97 are fully met in the present case, and, that being so, the limitation for the plaintiff's second suit would rightly start from the date of failure of the consideration, and the second suit would be within time having been brought within three years of the date of the failure of the consideration, which in this case could be said to have failed only when the first suit was dismissed.3 So, we are definitely of the opinion that the plea of limitation has no force and must be repelled.

11. Before parting, we find it necessary to observe that suits for recovery of earnest money after failure of a suit for specific performance is a common law development and dates back to more than a century. To the legal mind, this procedural aspect is correct, but what is worth noting, which this case effectively illustrates, is that the sale agreement was executed on 20th of July, 2005. After that, a suit for specific performance was instituted. The case continued until it was dismissed on 18th of November, 2013, after eight years of litigation. On 13th of February, 2014, the second round of litigation was brought by the plaintiff to recover earnest money, to which the cause of action arose after the dismissal of the first suit for specific performance, and has reached us in appeal 18 years after the agreement. In total, these two rounds of litigation, starting with the same agreement, will complete 19 years of litigation this year. The famous saying of Justice Oliver Wendell Holmes Jr. fits here perfectly that "the life of law has not been logic: it has been experience", and therefore, based on empirical study it is advisable to suggest that suitable amendments to the Specific Relief Act, 1877, be made so as to do away with such litigations and reduce the burden on the courts and on parties. The proposed amendments should provide for a provision by which any person suing for the specific performance of a contract for the transfer of immovable property, in appropriate cases, may ask for (a) possession or partition and separate possession, of the property in addition to such performance; or (b) any other relief to which he is entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

12. Given the preceding discussion, we conclude that the opinion propounded by the Islamabad High Court suffers from misreading of facts and misapplication of law and thus cannot be approved. This appeal, therefore, succeeds. The judgment dated 27th of May, 2016, of the Islamabad High Court is set aside, and resultantly, the application filed by defendant No.2 under Order VII, Rule 11, C.P.C. is dismissed. The trial Court is directed to decide on the merits of the suit in accordance with the law.

13. The Registrar of this Court shall forward a copy of this judgment to the Hon'ble Chairperson of the Law and Justice Commission, Attorney General for Pakistan and Secretary Law to Government of Pakistan and to Provincial Governments for their information and necessary action.