An agreement to sell is signed, part payment is made, and before the transfer the seller changes their mind - usually because the price has risen or a better offer has arrived. The buyer's remedy is a suit for specific performance under the Specific Relief Act, 1877: an order compelling the seller to execute the sale.
Why it is available for property
Specific performance is granted where damages would not be adequate compensation. For immovable property the Act presumes that damages are not adequate, because each piece of land is treated as unique. That presumption is why these suits are a mainstay of Pakistani litigation.
The three things the buyer must establish
- A concluded, enforceable agreement. Not negotiations - an agreement with the essential terms settled: parties, property identified, price, and time or manner of performance.
- Readiness and willingness to perform, continuously. The buyer must plead and prove that they were ready and willing to perform their part of the contract from the date of the agreement through to the hearing. This is the ingredient cases are actually decided on.
- That the contract is one the court will enforce - not vitiated by fraud, misrepresentation or want of title, and not one where the discretion should be refused.
Readiness and willingness: what it looks like in evidence
A buyer who says at trial that they were always ready, with nothing on the record, generally loses. What builds the record:
- Payment of the earnest money and instalments on the dates agreed, through banking channels, with receipts.
- Written communication calling on the seller to perform - a letter or notice fixing a date and place for execution of the sale deed.
- Attending the Sub-Registrar's office on the appointed date with the balance consideration, and having the attendance recorded. This is a formal step and it is decisive; an affidavit of attendance, with witnesses, answers the entire defence.
- Evidence of financial capacity - the balance available in an account, or a sanctioned facility. Courts do ask where the money was.
A buyer who defaulted on an instalment, or who let a year pass in silence, faces a serious difficulty on this ingredient.
What to file, and when
Limitation is three years from the date fixed for performance, or where no date is fixed, from when the plaintiff has notice that performance is refused. This is short and it is applied strictly.
The suit should ask for:
- Specific performance of the agreement
- In the alternative, recovery of the amount paid with damages - pleaded as an alternative so that the suit does not fail entirely if discretion is refused
- A permanent injunction restraining the seller from transferring the property to anyone else
- Possession, where possession has not been given
File with a temporary injunction application under Order XXXIX rules 1 and 2 CPC on day one. Without it, the seller sells to a third party during the suit, and you are then litigating against a purchaser who will claim to be a bona fide transferee for value without notice. Registering a lis pendens notice and lodging a caveat with the Sub-Registrar are the other protective steps.
The seller's usual defences
- The buyer was not ready and willing - the defence that succeeds most often.
- Time was of the essence and the buyer failed to perform within it. Whether time is of the essence in a property contract depends on the terms and the circumstances; it is not presumed, but an express clause with a rising market behind it carries weight.
- The document was an agreement to agree, or a receipt for a loan, not a concluded sale agreement.
- The signature or thumb impression is denied.
- The seller had no marketable title to convey.
The third-party purchaser problem
Where the seller has already sold to someone else, the subsequent purchaser must be made a party. The buyer's claim will succeed against them only if they are not a bona fide purchaser for value without notice. Anything that gave the second purchaser notice - possession by the first buyer, a registered agreement, a lis pendens entry, a caveat - defeats that defence, which is exactly why those steps matter at the time of the agreement, not after the dispute.
Practical advice at the agreement stage
- Register the agreement to sell where the law permits. An unregistered agreement is harder to prove and gives no notice to the world.
- Pay through banking channels only.
- Take possession where the deal allows it; possession is powerful evidence and it is notice to any later purchaser.
- Record a clear date and place for execution in the agreement.
- If the seller stalls, send a notice fixing a date and attend the Sub-Registrar with the money. Do not simply wait.
This article describes the general law on specific performance in Pakistan. The remedy is discretionary and turns heavily on the record. It is not advice on any specific agreement; consult an advocate promptly, because limitation is three years.