Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1635 of 2006
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Date |
Order with signature of Judge |
Plaintiff : Ejaz Ahmed, through Mr. Umar Farooq Khan
Advocate.
DefendantNo.1 : Abdul Qadir Raja, through Mr. Abdul Rehman
Advocate.
Defendant No.3. : City District Government Karachi, through
Syed Iftikhar-ul-Hassan Advocate.
Defendants 2, 4 & 5 : Province of Sindh and The Excise and Taxation
Officer, Jamshed Town, H-II Division, Karachi,
through Qazi Majid Ali, Assistant Advocate General,
Sindh.
Date of hearing : 05.10.2015.
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J U D G M E N T
NADEEM AKHTAR, J. – This Suit has been filed by the plaintiff against defendant No.1 for specific performance of an agreement to sell in respect of plot bearing old No.24-C and new No.6, Street No.3/4, Kashmir Colony, Sector No.A, Karachi, measuring 640 sq. yds., hereinafter referred to as “the Suit property”. Defendants 2 to 5 have been impleaded in this Suit as proforma defendants.
2. The case of the plaintiff, as averred in the plaint, is that on 27.02.2006 defendant No.1 executed an agreement to sell in his favour in respect of the suit property, whereby defendant No.1 agreed to sell the suit property to him and he agreed to purchase the same in consideration of Rs.13,000,000.00. The plaintiff paid to defendant No.1 an amount of Rs.700,000.00 as token money through two pay orders. As per the mutually agreed terms and conditions, the balance sale consideration of Rs.12,300,000.00 was to be paid by the plaintiff to defendant No.1 on or before 30.06.2006 subject to delivery of vacant and peaceful possession of the suit property to him. Further payments of Rs.800,000.00 and Rs.50,000.00 were made by the plaintiff to defendant No.1 on 04.05.2006 and 27.06.2006, respectively. After arranging pay orders for the entire balance sale consideration before 30.06.2006, the plaintiff contacted defendant No.1 and requested him to complete the sale in his favour, but he avoided to do so for one reason or the other. In August 2006, defendant No.1 finally refused to hand over possession of the suit property to the plaintiff and to perform his agreed part of the contract.
3. In the above background, this Suit was instituted by the plaintiff on 20.12.2006 against defendant No.1 for specific performance of the agreement to sell dated 27.02.2006. Along with the Suit, the plaintiff filed an injunction application bearing C.M.A. No. 9388 of 2006 praying that defendant No.1 be restrained from creating third party interest in respect of the suit property or from acting contrary to the terms and conditions of the agreement in question. Vide order dated 21.12.2006 passed on this application, the parties were directed to maintain status quo. After hearing the learned counsel for the parties at length, an order was passed on this application on 01.10.2012 whereby the plaintiff was directed by this Court to deposit the entire balance sale consideration of Rs.11,000,000.00 with the Nazir of this Court within 90 days from the date of the said order and till then the status quo order passed earlier was to continue. It was specifically ordered that in case of non-compliance of the aforesaid order within 90 days, the plaintiff’s above stay application shall stand dismissed.
4. On 17.11.2014, learned counsel for the plaintiff made a statement before the Court that the plaintiff had filed High Court Appeal No.25/2013 against the dismissal of his stay application. During the course of hearing before me, learned counsel for the plaintiff conceded that the aforesaid order dated 01.10.2012 directing the plaintiff to deposit the balance sale consideration with the Nazir within 90 days, has attained finality as the appeal filed by the plaintiff against the said order was dismissed for non-prosecution. In view of the above, he requested for time on 29.09.2015 to satisfy the Court as to why this Suit for specific performance should not be dismissed as admittedly the plaintiff has failed to comply with the order dated 01.10.2012. He was specifically put on notice to come thoroughly prepared in view of the case of Syed Muhammad Waqaruddin V/S Owais Ahmed Idrees, 2015 MLD 49, and also in view of the law laid down by the Hon’ble Supreme Court in Allah Ditta V/S Bashir Ahmad, 1997 SCMR 181, and Haji Abdul Hameed Khan V/S Ghulam Rabbani, 2003 SCMR 953.
5. Mr. Umar Farooq Khan, learned counsel for the plaintiff, contended that as a result of the failure on the part of the plaintiff to deposit the balance sale consideration within the stipulated period of 90 days, his stay application was dismissed in pursuance of the order dated 01.10.2012. He submitted that as a consequence of non-compliance of the said order by the plaintiff, his Suit cannot be dismissed as there was no such stipulation in the said order, and due to this reason, the case of Syed Muhammad Waqar ud din (supra) decided by this Court and the cases of Allah Ditta and Haji Abdul Hameed Khan (supra) decided by the Hon’ble Supreme Court, shall not apply to the instant case. He further submitted that this Suit should be decided on merits as the plaintiff has paid a substantial amount to defendant No.1 in part performance of the agreement. No other argument was advanced by the learned counsel.
6. On the other hand, Mr. Abdul Rehman, learned counsel for defendant No.1, relied heavily on the above-cited cases, and contended that the principle laid down in the said cases is fully applicable to the instant case. He submitted that the Suit is liable to be dismissed as the plaintiff has miserably failed to deposit the balance sale consideration despite specific direction of this Court.
7. It is an admitted position that the order passed by this Court on 01.10.2012, whereby the plaintiff was directed to deposit the entire balance sale consideration with the Nazir within 90 days from the date of the said order, was not complied with by him, and due to such default on his part, his stay application was dismissed. It is also an admitted position that the appeal filed by the plaintiff against the said order was dismissed for non-prosecution, and the said order dated 01.10.2012 attained finality long ago. It is important to note that the said order dated 01.10.2012 was passed with the consent of the learned counsel for the plaintiff as after accepting the proposal made on behalf of defendant No.1, he had requested for three months’ time to deposit the balance sale consideration of Rs.11,000,000.00 with the Nazir of this Court. It is also important to note that after failing in depositing the said amount within the stipulated period, no attempt was made by the plaintiff to seek further time to deposit the said amount nor was any such request made before me during the course of hearing. Such conduct on the part of the plaintiff is sufficient to show that he is not willing to perform his agreed part of the contract.
8. In the above context, I would like to refer to the above-cited authorities of the Hon’ble Supreme Court ; namely, Allah Ditta and Haji Abdul Hameed Khan (supra), wherein the order of dismissal of the Suit for specific performance passed by the trial Court due to the plaintiff’s failure in depositing the requisite / balance amount in Court, was upheld the Honourable Supreme Court. By respectfully following the authoritative pronouncement by the Hon’ble Supreme Court in the above authorities, it was held by me in the case of Syed Muhammad Waqarud din (supra) that there is a vast difference between the capability or ability to perform the agreed part of the contract, and the readiness and willingness to do so ; a party may be fully capable and able to fulfill his obligation under the contract, and yet he may not be ready or willing to do so ; in a Suit for specific performance, it is obligatory upon the plaintiff to demonstrate in unequivocal terms in his pleadings, as well as by his conduct throughout the proceedings, that he has always been and is still ready and willing to perform his agreed part of the contract ; such readiness and willingness of the plaintiff is the essence of and a condition precedent for seeking specific performance of contract ; and, in the absence thereof, the equitable and discretionary relief of specific performance cannot be granted.
9. In the instant case, the plaintiff not only failed to comply with the order passed by this Court on 01.10.2015 with his consent, but he also did not honour the undertaking given by him before this Court on the said date that he would deposit the balance sale consideration if three months’ time is granted to him. The conduct of the plaintiff and the reluctance on his part to deposit the balance sale consideration despite the Court’s order and his undertaking, undoubtedly reflects his deliberate and intentional unwillingness to perform his agreed part of the contract. Therefore, it appears that he is not serious in performing his agreed part of the contract or in pursuing his remedy of specific performance. This ground alone is sufficient to disentitle him to a decree for specific performance. This view expressed by me is fortified by the above-cited authorities of the Hon’ble Supreme Court which are fully applicable to the instant case in my humble opinion.
10. For the above reasons, this Suit was dismissed with costs of Rs.25,000.00 by the short order announced by me on 05.10.2015.
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J U D G E