IN THE HIGH COURT OF SINDH
K A R A C H I
Suit No. 135 of 2005
Present: Mr. Justice Khadim Hussain Tunio
Date of hearing: 07/02/2017.
Date of Announcement: 27/02/2017
Plaintiff: Muhammad Zafar Javed through Mr. Syed Masroor Alvi and S. Imran Younus
Defendants: 1. Rashida Patel through LRs
(i) Mr. Mussarat Patel
(ii) Mr. Aquil Patel
(iii) Mrs. Faiza Patel King
(iv) Shela Patel and
(v) Zahil Patel.
2. Mrs. Razina Attiqullah, Rehman
3. Naushaba Wafiqullah
4. City District Govt. Karachi
5. Al-Hilal Cooperative Housing Society through Mr. S. Abdur Rauf, advocate.
JUDGMENT
KHADIM HUSSAIN TUNIO,J.-This suit for Specific performance, possession declaration permanent injunction compensation and damages filed by the plaintiff above named against the defendants.
2. Briefly, facts of the present suit as disclosed in the plaint are that the plaintiff entered into an agreement of sale dated 15.05.2002 with the defendant No.1 for the purchase of Plot No. A-45, measuring 200 sq. yards, Block 4 & 5 situated at KDA Scheme No.7, Al-Hilal Cooperative Housing Society Karachi (hereinafter referred to as the “suit property” for a total agreed sale consideration of Rs. 13,50,000/= out of which a sum of Rs. 1,35,000/- was paid to Defendant No.1 thorough Pay Order No. POB-0765423 dated 14.05.2002 drawn on UBL Chandni Chowk Branch Karachi as advance payment out of the total agreed sale consideration as mentioned in paragraph-1 of the said sale agreement. It is further stated that at the time of execution of Sale agreement, Defendant No.1 had assured the plaintiff that she is not only the lawful attorney of Defendant No.2 but she is also owner of 50% of the suit property; Defendant No.1 entered into the said Sale agreement with the plaintiff being an attorney of Defendant No.2 vide power of attorney dated 29th August 1991, whereas Defendant No.2 is Attorney of Defendant No.3, who was the transferee and lawful owner of the suit property. Defendant No.1, having lawful, legal and valid authority in respect of the suit property has executed the said sale agreement where-under Defendant No.1 was bound to transfer the suit property in accordance with the said terms and conditions. Per the plaintiff, Defendant No.1 had assured to plaintiff that she was not only the lawful attorney of the said suit property but also a share holder of 50% of the total suit property by virtue of an agreement dated 4th September 1991, which fact had been disclosed or revealed through a letter to the plaintiff dated 15th May 2002; he further stated that the defendant No.1 on the date of execution of Agreement also made oral promises to the plaintiff that she would transfer the suit property in the name of the plaintiff or his nominee within a short time. Thereafter on 6th June 2002 the plaintiff received a letter dated 28th May 2002 from Defendant No.1 thereby authorizing the plaintiff to build a boundary wall and appoint a chowkidar at his own expenses on the suit property. After passage of sometime the plaintiff through letter dated 03.06.2002 reminded the defendant No.1 of her promises and legal obligations under the said agreement but got no reply until 13th July 2002, when he received a letter dated 11th July 2002 from an associate of Defendant No.1 namely Ms. Farida Moten stating therein that the defendant No.1, not being in city, was unable to contact the plaintiff. The conduct and attitude of the defendant No.1 compelled the plaintiff to conduct enquiries with effect to the actual intention of Defendant No.1 as to whether or not she has been deliberately avoiding the fulfillment of her obligation under the contact so he came to know through reliable sources that the defendant No.1 had been facing dispute regarding suit property which was later confirmed by her letter dated 8th Oct 2002 to the plaintiff disclosing therein the fact of litigation over the suit property attaching therewith certain letters showing communication and correspondence made amongst Defendants 1,4 and 5. In March 2003 the plaintiff came to know that Defendant No.1 had got settled all the litigation over the suit property so he again reminded Defendant No.1 of her legal obligations under the law with regard to the suit property according to the terms and conditions of the sale agreement through a letter dated 17.03.2003, however after the lapse of 4 months there was no reply from Defendant No.1 hence plaintiff again sent a reminder dated 11.07.2003. It is further stated that plaintiff, being anxious to complete the transaction, was always diligent enough to make Defendant No.1 agree in order to fulfill the terms and conditions of the agreement as delay in the transaction was adversely affecting the plaintiff who had been keeping the balance amount stuck up for the payment of the said sale consideration for the purpose of due fulfillment of obligation on his part with regard to the said sale agreement and the said balance amount remained untouched only for the said purpose which the plaintiff otherwise could have invested and made profit out of it, for which loss also Defendant No.1 was legally liable under the law. In order to secure the very purpose the plaintiff once again served upon Defendant No.1 a reminder dated 30.07.2003 and plainly stated that as there was no legal flaw or lacuna or defect in title in respect of the suit property, the same should be transferred to the plaintiff. He further stated that the plaintiff thereafter came to know that Defendant No.1 had been avoiding the transfer of the suit property in the name of the plaintiff for one or the other reasons perhaps due to increase in the prices of real estate in Karachi. Thereafter the plaintiff personally met with Defendant No.1, she asked the plaintiff to pay another sum of Rs.5,65,000/- out of the sale consideration. And the plaintiff paid a sum of Rs. 5,65,000/- through cheque No. 8059061 of UBL Chandni Chowk Branch Karachi dated 05.06.2004 to Defendant No.1 along with letter dated 05.06.2004. It was also mutually agreed between the Defendant No.1 and the plaintiff that the remaining amount of Rs.6,50,000/ nor showed her intention with regard to the transfer of the suit property and the plaintiff reminded her once again through letter dated 29.07.2004 and requested Defendant No.1. To deliver a receipt of the money and also to transfer the title/ownership of the plot, subsequently the plaintiff was shocked when he suddenly received a legal notice by Defendant No.1 thought her advocate stating therein and demanding from the plaintiff fulfillment of those obligations which under the law and as per terms and conditions contained in agreement of sale dated 15.05.2004 amounting to Rs.5,65,000/- but claimed that she had withheld encashment of the same. It was further stated in the said notice that the defendant No.1 would accept cheque of the plaintiff towards part consideration of sale of plot upon plaintiff’s assurance and undertaking to take upon himself to complete all formalities necessary for completion of the sale. He further assured to Defendant No.1 will sign all papers etc required to completion of the sale. Thereafter plaintiff in reply to the above said legal notice wrote to the defendant on 20.09.2004, wherein the plaintiff explained that the defendant is imposing unreasonable, arbitrary, unilateral and inappropriate terms and conditions upon the plaintiff to give assurance and undertaking to take upon himself to complete all formalities necessary for completion of sale without mentioning one by one what kind of formalities.
3. Defendant No.1 stated in her advocate’s legal notice dated 30.08.2004 that defendant No.1 had withheld the encashment of the said cheques amounting to Rs.5,65,000/- and she enchased the cheque of Rs.5,65,000/- on 20.10.2004 and 21.10.2004, which clearly and candidly shows her approach and further acceptance of the said agreement of sale dated 15.05.2002 but Defendant No.1 deliberately did not disclose this encashment of the cheque in order to pressurize the plaintiff to further payment to fulfill her whim before the transfer of the title of the suit property in favour of the plaintiff in the record of defendant No.4 and in this way to avoided or altogether declined the payment of outstanding dues in NUF etc. in respect of the suit property by her afterwards. Thereafter plaintiff personally contacted Defendant No.1 who in turn now unreasonably and unjustifiably demand the remaining amount of said sale consideration before actual transfer of the title of the suit property in favour of the plaintiff in the record of Defendant No.4 and she also tried to force and pressurize the plaintiff to pay the outstanding due pertaining to the suit property from plaintiffs own packet without deducting the same from the balance amount of the agreed lump sum sale consideration otherwise she threatened the plaintiff should be ready to face dire consequences and Defendant No.1 had promised that she would transfer the suit property in the name of the plaintiff at the earliest possible on or after receiving the said balance amount of Rs.6,50,0000/-, which the plaintiff being completed and influenced by the tactics of the defendant No.1 reluctantly agreed to pay the said balance amount through cheque No. PLS/A 9495604 of UBL Chandni Chowk Branch dated 20.10.2004, which cheque was sent to Defendant No.1 along with the letter dated 21.10.2004 and the plaintiff after payment of said amount was hopeful that the defendant would then perform her part of contract and the plaintiff went into a mental shock when he received a letter dated Nil from defendant No.1 which contains a legal notice by the advocate of the defendant No.1 stating therein that the defendant No.1 had cancelled the said sale agreement dated 15.05.2002 unilaterally and unlawfully. Thereafter the plaintiff had been going through immeasurable mental agony tension and psychological pain which also had adversely affected him physically, plaintiff thereafter served upon the EDO, CDGK with a legal notice/letter stating therein the facts about the suit property and the said sale agreement so that Defendant No.1 may not alienate or sell the suit property and requested the said officer not to take any action regarding the suit property until and unless the same was resolved by the competent court of law. Thereafter plaintiff published it in “ Daily Jessarat dated 31.10.2004 , “Daily Jang dated 3rd Nov, 2004, “Daily Jang 18.11.2004 and “Daily Jang dated 13th Dec 2004 and a notice in order to prevent the defendant from creating any third party interest in the suit property. Therefore plaintiff prays for judgment and decree as under:-
“a) Declare that the Plaintiff is entitled to the title, ownership and possession of the suit property, Plot No. A-45, measuring 200 sq. yards situated in Block 4 & 5 in KDA Scheme No.7, Al-Hilal Cooperative Housing Society Karachi under the terms and conditions of Sale agreement dated 15.05.2002 and the defendants 1 to 3 are jointly and severally liable to specifically perform the said agreement and transfer the ownership and title of the said property to the plaintiff AND i n case of failure of defendant No. 1 to 3 to transfer the title of the said property in favour of the plaintiff, the same be directed to be executed by the Nazir of this Hon’ble Court at the cost of the defendant No.1
b) Direct the defendants 1,2 and 3 to fulfill their obligations suit property viz plot No. Plot No. A-45, measuring 200 sq. yards situated in Block 4 & 5 in KDA Scheme No.7, Al-Hilal Cooperative Housing Society Karachi, in favour of the plaintiff.
c) Restrain the defendants, their agents, servants, subordinates or any other person or persons acting for under and or on their behalf from creating third party interest in respect of the suit property viz Plot No. A-45, measuring 200 sq. yards situated in Block 4 & 5 in KDA Scheme No.7, Al-Hilal Cooperative Housing Society Karachi in any manner whatsoever;
d) Furthermore in the event of non-performance of the agreements by defendant 1 to 3 direct them to pay a sum of Rs. 80,00,000/- with mark up at the rate of 20 % per annum to the plaintiff.
e) Also award Rs.40,00,000/- as compensation/damages to the plaintiff in lieu of mental torture and loss suffered by the plaintiff.
f) Grant cost to the plaintiff.
g) Grant any other relief which this Hon’ble court may deem fit and proper under the circumstances of the case.”
4. The Defendant No.1 filed his written statement. He has submitted that at the time of executing the agreement the plaintiff was informed that Defendant No.1 is an attorney in respect of the suit property, Defendant No.1 was an attorney in respect of the suit property and he also apprised that the plaintiff the suit property / plot stood in the name of the defendant No.3 in the record of the defendant No.4 and defendant No.5, and Defendant No.1 was aware of whatever information given to her by the defendant No.2 & 3 and made it clear that she cannot be certain of any objections, defendant No.1 has inserted the clause No.9 in the agreement of sale which read as follows:
“That it is agreed between the Vendor and Vendee that in case the said transaction cannot be completed or finalized due to any legal flaw, lacuna or defect of title in respect of the said property/plot, then the Vendor shall return to the Vendee the advance payment of Rs. 135,000/- in lump sum and the Vendee shall accept the same and issue a receipt thereof and in that event Agreement of sale shall be cancelled. Neither the Vender nor Vendee shall be entitled to any compensation or damages whatsoever for cancellation of the said agreement of Sale.”
5. He has further submitted that the plaintiff took inspection of all the records in respect of the suit property and the defendant No.1 advised the plaintiff to check the record of defendant No. 4 & 5 to ensure that there is nothing in their record, which would hinder the transfer of the said plot. There was no lease deed only allotment letter, which mutated in the name of defendant No.3 in the record of Defendants 4 and 5, as Defendant No.1 does not have original documents, Defendant No.1 signed and filed the application for grant of certified copies of the original documents which had not been granted by the defendant No.4 until now. The defendant No.1 was acting attorney of defendant No.2 and sub-attorney of defendant No.3 and he resided in USA and defendant No.1 does know where defendant No.3 is residing. He also submitted that she has also migrated to USA and the defendant No.1 was not responsible for them or any liability. He further submitted that he had informed and shown to the plaintiff affidavit/declaration of gift of 50% of the suit property and defendants Nos. 1 & 2 would share the sale price. He also submitted that at the time of executing the agreement of sale, defendant No.1 believed that she was legally authorized to execute the agreement of sale and she had been acting on the basis of the said power of Attorney in all court and no oral promises of any kind were given by defendant No.1 to the plaintiff. He also submitted that no verbal assurance was given by the defendant No.1 to the plaintiff. However the letter dated 15.05.2002 was not denied. He further stated that the plaintiff represented that he required to build the wall around the suit property and appointed a chowkidar and permission was granted. He also stated that plaintiff was fully aware that the defendant No.1 was not in Karachi from mid of May, June till mid of July, and the plaintiff was fully aware of the position of the plot yet deliberately sent the letter to create a false impression. He further stated that the plaintiff was constantly in contact with defendant No.4 and had full knowledge of its position of the claim in respect the suit property, he further stated that defendant No.1 received intimation dated 10.09.2002 from defendant No.4 heirs of late Haji Mohammad Zaman were claiming mutation of the suit property on the basis of Decree obtained. He also submitted that the defendant No.1 took necessary legal action before the relevant Court and had the false decree set aside by judgment dated 20.03.2003 and the defendant No.4 was continuously questioning the validly of the power of attorney. The plaintiff was at all times fully aware of the objections being taken relating to power of attorney executed by defendant No.3 in favour of defendant No.2 and consequently the power of attorney from defendant No.2 in favour of defendant No.1. He further stated that the decree was set aside on 29.03.2003 and the plaintiff was aware of this and was aware of the objection of defendant No.4 to take any action in the matter and plaintiff again wrote letters. He further submitted that plaintiff was not anxious to have the said property transferred in his name till recently when the price of land started rising and the defendant No.1 had never required plaintiff to keep the money balance amount stuck up as stated by him. He further stated that plaintiff was fully aware of difficulties of Defendant No.4 that he would not issue that CTC and title deeds and transfer was not possible and there was no mutual agreement for payment of Rs.6,50,000/- except as agreed in agreement of sale which stands cancelled to complicate the position sent Defendant No.1 letter as claimed. He stated that the defendant on return to Karachi responded to the letter and sent notice dated 30.08.2004 through her advocate which is self explanatory. He further stated that plaintiff sent a letter to the defendant through his advocate which was self-explanatory and in October 2004 plaintiff telephoned Defendant No.1 that he is negotiating with Defendant No.4 and trying to finalize setting a side of their objections, thereafter plaintiff pressurized and that the cheque would lapse and in order to be able to return the money to the plaintiff directly on the cancellation for the agreement of sale the defendant No.1 enchased the cheque and after reciting annexure Q/2 from the advocate for defendant immediately; thereafter, plaintiff visited the defendant No.1 to settle the matter. The defendant No.1 at that moment tendered to the plaintiff the sum of Rs.1,35,000/- being earnest money as well as the sum of Rs.5,75,000/- plaintiff refused to receive the cheque of Rs.1,35,000/- earnest money or return of Rs.5,75,000/-. He has also submitted that the plaintiff did not move for specific performance of agreement of sale till the prices of the land in the area had risen considerable. The defendant had legally and validly cancelled the agreement of sale dated 15.05.2002 under clause 9, which was especially inserted in the agreement of sale. He further stated that it is not known publications and plaintiff was fully aware that Defendant No.1 only reads English newspaper and deliberately he published the notice in Urdu Newspaper. He has raised plea that no cause of action has arose and the plaintiff had waited nearly 3 years for filing suit for specific performance though all along it was clearly known to him and Defendant No.4 was unwilling to transfer the plot. He has also taken plea that the present suit is not maintainable due to inordinate delay in filing the suit and plaintiff is not entitled to ownership or possession of the suit property in terms of the agreement dated 15.05.2002 and the defendant No.1 had validly and legally resorted to the clause 9 of the agreement dated 15.05.2002, which is clearly applicable in the present circumstances of the case. The Defendant No.5 filed his written statement and neither denied nor accepted the case of the plaintiff as Defendant No.5 have/had no knowledge of the 50% share of ownership of the suit property gifted to Defendant No.1 by Defendants 2 or 3, as Defendant No.1 was the sub-attorney of Defendant No.3 regarding the suit property and as such Defendant No.1 certainly had/have lawful legal and valid authority to execute the sale agreement with the plaintiff and in this context Al- Hilal Cooperative Housing Society Ltd., Karachi had already issued a document/certificate/verification letter/NOC dated 19.09.2002 (by declaring & verifying the genuineness of ownership/title of Defendant No.3 in respect of suit property and Defendant No.1 as sub-attorney of Defendant No.3 pertaining to the suit property, in reply to the letter of Defendant No.4 bearing No. CDGK/KDA wing/SCH-2/2002/460, dated 10.09.2002 written by Assistant District Officer ( Scheme No. 2 & 7) CDGK ( KDA Wing) and the defendant No.3 was the undisputed, sole and actual owner of the suit property and Defendant No.1 was the lawful, legal and valid sub-attorney of Defendant No.3 pertaining to the suit property as per record of Defendant No.5. The suit against Defendants 2 to 4 was ordered to be proceeded as ex-party vide order dated 10.10.2005 and 01.12.2008 respectively. The Defendants 2 & 3 adapted the same written statement as filed by the defendant No.1 on 21.05.2005. On 26.05.2016 the defendant No.4 filed statement which is taken of record and submitted in compliance of order dated 11.05.2016 which reads as under:-
“In compliance of the Court order passed by this honorable court on 11.5.2016, it is submitted that as per record as well as the contents of the written statement filed by the Defendant No.4 the subject plot No.A-45 Block 4 & 5 Scheme-7, Al-Hilal C.H.Society, Karachi pertains with Defendant No.5. The subject plot was involved in Abandoned property, hence one Mrs. Naushaba Wafiullah niece of Syed Rozina Attiqullah filed the appeal before the Board of Trustees of Abandoned Property Cabinet Divisions, Govt. of Pakistan, wherefrom she was forwarded plea that Mst. Rozina Attiqullah had gifted the plot to her in 1970, on the basis of declaration of Gift made by Rozina Attiqullah the above plot was mutated in favor of Naushaba Wafiullah daughter of Syed Mohammad Wafiullah vide mutation letter dated 9.6.1982. As per record of KDA the subject property stands mutated in the name of the Naushaba Wafiullah daughter of Syed Mohammad Wafiullah. Copy of the Mutation letter and No Objection Certificate issued by the Defendant No.5 Al-Hilal C.H.Society, are annexed herewith for perusal of this honorable Court. Also, a Notice issued by Deputy Director (Recoveries) for payment of outstanding dues. The detail has already been mentioned in the Brief History of the case on Written Statement filed by CDGK/KMC/KDA Wing.
It is, therefore, prayed that this honorable Court may be pleased to take on record.
Prayer is made in interest of justice.”
Vide order dated 26.05.2014, following issues were adopted by this court:-
ISSUES
1) Whether the suit as framed and filed in maintainable under the law?
2) Whether the plaintiff has entered into any sale agreement of 15.05.2002 with the defendant No.2 who was duly constituted sub-attorney of defendant No.1? yes, its effect?
3) Whether the defendants are authorized to cancel the sale agreement when the plaintiff had fulfilled all the terms and conditions required to be performed by the plaintiff?
4) Whether the defendant No.1 was liable to pay the outstanding dues of defendant No.4 in order to obtain CTC on or after 16.08.2004 upon payment of CTC issuance fee and other dues including NUF?
5) Whether the defendant No.1 with mala-fide intention and with ulterior motives avoided payment of outstanding dues for issuance of CTC in order to avoid her part of sale agreement?
6) Whether the defendants after alleged acceptance of payment of Full and Final sale consideration are liable to execute the necessary title documents in favour of the plaintiff as per terms and conditions of agreement dated 15.05.2002?
7) Whether plaintiff as alleged has suffered any damages/losses? If, Yes to what account and on what extent and who is liable to pay the same?
8) What should the decree be?
6. Plaintiff filed his affidavit in evidence, he entered into an agreement of Sale dated 15.05.2002 with the defendant No.1 for the purchase of Plot No. a-45, measuring 200 sq. yards Blocks 4 & 5 situated at KDA Scheme No.7- Al-Hill Cooperative Housing Society Karachi for a lump sum total agreed sale consideration for Rs.13,50,000/- out which a sum of Rs.135,000/- was paid to the defendant No.1 through pay order No. POB- 0765423 dated 14.05.2002 drawn on UBL Chandni Chowk Branch Karachi as part payment out of the total agreed sale consideration as mentioned aforesaid in the agreement of sale. Plaintiff produced photocopies of the Sale Agreement along with a separate Receipt, General Power of Attorneys, a letter dated 03.06.2002, letter dated 11.07.2002, letter dated 08.10.2002 and other documents, letter dated 17.03.2003, reminder dated 11.07.2003, letter 30.07.2003, said letter and cheque, letter dated 20.07.2004, Page No. 59 of KDA record file noting items/paragraph No. 325 & 326, notice dated 30.08.2004, said letter dated 20.09.2004, letter dated 27.11.2004 along with cheque, cheque dated 20.10.2004, letter dated 21.10.2004, letter of defendant No.1’s legal notice and letter dated 30.10.2004 at Ex-A/1 & A/2, Ex-B/1 to B/3, Ex-C/1 to C/3, Ex-D/1, Ex-E/1, Ex-F/1 to F/5, Ex-G/1 to G2, Ex-H/1, Ex-DI/1I/2, Ex-J/1, Ex-J/2, Ex-J/1, Ex-L/1, Ex-M/1 & M/2, Ex-N/1 & N/2, Ex-O/1 & O/2 and Ex-P respectively. The defendants failed to cross-examine him; thereafter side of the plaintiff was closed on 10.10.2015.
On the other hand defendants failed to adduce their evidence; therefore side of the defendants was closed.
I have heard the learned counsel for plaintiff and defendant.
My findings on above issues with reason as under:-
Issue No.1: Negative
Issue No.2: Accordingly
Issue No.3: Accordingly
Issue No.4: Redundant
Issue No.5: Negative
Issue No.6: Negative
Issue No.7: Negative
Issue No.8: Suit dismissed
ISSUE NO.1
‘Whether the suit as framed and filed in (is) maintainable under the law?’
It is the plaintiff who has filed the instant suit hence to prove maintainability thereof was / is the duty of the plaintiff. It may be added that whenever a question with regard to maintainability of plaint ‘as framed and filed’ , the plaintiff shall be required to prove maintainability with reference to pleadings and documents, referred therein. Thus, plaintiff was required to prove that suit, as framed and filed, is maintainable. According to the Agreement to Sale the Defendant No.2 agreed to sell suit property to him which was owned by the Defendant No.1 on the basis of Sub-Attorney. The Defendants No.1 and 2 have stated in their written statement that they will transfer the suit land after allotment of the same by the City District Government in their favourhence prima facie the defendants, at time of execution of agreement, were not having perfect title. The plaintiff approached the Defendants by sending letters produced at Ex.D/1, G/1, G/2, H/1, I/1, J/1, M/2 and P respectively, on which Defendants requested for time, ultimately, they informed through their Advocate that they are not in position to collect the documents from the concerned Authorities, therefore, it is for the Plaintiff to collect the same otherwise, they are ready to refund the amount paid by them after due adjustment at Ex.C/2.This legally cannot be taken as a refusal but it was / is within the sale agreement itself (clause-9 thereof) hence if it is believed that parties were continuing under commitment then there was no cause of action for the plaintiff to file the instant suit for specific performance of contract which arises when there is a refusal to perform their agreed part. The Defendants No.1 and 2 have never refused to perform their part of the contract rather they admitted the same. Under such circumstances, I am of the opinion that suit of the plaintiff is not maintainable in law and he has no cause of action to file the same. According to Section 12 of the Specific Relief Act the refusal of the Defendants to perform contract must be clear, unequivocal and unconditional same is lacking in the present case. In this respect reliance may respectfully be placed on the case ofMuhammad Anwar and 8 others v. Bahan and another (2000 YLR 378). Be as it may, the plaintiff also failed to establish that at the time of filing of the suit the defendants were in a position to make the title of the plaintiff perfect which could have been taken as a cause to file the instant suit. Not only this, but the plaintiff though acknowledged to have received letter whereby the agreement was cancelled but has not sought declaration thereof. In absence of declaration in respect of such an acknowledged document, the legality of such a document shall remain as ‘admitted’ thereby presumption would be nothing but standing of such document in the field hence it was always necessary to have cancellation thereof within meaning of Section 39 of the Specific Relief Act. This seems to have been omitted deliberately by the plaintiff hence plaintiff shall stand precluded from suing in respect thereof within meaning of Order II rule 2 CPC. I would further add that the discretion does remain with the plaintiff to ‘frame’ its pleading for intended relief (s) but if such deliberate action otherwise results in bringing legal consequences then it shall be the plaintiff alone who shall have to lay on the bed which he himself laid. Reference may be made to the case Ali Muhammad v. Muhammad Bashir 2012 SCMR 930 it is held as:
“… These deeds were produced and exhibited. On the basis of these deeds, the respondents in both the appeals, claimed their right in the property. The format of the suit is confined to declaration of title. In the plaint, the appellants in both the appeals, have admitted that the respondents are in physical possession of half portion of the properties and were in knowledge of the registered instruments of pata milkiat in favour of the respondents. In the face of such material, the appellants have not sought cancellation of registered instruments in terms section 39 of the Specific Relief Act in the suit nor direction of their ejectment in suits have been sought. When confronted with this situation, the learned counsel for the appellants could not offer any plausible explanation except that he contended that the appellants had the right to file a separate suit for possession. Even this argument is without substance. The law does not permit a second suit if a right to the plaintiff is available at the time of filing of the suit. A second suit in such-like situation is otherwise barred under Rule 2, Order II, C.P.C
In same case, the suit on such failure was held as incompetent in following words:
“10. …. In these circumstances, we are of the considered view that the appellants have failed to establish before the trial Court that they have the right to seek declaration of title of the land in the absence of specific prayer of cancellation of documents and possession, more so when the appellants have admitted possession on the strength of registered documents coupled with the evidence of Sher Muhamamd which went un-rebutted. We, therefore, hold that the suits were not competent.
In another case of Anjuman Masjid New Town v. Muhammad Shahid Zaki PLD 2011 Karachi 550 wherein it is held as:
“…..To which it may be observed that clause 1 of Rule 2 of Order II, CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. It is, therefore, left or the discretion of the plaintiff how he, “frame” is suit and choose jurisdiction, according to his suiting, if law permits. However, once the plaintiff has opted, then by virtue of clause 2 of Rule 2 of Order II CPC he, “shall not”, afterwards sue in respect of the omitted or relinquished claim. Since the plaintiff omitted and or relinquished to raise the claim of damages in Suit No.913 of 2010 he could have not raised the prayer of damages in this suit. Therefore, by virtue of clause ‘d’ of Rule 11 of Order VII CPC this suit was barred by law and could have not been instituted and / or entertained at all.
In view of what has been discussed above, the issue no.1 is answered in the Negative.
ISSUE NO.2
‘Whether the plaintiff has entered into any sale agreement of 15.05.2002 with the defendant No.2 who was duly constituted sub-attorney of defendant No.1? yes, its effect?’
So far Issue No.2 is concerned it is a matter of record that there is no denial from the side of the Defendants No.1 and 2 regarding execution of Agreement to Sale in favour of the Plaintiff hence this issue seems to be redundant. However, it is necessary to add here that it shall never be the wishes of two or more alone which make an agreed act or omission enforceable in law but first and prime condition for a legal agreement / contract is the ‘competence’ of persons, agreeing to do or not to do an act. The Section 11 of the Contract Act describes the competence to contract as:
“11. Who are competent to contract.--- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law which he is subject.”
The qualification for contraction shall not limited but include ownership / legal authority for subject matter of contract. Thus, where the plaintiff fails to establish competence of the person against whom the specific performance is being sought because in absence of competence the contract / agreement, if any, shall be ‘void’ hence a suit for Specific Performance shall not be available as it is equitable in nature. Reference may be made to the case of Mst. Naseem Akhter & others v. Abdul Tawab & Ors. 2012 SCMR 1526 wherein it is held as:
…Remedy of specific performance of a contract being equitable in nature cannot be granted to enforce a transaction declared void by a statute.”
Having said so, it appears from perusal of the Ex.F/2 that the Al-Hilal Cooperative Housing Limited issued a letter to the Assistant District officer (Scheme-2&7) CDGK (KDA Wing) Civic Centre Gulshan-e-Iqbal Karachi for verification of genuineness of documents of Plot No. A-45, AL, Hilal Cooperative Housing Society in paragraph No. 3 of the said letter, it has been informed that till date this society had or has no information or knowledge of the decree passed by the Court of II-Senior Civil Judge, Karachi East on 25.11.1996 on the basis of said fake, false and fraudulent title documents in respect of Plot A-45, and A-44. The Plaintiff has not produced any tangible and cogent documentary evidence that the suit property was owned by the Defendants at the time of Sale Deed. More particularly no documentary proof has been produced either with the plaint or in the evidence or with affidavit in evidence by the plaintiff in order to prove that Defendants No.1 and 2 lawfully competent to enter into Agreement with the plaintiff. Therefore, the Issue is answered accordingly.
ISSUE NO.3
“Whether the defendants are authorized to cancel the sale agreement when the plaintiff had fulfilled all the terms and conditions required to be performed by the plaintiff?”
The burden to prove this issue was upon the plaintiff because the plaintiff was first required to establish that he (plaintiff) fulfilled all the terms and conditions and then would come the question of authority of the defendants. First, it is material to mention here that plaintiff himself seeks enforcement of the sale agreement which does contain the clause-9 i.e:
“That it is agreed between the Vendor and Vendee that in case the said transaction cannot be completed or finalized due to any legal flaw, lacuna or defect of title in respect of the said property/plot, then the Vendor shall return to the Vendee the advance payment of Rs. 135,000/- in lump sum and the Vendee shall accept the same and issue a receipt thereof and in that event Agreement of sale shall be cancelled. Neither the Vender nor Vendee shall be entitled to any compensation or damages whatsoever for cancellation of the said agreement of Sale”
Since, I am quite conscious of the legal position that it is not the ‘title or heading’ of a document which determines the nature of the agreement but various clauses thereof. Reference may be made to the case of Bolan Beverages (Pvt.) Ltd. v. Pepsico. Inc. PLD 2004 SC 860 wherein it is held as:
“8. …. Though the headings or the captions cannot exclusively determine the nature of a contract yet the various clauses thereof would be material in determining the real nature of the agreement..
In the instant matter, the existence of above clause in the agreement, in question, is not disputed hence legally it can well be presumed that both parties were very much aware of the fact that the defendant nos.1 and 2 do not have perfect title and even there is possibility of failure of defendant nos.1 and 2 in getting title perfect hence the plaintiff has agreed to alternate right of receiving paid amount only hence the plaintiff at all material times was not to prove his readiness to pay the consideration but that which prima facie arises from clause-9 of the agreement. The record further shows that defendants No.1 and 2 at first instance did not cancel the agreement but had informed the plaintiff vide Ex.K/1, which reproduced as under:-
“Your letters dated 29-07-2004 and 5-6-2004 addressed to our client Mrs. Rashida Mohammad Hussain Patel has been placed in our hand wtih instructions to reply as under:
1. Our client acknowledges the receipt of cheque. 5-6-2004 for Rs.5,60,000/- sent by you’re towards part consideration of the sale of the plot. However she has withheld encashment thereof through her bankers for want of progress in the matter.
2. Your attention is dawn to paragraph (9) of the agreement of sale dated 15.5.2002 wherein it was stipulated that in case the transaction cannot be completed for finalized due to any legal flaw, lacuna or defect of title, the agreement shall be cancelled and advance payment will be returned to you.
3. Our client had been making all out efforts to complete the sale but due to CDGK (defunct KDA) creating a number of hurdles it is not possible for our client to further pursue the matter rendering all her efforts in this direction going in vain.
4. In the circumstances, our client can only accept your above cheque towards part consideration of sale of the plot upon your assurance and undertaking to take upon yourself to complete all formalities necessary for completion of the sale. Indeed our client will sign all papers et required for completing the sale.
Worth to add here that a contrary plea of oral commitment cannot sustain in existence of a written document / instrument. Reference may be made to the case of Bolan Beverages (Pvt.) Ltd. (supra) wherein it is held as:
“14. This Court in Hazratullah v. District Council Haripur 1997 SCMR 1570 had observed that when once a lease agreement has been reduced into writing, oral evidence was to be excluded while proving the terms thereof as against the terms specifically reduced into writing. At this juncture we would reproduce clause 20 of the agreement which specifically lays down as to what in essence was the nature of agreement between the parties. This clause altogether negates the creation of either agency or partnership or joint venture’.
The plaintiff has never denied receipt of such letter and legality of clause-9 of the agreement, hence it was obligatory upon the plaintiff to have established that he (plaintiff) did not proceed further in pursuance to such letter but it were the defendant nos.1 and 2 who deliberately avoided to get title perfect and that he (plaintiff) did not agree to proposal of the defendant nos.1 and 2 thereby agreed to receive the paid amount. Writing of letters alone by the plaintiff shall not change or prejudice the legality of i.e ‘legality of clause-9’ and ‘letter issued by defendant nos.1 and 2 (Ex.K/1)’ nor will help the plaintiff to seek an exception to legal consequence of above documents. The record further shows that in consequence to above referred letter, the Defendants No.1 and 2 through Ex.O/2, cancelled the contract as per paragraph (9) of the Agreement to Sale in which it has been mentioned that “In continuation of our letter dated 20.08.2004, notice is hereby given to you on behalf of our client Mrs. Rashida Mohammad Hussain Patel that she has invoked paragraph (9) of the Agreement of Sale dated 15.05.2002 exercising her right to cancel the Agreement of Sale of plot bearing No. A-45 Al-Hilal Cooperative Society, Karachi.
You are accordingly advised to approach our client for refund of the amount paid by you after due adjustment.”
Since there was a specific clause in the agreement whereby the defendant nos.1 and 2 were given authority to cancel the agreement on failure of getting title perfect; the incapability to get title perfect was communicated to the plaintiff by defendant nos.1 and 2 with specific reference to such clause that they (defendant nos.1 and 2) have been making all out efforts to complete the sale but due to CDGK (defunct KDA) creating a number of hurdles, it is not possible for them to further pursue the matter rendering all efforts in this direction going in vain. In these circumstances, they can only accept his cheque towards part consideration of sale of the plot on his assurance and undertaking to take upon him to complete all formalities necessary for completion of sale, indeed they will sign all papers etc. required for completing the sale, but plaintiff has taken no efforts except filing of present suit which (act of filing suit) cannot be taken as discharge of all liabilities by the plaintiff particularly when he (plaintiff) himself has agreed to sail and sink with success or failure of the defendant nos.1 and 2 in getting title perfect. Thus, the Issue is answered accordingly.
ISSUE NO.4
‘Whether the defendant No.1 was liable to pay the outstanding dues of defendant No.4 in order to obtain CTC on or after 16.08.2004 upon payment of CTC issuance fee and other dues including NUF?’
Since, it is a matter of record that the defendant no.1 had entered into agreement with the plaintiff hence it was always obligatory duty of the defendant no.1 to have paid all dues against and in respect of the subject matter, however, since it was never pleaded by the defendant nos.1 and 2 that dues are outstanding against them nor the Defendant No.4 has filed his written statement claiming such dues hence this issue appears to have been framed unnecessarily out of the pleadings, hence the issue is answered as redundant.
ISSUE NO.5
Whether the defendant No.1 with mala-fide intention and with ulterior motives avoided payment of outstanding dues for issuance of CTC in order to avoid her part of sale agreement?
The burden was always upon the plaintiff to first establish that there had been dues and then that it was the defendant no.1 who malafide avoided payment thereof to avoid her part of agreement. A perusal of the Ex.K/1, the defendants had not taken plea of ‘dues’ but had pleaded that ‘due to CDGK (defunct KDA) creating a number of hurdles’ it is not practicable for them to continue. The perusal of the record shows that the plaintiff failed to adduce sufficient evidence to prove either of twos. On the contrary Defendants No.1 and 2 have informed the plaintiff through Ex.K/1 and O/2 through their Advocates that they have taken all efforts to got issued the necessary documents for transfer of suit property in favour of the plaintiff. They also advised the plaintiff that he can take efforts for issuance of documents which are necessary for completion of the contract and they are ready to put their signatures on all papers. There can be no denial to the well settled principle of law that the failure of the party asserting a fact shall bring legal consequences against him (party). The failure of the plaintiff to examine any of the officials of defendant no.4 to substantiate that there had been ‘dues’ of defendant no.4 or that the defendant no.4 was ready but it were the defendant nos.1 and 2 who failed to get such documents. The position, being so, results in answering this issue as Negative.
ISSUE NO.6
Whether the defendants after alleged acceptance of payment of Full and Final sale consideration are liable to execute the necessary title documents in favour of the plaintiff as per terms and conditions of agreement dated 15.05.2002?
Before discussing, it would be material to mention here that the defendant nos.1 and 2 never denied to have received the earnest money from the plaintiff and further payment rather had categorically came forward (written statement) that with reference to clause-9 of the agreement, the defendants had asked the plaintiff either to collect the paid amount or to get legal hitches removed. Thus, in such controversy, to prove the instant issue, the plaintiff was legally obliged to establish that payment of full or final sale consideration was in exception to the clause-9 of the agreement but as already discussed, the plaintiff has failed. Although in the instant matter the defendant nos.1 and 2 have not denied execution of the agreement but took a specific plea of cancellation of the agreement with specific reference to clause-9 of the agreement. While discussing the foregoing issues, it stood established that the payment of the further amount was after receipt of letter (Ex.K/1) and since the plaintiff has not established that defendant nos.1 and 2 deliberately failed in getting title perfect or that he (plaintiff) got legal hitches removed before letter of cancellation. Since, every right is subject to certain obligations hence failure of the plaintiff to establish further payment in escape to letter (Ex.K/1) would be sufficient to answer this issue as ‘negative’.
ISSUE NO.7
“Whether plaintiff as alleged has suffered any damages/losses? If, Yes to what account and on what extent and who is liable to pay the same?”
To prove this Issue, plaintiff has not adduced any tangible, cogent and confidence inspiring evidence that he has suffered any damages/ loss at the hands of Defendants despite clear clause has been mentioned in the Agreement to Sell i.e. clause (9) regarding cancellation of the Agreement to Sale. Here, it may be added that question of damages would arise where the breach on part of the other side is established which the plaintiff has failed, as defined by Section 19 of the Specific Relief Act which reads as:
“19. Power to award compensation in certain cases: Any person suing for the specific performance of a contract may also ask for compensation for its breach, it shall award him compensation accordingly.
The peculiar facts and existence of clause-9, Ex.K/1 prima facie established that there was no breach on part of the defendants. In absence of establishing breach, the plaintiff cannot insist for compensation. Not only this, but since the defendants have not denied to return the benefits, obtained by them from the plaintiff, which (term) was agreed by the plaintiff hence plaintiff legally cannot be awarded compensation. Besides, the plaintiff has also not given particulars/details of the loss or damages if any sustained by him which one (plaintiff) is not only obliged to plead but to prove the same. He has not examined any witness in support of his contention. Thus the Issue is answered in the Negative.
ISSUE NO.8
Keeping in view of my elaborative findings recorded under Issues Nos. 1 to 7, I am of the opinion that the plaintiff has failed to prove its case, therefore, the suit of the plaintiff is misconceived and is accordingly dismissed. However, this will not prejudice the right ofthe plaintiff to receive the paid amount to the Defendant No. 1 and 2 . The parties shall bear their own costs.
JUDGE.