ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Second Appeal No. 50 of 2009
Appellant : Major (R) Muhammad Iqbal Hussain, through
M/s. M.G. Dastagir & Nasir Mufti, advocates.
Respondent No. 1 : Col. ® Sadiq Hussain Sheikh, through
M/s. M. Masood Khan &Amna Usman,advocates.
Respondent No. 2 : The Administrator, Pakistan Defence Officers’
Housing Society, Karachi (Nemo)
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Date of hearing: 25.01.2017
Date of order: 25.01.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- This Second Appeal, under section 100 C.P.C. is directed against the judgment and decree dated 07.08.2009 and 08.08.2009, respectively, whereby dismissing Civil Appeal No.174 of 2007, the learned IIndAdditional District Judge, Karachi-South maintained the judgment and decree dated 22.10.2007 and 24.10.2007, respectively, thereby the learned IInd. Senior Civil Judge, Karachi-South dismissed the Civil Suit bearing No. 784 of 2003 (Old Suit No.643 of 1994), filed by the appellant.
2. Brief facts of the case are that the appellant herein filed the aforesaid suit against the respondents initially before this Court in its original jurisdiction on 03.10.1994 but later on the same was received by the trial Court by way of transfer on enhancement of pecuniary jurisdiction where it was assigned a new number. It has been alleged by the appellant in the memo of plaint thaton 31.05.1994the respondent No. 1 executed a sale agreement in respect of Commercial Plot No.31/C, admeasuring 200 sq.yds., situated in Bukhari Commercial Lane No.II, Phase-IV, Pakistan Defence Service Officers’ Cooperative Housing Society Limited, Karachi (hereinafter “the Society”), whereby the total sale consideration was agreed as Rs.5,25,000/-, out of which, he paid Rs.25,000/- to respondent No. 1 as earnest money at the time of execution of sale agreement, while for the payment of remaining amount of Rs.5,00,000/- the date of 01.07.1994 was mutually fixed and it was also settled between the parties that the respondent No. 1 shall clear all the dues of the Society. It has further been alleged that the appellant approached the respondent No. 1 for clearance of dues of the Society and for the receipt of balance amount repeatedly but he refused to listen him, therefore, he approached the respondent No. 1 through telegram dated 29.06.1994 and also informed the Society by separate telegram.It has also been alleged that the appellant got the pay orders of an amount of Rs.4,75,000/- prepared and having the amount of Rs.25,000/- in cash with him. It was the case of the appellant that the respondent No. 1 was bound to transfer the plot in his favour but as he refused to honour his commitment, the cause of action accrued to him to file the aforesaid suit seeking a decree for specific performance by directing the respondent No. 1 to transfer the suit property on receipt of remaining balance amount of Rs.5,00,000/-, excluding the outstanding dues of the Society from the said amount with costs.
3. Upon service, only the respondent No. 1 contested the suit by filing written statement, while the respondent No. 2 was debarred from filing written statement, vide order dated 19.12.1994. The respondent No. 1 in his written statement has denied accruing any cause of action in favour of appellant to file the suit on the ground that the appellant failed to perform his part of contract on or before 01.07.1994.It has been pleaded that since the appellant is defaulter, the earnest money paid by him stood confiscated and agreement to sell came to an end. It has further been pleaded that after expiry of the time fixed for the part performance, the sale agreement is not executable under the law.
4. From the divergent pleadings of the parties, following issues were framed:
1. Whether the plaintiff had any cause of action to file this suit?
2. Whether the time was essence of the contract dated 31.05.1994 executed between the plaintiff and the defendant No. 1. If so, whatit its effect?
3. Who, whether the plaintiff or the defendant No. 1 failed to perform his obligations under the contract. If so, what is its effect?
4. Whether the plaintiff was ready and willing to perform his part of
obligation?
5. Whether the defendant No. 1 is entitled to forfeiture of amount paid
as advance as well as to compensatory cost for alleged claim of the
plaintiff?
6. Whether the plaintiff is entitled to relief of specific performance?
7. What should the decree be?
5. At the trial, the appellant was examined at Exh. P/1, he produced special power of attorney at Exh. P/2, agreement to sale at Exh.P/3, photocopy of allotment order at Exh.P/4, NIC of respondent No. 1 at Exh. P/5, photocopies of pay orders as Exh. P/6, photocopy of newspaper at Exh. P/7 and P/8, notice dated 26.11.1994 at Exh. P/9, certified copy of order dated 18.12.1997 at Exh. P/10 and power of attorney at Exh.P/11.
6. In rebuttal, the son of the respondent No. 1, namely, Hammad Hassan was examined at Ex. D/1, he produced special power of attorney at Ex. D/2.
7. After assessment of the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit of the appellant, vide judgment dated 22.10.2007 and decree dated 24.10.2007.Being aggrieved, the appellant preferred Civil Appeal No.174 of 2007, which was heard and dismissed by the learned IIndAdditional District Judge, Karachi-South, vide judgment dated 07.08.2009 and decree dated 08.08.2009. It is against this judgment and decree that the instant Second Appeal has been maintained by the appellant.
8. Heard the learned counsel for the appellant as well as respondent No.1 and perused the material available on record with their assessment.
9. The learned counsel for the appellant has mainly contended that the learned Courts below have erred in holding that the time was essence of the contract,thus the findings are perverse and against the well settled law that in the cases relating to immovable property, the time is generally not of the essence of contract even though mentioned in the agreement itself, unless written notice is addressed by one party to the other and the time is reasonably fixed, as such, the Courts below have misconstrued and misinterpreted the contract and the findings recorded are, therefore, wrong and not sustainable in law. He has further contended that the learned Courts below did not appreciate the fact that the appellant had arranged the pay orders for payment of balance amount, which was not accepted by the respondent No. 1, so also, the fact that it was the responsibility of the respondent No. 1 to clear all the outstanding dues of the Society and got the plot transferred in the record of respondent No. 2 and to execute the sale deed in favour of appellant before 01.07.1994. The learned counsel has also asserted that the appellant was ready and willing to perform his part of contract by paying the sale consideration but it was the respondent No. 1 who had failed to perform his part of contract, therefore, the appellant was legally entitled for the decree of specific performance, hence the findings recorded by the Courts below being illegal, perverse, contrary to the settled principle of law, are liable to be set aside. In support of his contentions, learned counsel has relied upon the case of (1)Seth Essa bhoy v. Saboor Ahmed (PLD 1973 SC 39), (2) Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director v. Messers Babar & Company and 2 others.(PLD 1999 Lahore193), (3)Bashir Ahmed v. Abdul Majid and 7 others(1992 CLC 1069) and (4) Muhammad Ayyub Khan v. Ch. Muhammad Aslam and another(1984CLC2259).
10. Conversely, learned counsel for the respondent No.1, has maintained that both the Courts below have concurrently held that the time was the essence of the contract dated 31.05.1994 executed between the parties and that the appellant had failed to perform his obligations under the contract. He has further maintained that the second appeal does not lie on the ground of an error on question of fact as it lies only on the ground of error of law, or, on error in the procedure which might have affected decision of case on merits, hence the decision rendered by two Courts below being based on judicial consideration of evidence adduced in the case requires no interference of this Court on any point of fact. In support of his contentions, learned counsel has relied on the case of (1)
Sandoz Limited and another v. Federation of Pakistan and others (1995 SCMR 1431), (2) Muhammad Yaqub v. Muhammad Nasrullah Khand and others (PLD 1986 SC 497), (3) Zaheer Ahmad and another v. Abdul Aziz and others (1983 SCMR 559), and (4) Eckhardt & company Marine GMBH, West Germany and another v. Muhammad Hanif (PLD 1986 Karachi 138)
11. It appears from the perusal of the record that it was specifically agreed by the parties in agreement to sale that if the appellant did not finalize the purchase by 1st July 1994, his advance money i.e. Rs. 25,000/- would stand confiscated, which shows that the parities had desired strict adherence to the time, leaving no room of doubt that any deviation from the time clause would entail penal consequences. It also appears that the appellant in his plaint has claimed that he got prepared pay orders of an amount of Rs. 4,75,000/- and he repeatedly approached the respondent No.1 for transfer of the plot but he refused, however, in cross-examination the attorney of the appellant has admitted that the pay orders were neither offered in his presence nor the respondent No. 1 refused to receive it in his presence and that he did not know in whose presence pay orders were offered and were refused by the respondent No.1 and that up to 01.07.1994 no pay order was got prepared by the appellant in favour of respondent No. 1thus, the appellant has not only failed to prove that he was prepared to perform his part of contract; therefore, the learned Courts below rightly held that he was not entitled to any relief.It may be relevant to mention here that in view of Section 22 of the Specific Relief Act, 1877, the right to decree specific performance is discretionary, which has to be exercised judiciously on recognized principles and not arbitrarily and it can only be exercised properly where plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance.
12. It may be observed that Section 100 of the Code of Civil Procedure, 1908 provides second appeal to the High Court from a decree passed by an Appellate Court subordinate to the High Court, on any of the following grounds:
(a) the decision is contrary to law;
(b) the decision has failed to determine some material issue of law;
(c) there is substantial error or defect in the procedure provided by the Code or by any other law, which resultedin erroneous or defective decision of the case upon the merits.
It may also be observed that by virtue of section 101, C.P.C. no second appeal lies except on the grounds enumerated in section 100, C.P.C. in the instant case both, the Trial Court and the First Appellate Court, after minutely examining and considering in detail from every possible angle the documents brought on record, concurrently concluded that the time was the essence of the contract and the appellant failed to perform his part of contract. It is now settled principle of law that the High Court in second appeal cannot interfere with concurrent finding of fact reached by the two Courts below even if it disagrees with that finding on its own view of evidence.
13. For the foregoing facts and reasons, as no case is made out on the ground of any substantial error or procedural defect resulting in erroneous or defective decision, the impugned judgments of lower Courts below do not call for any interference or exercise of discretion on any point of law in this case of concurrent finding. Accordingly, the instant second appeal is dismissed, along with listed application.
14. Above are the reasons of my short order, dated 25.01.2017,whereby instant second appeal was dismissed.
JUDGE
Hanif