Present
Mr. Justice Mushir Alam.
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 21.10.2010 & 03.11.2010
Date of judgment : 16.11.2010
Appellant : S.M. Muzzafar Hussain
through Mr. Munir-ur-Rehman, Advocate
Versus
Respondents Taj din son of Wali Jiwa & others
Respondent No.1 : through Mr. Muhammad Ashraf Kazi, Advocate.
JUDGMENT
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the judgment and decree dated 24.1.2007 passed by the learned Single Judge in Suit No.502 of 1992, whereby suit of the respondent has been decreed. The appellant has preferred the instant High Court Appeal with the prayer to set aside the impugned judgment and decree and allow the appeal with cost.
2. Briefly the facts of the instant case as stated in the plaint are that the respondent No.1 has filed a suit for specific performance, and alternatively for damages against the appellant and respondent No.2 and 3 in respect of Plot No.A-9,A/II, Sunset Boulevard, D.H.A, Karachi, owned by the appellant pursuant to sell agreement executed between respondent No.1 and appellant on 21.2.1976. It was stated in the plaint that at the time of execution of sale agreement the entire sale consideration of Rs.30,000/- was paid to the appellant and physical possession of the plot in question was handed over to the respondent No.1 by the appellant. According to averment of the plaint, the appellant executed the following documents.
(a) A letter undated addressed to the Secretary D.H.A, defendant No.2, (Respondent No.2) informing that defendant No.1 (appellant) had transferred the said plot as per transfer affidavit, with a request that necessary transfer/mutation may be effected in favour of plaintiff.
(b) A receipt for the full consideration dated 21.02.76 in favour of plaintiff (Respondent No.1) by defendant No.1 (appellant).
(c) An undated undertaking that defendant No.1 (appellant) held the said plot under an allotment which was subsisting and that no registered sub lease had been executed and had not obtained “No Objection Certificate” for mortgage or Sale.
(d) An agreement to sell dated 21.02.76 in respect of said plot acknowledging in the sole and handing over possession of the suit plot.
(e) Photocopy of General Power of Attorney for affecting sale of Suit Plot in favour of defendant No.3 (Respondent No.3) Kazim Dossa.
(f) Transfer affidavit dated 21.2.76.
3. Respondent No.1 claimed that the property documents of the suit plot were presented before respondent No.2 for transfer of the suit plot but the same were not accepted for want of original allotment order and NICs which were not submitted with the transfer documents. The case of the respondent No.1 is that son-in-law of the appellant informed that on account of pendency of Suit No.133 of 1980, the original documents i.e. allotment order could not be delivered by the appellant to the respondent No.1 as the same were lying with the bank as security, which fact was not disclosed to the respondent by the appellant at the time of execution of sale agreement. According to respondent No.1, the said Suit No.133 of 1980 was decided somewhere in 1996, however, for want of original allotment order the sale and transfer of suit plot could not be completed. It is further stated by the respondent No.1 that the cause of action arose firstly on 21.02.1976 and continued thereafter when the appellant promised to convey suit plot and finally on 21.02.1992 when the appellant through her daughter Salma and son-in-law Majeed Hussaini conveyed that appellant had no intention to complete the sale in favour of the respondent. The suit was filed by the respondent No.1 for seeking specific performance of the sale agreement dated 21.02.1976 in respect of Plot No.A-9, A-II, Sunset Boulevard, measuring 800 sq. yds, situated in Phase-II, Pakistan Defence Officer Housing Authority, wherein it was prayed that the appellant may be directed to make an effective transfer in favour of respondent No.1 according to law and by registration of sale deed in devour of respondent No.1 and on failure of appellant such transfer may be effected through Naizr of this Court. Injunction against the appellant and respondent No.2 and 3 was also sought in respect of the subject property and it was alternatively prayed that the appellant may be directed to make payment of Rs.75,50,000/- as compensation for the breach of contract..
4. The appellant contested the proceedings and filed written statement. On 27.8.1995, the learned Single Judge framed the following issues:-
(1) Whether this suit is barred by Article 113 of the Limitation Act?
(2) Whether the Plaintiff and Defendant No.1 entered into an agreement for sale on 21.2.1976 for the property in suit?
(3) Whether defendant No.1 received full sale consideration and had executed and delivered documents mentioned in para 2 of the plaint in lien thereof?
(4) Whether transaction of sale of plot was with Nisar Hussain Qureshi who had committed fraud and misrepresentation? If so, what is its effect?
(5) Whether at any time Defendant No.1 reviewed and cancelled power of attorney executed in favour of the Defendant No.3? If so, what is effect?
(6) Whether Plaintiff is entitled to relief of specific performance of the contract dated 21.2.1976?
(7) What should the decree be?”
5. It further points out that on 13.4.1998, by consent of the parties Commissioner was appointed by this Court to record evidence of both the parties. It further appears that the respondent No.1 examined himself as well PW Kazim Doosa and exhibited certain documents. Both of them were cross-examined by the counsel for the appellant however, the appellant chose not to lead evidence nor appeared in the witness-box nor any application for examining himself or his witnesses was made where after the matter was fixed for final arguments. The matter was finally argued on 24.1.2007 and on the same date it appears that the judgment was announced by short order, whereas detailed reasons were recorded on 19.2.2007, whereafter the decree was prepared on 10th March 2007, whereby the suit of the respondent No.1 was decreed in terms of prayer clause (a) and (b) as under:
(A) That the defendant No.1 to specifically perform the contract of sale dated 21.02.1976 in respect of Plot No.A-9-A/II abutting on Sunset Boulevard admeasuring 800 square yards, situated in Phase-I, Pakistan Officers Defence Housing Authority, by making an effective transfer in favour of the plaintiff in accordance to law and by registering a sale-deed in favour of plaintiff and on failure of defendant No.1 by Nazir of this Honourable Court.
(B) That all the defendants, all persons claiming through and under them be and are hereby restrained from in any manner alienating, encumbering, transferring, and disposing of the said plot of land bearing Plot No.A-9-A-II, abutting on Sunset Boulevard and measuring 800 square yards situated in Phase-II of Defendant No.2 i.e. Defence Officers Co-operative Housing Authority, Karachi.
6. Learned counsel for the appellant, after having read out the impugned judgment, referred to the agreement of sale dated 21.2.1976 available at page 27 of the paper book and submitted that the agreement was executed on 21.2.1976, whereas the instant suit is filed in the year 1992 i.e. after a lapse of about 16 years, which per learned counsel is barred by time in terms of Article 113 of the Limitation Act. Per learned counsel, limitation provided for filing the suit of specific performance is three years from the date specified for such performance in the contract or from the date of refusal when such performance was declined. According to learned counsel, on his own showing in the plaint that the specific performance of the contract was being denied since beginning, and the allegation of having come to know about such denial of the specific performance in the year 1992, is incorrect, whereas the reliance upon such statement by the learned Single Judge is erroneous. It has been contended by the learned that inspite of having framed an issue regarding limitation, the learned Single Judge has not given any finding in this regard and has wrongfully assumed the date of denial of specific performance by a relative of the respondent as the date of denial as mentioned in Article 113 of the Limitation Act. In support of his contention, learned counsel has placed reliance on a judgment of this Bench reported as Haji Abdul Karim and 4 others v. Messrs Florida Builders (Pvt) Ltd., PLD 2010 Karachi 17. Learned counsel while concluding his arguments submitted that the learned Single Judge has not given any finding on the issue of limitation, therefore, the impugned judgment is liable to be set aside and the instant High Court Appeal may be allowed.
7. Conversely, learned counsel for the respondent has supported the impugned judgment and decree and submitted that no error or illegality has been pointed out by the appellant requiring any interference by this Court. Learned counsel argued that this is a case where the entire sale consideration has been paid, all the documents of title were handed over by the appellant to the respondent alongwith possession of the subject property. Per learned counsel, even the mutation could have been affected if the original allotment order which could not be provided at the time of executing such agreement would have been available. Learned counsel further argued that from the perusal of the sale agreement available at page 27 of the paper book it appears that the entire sale transaction was concluded, whereas only mutation was left which could not be affected on account of non-availability of original allotment order and non-cooperation by the appellant. It is submitted that respondent was being put off by the appellant and eventually it was in the year 1992 when the respondent filed a suit seeking declaration and specific performance. Per learned counsel, the appellant, with malafide, intention did not come forward to effect transfer and mutation of the subject property, and trying to wriggle out from his contractual obligation. Learned counsel also referred to an order dated 22.8.1993 passed by the learned Single Judge, whereby the application filed by the appellant Under Order 7 Rule 11 CPC i.e. (CMA 2360/93) seeking rejection of the plaint on the same ground of limitation, was dismissed and no appeal has been filed by the appellant against such order. Learned counsel further argued that the suit was filed within the period of limitation after knowledge of refusal by the appellant, hence there is no delay in this regard. Learned counsel further argued that the learned Single Judge has given a specific finding on the ground of limitation, therefore, appellant was not justified to allege that there is no finding by the learned Single Judge on the point of limitation. It has been argued that this is a classical case whereby after having executed a conclusive contract the appellant has attempted to wriggle out from such contractual obligation on a false and technical plea, which is neither attracted nor acceptable in law and facts of this case. Learned counsel argued that since there is no clause where time frame is given therefore, the respondent No.1 was justified in filing the instant suit for specific performance after refusal, hence there is no element of limitation involved in this case. In support of his arguments, learned counsel has placed reliance on the following case-laws.
1. Momtazul Karim and others v. Abu Hussain and another 1970 SCMR 816.
2. Mst. Ahmadi Begum v. Israr Ali and another 1985 CLC 2335
3. Vali Muhammad v. Suleman Zulfiqar Mehdi & 3 others 1988 CLC 76
4. Azizul Hassan v. Mrs. Shahida Ahmed Ashraf 1992 MLD 1135
8. We have heard both the learned counsel, perused the impugned judgment and examined the record. It appears that the only controversy in the instant case as argued by the learned counsel for the appellant revolves around the application of Article 113 of the Limitation Act to the facts of this case, whereas no other legal issue has been pressed by the learned counsel for the appellant. It will be appropriate to examine the terms and conditions of sale agreement dated 21.2.1976 in order to resolve instant controversy, which is reproduce as follows:-
“AGREEMENT OF SALE
I, Wing Commander S.M. Muzaffar Hussain son of late Mr. S. I. Hussain, Muslim, adult, resident of 224 E.I. Lines, Somerset Street, Karachi, in possession of my full faculties and sense and of my free will and without any coercion or duress, do hereby solemnly affirm and declare as under:
1. That I am a bonafide Member of Pakistan Defence Services Officers Cooperative Housing Society Ltd., Karachi, since 1954 and I was allotted a plot of land being No.A-9-A-II Sunset Boulvard measuring 800 sq. yds (eight hundred sq. yards) or thereabout in the said Society vide DS/H/AF-337 dated 25.1.1971.
2. That by virtue of powers conferred on me under Bye-Law No.15 (4) of the Society, I have transferred absolute ownership of Plot No.A-9-A-II, measuring approx. 800 sq. yds to Mr. Tajdin son of Mr. Wali, Muslim, adult, resident of 40 Bahadurabad Block No.3, Karachi for Rs.30,000/- (Rupees thirty thousand only).
3. That I have also handed over the complete possession of the aforesaid plot to Mr. Taj Din son of Mr. Wali on 21.2.1976.
4. That since 21st February 1976 Mr. Taj Din son of Mr. Wali is in exclusive ownership and possession of the said property.
5. I solemnly affirm and declare that the name of Mr. Taj Din son of Mr. Wali should be entered in the records of Military Estate Office and of the Pakistan Defence Services Officers’ Cooperative Housing Society Limited Karachi as the owner of the aforesaid property.
6. That I solemnly declare that I have no right, title or interest in the said property and Mr. Taj Din is the exclusive owner of the same since 21st Feb. 1976.
7. That I understand that having transferred my said plot, I cannot claim another or a second allotment of a residential plot in the said Society.
8. That whatever is stated above is true to my own knowledge and belief.
Sd/-
(S.M. Muzaffar Hussain)
Wing Commander.
Deponent \
Sd/-
(Taj Din)”
9. From perusal of the terms of the agreement it appears that the sale agreement is a conclusive document whereby there remains nothing to be performed. There is no time frame provided for the performance, therefore, the limitation, if any, is required to be calculated when the plaintiff has noticed the refusal of performance. From the perusal of the evidence of the parties it seems that the original allotment order could not be supplied at the time of execution of the sale agreement to the respondent, whereas it was subsequently learnt that the allotment order alongwith some other documents in respect of subject property were mortgaged with the bank, which fact was apparently concealed by the appellant. It further appears that the respondent, on the basis of documents as mentioned in clauses (a) to (f) of para 2 hereinabove, attempted to get the subject property transferred and mutated in his name, however, the same was declined by the respondent No.2 on account of non-availability of the original allotment order.
10. From comparison of para 9 of the plaint and its reply in the written statement, it appears that the claim of the respondent, about having met with the son-in-law of the appellant on the given date i.e. 26.02.92, has not been denied by the appellant. Similarly, from perusal of the cross-examination of the respondent No.1, it appears that the assertion of the respondent for having noticed specific denial by the appellant, has not been disputed as no question was put by the learned counsel for the appellant in this regard. Whereas the appellant, after having filed written statement chose not to examine himself nor produced any witness in support of his claim. Similarly, from perusal of the order dated 29.8.92 passed by the learned Single Judge on an application under Order 7 Rule 11 CPC, it appears that 26.8.92 has been considered as the relevant date for the purpose of limitation. Such finding of the learned single Judge is reproduced hereunder for reference.
“It, thus, appears to me that the allegation in the plaint is to the effect that it was for the first time on the 26th February, 1992, that the plaintiff became aware of the intention of the defendant No.1 not to perform the agreement. The plaint is, therefore, not on the face of it barred by limitation. The application is, therefore, dismissed.”
11. The appellant did not assail the above finding, as no appeal was filed against the order passed on application under Order 7 Rule 11 CPC, therefore, such finding of fact in our view, cannot be agitated now while arguing the instant High Court appeal. It is pertinent to mention here that the appellant has not argued the case on merits nor denied the transaction of having accepted the entire sale consideration and having delivered the relevant documents as exhibited in the suit alongwith peaceful vacant possession at the time of execution of sale agreement to the respondent, however, only, the question of limitation has been argued in the instant High Court Appeal.
12. From perusal of the impugned judgment, it appears that all the legal issues, mentioned in para 5 of the impugned judgment, including the Issue No.1 relating to limitation, have been taken cognizance by the learned Single Judge, who has given elaborate finding on each and every issue so formulated. Similarly, the issue of limitation was also dealt with in para 9 of the impugned judgment by the learned Single Judge while dismissing the application of the appellant filed under Order 7 Rule 11 CPC, whereas no appeal has been filed by the appellant against such order.
13. The case law relied by the learned counsel for the appellant i.e. Haji Abdul Karim and 4 others v. Messrs Florida Builders P.L.D 2010 Karachi 17 is of no help to him as the same is distinguishable hence not attracted in the instant case, as in the cited case date was fixed for performance and there was default on the part of plaintiff to perform his part of contractual obligation, whereas the ratio of the judgments referred and relied upon by the learned counsel for the respondent relating to Section 53 of the Transfer of Property Act and Article 113 of the Limitation Act is attracted to certain extent in the facts and circumstances of the case. In the case of Momtazul Karim and another the Hon’ble Supreme Court has held that Mr. Battacharjee next contends that the plaintiff was guilty of delay and laches and is not, therefore, entitled to a decree for specific performance. The suit was brought well within the period of limitation, and the delay in filing the suit was apparently due to deferment of the execution of the sale deed by the defendant No.1 on one pretext or the other.
14. From record it appears that there is no default or avoidance on the part of respondent, whereas deliberate delay and avoidance on the part of appellant to affect transfer/mutation is manifest. The appellant neither bothered to perform the part of his contract nor filed any proceedings for cancellation of sale agreement and other documents executed in favour of respondent in respect of subject property. On the other hand, it appears that on account of concealment of facts, continued avoidance, the respondent could not file the appropriate proceedings for specific performance of the contract to effect transfer and mutation in his favour. Such conduct on the part of the appellant in no manner can be considered as just and fair, on the contrary reflects upon the malafide on his part. Moreover, the sale agreement in respect of subject property is a conclusive and binding document whereby all the title and right over the subject property has been transferred in the name of respondent No.1 whereas merely formalities are left to effect transfer/mutation of subject property in the name of respondent No.1.
15. Keeping in view hereinabove facts, we are of the view that the appellant has not been able to point out any illegality or error in the impugned judgment, which requires no interference by this Court. Accordingly, the instant appeal, being devoid of any merits is hereby dismissed with cost throughout.
JUDGE
JUDGE