Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1276 of 2013
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Date |
Order with signature of Judge |
Plaintiff : Syed Muhammad Waqaruddin,
through Syed Abdul Waheed Advocate.
Defendant : Owais Ahmed Idrees,
through Mr. Khursheed Ahmed Qureshi Advocate.
Date of hearing : 22.04.2014.
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J U D G M E N T
NADEEM AKHTAR, J. – This Suit has been filed by the plaintiff against the defendant for specific performance, declaration, possession and injunction. The subject matter of the Suit is House No.C–291, Block 6, F. B. Area, Karachi, measuring 600 sq. yds., hereinafter referred to as “the Suit property”.
2. It is the case of the plaintiff that by virtue of registered Indenture of Lease dated 22.01.1978, the defendant’s father Mr. Muhammad Idrees Hussain was the original lessee / owner of the Suit property, who passed away on 02.05.1982, and after his demise, the Suit property devolved upon his eight legal heirs, including the defendant. The defendant, claiming to be the attorney of the other legal heirs, entered into an agreement with the plaintiff, whereby he agreed for self as well as on behalf of the other legal heirs to sell the Suit property to the plaintiff in consideration of Rs.23,700,000.00. The plaintiff has averred that he paid to the defendant an amount of Rs.100,000.00 through a cheque towards part payment, which was acknowledged by the defendant by executing a receipt in the presence of two witnesses. According to the plaintiff, execution of the said receipt by the defendant constituted a valid, binding and enforceable contract between the parties. The plaintiff has further averred that the defendant promised to get the Suit property mutated in the names of all the legal heirs within 60 days from the date of execution of the said receipt, and also to clear the outstanding dues of the Suit property within the said period ; and, the entire balance sale consideration was to be paid by the plaintiff to the defendant upon fulfillment of the above conditions within the agreed period of 60 days.
3. The plaintiff has alleged that he came to know on 01.10.2013 through some reliable source that the defendant was trying to sell the Suit property to some third party, and when the defendant was confronted by him, he was informed by the defendant that the said third party had offered better / higher price for the Suit property. In the above background, this Suit was instituted by the plaintiff on 09.10.2013 praying for a declaration that he is legally entitled for the transfer of the Suit property in his favour ; the defendant be directed to fulfill his contractual obligation by executing the sale deed in his favour in respect of the Suit property and to deliver the possession thereof to him after completing all the legal formalities of mutation and clearance of outstanding dues, and after receiving the balance sale consideration of Rs.23,600,000.00 from him ; and, the defendant be restrained from creating third party interest in the Suit property till the final disposal of the Suit.
4. Along with the Suit, the plaintiff filed an injunction application bearing C.M.A. No.11363/2013 praying for an ad-interim injunction order in the above terms. After notice to the defendant, this application came up for hearing before the Court on 14.10.2013, when the learned counsel for the defendant filed power, requested for time to file counter affidavit, and vehemently opposed the plaintiff’s request for the grant of an ad-interim order. It was urged by him that the Suit itself was not maintainable, and the receipt filed and relied upon by the plaintiff was obtained by him deceitfully. Because of such strong opposition on behalf of the defendant, learned counsel for the plaintiff made a categorical statement on that date on behalf of the plaintiff that the plaintiff was willing to deposit the entire balance sale consideration of Rs.23,600,000.00 with the Nazir of this Court within 15 days. In view of the said statement by the learned counsel for the plaintiff, an order was passed on 14.10.2013 whereby the defendant was restrained till the next date of hearing from creating third party interest in any manner whatsoever in respect of the Suit property, subject to the deposit of the entire balance sale consideration of Rs.23,600,000.00 by the plaintiff with the Nazir of this Court within 15 days from the date of the said order.
5. Instead of complying with the order dated 14.10.2013 which was passed in view of the statement given on behalf of the plaintiff, the plaintiff filed an application on 26.10.2013 under Section 151 CPC bearing C.M.A. No.12049/2013, stating therein that despite his best efforts, he could not arrange the amount ordered by this Court for depositing with the Nazir within the stipulated period. It was prayed by him that the 15 days’ time for depositing the amount be extended by 60 days as agreed by the parties in the sale agreement. This application came up before the Court on 11.12.2013 when the learned counsel for the defendant sought time to file counter affidavit in reply thereto. The 60 days’ time sought by the plaintiff and the 60 days’ period mentioned in the purported receipt dated 26.09.2013 expired on 26.11.2013, but the amount ordered by the Court was not deposited by the plaintiff. On 02.04.2014, that is after more than four months of the expiration of the said period of 60 days, when the matter came up before the Court, learned counsel for the plaintiff undertook to satisfy the Court on the next date as to why the Suit should not be dismissed in view of the non-compliance of the order passed on 14.10.2013.
6. On 22.04.2013, learned counsel for the plaintiff not only admitted that the plaintiff did not comply with the order dated 14.10.2013 of depositing the entire balance sale consideration of Rs.23,600,000.00 with the Nazir, but he also made a statement that the plaintiff was still not in a position to deposit the said amount even though he had filed an application about six months back, that is on 26.10.2013,seeking 60 days’ further time to deposit the amount. The learned counsel argued that the Suit is maintainable and the plaintiff is entitled to injunction even if he had failed or is unable to comply with the direction of this Court for depositing the entire balance sale consideration. He contended that by virtue of the agreement to sell, the plaintiff had acquired valuable vested right, title and interest in the Suit property, and the defendant had no right to sell the same to any person other than the plaintiff. In support of his submissions the learned counsel relied upon Bashir Ahmed V/S Muhammad Yousaf through Legal Heir, 1993 SCMR 183 and Mushtaq Ahmad and others V/S Muhammad Saeed and others, 2004 SCMR 530. In both the cases cited and relied upon by the learned counsel for the plaintiff, the main question for consideration before the Honourable Supreme Court was whether an oral agreement is enforceable and can be specifically performed or not ; and in Mushtaq Ahmad (supra), the question of oral appointment of an agent was also involved. Since the above questions are not being considered at present and only the effect of non-compliance of this Court’s order dated 14.10.2013 by the plaintiff is to be decided at this stage, the cited authorities are not relevant and as such are of no help to the plaintiff.
7. On the other hand, learned counsel for the defendant specifically pointed out that the 60 days’ further time sought by the plaintiff for compliance of this Court’s order dated 14.10.2013, expired long ago, but he is still unwilling to deposit the amount ordered by this Court. He submitted that in view of this admitted position, the plaintiff has disentitled himself from seeking the discretionary relief of specific performance, and as such the Suit is liable to be dismissed. In support of this submission, the learned counsel relied upon Allah Ditta V/S Bashir Ahmad, 1997 SCMR 181, and Syed Ahmed through Special Attorney V/S Syed Muzaffar Hussain through L.Rs., 2008 CLC 175. The second case mentioned above relating to the question as to whether a receipt can fulfill the requirements of a valid and binding agreement between the parties, is not relevant at this stage. However, the case of Allah Ditta (supra) is very much relevant, wherein the order of dismissal of the Suit for specific performance passed by the trial Court due to the plaintiff’s failure to deposit the requisite / balance amount in Court, was upheld by the learned Appellate Court and the Honourable Supreme Court.
8. It is an admitted position that the order passed by this Court on 14.10.2013, whereby ad-interim injunction was granted to the plaintiff subject to his depositing the entire balance sale consideration of Rs.23,600,000.00 with the Nazir within 15 days from the date of the said order, was not complied with by him, nor did he challenge the said order. It is to be noted that the said order was passed in view of the categorical statement / offer made on that date on behalf of the plaintiff that he was willing to deposit the entire said amount with the Nazir within 15 days. Thereafter, the plaintiff filed an application on 26.10.2013 seeking 60 days’ further time to deposit the amount, thereby accepting the said order, but desiring only an extension in time to deposit the amount. The statement made by the learned counsel for the plaintiff on 22.04.2014 before the Court that he was still not in a position to deposit the said amount even after expiration of more than six months from the date of the said order, clearly shows that the plaintiff is unwilling or is avoiding to comply with the said order.
9. 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. The said 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. In the instant case, the conduct of the plaintiff and the reluctance on his part to deposit the balance sale consideration despite the order of this Court, undoubtedly reflects his deliberate and intentional unwillingness to perform his agreed part of the contract.
10. Since the plaintiff admittedly did not deposit the balance sale consideration as directed by this Court on 14.10.2013, or within 60 days sought by him for this purpose, it can be safely and legitimately presumed 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. In support of this view, which is now being consistently followed by the Superior Courts, I may refer to the case of Haji Abdul Hameed Khan V/S Ghulam Rabbani, 2003 SCMR 953. The case of Allah Ditta (supra) relied upon by the learned counsel for the defendant, also supports this view. In both the cited authorities, the order of dismissal of the Suit for specific performance passed by the trial Court due to the plaintiff’s failure to deposit the requisite / balance amount in Court, was upheld the Honourable Supreme Court.
For the above reasons, this Suit along with the pending applications was dismissed with costs of Rs.25,000.00 to the defendant by the short order announced by me on 22.04.2014.
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J U D G E