IN THE HIGH COURT OF SINDH, KARACHI
Civil Revision Application No. 47 of 2012
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Date |
Order with signature of Judge |
HEARING OF PRIORITY CASE.
1. For hearing of Misc. No. 1342/2012.
2. For hearing of Main Case.
21.10.2015:
Mr. Muhammad Habib Jalib, advocate for the applicant.
None for the respondents.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the judgment dated 13.02.2012 in Civil Appeal No. 178/2010 Muhammad Hanif S/o Karim Khan (since deceased through his legal heirs) Vs. Mst.Asifa W/o Habib Ahmed (since deceased through her legal heirs) passed by the 1st Additional District Judge, Karachi Central, the applicant filed instant Revision Application with the prayer to set-aside the impugned judgment as referred to hereinabove, and to uphold the order dated 11.12.2010 passed by the IVth Senior Civil Judge, Karachi Central in favour of the applicant.
2. Briefly, the facts as stated by the learned counsel for the applicant are that predecessor-in-interest of the applicant purchased the subject property from the predecessor-in-interest of the respondent through a written agreement executed on 27.07.1994 available at Page:173 of memo of Revision, whereas, as per predecessor-in-interest of the respondent, who filed Civil Suit No. 86/2009 for specific performance, declaration and recovery of amount in the Court of IVth Senior Civil Judge, Karachi Central, wherein, the date of sale agreement is 28.07.1994, which was decided by the trial Court on 04.12.2010, whereby, the plaint was rejected under Order VII Rule 11 CPC. Thereafter, according to learned counsel for the applicants, predecessor-in-interest of respondent filed Civil Appeal No.178/2010 before the learned 1st Additional District Judge, Karachi Central, who vide judgment dated 13.02.2010 set-aside the order of learned trial Court and remanded back the case with the direction to decide the same on maintainability of suit under appeal at the first instance, after framing issues and recording evidence in the matter. Learned counsel for the applicant has argued that the impugned order passed by the learned Appellate Court is perverse and contrary to law, whereas, the order of the learned trial Court, dismissing the plaint under Order VII Rule 11 CPC does not suffer from any error or illegality. Per learned counsel, the learned Appellate Court has not been able to point out any defect or illegality in such order, however, without assigning valid reasons, has set-aside the order and remanded the matter for decision afresh. It has been contended by the learned counsel for the applicants that the respondent had no cause of action or any legal basis to file suit for specific performance on the basis of some forged and bogus Iqrarnama, whereas, the respondents were admittedly the tenants of the applicants, who have been already ejected from subject property vide order dated 19.06.2011 passed by this Court in C.P.No.S-286/2012 (Uzair v. Mst. Asifa). Per learned counsel, it has also come on record that the relationship of landlord and tenant between the parties has already been established, whereas, the respondents themselves have taken an instance that subject shops were taken on rent (pugree), therefore, there was no occasion to file a suit for specific performance on some forged Iqrarnama, which otherwise is a invalid and inadmissible document for the purpose of specific performance. Per learned counsel, after having vacated the possession of the subject shops in the aforesaid proceedings through this Court, the respondents are not even coming forward to proceed with the matter anymore before the trial Court, however, the applicants are being unnecessarily dragged in such proceedings. Per learned counsel, the respondents after vacating the subject shops, have become untraceable, who have been served through publication by the orders of this Court in the instant case, however, no one has come forward to defend instant Revision Application. Learned counsel for the applicants has drawn the attention of this Court to the alleged Iqrarnama available at Page:53 as Annexure A/2 of the instant Revision Application and submitted that the said document, besides being a forged and bogus document, is neither signed by Mst. Asifa nor it constitutes a valid legal document required for the purposes of transfer of any immovable property. According to learned counsel, it is not a valid contract as it does not bearing the signatures of contracting parties, nor the same is registered or has been authenticated as per law, therefore, its specific performance could not be sought by filing a suit, which has been rightly dismissed by the learned trial Court under Order VII Rule 11 CPC. Learned counsel for the applicants has further contended that without prejudice to above legal defects, the suit for specific performance is also not maintainable on the point of limitation as it is hopelessly time barred. Per learned counsel, the tendency to become the owner of the rented premises by tenants, who failed to pay their monthly rent, has increased in recent past, whereas, in view of ejectment proceedings by the landlord/landlady, frivolous and forged documents, are prepared by such tenants to create false ground to justify default on the one hand and to pressurize the owner for withdrawal of ejectment proceedings in respect of subject property. Per learned counsel, in the instant case, the respondents had no locus standi or any valid agreement to file the suit for specific performance on the basis of alleged Iqrarnama, which is otherwise an unregistered document and has not been duly executed between two parties. It has been prayed that the impugned judgment may be set-aside and the order passed by the learned trial Court may be restored, so that the applicant may be saved from frivolous litigation in this regard.
3. I have heard the learned counsel for the applicants, perused the record and the orders passed by the Courts below in the instant case. The fact regarding ejectment of the respondents from subject shops through Court proceedings, which eventually culminated by this Court’s order dated 19.06.2012 in C.P.No.S-286/2012, whereby, respondents have been directed to handover the vacant possession of the subject shops within nine (09) months, has not been disputed, as the respondents, inspite of having been served through all modes of service including publication, have chosen to remain absent and did not file any objection in this regard. The order passed by the learned Single Judge in above petition is hereby reproduced as under:-
“19.06.2012
Mr. Ayaz Ali Chandio, Advocate holding brief for Mr. Yousuf Moulvi, advocate.
Mr. M. Habib Jalib, Advocate for Respondent No.1.
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Both the learned counsel for the parties present in the Court agreed for disposal of this petition by consent in the following terms:-
That landlord is ready and willing to allow the petitioner/tenant to enjoy the tenement under his occupation for a period of nine months commencing from Ist July, 2012 ending on 31st March 2013. During the aforesaid period of nine months, petitioner/tenant shall continue to deposit the monthly rent before the learned Rent Controller. Petitioner/tenant also undertakes to pay the utility bills to the concerned authorities and photo copies of the paid utility bills shall be handed over to the landlord every month, if petitioner/tenant commits any default in payment of rent or utility charges, he shall be evicted from the premises without waiting for the period of nine months. After expiry of nine months if possession of the tenement in question will not hand over peacefully to the landlord, petitioner/tenant shall be evicted through writ of possession by the learned Rent Controller with police aid and break open the lock without notice to the petitioner/tenant.
In view of the above, this Constitution petition stands disposed off along-with listed application.”
4. It is also admitted that the respondents did not execute any agreement duly signed by both the parties for the purposes of transfer of subject immovable property in favour of the respondents on consideration, whereas, the copy of purported Iqrarnama has been made basis to seek specific performance of an agreement, inspite of the fact that the ingredients of a valid agreement i.e. offer, acceptance, consideration and handing over of documents of title and possession of immovable property are missing altogether. As regards possession of subject shops, it was in their capacity as tenants, whereas, pursuant to aforesaid order, respondents have already handed over the vacant possession of the subject shops to the applicants, whereas, according to learned counsel for applicants, they are not coming forward to pursue the suit proceedings before the learned trial Court, inspite of considerable lapse of time and notices issued to the respondents in this regard. From perusal of the order passed by the IVth Senior Civil Judge, Karachi Central in Civil Suit No.86/2009 on an application under Order VII Rule 11 CPC, it has been observed that the trial Court, after having examined the veracity of the alleged Iqrarnama, has held that the alleged Iqrarnama has not been acted upon by the parties, whereas, respondents could not establish their title or legal character as well as the cause of action, while filing a suit for specific performance, which was otherwise barred under Section 42 and 56 of the Specific Relief Act. It has been further held that the alleged Iqrarnama/Sale Agreement besides being a forged and bogus document is an unregistered instrument, and in view of provision of Section 17 of the Registration Act, the very suit itself seeking specific performance was not maintainable. It has been further held that even if the date of alleged document is taken to be correct as 27.07.1994 even then the suit is itself hopelessly time-barred under Article 191 of the Limitation Act, 1908. Suit is admittedly filed after a lapse of 15 years from the alleged Iqrarnama inspite of the fact that the ejectment proceedings, were filed by the applicant predecessor-in-interest, whereas, ejectment of the respondent has already been made pursuant to order of ejectment by the competent Court of jurisdiction, including this Court vide order dated 19.06.2012 passed in C.P.No.S-286/2012, whereby, nine (09) months’ time were given to the respondents to vacate the subject shops, which according to learned counsel for the applicants, have already been vacated by the respondents, who are not coming forward to pursue their remedy anymore.
5. In view of hereinabove facts and circumstances of the case, I am of the opinion that the plaint was rightly rejected by the learned trial Court as the respondents did not have any cause of action nor could produce any valid documents for seeking specific performance under Specific Relief Act, 1877. Moreover, it was hopelessly barred by limitation, whereas, no explanation appears to have been given in this account. Accordingly, the impugned judgment dated 13.02.2012 in Civil Appeal No. 178/2010 passed by the learned 1st Additional District Judge, Karachi Central is hereby set-aside and the order dated 11.12.2010 passed by the learned 4th Senior Civil Judge, Karachi Central is hereby restored.
Instant Civil Revision Application stands allowed alongwith listed applications in the above terms.
J U D G E
A.S.