IN THE HIGH COURT OF SINDH, KARACHI

1st Appeal No. 52 of 1998

 

 

 

J U D G M E N T

 

 

 

 

 

 

 

Date of hearing                                          :     25.02.2016

Appellant through                   :      Mr. Mansoor-ul-Arfeen

Respondent through                :     Mr. Salman Hamid         

>>>>>>>>> <<<<<<<<<<

 

Syed Muhammad Farooq Shah, J:             On dismissal of Civil Suit No. 1273/1996 (Old Suit No. 756/1978), by judgment and decree dated 15.05.1998, filed for specific performance of contract in alternatively damages and injunction, the appellant has preferred this appeal on facts and grounds stated in it. Averments of the plaint of suit transpire that Respondent namely Syed Aziz-ul-Husnain rented out a bungalow constructed on Plot No. 13-A/II-Phase No. 1, admeasuring 1000 sq. yds. in the Defence Officers Cooperative Housing Society Limited, Karachi, to the appellant by an agreement of lease deed dated 01.11.1976, the said rent agreement was for a period of 1 & ˝ years. It is submitted in the plaint that during tenancy period, the owner of the bungalow (Respondent) decided to sell out the said bungalow for consideration amounting to Rs. 4,50,000/- to the appellant and on 25.07.1977, the appellant has paid earnest money amounting to Rs. 10,000/-, a receipt in this regard was also issued by the Respondent. It is averred in the plaint that it was mutually agreed that a sum of Rs. 2,25000/-, being advance rent, was to be adjusted as further payment and that sum of Rs. 2,25000/- was to be paid on receipt of photostate copy of 99 years lease and completion certificate by the defendant. The appellant has further pleaded that he has shown his willingness to complete his part of contract provided the respondent furnishes necessary photostate copies of the documents. It is submitted that since he has neglected to fulfill his part of performance of contract, hence a legal notice dated 01.11.1977 was served upon him. Subsequently, the respondent had also instituted a Rent Case No. 36 of 1978 against the appellant. The appellant has sought the following reliefs in the aforesaid suit:-

 

PRAYER

“a)       Decree for Specific Performance of Contract, directing the Defendant to specifically perform the contract dated 25.07.1977 by executing and getting registered the sale deed in favour of the Plaintiff; for conveying his heritable and transferable leasehold rights of plot of land bearing No. 13-A/II-Phase-I, Pakistan Defence Officers Cooperative Housing Society Ltd. Karachi, and on failure of the defendant to have the sale deed executed and registered by the Nazir of this Court in favour of the plaintiff and to receive the sale consideration from the plaintiff or in the alternative for damages amounting to Rs. 2 Lacs to be paid by the Defendant to the plaintiff.

 

b)         For the injunction restraining the Defendant from Transferring, entering into sale agreement and/or handing over the vacant and peaceful possession of the disputed property to anyone except the plaintiff and to restrain the defendant from affecting and/or pursuing rent proceedings pending before the Cantonment Rent Controller, Karachi, being Rent Applications No. 36 of 1978 and No. 49 of 1978”.

 

2.         Respondent/defendant contested the aforesaid suit by filing written statement and vehemently denied that a contract was concluded on 25.07.1977, excepting the agreement that the total sale consideration of the bungalow was settled to be Rs. 4, 50,000/- provided 50% of the whole consideration is paid before 20.08.1967 to the respondent and a formal written sale agreement was drawn and executed between the parties, which the appellant failed to fulfill, inspite of repeated requests and personal approaches. Thus the respondent cancelled verbal commitments as late as on 01.11.1977. On pleadings of the parties, following issues were settled by the trial Court:-

“1.        Whether there was any concluded contract between the parties. If not then what is its effect?

2.         Which of the parties has committed breach of contract?

3.         Is the plaintiff entitled to specific performance of sale agreement?

4.         What should the decree be.”

 

3.         Both parties adduced their evidence and on conclusion of trial, the suit was dismissed by the trial Court, hence this appeal.

4.         Arguments advanced by Mr. Mansoor-ul-Arfeen, representing the appellant, are considered. It is pertinent to mention here that neither LRs of the Respondent nor their Counsel have shown appearance before this Court to contest the instant appeal, however I have considered the material available on record including the  evidence adduced by both parties, which transpire that the plaintiff has supported the contentions of plaint by producing receipt dated 25.07.1977; It is worthwhile to mention here that the terms and conditions of sell of the property were not reduced in writing, however, the acknowledgment of cash receipt amounting to Rs. 10,000/-, executed by the Respondent shows that the same was issued by the respondent against part payment of sell of aforesaid bungalow at an agreed total sale consideration of Rs. 4,50,000/-. A perusal of evidence reflects that the Respondent has admitted execution of aforesaid receipt and stated that the appellant had agreed to pay Rs. 2,15000/- by 20th August, 1977 and then terms and conditions were to be reduced in writing as orally agreed upon and the remaining balance was to be paid by 20th October, 1977, however the appellant in his statement admitted that he had agreed with the respondent that till 20th August, 1977, he would pay Rs. 2,25000/-. In such view of the matter, it is to be seen that who had committed the breach of valuable contract, as agreement for sale was not reduced in writing.

5.         Points for determination are as under:-

a)     Who had committed breach of concluded agreement?

b)     As to whether appellant/plaintiff is entitled for specific performance of contract or otherwise?

6.         I have considered the submissions made by learned Counsel for the appellant and perused the record.

7.         Mr. Arfeen, argued with reference to the record that the defendants has very specifically asserted in his statement on oath that a sum of Rs. 2,15,000/- was to be paid by 20th August 1977, and remaining balance was to be paid by the 20th October, 1977, and the plaintiff, in his evidence, has also admitted that he had agreed with the defendant that till 20th August, 1977, he would pay Rs. 2,25,000/-. The whole case is hinging on the crucial point that who committed the breach of contract and further agreement of sale was to be drawn when and against what payment. In his deposition, the plaintiff (appellant) stated that he agreed with the defendant that till 20th August, 1977, he will pay Rs. 2,25,000/- to the defendant on production of 99 years lease deed and wanted the title documents, the object to raise the loan on it. Learned Counsel submitted that in addition to this, there is exhibit 5/9 in which the plaintiff clearly stated that he wanted some loan from the bank and he insisted the defendant to produce certain documents for the said purpose.

8.         From careful perusal of the evidence brought by the parties on the record, it appears that admittedly late Aziz-ul-Hassan, predecessor-in-interest of Respondents 1-a to 1-h agreed to sell bungalow in dispute to late Major (R) Ahmed Khan Bhatti, predecessor-in-interest of the appellants 1-a to 1-g and accepted                Rs. 10,000/- as part payment and as such he was legally bound to fulfill his commitment by issuing documentary material required for execution of sale agreement/deed before payment of remaining balance sale consideration but record shows that he could not comply the same. In such view of the matter, learned Counsel for the appellant submitted that the conclusion arrived at by the learned lower Court that there was not concluded agreement between the parties is factually and legally erroneous because once it is made known as to who is vender, who is vendee, description of property and sale consideration as well, then it amounts to a concluded agreement and in the present case all those four ingredients were present, more particularly, the purchaser/appellant is ready and willing to purchase the property. Record reflects that the learned trial court did not consider aforementioned aspect of the case in view of the evidence brought on record by the parties, more particularly, with regard to the existence of concluded agreement to sale between the parties in respect of the suit property; Moreso, the breach of the contract on the part of the plaintiff does not reflect from the evidence available on the record, as mentioned above, the appellant was willing to perform his part of contract and for that purpose he wanted the title documents for deed of covenant and if necessary to raise loan on it, and such words uttered by the appellant from his mouth were reproduced by the learned trial Court in the impugned judgment.

9.         The case of the appellant is that the contract was concluded but such fact was denied by the defendant. Such contention of the defendant was not correct as the receipt of part payment is sufficient to serve as a concluded contract if the terms incorporated therein established the full identity of the property, parties therein, the consideration or price and the promise to sell, which depicts from             Ex. 5/3 i.e. handwritten receipt by the defendant himself, who used the expression of ‘sale’. Evidence of defendant (cross-examination) reveals that he has admitted that at the time when he agreed to sell the house, some balance from the advance rent was still lying with him and he agreed to sell the house after receiving an amount of Rs. 10,000/-. He further stated that Rs. 2,15000/- was to be paid to him before drawing the agreement, which does not find any mention in exhibit/5-3 and such oral evidence is out of consideration in view of Section 91 and 92 of the Qanoon-e-Shahadat. The time was not the essence of contract in transactions of immovable property as the plaintiff is ready and willing to perform his part of contract. It is the defendant, who is abruptly and arbitrarily repudiated it and gone to the extent of cancelling it by his letter dated 1.11.1977 (Exhibit 5/4), which was contrary to the terms incorporated in exhibit-5/3, which does not mention anything about the payment of Rs. 2,15,000/- by 20.08.1977 nor any evidence been adduced in proof of this plea and the deposition of the plaintiff on such material fact has gone unchallenged in cross-examination.

9.         Suffice it to say that the defendant has not been able to establish any record by any substantial and credible evidence that plaintiff did not have the money to pay. Since all the essential ingredients of a valid and enforceable contract were established with regard to payment of balance consideration with certain conditions, therefore, the appellant has succeeded to prove the concluded agreement. In the instant case, the scrutiny of the evidence demonstrates that the plaintiff/appellant was always found willing to perform his part of contract with certain plausible and sufficient reasons. In such view of the matter, the impugned judgment and decree is set-aside being not tenable in law. Resultantly, the Suit               No. 765/1978 is decreed as prayed for with no order as to costs. 

JUDGE

Faisal Mumtaz/PS