Judgment  Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 849 of 2011

Present :

       Mr. Justice Nadeem Akhtar

Date of hearing   :  18.12.2012.                                   

Plaintiff                  :  Abdul Rehman, deceased through his legal heirs, Mst. Rukhsana Sadaqat, Mrs. Ghazala Raheel

and Muhammad Fasil,  through  

Mr. Muhammad Qutubuzzman, advocate.

Defendant             : Abdullah Sauleh Al Bassam, ex-parte.

J U D G M E N T

NADEEM  AKHTAR, J.-           This Suit has been filed by the three legal heirs of late Mr. Abdul Rehman (the deceased) against the defendant for declaration, specific performance, permanent injunction and damages, in respect of Plot bearing Survey No. 538/14, Survey Sheet Garden East, measuring 1,120 sq. yds., Gulmohar Street, Garden East, Karachi, with the construction thereon (the suit property).  

2.        Admittedly, the defendant is a citizen and permanent resident of Kuwait, and is the sole and absolute owner of the suit property, which was purchased by him through a registered Conveyance Deed dated 04.07.1947.  The case of the plaintiffs is that, as the defendant has remained out of Pakistan throughout, he handed over the suit property to the deceased as the caretaker and the licensee thereof. The deceased and the plaintiffs took care of the suit property from 1967 till 1999, and during this entire period, they not only carried out major repairs and renovation of the suit property from their own resources, but they also paid all the utility bills and taxes in respect thereof.  It is also the case of the plaintiffs that the deceased offered to purchase the suit property, which was accepted by the defendant.  Accordingly, the deceased and the defendant entered into Sale Agreement dated 20.05.1999 (the Agreement), whereby the deceased agreed to purchase the suit property from the defendant, and the defendant agreed to sell the same to the deceased.  The sale consideration was agreed at Rs.5,000,000.00. 

3.        At the time of the execution of the Agreement, that is, on 20.05.1999, the deceased paid a sum of Rs.3,000,000.00 to the defendant.  As per the terms and conditions of the Agreement, the second instalment of the agreed sale consideration was to be paid by the deceased to the defendant at the time of delivery of possession after 10 years from 20.05.1999, and the balance sale consideration was to be paid by the deceased at the time of execution of the sale deed in his favour upon the defendant’s  visit to Pakistan.  In the plaint, it has been stated that the Agreement was executed by the deceased at Karachi, and that he was accompanied by his counsel, who was an Advocate High Court from Bombay, India.  The said Indian Advocate was one of the witnesses to the Agreement. 

4.        The plaintiffs have stated that the deceased passed away on 26.01.2005, and after his death, they made all possible efforts to inform the defendant that they were ready to pay the balance sale consideration to him. The plaintiffs also called upon the defendant several times to complete the sale by executing the sale deed in their favour. As the defendant did not respond to the requests and demands made by the plaintiffs, they sent legal notices dated 15.11.2007 and 09.09.2010 to the defendant, calling upon him to execute the sale deed in their favour.  The plaintiffs also got published a public notice to this effect on 29.05.2011 in the Urdu daily ‘Jasarat’.  The plaintiffs have alleged that they came to know that the defendant wanted to sell the suit property to some third party, and due to this reason, the defendant offered that he was ready to return to the plaintiffs the entire amount paid by the deceased as well as an additional amount of Rs.2,000,000.00.  In the above back ground, this Suit was filed by the plaintiffs on 10.06.2011 against the defendant for declaration, specific performance, permanent injunction and damages.

5.        The summons were issued to the defendant through courier service and registered post A.D. at his permanent address of Kuwait given in the title of the plaint. However, the service could not be effected on him. Accordingly, the summons were published on 30.12.2011 in the international editions of the English daily ‘The News’ and the Urdu daily ‘Jang’.  As the defendant did not appear nor did he file the written statement, he was declared ex-parte vide Order dated 19.03.2012.  Thereafter, it was ordered that the matter may be fixed for final disposal. 

6.        On 10.10.2012, the plaintiffs examined their sole witness, who   is also their attorney.  The witness produced as Exhibit PW-1/4 the original Irrevocable General Power of Attorney dated 25.05.2011 executed in his favour by the plaintiffs ; a true copy of the hand-written Conveyance Deed dated 04.12.1947 in respect of the suit property     in favour of the defendant as Exhibit PW-1/5 ; copies of the identity card, the passport and the death certificate of the deceased as Exhibits PW-1/6, 1/7 and 1/8, respectively ; the original Sale Agreement dated 20.05.1999 between the deceased and the defendant as Exhibit PW-1/9 ; three (03) original receipts dated 20.05.1999, 06.03.2001   and 11.03.2004 executed by the defendant, as Exhibits PW-1/10, 1/11 and 1/12, respectively ; two (02) original electricity bills as Exhibits PW-1/13 and 1/14 ; one original gas bill as Exhibit PW-1/15 ; one original telephone bill as Exhibit PW-1/16 ; one original bill issued by KW&SB as Exhibit PW-1/17 ; the original site plan of the suit property as Exhibit PW-1/18 ; two (02) original assessments of property tax issued by KMC as Exhibits PW-1/19 and 1/20 ; one Extract from the Property Register as Exhibit PW-1/21 ; a true copy of the typed Conveyance Deed dated 04.12.1947 in respect of the suit property in favour of the defendant as Exhibit PW-1/22 ; and copies of the legal notices dated 15.11.2007 and 09.09.2010 as Exhibits PW-1/23 and 1/24. 

7.        After hearing the learned counsel for the plaintiffs and examining the record, I have noticed some major contradictions in   the plaint and the documents produced by the plaintiffs.  As per the terms and conditions of the Agreement (Exhibit PW-1/9), the sale consideration was agreed at Rs.5,000,000.00, out of which a sum of Rs.3,000,000.00 was paid by the deceased to the defendant at the time of the execution of the Agreement, that is, on 20.05.1999.  The second instalment of the was to be paid by the deceased to the defendant at the time of delivery of possession after 10 years from 20.05.1999, that is, on 20.05.2009, and the balance sale consideration was to be paid by the deceased at the time of execution of the sale deed in his favour upon the defendant’s  visit to Pakistan. A completely different case has been pleaded by the plaintiffs in this Suit, as they have stated in paragraph 7 of the plaint that the deceased made   three payments to the defendant, the first of Rs.3,000,000.00 on 20.05.1999, the second of Rs.500,000.00 on 06.03.2001, and the third of Rs.500,000.00 on 11.03.2004. Another important contradiction is that, as per the Agreement, the possession of the suit property was to be handed over to the deceased at the time of the payment of the second instalment after ten years from 20.05.1999, whereas, the plaintiffs have claimed in this Suit that they are in possession of the suit property since 1967. 

8.        The other contradiction is that, on the one hand, it was mentioned in the Agreement that the deceased had paid a sum of Rs.3,000,000.00 at the time of the execution thereof, and on the other hand, it was stated in the Agreement that the deceased had taken over possession of the suit property after paying a sum of Rs.4,000,000.00 to the defendant.  According to the plaintiffs, the Agreement was executed at Karachi, and the same was witnessed by the defendant’s counsel, who was an advocate of High Court and had come from Bombay, India.  The three receipts (Exhibits PW-1/10, 1/11 and 1/12) purportedly executed by the defendant were also witnessed by the same Indian advocate.  Exhibit PW-1/10 was executed on 20.05.1999 when the Agreement was executed.  The other two receipts ; namely, Exhibits PW-1/11 and 1/12 were purportedly executed on 06.03.2001 and 11.03.2004, respectively. There is a considerable gap in the execution of all the three receipts. The plaintiffs have nowhere pleaded or explained that the defendant as well as the same Indian advocate came to Karachi to execute and witness Exhibits PW-1/11 and 1/12 on 06.03.2001 and 11.03.2004, respectively.

9.        If the averments made by the plaintiffs are accepted, the result would be that the parties had agreed to substitute a new arrangement in place of the original Agreement, as the second and third payments were admittedly not made by the deceased as per the terms and conditions of the Agreement.  Therefore, the principles of novation of contract shall apply in this case in terms of Section 62 of the Contract Act, 1872.  According to the plaintiffs’  own case, the last payment was made by the deceased on 11.03.2004. Therefore, the prescribed period of limitation of three years for specific performance of the Agreement dated 20.05.1999 shall be computed from 11.03.2004.  The prescribed period of limitation for filing the Suit for specific performance expired on 11.03.2007, whereas this Suit was filed on 10.06.2011.  All the subsequent actions of issuing the two legal notices dated 15.11.2007 and 09.09.2010, as well as the publication of the public notice on 29.05.2011, were taken by the plaintiffs after the expiration of the prescribed period of limitation. The said actions taken by the plaintiffs were of no help to the plaintiffs, and the prescribed limitation did not start to run afresh because of any of the same.  In any case, there was no acknowledgment or admission of liability / promise on behalf of the defendant before the expiration of the prescribed period of limitation.  This Suit, having been filed after about four years and three months of the expiration of the prescribed period of limitation, is hopelessly barred by time. 

10.      The documents produced by the plaintiffs ; namely, the assessments of property tax issued by KMC  (Exhibits PW-1/19 and 1/20) and the Extract from the Property Register (Exhibit PW-1/21), show that the original lease of the suit property was valid for a period of 80 years from 18.08.1815.  Thereafter, the lease was renewed for a further period of 80 years from 01.08.1915.  The plaintiffs have not produced any document and there is nothing on record to show that the lease of the suit property was extended further. The Agreement (Exh.PW-1/9) was executed by the defendant on 20.05.1999 claiming to have the lease hold rights in the suit property. As per the last renewal of 80 years from 01.08.1915, the lease of the suit property expired on 31.07.1995.  Therefore, the defendant had no right, power or authority to execute the Agreement as the lease hold rights in the suit property granted in his favour by the lessor (KMC) had ceased to exist on 31.07.1995. Resultantly, the defendant could not legally transfer any right, title or interest in the suit property in favour of the deceased, or the plaintiffs. In view of the above, the Agreement is void ab initio, and is incapable of specific performance. 

11.      As a result of the above discussion, this Suit is not maintainable because there are serious contradictions in the plaint and the evidence produced by the plaintiffs, but mainly on the grounds that  the Suit is barred by time and the Agreement is void ab initio and is incapable of specific performance.  The Suit is, therefore, dismissed with no order as to costs. 

12.      As the lease of the suit property expired on 31.07.1995 and     the lessee, who is permanently residing outside Pakistan, has not taken any step to renew the same, the suit property has become ownerless and as such the lessor (K.M.C.) has become entitled to resume the suit property. The office is directed to communicate this judgment and decree to the Administrator General of Karachi and the Administrator, K.M.C., with a direction to take over the possession and control of the suit property ; namely, Plot bearing Survey No. 538/14, Survey Sheet Garden East, measuring 1,120 sq. yds., Gulmohar Street, Garden East, Karachi, with the construction thereon, and to manage, protect and look after the same till the lease thereof is executed in the name of the new lessee.

                                                                                                           J U D G E

* Suit No.306 of 2000-Damages).doc /Judgment Single/Court Work/Desktop/ARK*