IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 830 of 2013
Order with signature of Judge
1. For hearing of CMA No. 8549 / 2013 (U/O-VII R-11 CPC) :
2.For hearing of CMA No. 9302 / 2013 (U/O-VII R-11 CPC) :
3. For hearing of CMA No. 7551 / 2013 (U/O-XXXIX Rs-1 & 2 CPC) :
Mr. Z. U. Mujahid, advocate for the plaintiff.
Mr. Ejaz Mubarak Khattak, advocate for defendant No.1 / DHA.
Raja Qasit Nawaz Khan, advocate for defendants 2 and 3.
Mr. ShehanshahHussain, advocate for defendants4 and 5.
Date of hearing : 16.04.2014.
NADEEM AKHTAR, J. – The plaintiff has filed this Suit against the defendants for declaration, specific performance, possession, permanent injunction and damages. He has prayed for a declaration that defendants 2 and 3 sold Plot No.164, Khayaban-e-Shajjar, Street 37, Phase VIII, Defence Housing Authority, Karachi, measuring 2000 sq. yds. (‘the suit property’), to defendants 4 and 5 without fulfilling their contractual obligations towards him and without cancelling the earlier agreement with him. He has also prayed that defendants 2 and 3 be directed to perform their part of the contract and complete the sale of the suit property in his favour, or in the alternative, to pay him a sum of Rs.50,000.000.00. General damages to the tune of Rs.4,000,000.00 have also been claimed by the plaintiff against defendants 2 and 3 for delaying / withholding the performance of their contractual obligations and for causing mental shock and agony to him. He has further prayed that the defendants be restrained from selling and transferring the Suit property, or from creating third party interest therein.
2. C.M.A. Nos. 8549/2013 and 9302/2013 have been filed under Order VII Rule 11 CPC by defendants 2 and 3 and by defendants 4 and 5, respectively, for rejection of the plaint, on the grounds that the plaintiff had / has no cause of action for filing this Suit ; there was / is no privity of contract between defendants 2 and 3 and the plaintiff ; and, the Suit is barred under the provisions of Specific Relief Act, 1877, including Sections 21 and 42 thereof. Raja Qasit Nawaz, learned counsel for defendants 2 and 3, contended that, by virtue of the consent decree passed on 26.03.2013 in Suit No.1900/1996 (old Suit No.872/1987) filed by the present defendant No.2 against the present defendants 1 and 3 and one Mrs. Najibunnisa Siddiqui, the present defendants 2 and 3 became the co-owners of the suit property having equal shares therein ; only defendant No.3 had the authority to sell the suit property with the consent of the present defendant No.2 at the price agreed by both the co-owners; and, the sale consideration was to be shared equally by the present defendants 2 and 3. He further contended that this Suit has been filed by the plaintiff only on the basis of an undated ‘token receipt’ allegedly signed by defendant No.2 alone, therefore, it is the plaintiff’s own case that only one of the co-owners, that is, defendant No.2 signed the alleged token receipt. He further submitted that the plaintiff was fully aware of the said consent decree, and also about the facts that defendants 2 and 3 are the lawful co-owners of the suit property and only defendant No.3 had the authority to sell the same, as he himself has relied upon the said consent decree by filing the same as annexure B/1 to the plaint. It was urged that despite this admitted position, no agreement for sale or other document signed by both the co-owners / defendants 2 and 3 has been filed or relied upon by the plaintiff. He argued that there was no privity of contract between both the co-owners and the plaintiff, and as such the alleged agreement in respect of the suit property was void.
3. Without prejudice to his above submissions, learned counsel for defendants 2 and 3 submitted that the cheque for Rs.200,000.00 allegedly issued by the plaintiff was bogus, and in fact no amount whatsoever was paid by the plaintiff to any of the co-owners / defendants 2 and 3. He emphasized that the alleged token receipt is a forged and fabricated document, and it cannot be treated as an agreement by any stretch of imagination, as the purported terms and conditions thereof are vague and uncertain, and were admittedly conditional. It was urged that if the contents of the plaint are accepted as true, even then the plaint does not disclose any cause of action for filing this Suit.
4. Mr. Shehanshah Hussain, learned counsel for defendants 4 and 5, while adopting the arguments of Raja Qasit Nawaz advocate, submitted that in order to constitute a valid, binding and enforceable contract, the existence of the sale consideration, mutually agreed by the parties, is mandatory. He argued that if the sale consideration is uncertain or is lacking, there cannot a valid and binding contract, and no party can seek its enforcement by way of specific performance or otherwise. It was urged that the alleged agreement was / is void for lack of consideration. It was further urged that defendants 4 and 5 are bonafide purchasers of the suit property having purchased the same for valuable consideration from defendants 2 and 3, and the plaintiff has no locus standi to question either the agreement between defendants 2 to 5, or the rights, title and interest of defendants 4 and 5 in the suit property.
5. In order to see as to whether the plaint is liable to be rejected or not, the contents of the plaint, particularly the averments and allegations made therein by the plaintiff, have been carefully examined by me. The case of the plaintiff, as averred in the plaint, is that he met defendant No.2 at an estate agency, where defendant No.2 claimed himself to be the owner of the suit property. After negotiations and several meetings, defendant No.2 agreed on 30.04.2013 to sell the suit property to him in consideration of Rs.39,500,000.00, received from him a post-dated cheque for Rs.200,000.00, and signed a ‘token receipt’. The above cheque was issued subject to three conditions mentioned in the token receipt ; namely, “(a) satisfactory mutual price of the property, (b) verification of ownership, Court settlement order, and (c) verification of all property documents from DHA, Karachi”. All the above three conditions are also pleaded in paragraph 1 of the plaint. In paragraph 2 of the plaint, it is pleaded that the condition regarding “satisfactory mutual price of the property” was inserted in the token receipt at the insistence of defendant No.2. On 07.05.2013, two more cheques of Rs.100,000.00 and Rs.200,000.00 each were received by defendant No.2 from the plaintiff, which were issued in the name of the defendant No.3’s attorney introduced to the plaintiff by defendant No.2. These cheques were also issued subject to the three conditions mentioned above. On the same day, the plaintiff and defendants 2 and 3 visited the office of defendant No.1 / DHA, and applied for NOC for the sale of the Suit property. On 27.05.2013 and 28.05.2013, the plaintiff arranged three separate pay orders totaling to Rs.4,000,000.00 in names of defendants 2 and 3. Defendant No.2 kept the plaintiff on false hopes till the first week of June 2013, when he came to know through a public notice that the suit property was being sold to some third party. He issued a legal notice, calling upon defendants 2 and 3 to perform their contractual obligations by completing the sale in his favour. The plaintiff has alleged that defendants 2 and 3 sold the suit property to defendants 4 and 5 fraudulently and by committing breach of the agreement entered into by them with him.
6. It is well-settled that for deciding the question of rejection of the plaint, only the plaint and its accompaniments can be examined. It is an admitted position that the only document on the basis of which the plaintiff is seeking specific performance is the token receipt allegedly signed only by defendant No.2. A perusal of the said token receipt shows that it is undated ; although space is provided therein under the name of defendant No.2 for his CNIC number, but no number is mentioned therein ; likewise the name and other particulars of a witness are mentioned therein, but his signature is missing ; the cheque for Rs.200,000.00 mentioned therein was “conditional token” ; the said cheque was issued admittedly subject to three conditions ; one of such conditions was “satisfactory mutual price of the property” ; and, it was specifically stated therein that if the said three conditions were satisfied, the balance amount will be payable as per the schedule given therein. It is to be noted that the said three conditions have been admitted in paragraph 1 of the plaint. It is nowhere pleaded in the plaint that the purported conditions mentioned in the alleged token receipt, were actually fulfilled. On the contrary, learned counsel for the plaintiff conceded during the course of hearing that the condition “satisfactory mutual price of the property” is ambiguous ; the amount of the cheque for Rs.200,000.00 towards the conditional token was never received by defendant No.2 ; and, the three pay orders for Rs.4,000,000.00 each were never handed over by the plaintiff to defendants 2 and 3. In Jewan and 7 others V/S Federation of Pakistan, 1994 SCMR 826, the Hon’ble Supreme Court was pleased to hold that if there is some other material before the Court apart from the plaint which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII Rule 11 CPC. The consent decree and the alleged token receipt are admitted documents as the same have been filed by the plaintiff himself along with the plaint, and the admissions noted above were made at the time of hearing. Therefore, the same can be looked into and taken into consideration at this stage.
7. In view of the above, it transpires that no particular amount was settled as sale consideration, and if the amount mentioned in the alleged token receipt is accepted as the sale consideration, even then admittedly no amount whatsoever passed from the plaintiff to any of the co-owners / defendants 2 and 3. Section 25 of the Contract Act, 1872, provides inter alia that an agreement made without consideration is void, unless it is in writing and registered. Under Section 29 of the said Act, agreements, the meaning whereof is not certain or capable of being made certain, are void. The Suit is, therefore, barred under Sections 25 and 29 ibid.
8. The other important aspect of this case is that, as rightly pointed out by the learned counsel for defendants 2 and 3, the plaintiff was fully aware of the fact that defendants 2 and 3 are the lawful co-owners of the suit property, as he himself has relied upon the consent decree passed in this context, by filing the same as annexure B/1 to the plaint and also by pleading so in paragraph 2 of the plaint. The alleged token receipt also stipulated a condition that the cheque for Rs.200,000.00 towards the alleged conditional token, was issued subject to “verification of ownership, Court settlement order”. Thus, the plaintiff was also fully aware that as per the said consent decree, only defendant No.3 had the authority to sell the suit property with the consent of defendant No.2 at the price agreed by both the co-owners. It is not the case of the plaintiff that defendant No.2 is the sole owner of the suit property, or he had negotiated the sale with defendant No.3, or defendant No.3 had given her consent for the price or for the sale of the suit property. On the contrary, he has pleaded throughout the plaint that the suit property is the joint property of defendants 2 and 3. Despite this admitted position, the plaintiff admittedly negotiated the alleged sale only with defendant No.2, and admittedly there were no negotiations or agreement between the plaintiff and defendant No.3. Section 13 of the Contract Act, 1872, defines “consent” as, two or more persons are said to consent when they agree upon the same thing in the same sense. It is, therefore, held that the Suit is barred under Section 13 ibid also, as there cannot be an agreement or contract without the consent of all the parties.
9. In view of the above, the Suit is also barred under Section 42 of the Specific Relief Act, 1877, as the plaintiff never acquired any right, title or interest in the suit property, and as such he does not have any legal character or right therein. Moreover, from the averments made in the plaint and in view of the admitted material on record and the admissions made before me on behalf of the plaintiff, I have come to the conclusion that the facts averred and the allegations made in the plaint do not disclose any cause of action. In the case of Abdul Nasir and another V/S Haji Saeed Akbar, 2010 SCMR 1770, the Hon’ble Supreme Court was pleased to maintain the order of rejection of the plaint, by holding that no cause of action had arisen in favour of the plaintiff when the Suit was filed.
10. Rule 11 of Order VII CPC provides that the plaint “shall” be rejected in any of the four eventualities mentioned therein, including where from the statements made in the plaint the Suit appears to be barred by any law, and where the plaint does not disclose any cause of action. In Raja Ali Shan V/S Messrs Essem Hotel Limited and others, 2007 SCMR 741, the Hon’ble Supreme Court was pleased to hold that it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the Suit is incompetent ; and, the Court is not only empowered but also under an obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII CPC. In Pakistan Agricultural Storage and Services Corporation Ltd. V/S Mian Abdul Latif and others, PLD 2008 Supreme Court 371, it was held by the Hon’ble Supreme Court that the object of Rule 11 of Order VII CPC is primarily to save the parties from rigors of frivolous litigation at the very inception of the proceedings, and if the Court on the basis of averments made in the plaint and documents available, comes to the conclusion that even if all the allegations made in the plaint are proved, the plaintiff would not be entitled to the relief claimed, the Court would be justified in rejecting the plaint in exercise of powers available under Rule 11 of Order VII CPC. In the instant case, neither can the main reliefs of declaration and specific performance, nor can the consequential reliefs of injunction and damages be granted to the plaintiff.
11. As, the Suit is barred under Section 42 of the Specific Relief Act, 1877, and Sections 13, 25 and 29 of the Contract Act, 1972 ; and, the plaint does not disclose any cause of action against any of the defendants in respect of the suit property, the plaint is liable to be rejected.
Foregoing are the reasons of the short order announced by me on 16.04.2014, whereby C.M.A. No. 8549 of 2013 filed by defendants 2 and 3, and C.M.A. No.9302 of 2013 filed by defendants 4 and 5, were allowed and the plaint was rejected with no order as to costs ; and, C.M.A. No. 7551 of 2013 filed by the plaintiff was dismissed as having infructuous.
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