1. ' The plaintiff has filed the above suit for specific performance. Declaration, possession and in the alternate for damages. In the suit he has impugned for the following reliefs:-
(a) That the defendants may be directed to specifically perform the agreement dated 21-1-1974 and to hand over the possession of the Plot No,S.R.11 measuring 400 sq. Yds. Situated in Block 16 (Scheme No,24) Gulshan Iqbal, Karachi or in the alternate it may be declared that the plaintiff is entitled and that the defendant is bound to give and deliver to the plaintiff commercial plot of the same size measuring 400 sq. Yds. In the same scheme in lieu of the aforesaid plot and a decree for mandatory injunction to the effect may be passed accordingly.
(b) In the alternate decree for Rs,20,00,000 as damages and Rs,34,000 may be awarded to the plaintiff against the defendants.
(c) Interest at 15% per annum and/or at such rate as the Honourable Court may deem fit and proper.
(d) Cost of the suit."
(e) ' Briefly the facts of the case are that the defendant by public notice ordered for sale through public auction Commercial Plot No,S.B.11, Block No,166 measuring 400 sq. Yds. Situated in K.D.A.
2. Scheme No,24, Gulshan-e-Iqbal, Karachi: It is the case of the plaintiff that public auction was held on 21-1-1974 wherein he also participated and gave highest bid of Rs,170 per square yard which was accepted by the Governing Body of the defendant. The plot in question was sold subject to agreed terms and conditions on 21-1-1974 and the plaintiff at the time of auction had deposited a sum of Rs,17,000 on account of first instalment of 25% of the occupancy value and on 27th May, 1974 deposited another sum of Rs,17,000 on account of second instalment of 25% of the occupancy value of the said plot. It is further the case of the plaintiff that balance of occupancy value was payable in two equal yearly instalments within one year and two years respectively from the date of issuance of possession order by the defendant. It is urged by the plaintiff that on or about 23-9- 1974 he received a letter dated 23-9-1974 from the defendant stating therein that in view of the decision of this Court dated 13-8-1974 in Constitutional Petition No,369 of 1966 the plaintiff is likely to be effected by the orders which was also challenged before Honourable Supreme Court but that appeal was dismissed. The plaintiff requested the defendant that in case they consider that the plot auctioned to him is effected by decision of this Court, he may be allotted another commercial plot of equal size in Block No,13-C, Scheme No,24 Gulashan-e-Iqbal, Karachi but the defendant did not reply to said letter. It is averred by the plaintiff that on 16-10-1977 the defendant informed him that the plot allotted to him has been effected by the decision of this Court and the same stands cancelled. The defendant advised the plaintiff to apply refund of the amount already deposited by him. The plaintiff time and again requested the defendant to allot him an alternate plot of same size but without any success.
(f) ' The defendant filed their written statement where they have denied that the plaintiff would be entitled to the plot in suit and/or alternate plot. They have also relied on a decision given by this Court in Constitutional Petition No,168 of 1966. In the end they have insisted that there was no legal obligation upon them to offer an alternate plot and the plaintiff may at the most claim refund of the money.
(g) ' On the above pleadings of the parties consent issues were adopted which are as follows:--
(h) (i) Whether the plaintiff under the agreed terms and conditions of the auction and otherwise is entitled to Plot No,SB-11, 400 sq. Yds. Block No,16, Scheme No,24, Gulshan-e-Iqbal, Karachi?
(i) (ii) Whether the defendants auctioned the above plot due to mistake. If so, what is the effect?
(j) (iii) Whether the plaintiff is entitled to similar plot in the same scheme from the defendant?
3. (k)
(l) Whether in the alternative the plaintiff is entitled to damages of Rs,20,000,000 as well as refund of Rs,34,000 paid by him?
(m) What relief, if any, is the plaintiff entitled?
(n) ' In support of his claim the plaintiff examined himself and produced documents Exhs.5/1 to 5/28 and cross-examined. The defendant examined Azam Ali Leghari, Additional Director Commercial who, also produced certain documents and was cross-examined.
(o) ' The matter has been fixed for arguments on several dates. It is pertinent to note that on 10-8- 1999 an order was passed where the plaintiff had stated that he should be given alternate commercial plot of equal value in the same vicinity in the same scheme. Counsel for defendant agreed to consider this proposal subject to written application is being made on this behalf.
4. Accordingly the plaintiff complied with the same and a copy was also sent to Director-General, K.D.A. Once again time was given to the Director-General, K.D.A. To consider the allotment of an alternate plot within one month. Time was again taken for compliance. Eventually an order was passed which has been brought on record which is in effect called a Speaking Order where the Director-General, K.D.A. Has stated that he was not in a position to give an alternate plot to the plaintiff but could only refund the amount.
(p) ' I have gone through the documents and also considered the evidence. Without going into technicalities and lot of details, the simple proposition before me is that if indeed the plaintiff had been given a plot for which he has made necessary payments then that plot has to be given to him. In case if due to any reasons whatsoever justified or unjustified the plot was disposed of and somebody also took over that plot then indeed the plaintiff does reserve the right to demand an alternate plot as in the past 20 years that it has taken for this case to be brought up and finally disposed of the value of the plots has undergone tremendous change. Surely the plaintiff would not be in a position to obtain fresh plot if the amount so taken from him were to be refunded at this juncture. This suit negates the basic principles of natural justice. Further if indeed in the written statement or otherwise the defendant had taken a stand which would justify their action then it may be considered whether the plaintiff should be given an alternate plot or should be refunded the amount.
(q) ' Considering the above I am of the view that the plaintiff is entitled to the suit plot and in case it has been disposed of by the defendant then he is entitled to allotment of a similar type of plot in the same scheme or in an identical scheme. With these observations the suit~,,R, stands disposed of.
(r) .