C.M.A. No. 1211/2005.
By this application under Order VI Rule 17 read with Section 151, C.P.C., plaintiff has sought following amendments in the plaint:- "(a) Title to be read as: Suit for Declaration, Specific performance, Permanent Injunction, Cancellation of Documents, Recovery and Damages.
(b)After Para-17, following para. to be added as Para-17(A): 17A. That the Hon'ble Court was graciously kind to call the parties to the chambers and ask them to settle the matter amicably and inconsequence thereof, the Plaintiff enhanced his offer from Rs.
21,000,000 to Rs. 24,000,000 and as such in view of the enhanced price, he manifested his intention/will for the specific performance of the said Agreement of Sale but the Defendants Nos. 1 and 2, with mala fide intentions in utter disregard of the law and established norms, sold the same to the proposed Defendant as reliably learn on a much lesser price vis-a-vis Plaintiff's enhanced price.
(c) Prayers to be read as:
(A) Declare that the Defendants 1 and 2 failed to fulfil their contractual obligations under the Agreement of Sale in question and in breach thereof, sale of the suit property to the proposed Defendant is prime facie illegal, mala fide and liable to be set aside.
(B) Direct the Defendants 1 and 2 to execute the conveyance deed pertaining to the suit property, favouring plaintiff, handing over possession thereof, alongwith title documents of the property in question.
OR In the event of Defendants 1 and 2 failing to comply, then the Nazir of this Hon'ble Court be directed to execute the same.
(C) Cancellation of Conveyance Deed registered with Sub-Registrar T-Div-II-A, Karachi, having Registration No. 3792, Book-1, Addl: dated 6-7-2004, pertaining to the suit property, executed by Defendants Nos. 1 and 2 favouring Mr. Shahid Malik son of Noor Muhammad, the proposed Defendant No. 4.
(D) Alternatively in the present scenario award damages jointly or severally, against the Defendants to the tune of Rs. 5 Million for suffering, mental torture, undergoing inconvenience/hassles, and recovery of Rs. 2.1 Million with profit on both the amounts at 14% till the realization of decretal amount.
(E) Recovery of Anticipatory Rent at Rs. 150,000 (Rupees One Lac Fifty Thousand) per month from 1st August, 2003 till the disposal of the suit and the profit thereon, at 14% till the realization of decreetal amount.
(F) Permanent Injunction against the defendants restraining them from further disposing of, alienating or creating third party interest in the suit property.
(G) Cost of the suit.
(H) Any other relief/reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case.
Prayed accordingly in the best interest of Justice."
2. The facts relevant for the disposal of this application are that on 18-10-2003 plaintiff has filed the instant suit for declaration. Permanent Injunction and Damages, with the following prayers: "(A) Declare that the defendants failed to fulfil their contractual obligations under the agreement of sale in question.
(B) declare that the Plaintiff has a lien on the suit property to the extent of his claim.
(C) A permanent prohibitory injunction against the defendants restraining them from disposing of, alienating or creating third party interest in the suit property.
(D)(i) Direct the Defendants to return Rs. 2,100,000 (Rupees Twenty One Lacs) along with 14% per cent. interest/markup, till the finalization of suit or the realization of Plaintiff's claim.
(D)(ii) Damages to the tune of Rs. 5,000,000 (Rupees Five Million).
(D)(iii) Anticipatory rent at Rs. 150,000 per month, from 1st August, 2003 till the disposal, of the suit.
(E) Cost of the suit
(F) Any other relief/reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case."
3. For grant of above reliefs, precisely, the case of the plaintiff is that on 14-7-2003 he has entered into an agreement of sale with the' Defendants Nos. 1 and 2 in respect of Plot No. 103/1 admeasuring 1000 Sq. Yards, together with double storeyed Bungalow constructed thereon, situated on 25th Street, Phase-VI, DHA, Karachi, for a total sale consideration of Rs. 21,000,000 (Rupees two crores ten lacs), and has paid them Rs. 2,100,000 (Rupees twenty one lacks) as part payment towards such sale agreement.
4. Subsequently, despite best efforts of the plaintiff, due to the non-cooperation and non-fulfilment of contractual obligations by the Defendants Nos. 1 and 2 such transaction of sale could not be finalized, whereupon, ultimately, plaintiff, through his counsel served legal notice dated 9-9-2003, to them, cancelling the said agreement and calling upon them for the refund of earnest money in the sum of Rs. 2.1 million with 14% mark-up from the date of its payment and also damages at Rs.
150,000 per month from 12.7.2003. At the time of institution of instant suit in addition to such. claims plaintiff also claimed damages in the tune of Rs. 5.0 million against the Defendants Nos. 1 and 2.
The peculiarity of this suit is that plaintiff consciously and deliberately, in line of his instance in the notice dated 9.9.2003, did not seek specific performance of the agreement of sale dated 14.7.2003.
5. The Defendants Nos. 1 and 2 in their joint written statement, not only challenged the maintainability of the suit on various grounds, but also disputed the assertion of the plaintiff as regards shifting of responsibility of non-finalization of agreement of sale dated 14-7-2003 due to their fault. They also disputed the claim of the plaintiff for refund of earnest money to them, as well as other claims made by plaintiff.
6. It seems that during the pendency of this suit, before passing of detailed order dated 14-5-2004 on C.M.A. Nos. 5909 and 6397 of 2003, efforts were made by the Court for some amicable settlement, of dispute between the parties, which failed, therefore in terms of such order the Defendants Nos. 1 and 2 deposited the earnest money of Rs. 21,00,000 with the Nazir of this Court, which now appears to have been invested in some profit bearing saving scheme of the Government. As regards other condition imposed in the order dated 14-5-2004, for furnishing of surety in the sum of Rs. 50,00,000, such order was challenged by the Defendants Nos. 1 and 2 in appeal, being H.C.A. No. 106 of 2004, wherein order dated 14-5-2004, to that extent has been suspended, while the appeal is stated to be still pending. It appears that thereafter the Defendants Nos. 1 and 2 sold the suit bungalow to the proposed defendant Shahid Malik, who now claims himself to be its bona fide purchaser for valuable consideration and without notice of any alleged disability of Defendants Nos. 1 and 2 to sell the suit property.
7. It further seems that as a second thought, during the pendency of this suit, the plaintiff made up his mind to seek specific performance of the agreement of sale dated 14-7-2003, though, as evident from the language of the notice dated 9-9-2003 and the averments of the plaint, he has already given up such relief, and unilaterally revoked/cancelled the sale agreement, and with this object the instant application seeking amendments in the plaint for adding the relief of specific performance in the suit has been moved by the plaintiff.
8. The proposed amendments sought in the plaint have been strongly opposed by the Defendants Nos. 1 and 2 for the following reasons;-
(i) The proposed amendments are not necessary for determining the real question in controversy between the parties and in this case the Plaint and the Written statement have been filed and the only question involved is, whether the plaintiff is entitled to the return of the earnest money and/or damages.
(ii) The proposed amendments would introduce a totally different, new and inconsistent case.
(iii)The proposed amendments are not in good faith and unduly belated. The Plaintiff cannot be allowed to change the entire complexion of the suit.
(iv)Since the property has been sold after the compliance of the order for deposit of Earnest Money with the Nazir of this Honourable Court in H.C.A.No. D-106 of 2004, the relief of specific performance cannot be granted."
9. Mr. Khurshid Hashmi learned counsel for the plaintiff while arguing this application for amendment in the pleadings frankly conceded that even before filing the present suit for Declaration, Permanent Injunction and Damages, the plaintiff by way of his legal notice dated 9- 92003 addressed to the Defendants Nos. 1 and 2 has given up his right to claim specific performance of agreement of sale dated 14-7-2003 and it was in furtherance to such firm stand taken by him earlier that he has given up the relief of specific performance at the time of institution of present suit. Learned counsel, however, strongly contended that as it can be verified from the contents of the order dated 14-5-2004, subsequently the plaintiff was willing to seek specific performance of the agreement of sale dated 14-7-2003 and for this purpose even he was extended his offer from Rs. 21 million to Rs. 24 million, so that further litigation in the matter may be avoided.
But it was due to the inflexible attitude of the Defendants Nos. 1 and 2 that such offer could not materialize.
10.Learned counsel lastly contended that in order to bring all the controversies involved in relation to the agreement of sale dated 14-7-2003 it will be just, equitable and proper that the proposed amendments sought through listed application may be allowed to enable the plaintiff to seek specific performance of the agreement dated 14-7-2003.
11. Mr. Kamal Azfar learned counsel for the Defendants Nos. 1 and 2 during the course of his arguments did not dispute that the provisions of Order VI Rule 17 C.P.C., which have been provided to enable a party to seek amendments in the pleadings, are to be applied liberally to meet the ends of justice. But, he added that at the same time such amendments cannot be allowed, which are mala fide, or will change the whole nature or character of the suit to the prejudice of the opposite party. He further submitted that once the plaintiff has given up the relief of specific performance with reference to the agreement of sale dated 14-7-2003, by way of allowing the proposed amendments in the pleadings he cannot be permitted to set up an absolutely inconsistent case in his plaint, which will totally change the nature of suit. To fortify his submissions, learned counsel has placed reliance on the following cases:-
(1) Ardeshir H. Mama v. Flora Sassoon (AIR 1928 PC 208)
(2) K.S. Sundaramayyar v. K Jagadeesan (AIR 1965 Madras 85)
(3) Anwar Ali Khan v. A Sattar Abu Bakar (PLD 1968 Karachi 154)
(4) Shama Enterprises (Pvt.) Ltd. v. Malik Ghulam Sarwar (1989 MLD 21)
12. In the case of Ardeshir H. Mama (Supra), it was held by the Privy Council that for seeking the relief of specific performance party has to show his readiness to do his part of the contract up to the passing of decree.
In the case of K.S. Sundaramayyar (Supra) with reference to Section 24(b) of the Specific Relief Act, it was observed that if the purchaser has claimed damage on the footing of breach of contract by the seller, no suit for specific performance thereafter can be maintained by him. In the case of Anwar Ali Khan (Supra), learned Single Judge of this Court held that when the purchaser by his letter addressed to the seller has claimed damages and refund of earnest money such letter would establish waiver of agreement, therefore, specific performance of such contract cannot be allowed. In the case of Shama Enterprises (Private) Ltd. (Supra), a Division Bench of this Court has reiterated the view that the party seeking specific performance of the contract has to show his readiness and willingness to perform his part of the agreement in respect of which specific performance was sought.
13.I have carefully considered the arguments advanced by learned counsel for the parties and perused the case record. There is no denial of the fact that in the present suit, even before its institution, the plaintiff has given up his right to seek specific performance of the agreement of sale dated 14.7.2003, as evident from the language of his notice dated 9-9-2003. The instant suit has also been filed by the plaintiff on same line inasmuch as in the plaint the plaintiff has consciously and deliberately only sued the defendants for the reliefs as reproduced above, not mentioning therein his claim of specific performance, arising out of the agreement of sale dated 14.7.2003. In such circumstances, the submissions of Mr. Kamal Azfar learned counsel for the Defendants Nos. 1 and 2 that the proposed amendments sought in the pleadings by the plaintiff are mala fide, being tempted due to the rapid increase in the value of suit property, and further the proposed amendments, if allowed, will change the whole nature and character of the suit have force. Such arguments of Mr. Kamal Azfar are also fully supported from the case-law cited by him at the bar.
14.For the foregoing reasons, I had found no substance in this application, which was accordingly dismissed by short order passed on 14.11.2005.
C.M.A. No. 6571 of 2004.
By this application under Order I, Rule 10(2) read with Section 151, C.P.C. moved by the plaintiff, he has prayed for joining Shahid Malik son of Noor Muhammad as defendant in the suit, on the ground that during the pendency of this suit said defendant has purchased the suit property from the Defendants Nos. 1 and 2, and thus his presence in the proceedings of the present suit is necessary.
On notice, Defendant No. 1 has filed his counter-affidavit so also the proposed defendant Shahid Malik wherein they have strongly opposed this application, mainly for the reason that the plaintiff by way of filing the present suit for Declaration, Permanent Injunction and Damages has already given up his claim for specific performance in respect of suit property subject-matter of sale agreement dated 14-7-2003, therefore, joining of proposed defendant Shahid Malik, the subsequent purchaser of property, to the proceedings of the present suit will be futile and unwarranted by law.
In the context of relief sought in the application I have heard the arguments of learned counsel and perused the case record and find force in the submission of Mr. Salahuddin Ahmed, counsel for the proposed defendant Shahid Malik that joining of proposed defendant would have been relevant and material in case the plaintiff has sought the relief of specific performance of agreement of sale dated 14-7-2003. But since the plaintiff has filed this suit only for seeking refund of his earnest money from Defendants Nos. 1 and 2 and damages, therefore, no case for joining of subsequent purchaser of suit property/proposed defendant as party in this suit is made out.
In, view of the above stated facts and circumstances of the present case, the instant application for joining the new purchaser of the property Shahid Malik as co-defendant in the suit is devoid of merits.
Foregoing are the reasons for the short order passed on 14-11-2005.