1. FAISAL ARAB, J.--- This order shall dispose of Judicial Miscellaneous Application filed by one Mr. Aftab Ahmed under Section 12(2), C.P.C. Seeking setting aside of decree passed in Suit No. 98 of 1999.
2. The controversy pertains to a 200 square yard commercial plot bearing No. 15-C situated on 9th Zamzama Commercial Lane, Phase V, Defence Housing Authority, Karachi. This plot in the record of Defence Housing Authority stood in the name of Mr.. Hamid Hussain Khawar. One lady Mrs. Bushra were of Mahmood filed Suit No. 98 of 1999 seeking declaration that she is the sole and absolute owner of the said plot and sought directions from this Court to the effect that Defence Housing Authority, Karachi should cancel the transfer order in favour of Hamid Hussain Khawar and transfer the plot in question in her name Prior to the filing of Suit No. 98 of 1999, Mr. Hamid Hussain Khawar had entered into an agreement dated 21.12.1998 whereby he agreed to sell the said plot to Aftab Ahmed who is the applicant of present Section 12(2), C.P.C. Application. However. The applicant gave up his right to seek specific performance of the agreement and instead filed Suit No. 18 of 2001 on 10.1.2001 against Hamid Hussain Khawar for recovery of Rs. 12,961,000/-. The basis of this recovery suit was the following pleas taken by Aftab Ahmed in paragraphs 6 and 8 of the plaint:-
6. That subsequently it transpired the on 29.1.1999 one Mrs. Bushra Mehmood w/o Mehmood Nawaz has filed a suit being Suit No. 98/99 against the defendant and the Defence Housing Authority seeking declaration, injunction and damages, praying for the declaration that she (Mrs. Bushra) may be declared as owner of the suit plot and an injunction restraining the defendant from transferring, selling, encumbering or creating any third party interest and restraining the Defence Housing Authority from taking any step for the purposes of transferring the said plot in the name of any person. The said Mrs. Bushra has also prayed for mandatory injunction directing the Defence Housing Authority to cancel the transfer order whereby the suit plot was transferred in the name of the defendant.
8. That in the manner stated above the defendant is no more competent to transfer the suit plot in the name of the plaintiff and the plaintiff is not in a position to keep the things pending for unlimited period and wait for the result of the suit in respect of which the defendant kept the plaintiff in dark with malicious intentions with a view to earn wrongful gain to him and cause wrong loss to the plaintiff, hence this suit.
3. On the basis- of the above pleas the applicant in his suit prayed for the following reliefs The plaintiff, prays for a-judgment and decree in the following terms:
(A) A decree in the sum of Rs. 27,75,000/- with mark-up Rs. 11- per thousand per day from 21.12.1998 till the payment.
(B) A decree in the sum of Rs. 1,01 ,86,000/- on account of the losses suffered by the plaintiff by not executing of Housing Projects on the suit plot.
(C) The cost of the suit or any other relief which under the circumstances this Hon`ble Court may deem, fit and proper. From the pleas taken and relief sought in Suit No. 18 of 2001 it is evident that applicant was aware of Mrs. Bushra's claim in Suit No. 98 of 1999 and on account of impending threat to Mr. Hamid Hussain Khawar's title to the plot' in question he confined his claim only for recovery of earnest money and damages. The said suit is still pending.
4. On 11.4.2005 Mrs. Bushra and Hamid Hussain Khawar filed compromise application under Order XXIII, Rule 3, C.P.C. In Suit No. 98 of 1999 and obtained consent decree. The terms of the compromise were as follows:- It is respectfully submitted that, for consideration duly received, the defendant No. 1 concedes to the claim of, the plaintiff in the above suit, and prays for a consent decree on the following terms.
5. The defendant No. 1 do admit the title of the plaintiff in respect of commercial plot No. 15-C, 9th Zamzama Commercial Lane, Phase V. Karachi measuring 200 sq. Yards situated in Pakistan Defence Officers Housing Authority, Karachi. Consequently, Transfer Order bearing No. DHANVL-615, dated 21.3.1994 be restored in favour of plaintiff by defendant No. 2.
6. Defendant No. 2 do cancel the Transfer Order being WL-615, dated 10.4.1997 issued in favour of defendant No. 1. Similarly, all documents submitted to defendant No. 2 for the transfer of the said plot of and in favour of defendant No. 1 be deemed as cancelled, ineffective and annulled.
7. Therefore it is respectfully prayed that this Hon'ble Court may be pleased to decree the above suit, on terms stated hereinabove with no order as to cost.
8. To grant any additional/better relief,: which this Hon'ble Court deems fit and proper in the circumstances of the case may also be awarded.
9. Mrs. Bushra responded to the application by stating that when applicant has himself confined his claim for recovery of money and damages only and foregoing his rights under the agreement to sell dated 21.12.1998, he has no concern with the plot in question.
10. From the applicants on pleadings in his Suit No. 18 of 2001 it is evident that firstly the applicant himself gave up his right to claim specific performande of the contract and secondly he was fully aware of the pendency of Suit No. 98 of 1999 as far back as 2001. Having himself given up claim to the plot in question on account of Mrs. Bushra's. Claim and opted -to confine his claim only for recovery of money, the applicant cannot in any manner claim any right in the plot in question.