1. ' GULZAR AHMED, J.---This application has been filed by defendant Nod under Order VII, rule 11, C.P.C.
2. For the rejection of the plaint on the ground that the suit is barred by law and that plaintiff has no cause of action.
3. ' Plaintiff has filed his counter-affidavit. I have heard at length the arguments of learned counsel for the parties on this application.
4. Plaintiff has filed this suit for specific performance of contract, declaration, cancellation of sale agreement and permanent injunction. ' The matter relates to Plot No,ST-16 in Block 16, KDA Scheme 16, Federal B. Area, Karachi measuring 7830.44 sq. Yards. It is alleged that this plot was allotted by KDA to the defendant No,1 on 30-11-1972 possession whereof was delivered on 21-12-1972. By a registered power of attorney dated 18-5-1987 the defendant No,1 appointed defendant No,2 as its attorney in respect of said plot as flat site by the name of Fayyaz Plaza. In the said power of attorney, the defendant No,1 is stated to have given power to sell the said plot also. The Fayyaz Plaza being constructed on the said plot collapsed in 1975. After removal of debris it-was found that an area of 1800 sq. Yards out of the said plot is left open. After the collapse of structure of Fayyaz Plaza, KDA temporarily cancelled the allotment rights of defendant No,1 in respect of said plot whereafter encroachment on the plot took place. It is alleged that on 8-7-1987 the plaintiff and the defendant No,1 through its attorney the defendant No,2 had entered into an agreement to sell land of 1800 sq. Yards out of said plot of 7830.44 sq. Yards for a total consideration of Rs,45,00,000 and the plaintiff paid Rs,10,00,000 as an advance against sale consideration to the defendant No,2.
5. The balance of Rs,35,00,000 was to ' be paid after fulfilment of condition by defendants Nos.1 and 2, that is of restoration of ownership from the KDA, removal of encroachment and handing over of vacant and peaceful possession of the land along with title documents. It is alleged that the defendants Nos.1 and 2 handed over all the original title documents to the plaintiff including allotment order dated 30-11-1972 and acknowledgement of possession letter dated 22-12-1972.
6. Public notice with regard to the sale of land was also published in newspaper to which no objection was received. It is alleged that C.P. No,2062 of 1995 was filed by the defendant No,1 in this Court which is stated to be decided in favour of defendants Nos.1 and 2 on the statement made by KDA. It is alleged that defendant No,2 got the land vacated from encroachers with help of law enforcement agencies and possession of land was handed over by defendant No,1 through defendant No,2 to the plaintiff on 8-10-2002. It is alleged that defendant No,1 subsequently became dishonest and through its proprietor Malik Fayyaz Ahmed tried to illegally occupy the land on 18-10- 2002 in which he could not succeed due to interference of area people. Plaintiff has also learnt that defendant is attempting to sell the land through fraudulent means on which the plaintiff got public notice published in daily newspaper JANG dated 21-10-2002. The said Malik Fayyaz Ahmed again attempted to encroach the land and dispossess the plaintiff and that such attempt is constantly being made by him. The plaintiff filed Suit No,1075 of 2002 in this Court for declaration and permanent injunction against the sole proprietor of defendant No,
1. It is alleged that after the said Fayyaz Plaza has collapsed and its debris were removed a portion of the land was encroached and for their removal Malik Fayyaz Ahmed filed Suit No,472 of 2001 and 480 of 2001 in the Court of IVth Senior Civil Judge, Karachi-Central which were allowed vide ex parte judgment dated 30-1-2002. It is alleged that sole proprietor of defendant No,1 in order to create judicial record has arranged fictitious and dummy defendants in that last mentioned two suits and that revocation of general power of attorney of defendant No,2 was also got registered. It is alleged that while in possession of the land, plaintiff has deputed security guards and has also constructed boundary wall. On 16-3- 2003 Malik Fayyaz Ahmed and Baqar Rizvi illegally occupied the land and an F.I.R. Bearing No,32 of 2003 was registered by Tanweer Ahmed plaintiff's man at Police Station Joharabad. It is alleged that in respect of the land the defendant No,1 manipulated a sale agreement annexure P-12 to the plaint on the basis of which defendant No,3 filed a Suit No,1061 of 2003 against defendant No,1 and others. It is alleged that said sale agreement made between defendant No,1 and defendant No,3 is merely a paper work and only to usurp the right of the plaintiff. 'It is alleged that plaintiff filed an application for withdrawal of Suit 1075 of 2002 on the ground that it has become infructuous in view of the events that took place after its filing and the said suit was allowed to be withdrawn with permission to file fresh suit and it is stated that present suit has been filed pursuant to such an order. It is alleged that defendant has started raising construction on the plot in question. Plaintiff has received a letter from KDA wherein he was asked to show original title documents for verification which was done. It is alleged that defendants Nos.1 and 2 are avoiding to finalize the transaction as per sale agreement and hand over the possession and that plaintiff is entitled to specific performance of sale agreement and that he is ready and willing to perform his obligation.
7. It is alleged that a legal notice dated 20-10-2003 was sent by plaintiff to defendants Nos.1 and 2 who made no response. Plaintiff has filed this suit with following prayer:-
(a) A decree to the specific performance of the contract be passed in favour of the plaintiff and against the defendants direction to them to execute the sale-deed transfer documents in respect of plot of land admeasuring 1800 Sq.Yds of Plot No,ST-16, situated at Block-16, KDA Scheme No,16, F.B.
8. Area, Karachi to the plaintiff as agreed between the plaintiff and defendants Nos.1 and 2 and on their failure in dong so the Nazir of this Honourable Court be authorized to execute these documents and received payments in terms of the sale agreement of the balance sale consideration of Rs,3500,000 (thirty five lacs) in pursuance of the agreement to sale dated 8-7- 1987 and ultimately to tranfer the aforesaid property in the name of the plaintiff from the name of defendant No,1 M/s. Razi Construction Company after completing all formalities required to be completed including receiving possession and be authorized to do all other acts, deeds, things and works which maybe necessary for better assuring the sale perfectly transferring the property aforesaid in favour of the plaintiff.
(b) That the defendants Nos.1 and 2, their employee, agents, servants and any other person claiming on their behalf be permanently restrained from transferring the property in suit in favour of any other person or from changing its status in any other way or manner and also from delivering its possession to any other person except the plaintiff and to raise construction of any nature over the plot in question.
(c) Declare the so-called sale agreement dated 12-8-2001 between the defendants Nos,1 and 3 along with its Annexures and schedule thereto and all receipts, understandings, documents pertaining to the authorities to be unlawful,. Fake, false, fabricated, fraudulent, sham, illegal, unforcible.
(d) To direct the defendants Nos.1 and 2 to deliver and hand over peaceful and vacant possession of the suit property to the plaintiff.
(e) Any other better or further relief's which this Honourable deem fit and proper under the circumstances of the case.
(f) Cost of the suit.
9. ' The first contention of the counsel for defendant No,1 is that the sale agreement dated 8-7-1987 was made between defendant No,2 and plaintiff. The defendant No,2 has signed the said agreement on the basis of power of attorney given by Malik Fayyaz Ahmed. He stated that the property being that of defendant No,1 company, the sale agreement dated 8-7-1987 did not bind the company. In this respect he has relied upon the case of Mirza Muhammad Ahmed Baig v. Mirza Amjad Baig (PLD 1978 Lahore 421) and the case of Fida Muhammad v. Peer Muhammad Khan (PLD 1985 SC 341). The next point argued by learned counsel for defendant No,1 was that the suit is time- barred inasmuch as the suit has been filed after 16 years of agreement dated 8-7-1987. He has further argued that the suit is barred under Order II, rule 2, C.P.C. As plaintiff has already filed Suit No,1075 of 2002 which was withdrawn by him vide order dated 11-8-2005. He has contended that suit is barred under sections 214 and 215 of Contract Act and in support he has relied upon the case of Rukhsana Yasmeen v. Muhammad Iqbal Mirza (2001 YLR 2759) and the case of Riaz Hussain Shah v. The State (PLD 1995 SC 341). He has further argued that the suit is barred by law as the terms of allotment order prohibit the sale of open land and in this respect he has referred to the provision of section 6(d) of Transfer of Property Act and cited the case of Subedar Manzoor Hussain v. Mst. Mehmooda Begum (PLJ 2004 SC 439).
10. ' On the other hand learned counsel for the plaintiff has contended that all the objections raised by the counsel for defendant No,1 relate to the disputed facts which can only be decided after evidence is recorded. With regard to the objection on the ground of limitation, learned counsel has relied upon Para 32 of plaint and has further contended that the defendant No,1 having taken the benefit of the money received from plaintiff cannot now be allowed to refute the agreement.
11. ' I have considered the submissions of learned counsel for the parties.
12. ' At the outset, it may be noted that the plaintiff in the plaint has alleged that on collapsing of Fayyaz Plaza the allotment rights of defendant No,1 were temporarily cancelled in respect of said plot of land. The plaintiff has further alleged in the plaint that defendant No,1 had filed Constitutional Petition No,2062 of 1995 in this Court and on statement of KDA the matter was decided in, favour of defendants Nos.1 and 2. Neither copy of order passed in the above constitutional petition nor the statement of KDA made in the said constitutional petition have been filed with plaint. The plaintiffs have not alleged in plaint in categorical terms that the temporary cancellation of allotment rights of defendant No,1 were restored by the KDA. No document in this respect has been filed with the plaint. Apparently, in terms of allegations made in the plaint, there was no restoration of allotment of said plot to the defendant No,
1. However, as no argument on this point was advanced by the learned counsel for the parties, therefore, I refrain myself from dealing with this aspect of the matter.
13. ' So far the first submission of learned counsel for the defendant No,1 is concerned, it may be noted that the defendant No,1 is shown in the title of plaint as sole proprietary firm of Malik Fayyaz Ahmed and it is the case of plaintiff that defendant No,2 was appointed as an attorney by Malik Fayyaz Ahmed as a managing director of defendant No,1. Copy of registered power attorney has been filed as annexure P.4 with the plaint which shows that Malik Fayyaz has signed this power of attorney as managing director of Razi Construction Company, the defendant No,
1. No law has been cited before me to show that Malik Fayyaz Ahmed as managing director or sole proprietor of defendant No,1 could not have given the general power of attorney to defendant No,2. -Legally there is no difference between the sole proprietary firm and its proprietor. Firm name is merely a fiction and in fact who matters is its proprietor. Consequently, this objection has no force and same is rejected.
14. ' As regards further submission of learned counsel that the suit is time-barred. The admitted position is that the agreement of sale dated 8-7-1987 tiled as annexure P.5 does not lay down any specific time or date during which the deal was to be finalized. On the other hand no specific date is mentioned by the learned counsel for defendant No,1 on which the plaintiff was put to notice that performance of the agreement is refused. The question of limitation being mixed question of law and fact the same cannot be decided unless evidence is made available on record.
15. ' The next objection of the learned counsel for defendant No,1 was that the suit is barred under Order II, rule 2, C.P.C. As the plaintiff had earlier filed Suit No,1075 of 2002 which the plaintiff has withdrawn. In this respect, it may be noted that plaintiff has filed certified copy of order dated 11-8- 2003 as annexure P.12(a) with the plaint by which the Suit No,1075 of 2002 was withdrawn in which permission was granted to plaintiff to file fresh suit if permissible and maintainable under the law.
16. Such order in my view does not bar the present suit under Order II, rule 2, C.P.C.
17. ' The next contention of learned counsel was that the suit was barred under sections 214 and 215 of the Contract Act. It may be noted that section 214 provides for duty of an agent to communicate with his principal in case of difficulty while section 215 provides for right of principal when, agent deals on his own account without the principal's consent. In the case in hand the defendant No, 1 's proprietor has given a General Power of Attorney to the defendant No,2 in which power to sell the property is also included. It is not pointed out that any of powers laid down in General Power of Attorney was to be exercised by the attorney on taking consent of the donor of the power. My tentative view therefore, is that provisions of sections 214 and 215 of Contract Act have no application to the case in hand.
18. ' The last submission of the learned counsel for the defendant No,1 is that the suit is barred by law as sale of open plot is prohibited by allotment order. Allotment order dated 30-11-1972 is filed with the plaint as annexure P-1 clause 10 of which reads as follows:-- ' "The company shall not sell any open plot/site without construction thereon to any other construction company/firm or any individual unless construction has been completed on the plot/site."
19. ' No specific reply to this objection has been given by the learned counsel for plaintiff who merely stated that the matter requires recording of evidence. It seems from the allotment order that the allotment of the plot was made to the defendant No,1 by the KDA under KDA Disposal of Land and Estate Allotment Regulations 1965. Appendix "C" to these Regulations contains terms and conditions for allocation/ allotment of residential plot/site to construction company for construction/sale of houses and flats in KDA Scheme. Para.1 of Part X of these terms and conditions provide that the construction company/firm shall not be permitted to transfer any open. Plot without construction thereon to any, other construction company/firm or any individual unless construction has been completed on the plots. Paras.6 and 7 of Part-III of the terms and conditions are as follows:-
(6) A lease for 99 years shall be granted by K.D.A. In the name of the individual allottee of the house, allotted by the Construction Companies/Firms on payment of full occupancy value together with ground rent for one year in advance and other dues subject of any clearance certificate from the company firm.
(7) A lease for 99 years shall be granted by the K.D.A. In the name of the Construction Company/Firm in respect of Plots over which multistoreyed flats are constructed by the Company/Firms, on payment of full occupancy together with ground rent for one year in advance and any other dues.
20. In the present case, the defendants Nos.1 and 2. Have entered into an agreement of sale of an open plot with plaintiff which is prohibited by the very allotment order and the Regulations under which the allotment was made. Apparently defendant No,1 through mere allotment does not get any title to the land allotted to it but only got permission to enter upon the land to raise construction of a house or multistoreyed flat and thereafter to sell the same according to Regulations and when construction of houses/flats are completed then only it is entitled to obtained a lease of 99 years only in respect of plot over which multistoreyed flats are constructed and acquired title over the land. Therefore on mere perusal of this condition contained in the allotment order and the Regulations there is a clog on selling/transferring of open land by defendants and no sale of it could be made. The plaintiff has merely made prayer for specific performance of agreement which is for sale of the open land of 1800 sq. Yards out of the total 7830.44 sq. Yards said to be allotted to defendant No,1 by KDA.
21. ' Learned counsel for defendant , No,1 has relied upon case of Sobedar Manzoor Hussain (Supra).
22. Though the facts of the cited case are not similar to the one in hand but as a matter of principle it is laid down by the apex Court that if there is a clog in the purported owners entitlement to the property, he cannot legally transfer the property by sale to any other person. Similar clog is also very much apparent in the present case and therefore the agreement to sell which has to be a contract in order it to be enforceable in law cannot be enforced in view of the specific provision in clause (a) of section 4 of Specific Relief Act as the agreement to sell is not a contract being contrary to the terms and conditions of allotment and Regulations referred to above.
23. Consequently, the agreement to sell the open plot being c contrary to law thus cannot be enforced and the plaint of the suit is liable to be rejected. The application under Order VII, rule 11, C.P.C. Is allowed and plaint is rejected.
24. Plaint rejected.