1. Javed Iqbal, J.--This appeal with leave of the Court is directed against ,the judgment dated 13.7.2001 whereby civil revision petition preferred on behalf of petitioner has been dismissed.. Leave granting order-dated 3.6.2002 is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- ''The Capital Development Authority (C.D.A.) Islamabad authorized M/s. Naqson Rawalpindi respondent herein, for construction of small size houses in Sector 1-9 Islamabad, for allotment to Displaced Persons of Islamabad and others vide agreements dated 19.8.1970 and 19.2.1974.
2. Muzaffar Islam Malik respondent was allotted Plot bearing No, 396 measuring 25X60 sq. feet. 1-9, Islamabad in 1975. The allottee in .addition to the payment of price of Plot to the C.D.A. also paid an amount of Rs, 11850/- to Respondent No, 3 in installments in connection with cost of construction and as per agreement, the remaining payment was to be made by the Respondent No, 1 on arranging loan from House Building Finance Corporation but on failure of Respondent No, I to make the payment of outstanding dues till 1984, the CDA taking notice of his default cancelled the provisional allotment of the plot in is his name vide order dated 11.6.1984 and later on the recommendation of Wafaqi Mohtasib restored in the name of M/s Naqson and further allotted to the present petitioner on her nomination made by M/s Naqson. The petitioner having entered into an agreement with CDA made payment of the dues of the CDA as well as M/s Naqson and was delivered possession of the house. Muzaffar Islam Malik on coming to know about the development taken place filed a civil suit in 1988 and learned Civil Judge, Islamabad, decreed the suit for Rs, 2,66,666/-and Rs, 11,850/- The decree holder (Respondent No, 1 herein) being dissatisfied with the manner of disposal of suit preferred an appeal against the judgment and decree passed by the learned trial judge and a learned Additional District Judge Islamabad vide judgment dated 10.5.2001 allowed the appeal with the observation that Respondent No, 1 was lawful allottee of plot and his allotment was liable to be restored subject to the payment of balance cost of construction.
3. Mst. Surriya Parveen, the petitioner, challenged the judgment of Appellate Court in the High Court through a Civil Revision Bearing No, 406/D/2001 and a learned Single Judge of the. High Court while upholding the judgment in appeal dismissed the revision petition in limine vide judgment dated 13.7.2001. The petitioner has preferred this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973, seeking leave to appeal against the judgment of the High Court. Learned counsel for the petitioner has contended firstly, that Respondent No 1 having failed to make payment a per schedule of payment, became defaulter and despite repeated notice given to him by Respondent No 3 through the counsel he did not bother to discharge his liability and consequently CDA after issue of notice on 11.4.1984 proceeded to cancel the plot vide order dated 11.6.1984. Secondly, as per terms of the agreement of Respondent No, 1 with CDA in case of non payment of cost of construction as per schedule of payment given therein, the provisional allotment was liable to be cancelled and the same was cancelled for violation of this essential condition of the contract but the Appellate Court as well as the High Court were misdirected in coming to the conclusion that Respondent No, 1 was still lawful allottee. Thirdly, the suit for specific performance of the contract was filed on 25.5.1988 whereas as per contents of the plaint cause of action arose in four of Respondent No, 1 on 11.6.1984, therefore, the suit was hopelessly barred by time but the Courts below while treating it a suit for declaration held that it was within time.
4. Fourthly, the two Courts ignored to take notice that equity would not favour to Respondent No, 1 in the given facts.
5. The Respondent No, 1, who is present in Court in person, has submitted that allotment in his name was cancelled without giving him a proper notice and that the construction work was not completed by the Respondent No 3 as per commitment with the result that payment as per schedule given in the agreement, was withheld.
6. We find that the important issue relating to right of ownership of the house in dispute and the question that equity would favour to which party, was not properly attended to by the High Court.
7. We, therefore, to examine these questions grant leave to appeal in this petition. Meanwhile, the parties shall maintain the status quo."
2. Heard Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant and Syed Ali Hassan Gillani, learned ASC for Muzaffar Islam Malik (Respondent No, 1). None appeared on behalf of CDA (Respondent No, 2) inspite of notice: M/s Naqson Commercial Centre, Satellite Town, Rawalpindi also remained unrepresented. Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant has argued with vehemence that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice and the Courts below have failed to understand exactly the inter se relationship between CDA and that of M/s Naqson Commercial Centre (Respondent No, 3). It is next contended that the agreement executed between CDA and M/s Naqson Commercial Centre has been misconstrued and misinterpreted. In this regard the Clause 18 and Clause 29 of the agreement have been referred time and again. It is argued that the plot in favour of Mr. Muzaffar Islam Malik (Respondent No, 1) was cancelled as he could riot honour the obligations and failed to make the payment qua construction of the house in question to the Naqson Commercial Centre (Respondent No, 3). It is also contended that Muzaffar Islam Malik (Respondent No, 1) had no right to retain the plot in his possession which was cancelled by the CDA and was restored by learned Wafaqi Mohtasib in favour of Mst. Surriya Parveen (appellant) after having gone through all the pros and cons of the controversy which was never challenged by Mr. Muzaffar Islam Malik (Respondent No 1) and therefore by now it 'has attained finality. It is pointed. out that Mst. Surriya Parveen (appellant) has fulfilled her contractual obligations and the possession of house in question has been delivered and being bona fide purchaser no adverse order could have been passed against her.
3. Syed Ali Hassan Gillani, learned ASC entered appearance on behalf of Mr. Muzaffar Islam Malik (Respondent No, 1) and vehemently controverted the stance of Mr. Muhammad Munir Peracha, learned ASC for appellant by supporting the judgment impugned for the reasons enumerated therein with the further submission that the plot in question could not have been cancelled by the CDA without affording proper opportunity of hearing causing serious prejudice against Mr. Muzaffar Islam Malik (Respondent No, 1) by whom the entire amount was paid of CDA and the construction charges could not be paid to the Naqson Commercial Centre (Respondent No, 3) as it failed to construct the house within stipulated period and besides that the construction was not up to the mark.
4. We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire record with the eminent assistance of learned counsel and perused the judgment of learned trial and appellate Courts as well as the judgment impugned. There is no denying the fact that plot in question was allotted at first instance in favour of Muzaffar Islam Malik (Respondent No, 1) by whom an amount of Rs, 2,66,666/- was paid to CDA which culminated into an agreement dated 31.7.1975 (Exh.D-2) between CDA and Muzaffar Islam Malik which was also got registered and physical possession was handed over on 26.6.1975. Muzaffar Islam Malik (Respondent No, 1) also got sanctioned loan from House Building Finance Corporation after getting the approval of CDA which means that all the mandatory formalities to get physical possession of the plot in question were completed. It can thus safely be inferred that allotment of the plot in question was confirmed by the CDA. Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant was asked pointedly that how the plot in question could have been cancelled by the CDA that too without issuance of any notice and affording proper opportunity of hearing but no satisfactory answer could be given except that notice for cancellation was given by the Naqson Commercial Centre (Respondent No, 3) which in our considered view had no power whatsoever for the cancellation of plot duly allotted by CDA. The Naqson Commercial Centre (Respondent No, 3) at the best could have retained the possession of the house in question constructed on the plot till realization of the entire amount. It is worthwhile to mention here that Muzaffar Islam Malik (Respondent No" 1) had given a cogent and concrete reasoning for not making the payment in his letter (Exh.P-6) relevant portion whereof is reproduced herein below for ready reference:-- "Under restrictions laid down by the CDA for getting the construction done by M/s Naqson. The said contractor executed a deed with the undersigned. A further amount of rupees five thousand was paid to him. Seven years have elapsed but no progress has been made by M/s Naqson. It is further added that some foundation structure done so far is unsound, requires demolition, as the existing foundation structure cannot take the load of even single story." (emphasis provided)
8. The CDA pursuant to the said letter has not taken any action for the reason best known to it but such careless approach cannot be appreciated. Naqson Commercial Centre (Respondent No, 3) had failed to complete the construction within stipulated period i,e, 31.12.1975 and no action worth the name was taken by CDA against it which indicates that the slackness on the part of Naqson Commercial Centre (Respondent No, 3) was with the connivance of CDA. It is to be noted that Naqson Commercial Centre has not rebutted the above serious allegations but on the contrary had not contested the suit and resultantly ex-parte proceedings were enunciated against it. At this juncture Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant was asked that as to how the plot in question was cancelled by Naqson Commercial Centre, who while answering the question referred Clauses 18 and 29 of the agreement executed between CDA and that of Naqson Commercial Centre. We have carefully examined the Clauses 18 and 29 of the said agreement which are reproduced herein below for ready reference:-- "Clause 18 Allotment of plots will be made by the Authority and the names of allottees will he supplied to the licensee within one month after the expiry of two months from the date of execution of this agreement.
9. Clause 29 The licensee shall not make any addition or alteration in the list of 117 persons supplied to the Licensee and contained in Annexure 'A' to this agreement duly signed by the parties without permission of the Authority in writing subject' to such conditions as may be imposed by the Authority."
10. A bare perusal of the above Clauses would reveal that the same have been couched in a simple and plain language and no interpretation whatsoever is required. We have no hesitation in our mind to hold that Naqson Commercial Centre was not empowered to cancel the plot in question.
11. In so far as the order dated 11.6.1984 passed by the learned Wafaqi Mohtasib is concerned, Muzaffar Islam Malik (Respondent No, 1) was not party to it and as such it could not be made applicable to him and besides that he was never impleaded as such the order passed against him cannot be considered binding up to his extent.
12. In sequel to above-mentioned discussion the judgment impugned being well based does not warrant interference. It is further considered essential to observe that Mst. Surriya Parveen (appellant) had fulfilled her contractual obligations and being a bona fide purchaser her interest I must be protected by the CDA and the actual amount of the construction should be determined and the amount deposited by Mst. Surriya Parveen be returned to her without loss of time and preferably some constructed house in the same scheme if lying vacant be allotted in her favour as it would be in the interest of justice, fair play and equity.
13. The appeal being devoid of merits is dismissed.