' SYED ZAWWAR HUSSAIN JAFERY, J.--- This appeal by the leave of the Court, is directed against the judgment dated 3-1-2008, passed by learned High Court of Sindh at Karachi, whereby the revision application, filed by the petitioner, was dismissed.
2. Brief facts of the case are that the appellant had filed a civil suit against the respondent for specific performance and damages pleading therein that he had booked a shop in the project of respondent for a total sale consideration of Rs,2,50,000 with a clear understanding that the respondent will deliver the possession of the shop within three years from the date of booking viz. 4-4-1991. The appellant paid Rs,200,000 to the respondent but the project was inordinately delayed.
However, on completion of the project, the appellant offered balance amount of Rs,50,000 but the respondent failed to hand over the possession to the appellant which resulted in filing of the suit.
The suit of the appellant was decreed vide judgment dated 29-1-2001, whereby the respondent was directed to put the appellant in possession of shop subject to payment of balance sale consideration. The appellant challenged the judgment to the extent that he was not awarded the damages which he sustained on account of delay in handing over the possession. The appeal as well as the revision application filed by the appellant were dismissed.
3. Mr. S. Shahenshan Hussain, learned counsel for the appellant, has submitted that the appellant made the payment of Rs,200,000 to the respondent at the time of booking of the shop on 4-4-1991; that the appellant was not given the possession of the shop within the stipulated period i,e, three years; that the appellant was entitled for damages under section 13(3) of the Sindh Building Control Ordinance, 1979; that the judgments passed by the Courts below suffered from law and are based on misreading and non-reading of evidence; that the appellant suffered damages on account of delay in handing over the possession although through tangible evidence the appellant has proved that the respondent deliberately avoided to hand over the possession to the appellant; that the respondent deliberately prolonged the matter in the Courts below by making applications on flimsy grounds and that the appellant is entitled for relief by way of profit on total amount and the bank interest whichever is higher. Hence the appeal may be allowed.
4. On the other hand, Mr. Mazhar Ali B. Chohan, learned Advocate-on-Record for the respondent, has supported the impugned judgment, opposed the contentions put forward by learned counsel for the appellant and submitted that the separate plea was not taken by the appellant in the suit regarding damages as per section 13(3) of the Sindh Building Control Ordinance, 1979 and that the appellant in his deposition claimed damages and there was no delay in handing over the shop to the appellant. Hence the appeal may be dismissed.
5. We have heard learned counsel for the parties at considerable length and gone through the entire material available on record with their able assistance Leave to appeal was granted on the ground that the appellant while making payment of Rs,200,000 to the respondent booked the shop on 4-4-1991 but he was not given possession of the shop within the stipulated period i,e, three years, therefore, he was entitled for damages under section 13(3) of the Sindh Building Control Ordinance, 1979 apart from performance of contract. We have asked the learned counsel for the respondent to read the provisions of above said Ordinance, he is unable to put forward any legal reply in this regard. For facility of reference, section 13(3) of the Sindh Building Control Authority Ordinance, 1979 is reproduced herein below:-- "Where a building has not been completed by the date mentioned in the (advertisement or offer) and the application under subsection (2) has been rejected, the builder shall be liable to pay interest at such rate not exceeding the rate charged by a Scheduled Bank and in such manner as may be prescribed, to the buyer of the building on the amount of the sale price paid by such buyer for the period by which the completion of the building has been delayed."
' We find the appellant was entitled for such benefits as envisaged under section 13(3) of the above-mentioned Ordinance and refusal to allow such benefits is in violation of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973. The appellant specifically prayed for damages as one of the main relief as there was no alternate prayer in the plaint and this aspect was not considered by the learned High Court while delivering the judgment. Learned trial Court while framing issue No,4 held that the appellant claimed damages in addition to performance. The evidence of the appellant was misread while deciding his claim. The prayer of the respondent manifests from his application through which he sought for correction of errors and in his statement recorded by the learned trial Court this aspect was not duly considered by the learned trial Court as well as by the learned High Court. The grounds urged by the learned counsel for the respondent has no force to withhold the prayer of the appellant. The appellant suffered a lot and remained in mental agony after booking of shop when the possession was not handed over to him within stipulated period i,e, three years. The appellant endorsed the notice to the respondent and then filed a suit. The respondent deliberately lingered on the proceeding to avoid in handing over the possession of the shop. We find that the appellant is entitled to claim damages under section 13(3) of the Sindh Building Control Ordinance, 1979. The prayer made Civil Suit No,179/199 is allowed.
6. For the foregoing reasons, facts and circumstances, the impugned judgment is set aside and the instant appeal having force of law is allowed with cost throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.