' This order will dispose of C. M. As. 1043/78, 882/80 and 771/78 of Suit No, 155/78, C. M. As. 772/78, 284/80 and 1040/79 of Suit No, 156/78 and C. M. As. 883/80 and 1041/78 of Suit No, 323/78. The brief facts leading to the filing of the above three suits and the above applications are that the plaintiff in each of the above suit on or about 24th December. 1974 accepted/purchased from defendant No. 1 a residential apartment in the project known as "Dilkhusha Apartments" for a sum of Rs, 1,55,000 to be paid in terms of clause under the caption "costs and terms of payment", which reads as follows :- "Cost and Terms of Payment ' The cost of the apartment including the cost of land, a garrage and a servant room on the basement for each apartment is Rs, 1,55,000. Cost is payable in the following manner :-
(1) Rs, 40,000 with application.
(2) Rs, 20,000 in the first week of April 1975.
(3) Rs, 20,000 in the first week of July 1975.
(4) Rs, 20,000 in the first week of October 1975.
(5) Rs, 10,000 in the first week of January 1976.
(6) Rs, 10,000 in the first week of April 1976.
(7) Rs, 10,000 in the first week of July 1976.
(8) Rs, 10,000 in the first week of October 1976.
(9) Rs, 15,000 in December, 1976 before taking over possession of the flat.
2. It seems that defendant No. 1 through their letter dated 18th November 1976, suggested changes in the specification, some of which ere compulsory and some of them were optional. The former category evolved additional amount of Rs, 11,593 and the latter category evolved additional expenditure of Rs, 9,754. It was also pointed out by defendant No. 1 in the above letter that due to increase in the material at 11% per annum for a period of two years, they were entitled increase the price by Rs, 30,653. It may be observed that under the rms of the allotment, defendant No. 1 had reserved the right to crease the price on account of increase in the costs of the materials.
' In response to the above letter dated 18th November 1976, the plaintiff disputed the right of defendant No, I to increase the price. According to the averments in the plaint, defendant No. 1 served a notice dated 22nd June 1977. Calling upon each of the plaintiffs in the above suits to pay Rs, 67,000. It seems that the plaintiffs did not make any payment upon the receipt of the above notice. Consequently, defendant No. 1 cancelled the allotment through their letter dated 9th July 1977. After that the plaintiffs of the above 3 suits filed 3 suits in the Court of Civil Judge at Karachi, namely Suits Nos. 1033/77. 1034/77 and 1035/77 for declaration and permanent injunction and also obtained interlocutory orders upon their application under Order XXXIX, C. P. C. Against defendant No. 1. It may be observed that in response to the service of the summons of the above suits and the notices of the injunction applications, defendant No. 1 filed a counter-affidavit, in each of the said suits, in which it was disclosed that the apartments in question were already allotted to defendant No, 2 in each of the above suits. Thereupon, the plaintiffs did not press their injunction applications in the aforesaid 3 suits filed in the Court of Civil Judge.
3. After that the plaintiffs filed the present suits in February 1978 along with above applications under Order XXXIX, rules 1 and 2, C. P. C. And obtained ad interim injunctions for restraining defendant No. 1 from handing over the possession of the flats to defendant No, 2 of the above suits.
In Suit No, 323/78 my learned brother Zaffar Hussain Mirza, J. On the basis of the statement of the learned counsel for defendant No. 1 confirmed the status quo order on the condition that the defendants may move an application under Order XXXIX, rule 4, C. P. C. For the vacation of the above order, whereas in the other two suits ad interim orders have not yet been confirmed. In all the 3 suits defendant No, 2 have filed applications under the latter provisions for vacation of injunction. Whereas the plaintiffs have filed applications under Order XXXIX. Rules 1 and 2, C. P. C.
Read with section 151, C. P. C. In Suits Nos. 156/78 and 322/78, praying therein, that defendant No. 1 be directed to hand over the flats to the plaintiffs in the alternative defendant No, I be restrained from handing over the same to defendant' No, 2.
' The defendants have filed counter-affidavits/written statements Defendant No. 1 have inter alia taken the pleas that the suits are no competent, because of the earlier suils filed in the Court of Civil Judge that the agreements are void as the plaintiffs in Suits Nos. 155/78 an 156/78 are admittedly minors and, therefore, were not competent enter into the agreements. Defendant No, 2 in the above three suit have also raised similar pleas. It has also been pleaded by them the they are bona fide purchasers without notice.
4. (a) Mr. Liaquat Merchant, learned counsel for defendant No, 2 each of the above suits has urged the following points :-
(i) That the agreements are void as the plaintiffs in Suits Nos. 155/ and 156/78 are minors who could not have entered into agreement
(ii) That the present suits are barred by Order 11, rule 2, C. P. C.
(iii) That defendant No, 2 are protected under section 27 (b) of t Specific Relief Act.
' Whereas it has been urged by Mr. Rehmani, learned counsel for the plaintiffs-
(i) that the agreements are enforceable as they were entered into by the guardians for the benefit of the minors and not by the minors themselves ;
(ii) that Order II, rule 2, C. P. C. Is not attracted to the instant suits as the Civil Judge Court had no pecuniary jurisdiction to grant the relief for specific performance and that fresh cause of action accrued to each of the plaintiff upon the disclosure by defendant No. 1 in their counter-affidavit that they had allotted flats to defendant No, 2;
(iii) that defendant No, 2 cannot press into service the provision of section 27 (b) of the Specific Relief Act, as they are not bona fide purchasers without notice.
(b) Reverting to the first contention of Mr. Liaquat Merchant that the agreements are not enforceable as the same were entered into by the minors, it may be observed that he has referred to the cases reported in I L R 1930 Cal. 539 and in I L R 19 Lah. 313 and the case of Abdur Rehman v.
Abdul Haq and others (1). It will suffice to observe that a contract entered into by a minor is nullity in law. However, it was urged by Mr. Rehmani, learned counsel for the plaintiffs that the above principle has no application to the instant suits for reason that the agreements in question in Suits Nos. 155/76 and 156/78 were signed by the fathers of the minors as the natural guardians for the benefit of the minors. He has referred to the case of N. Sankaraharayana Pillayan and others v. The Board of Commissioners for the Hindu Religious Endowments, Madras and another (2), the case of Mst. Amanat v. Mahboob Hussain (3) and the case of Mohammad Mursaleen v. Syed Noor Mohammad Hussaini (4). In the above cases inter alia a distinction was made between a contract entered into by a minor and contract entered into by a guardian for the benefit of a minor. It has been held that the contract to purchase a property on behalf of the minor entered into by a guardian is enforceable if the guardian is competent to enter into such a contract under the personal law of the minor. It has been pointed out by Mr. Liaquat Merchant that in the plaints of the aforesaid two suits, there is no plea to the effect that the agreements were executed by the fathers as the guardians on behalf of the minors in question. However, according to Mr. Rehmani A this can be inferred from the averment in para. 2 of the plaint. It may be observed that at this stage, I would not like to express any opinion on the above point definitely. However, it will suffice to observe that there I no such express plea.
(c) Reverting to the contention of Mr. Liaquat Merchant that the suits in question are barred by Order II, rule 2, C. P. C. Because of the aforesaid prior suits filed by the present plaintiffs in the Court of Civil Judge Karachi, it may be observed that the reliance has been placed on the case of Hoosain Bux and others v. Dur Muhammad and others (5) {{FOOT NOTE}}
(1) PLD 1960 Kar. 625 (2) PLD 1947 P C 304
(3) PLD 1969 Kar. 362 (4) PLD 1968 Kar. 163 (5) PLD 1963 Kar. 96?
(d) {{FOOT NOTE}} and the case of Abdul Latif Sahib and another v. Bathula Bibi Ammal (1). In the first case it has been held that where a person sues another person for specific performance of an agreement to sell and subsequently on the basis of the same agreement sues for possession, the second suit would be barred by Order II, rule 2, C. P. C. But if the second suit is based on the causes of action flowing subsequent to the execution of the conveyance deed, the second suit is competent. The same view found favour with a Division Bench in the above Madras case. On the other hand it was urged by Mr. Rehmani, that fresh cause of action accrued to the plaintiffs after the filing of the aforesaid 3 suits upon the discovery of the fact that the apartments had been allotted to defendant No, 2 in the above suits, on the filing of the counter-affidavits, and that the former Court was not competent to grant the relief for specific performance as the value of each of the flats was more than pecuniary jurisdiction of the said Court. Without expressing on the above contention definitely, C it will suffice to observe that Mr. Liaquat Merchant's above contention is not devoid of any force.
(d) Reverting to the third contention of Mr. Liaquat that defendant No, 2 in all the suits are bona fide purchasers and are protected under section 27. Clause (b) of the Specific Relief Act, it may be observed that on the other hand it was urged by Mr. Rehmani that .Defendant No, 2 had the knowledge of the disputes between plaintiff and defendant No. 1 and that they are in collusion. It was further urged by him that defendant No, 2 in Suit No, 155/78 is closely related to the Directors of defendant No. 1. It may be observed that no relationship between defendant No, 2 of the remaining two suits and the Directors of defendant No. 1 has been pointed out by Mr. Rehmani. Futhermore, even in Suit No, 155,78, no specific plea about the relationship has been raised in the plaint and that the above plea has been raised in rejoinder. It may be observed that it will not be appropriate to comment upon the merits of the above plea. However, it will suffice to observe that learned counsel for defendant No, 2's above contention is not withont force.
5. It is an admitted position that before the plaintiffs in the above three suits filed their earlier suits in the Court of the Civil Judge at Karachi defendant No. 1 had already allotted the flats in question to defendant No, 2 of the three instant suits after receiving Rs, 80,000 from each of the above defendants. It seems that defendant No. 1 are willing to give the possession of the flats to defendant No,
2. If the status quo order shall continue, the effect will be that the flats shall remain lying vacant for a number of years. In my view, it will be just and proper to vacate the orders with the condition that defendant No. 1 may hand over the possession of the flats to defendant No, 2, who shall use the same for themselves, but shall not let out or part with the possession of the same or create any charge or encumbrance without the permission of this Court. It may be observed that defendant No, 2 in the above 3 suits in their affidavits have averred that they have purchased the flats for their personal use. I accordingly discharge status quo order/ad interim order on the aforesaid condition. The applications referred to hereinabove in para. Stand disposed in the above terms.
Ad interim . {{FOOT NOTE}}
(1) AIR 1914 Mad. 360 {{FOOT NOTE}}