' MIAN HAMID FAROOQ, J.--- Messrs Kamran Construction (Pvt.) Limited, petitioner, seeks leave to appeal against judgment and decree dated 7-3-2007 (detailed reasons were given on 2-5-2007, whereby the learned Division Bench of the High Court of Sindh at Karachi dismissed its appeal (H.C.A. No,328 of 2001).
2. Facts of the case, in brief, are that the respondent/plaintiff filed suit seeking decree for performance of the contract, pertaining to Flat No,802, situated at Sea Breeze Marine Drive Clifton, Karachi (hereinafter referred to as 'Flat% injunction and damages, against the petitioner/defendant, inter alia, pleading that pursuant to invitation, which appeared in different newspapers, for booking of luxury apartments in the housing scheme known as "Sea Breeze Marine Drive", he, on 3-7-1987, applied for booking of disputed flat on the prescribed form along with the payment of Rs,10,000. The petitioner confirmed the said allotment, vide letter dated 22-7-1987 and the total consideration price of flat in question was agreed to be Rs,6,40,000 including loan facility of Rs,2,00,000. It was further asserted in the plaint the said loan facility was not arranged by the petitioner; despite that the respondent paid total sum of Rs,5,07,660 through instalments; the petitioner subsequently offered apartments in their project known as "Marine Drive" by inviting applications through publication of advertisements in the newspapers, thereby clearly undertaking that the apartments will be completed by July, 1990 and in case of delay the petitioner will pay to the allottees monthly rent of Rs,7000 per month till its completion. It was claimed by the plaintiff that defendant failed to complete the project by the due date and committed breach of the terms of the agreement (sale of the apartment), therefore, the plaintiff is not only entitled for performance of agreement but also claimed damages. According to the plaintiff no reply was sent to the legal notices issued by him in such as the petitioner refused to accept the installment of Rs,21,100 sent through cheques and various demands made by the plaintiff were turned down and his grievance was not redressed, which necessitated filing of suit. The plaintiff in suit sought following relief:--- "(i) A decree for specific performance against the defendants directing them to execute proper transfer deed of the apartment No,802 Sea Breeze Marine Drive Clifton, in favour of and in the name of plaintiff and in case of refusal by the defendants the honourable Court may kindly direct the Nazir of this honourable Court to do the same.
(ii) A decree for delivery of possession of Apartment No,802 Sea Breeze Marine Drive, to the plaintiff or to his attorney/ Nominee.
(iii) A decree for mandatory injunction restraining the defendants, their servants, successors and assignees from cancelling the allotment of Apartment No,802 Sea Breeze Marine Drive, Karachi situated on Plot No,F1-2, Block-2, Clifton, Karachi of the plaintiff and from transferring giving possession of an executing any transfer deed/title deed of the aforesaid apartment in favour of any other person.
(iv) A decree for Rs,56,000 towards monthly rent payable by the defendant to the plaintiff for not delivering possession of the apartment in time viz. By 31-7-1990.
(v) A decree for further monthly rent of Rs,7000 to be paid by the defendant to the plaintiff w,e,f, 1- 4-1991 to till actual physical and peaceful possession of the suit apartment is given to the plaintiff.
(vi) Any other relief which this honourable Court deem fit and proper be also granted to the plaintiff against the defendants.
(vii) Full cost of the suit"
' The petitioner/defendant contested the suit through filing written statement thereby rejecting plaintiff's claim, highlighted in the plaint, however, it did not deny the payments made by the plaintiff through instalments. It was disputed by the petitioner that it made any commitment to complete the project by July, 1990 or in case of nondelivery of possession within the stipulated period a sum of Rs,7000 was offered to be paid as monthly rent to the allottees and no commitment was given on stamp paper as required in the advertisement.
3. Learned single judge of the High Court of Sindh, Karachi, out of the pleadings of the parties framed the following issues:--- "(1) Whether the defendant committed any breach of contract, if so, what effect?
(2) Whether the plaintiff is entitled to decree for specific performance of the contract?
(3) What should the decree be?"
' The plaintiff appeared as his own witness and supported his claim. He produced certain documents, which were admitted in evidence as Exhs.P.1 to P.12. The defendant examined one Muhammad Naqi son of Ghulam Haider (its authorized officer), who deposed that the plaintiff did not abide by the agreement and delayed payments; newspapers; publications were of the latter date and the cheques was returned because the payment was belated. The learned Single Judge concluded the trial and in the ultimate analysis, after finding that "the plaintiff has discharged his burden of proof. Issue Nos.1 and 2 are answered in the affirmative", proceeded to decree respondent's suit, vide judgment and decree dated 15-9-2001, in the following manner:--- ' In view of the findings on Issues Nos.1 and 2 the suit of the plaintiff is decreed as prayed with costs"
' Petitioner's appeal (H.C.A. No,328 of 2001) was dismissed by the learned Division Bench of the High Court of Sindh at Karachi, vide judgment and decree dated 7-3-200(sic) (detailed reasons were given on 2-5-2007), hence the present petition.
5.(sic) Learned counsel for the petitioner, at the very outset, conceded qua the decree for specific performance and possession and stated that the petitioner has no objection to the execution of decree for specific performance and possession and he challenged the impugned decree only to the extent of awarding of damages for Rs,56,000 towards monthly rent and for future monthly rent of Rs,7000 to be paid by the petitioner to the respondent with effect from 1-4-1991. He submitted that the respondent booked flat, on 3-7-1987, subject to certain terms and conditions attached with the application form and the subsequent offer made through advertisements, appearing in the newspapers dated 17-6-1990 and 18-6-1990 (Exh.P.6 and P.7) regarding non-completion of the project by due date and undertaking to pay Rs,7,000 per month to the allottees was not part of the agreement, which was executed with the plaintiff. He has further submitted that publications in the newspaper (Exhs.P6 and P.7) were related to some other project and those had no nexus with the project, for which the respondent applied for allotment of flat. His further contention is that the respondent failed to prove breach of agreement entitling him for damages and quantum of damages. He concluded his arguments by submitting that decree to the extent of awarding of damages, as noted above, be set aside as both the Courts did not give any reasons for awarding the damages. He has referred to the judgments reported as Ahmed Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. 1993 SCM R 441 and Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991.
6. Learned counsel for the respondent, while refuting the afore-noted contentions, reiterated the contentions raised before both the learned Courts and stated that advertisements appearing in different newspapers (Exhs.P.6 and P.7) were the part of petitioner's contract; that the projects were the same both floated by the petitioner and suit of the respondent was rightly decreed by both the Courts and awarding of damages to the respondent was justified in law. He has added that the petitioner stated on oath that the respondent is entitled for damages in the shape of monthly rent at the rate of Rs,7,000, which portion was not disputed by the petitioner in cross-examination. He has relied upon West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi 1973 SCM R 555 and PLD SC 220/226A.
7. We have heard the learned counsel for the parties and examined the available record. It appears appropriate to reproduce the relevant portion of the decree dated 15-9-2001, challenged by the petitioner. It reads as under:-- "(i) ........................................................................................
(ii)
(iii)
(iv) That the defendants do pay to the plaintiff a sum of Rs,56,000 (Rupees fifty six thousands only) for not delivering possession of the apartment in time viz. By 31-7-1990.
(v) That the defendants do pay to the plaintiff monthly/rent a sum of Rs,7,000 (Rupees seven thousands only) w,e,f, 1-4-1991 to till actual physical and peaceful possession of the suit apartment is given to the plaintiff.
' Although the learned Single Judge passed the decree, as prayed for by the respondent, which included the decree of specific performance of agreement, decree for possession, for mandatory injunction and for damages etc., which was confirmed by the learned Division Bench, yet the learned counsel for the petitioner categorically conceded before us that he did not dispute the decree for specific performance and possession and has stated that the petitioner will extend maximum cooperation in executing the decree for specific performance and possession, for which the respondent has filed the execution petition.
8. In view of the said concession and admission, now we will confine ourselves to the only question as to whether the decree for damages and future damages at the rate of Rs,7000 (as reproduced above), was rightly passed by the Courts below. Obviously, the respondent in his plaint has tried to make out his case for awarding damages under section 73 of the Contract Act. It has been stated in para.7 of the plaint that "defendant committed breach of the agreement (sale of the apartment)". The respondent filed the suit claiming damages while relying upon the provisions of section 73 of the Contract Act. Under the said provisions of law, the party claiming damages has to firstly plead and then prove by sufficient, trustworthy, independent and cogent evidence that the concluded agreement existed between the parties, the other party committed breach of contract, such breach entitled the first party to damages and the foremost factor is quantum of damages.
This Court in the case of Ahmed Saeed Kirmani (ibid), has inter alia held "that a party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of damages. The onus is on the plaintiff and without discharging it he cannot succeed.
Section 73 of the Contract Act prescribes the rule for assessing the damages suffered due to breach of contract." In this context, the case reported as "Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991 can also be referred to.
9. While keeping the above principles in mind, now we come to the present case. As noted above, the respondent did not produce any independent evidence except his own affidavit to prove his case. The respondent also did not lead any evidence to show that the petitioner/ defendant committed breach of contract and that such breach entitled respondent for damages and to what extent. Although the respondent has stated in his affidavit that in view of the commitments of the petitioner made in the newspapers i,e, Daily Dawn of 18-6-1990 and Daily Jang of 18-6-1990 (Exhs.P6 and P7), he is entitled to claim damages, yet his solitary statement is not sufficient to grant him the claimed amount. His only case is that as the petitioner undertook through the aforesaid advertisements that in case it would not be able to complete the project, it would pay sum of Rs,7000 per month as monthly rent to allottees, therefore, he is also entitled for damages at that rate and according to that parameters. The respondent filed the application for the allotment of flat on 3-7-1987 and both the parties are relying upon the said document. Terms and conditions attached to the said application do not state that in case of non-completion of flat in question/and non-compliance of the terms and conditions, the respondent is entitled to claim damages and if so at what rate. Clause 8 of the terms and conditions states that it is expected that project will be completed in 36 months, however, the progress will depend upon the flow of instalments and unforeseen circumstances etc. Thus it is clear that the said terms and conditions do not provide any compensation or measure of damages.
10. Now the question arises as to whether the aforesaid publications/advertisements (Exhs.P.6 and P.7) are part of the agreement dated 3-7-1987 entered between the parties. As noted above, the application is dated 3-7-1987, while admittedly the advertisements are dated 17-6-1990 and 18-6- 1990 (Exhs.P6 and P.7), both the learned C counsel admit that there is no dispute about the dates of those publications appearing in different newspapers. The said advertisement do not even feebly indicate that the attractions/offers/commitments and undertakings incorporated therein will also be applicable to the preceding agreements executed between the petitioner and other customers.
In view of non-mentioning of the said necessary condition, the publications (Exhs.P.6 and P.7) cannot be read as part of the respondent's agreement dated 3-7-1987 and in the absence of such a specific stipulation in the advertisements, the terms whereof could not be applied retrospectively.
In our view the stipulations highlighted in the advertisements were neither attracted nor applicable in the case of respondent. So it is held that the parties were governed only by the terms and conditions attached with the application form dated 3-7-1987, signed by the parties and guarantees/assurances given in the publications were not the part of the agreement of the respondent. It is pertinent to mention here that in response to a Court question viz. As to whether this is a case of "novation of contract", both the learned counsel categorically stated that they did not press into service section 62 of the Contract Act as no case of novation of contract was made out by either of the parties.
11. We have noticed that learned Single Judge, while concerning respondent's suit in its totally, aid not give any findings about breach of contract, the entitlement of the respondent to claim damages on the basis of such breach and the extent of damages and after having findings on Issues Nos.1 and 2 straightway decreed the respondent's suit as prayed for. Similarly the learned Division Bench of the. High Court did not state any reasons for confirming the decree for damages.
12. In the above perspective, we have examined the impugned judgment and find that the same, to the extent of awarding in the shape of monthly rent at the rate of Rs,7000 and future monthly rent is not sustainable in law and thus we are persuaded to set aide that portion of the decree.
13. For the foregoing reasons, the present petition is converted into appeal, same is partially allowed and the judgments and decrees of both the Courts dated 15-9-2001 and 2-5-2007 to the following extent are set aside.
"(a) That the defendants do pay to the plaintiff a sum of Rs,56,000 (Rupees fifty-six thousands only) for not delivering possession of the apartment in time viz. By 31-7-1990.
(b) That the defendants further do pay to the plaintiff monthly rent a sum of Rs,7,000 (Rupees seven thousands only) w,e,f, 1-4-1991 to till actual physical and peaceful possession of the suit apartment is given to the plaintiff."
14. Before parting with the judgment, we direct the learned executing Court, before whom the execution petition is reportedly pending, to execute the decree of specific performance and possession within a minimum possible period and ensure delivery of possession of flat in question to the respondent without any further loss of time. The petitioner is also directed, as undertaking by it before this Court, to extend maximum cooperation and aid in getting that portion of the decree executed.