' SALMAN HAMID, J.--- Khan Muhammad, son of Ramzan Khan, (Appellant), through his attorney filed Civil Suit No,251 of 2006, (Suit) before this court on its original side against Abdul Wakeel Khan, Abdul Khaleel Khan, Abdul Jameel Khan, Abdul Zahid Khan, Abdul Shahid Khan, Mst. Irshad Begum and Abdul Rasheed Khan, sons and daughter of late Abdul Saeed Khan, (Respondents) for recovery of pagree amount of Rs,535,000 (appreciated with time to Rs,4,000,000) in respect of Shop No,1 constructed on 1/8 Commercial Area, Saeed Cloth Market, Liaquatabad, Karachi, (the Shop) from which he (Appellant) was evicted through process of law/court.
2. On 17-11-2008 an Order was passed in the suit, requiring the appellant to explain its maintainability as recovery of the pagree amount had been sought which according to the aforementioned Order was foreign to provisions of Sindh Rented Premises Ordinance, 1979, (1979 Ordinance). Among other dates the suit came up for hearing on maintainability of the Suit on 5-3- 2010 when in terms of Order dated 19-3-2010, [announced on 29-3-20101 (Impugned Order), the Suit was dismissed by a Single Judge, holding that since suit shows that the whole matter is based against the terms and conditions of tenancy which existed between the landlord (late father of respondents Nos.1 to 7) and the appellant and terms of pagree was not maintainable under the Rent Laws, the suit was not maintainable.
3. In this backdrop of dismissal of the suit, it was argued by the learned counsel for the appellant that the Impugned Order is per incuriam in that the learned Single Judge failed to appreciate that the provisions of section 65 of the Contract Act, 1872, (Contract Act) provides that when an agreement is discovered to be void, or when a contract becomes void any person who has received any advantage under such agreement or contract is bound to restore or to make compensation to the person from whom he received it. Therefore, it was urged that the learned Single Judge failed to appreciate, discuss or distinguish the various precedents cited to elaborate and support the above provision of the Contract Act and resultantly came altogether to a wrong conclusion in dismissing the suit. It was also asserted that the learned Single Judge and/or the order dated 17-11-2008 regarding maintainability of the suit was an outcome of a wrong impression that the right to recover pagree amount emanated from the rent proceedings and/or the rent agreement between the appellant and respondents. It was also argued that there was sufficient material available on the record of the Suit showing admission on the part of the respondents of receipt of pagree of the Shop and/or that the system of pagree was in vogue. It was also mentioned that in the suit on 22-8-2008 as many as fifteen issues were proposed and Issue No,7 specifically proposed, whether Abdul Jaleel Khan (respondent No,3) accepted that in the market where the Shop was located had pagree system? This, it was implored by the learned counsel for the appellant by itself was a question to be determined in the suit after evidence. The suit, therefore, it was asserted, could have not been dismissed in a summary manner. In support of his arguments, learned counsel for the appellant relied upon the case of Pakistan v. American President Lines Ltd. And others (PLD 1962 W.P. Karachi 87), Eastern Federal Union Insurance Company Ltd. v. Bawany Industries Ltd., Karachi (1979 CLC 321), Hyderabad Municipal Committee v.
Jaweed Murtaza Khan (1986 MLD 1410), Abdul Razzak & Company v. Assistant Collector of Customs (Appraisement), Karachi and another (PLD 1993 Karachi 227), Mustafa Kamal and others v. Daud Khan and others (2009 SCMR 221), Afaq Ahmed v. Government of Punjab and another (PLD 1992 FSC 286), Shehnaz Begum v. Ikhlas Ahmed (1990 CLC 904) and Muhammad Sharif v. Iftikhar Hussain Khan (1996 MLD 1505).
4. Resisting the appeal and supporting the Impugned Order, learned counsel for the respondents argued that no tangible evidence regarding payment of pagree to the respondents or their late father was produced by the appellant either in the suit or in the rent proceedings which went upto the apex level or it was established to the hilt that pagree system was on in the market where the Shop was located. It was also asserted that nothing was stated or shown in either of the proceedings i,e, rent and the Suit as to before whom allegedly the amount of pagree was paid and who were the witnesses to such alleged payment of pagree.. It was also argued that for the first time in the suit allegation for recovery of payment of pagree in respect of the shop was raised by the appellant. The learned counsel for the respondents also asserted in supporting the Impugned Order that since no cause of action accrued to the appellant and also the fact that the suit was barred, it was rightly dismissed as not maintainable. Under such circumstances, it was argued by the learned counsel for the respondents that the present appeal is liable to be dismissed outrightly.
5. Argument heard. Record perused and the precedent cited by the learned counsel for the appellant gone through.
6. It may be observed that late Abdul Saeed Khan, father of the respondents had entered into a rent agreement of the shop in or about 1985 with one Mst. Ishrat Ara Begum, also admitted by the appellant in the suit. It is also mentioned in the Suit that the appellant got possession of the shop after change of receipt in his name from the name of Mst. Ishrat Ara Begum. It is also evident from the Suit that the appellant after change of receipt of Rs, 200 from Mst. Ishrat Ara Begum, allegedly paid pagree amount to her. In this view of the matter, prima facie it came on record that pagree of the Shop had been paid by the appellant and/or at the time of change of receipt of the shop from the name of Mst. Ishrat Ara Begum pagree was received by the late father of the respondents. It is also patent from Annexure 'A' [page 35 to the Appeal] that Suit No,571 of 1999 before Xth Civil Judge, Karachi was filed by appellant against the respondents for permanent injunction with allegation that the respondents had been trying to dispossess him, [appellant] from the shop otherwise than in due process of law, which suit too mentioned about payment of pagree of the shop and that such suit was disposed of on 11-5-2000 when it was mentioned by respondents that appellant would not be dispossessed from the shop otherwise than in due process of law and by that time Rent Case No,625 of 1999 had been filed for eviction of the appellant from the shop. It may be worthwhile to mention that in the written statement that was filed by the respondent in Suit No,571 of 1999 with regard to the payment of pagree of the shop, it was only stated that they [respondents] had no knowledge of payment of pagree by the appellant to Mst. Ishrat Ara Begum whereby the receipt of the shop was changed.
7. It is also evident from the narration of the plaint in suit that the appellant mentioned payment of pagree of the shop and to substantiate such payment it was categorically in paragraph 9 stated that the respondent No,3 admitted that pagree system was in vogue in the market where the shop was located. Above analysis of the case and/or, history thereof would show that prima facie pagree system in the market where the shop was, located was in vogue and perhaps for such reason it appears that pagree of the shop was also received; all of which required evidence, more particularly when issue in such respect was also framed in the suit.
8. Coming to the various citations, relied upon by the learned counsel for the appellant, it may be noted that in the case of Pakistan v. American President Lines Ltd. And others it was held by this court that since the execution of contract between the parties was established, we have found that it was within the limitation prescribed it was held therein that irrespective of contract be unenforceable or void within the meaning of section 2(g), aggrieved party can claim compensation under section 65 of the Contract Act. Similarly, in the case of Eastern Federal Union Insurance Company Ltd. It was held attested copy of the insurance policy was good enough to claim insurance amount, exercising power under section 65 of the Contract Act and that the contract not enforceable because of violation of any provision of law was neither immoral nor illegal and person deriving benefit under such contract was liable to restore benefit or to pay compensation in respect thereof. In the case of Hyderabad Municipal Committee this court held that party to whom any service had been rendered or goods had been delivered under such agreement must return the same or compensate party who had rendered service or delivered goods and the fact that agreement was void from its inception would not come into the way, claiming compensation under section 65 of the Contract Act. In the case of Abdul Razzak & Company, this court held that where buyer of delivery of goods to him had found out that goods so delivered were not in accordance with the sample he was not bound to accept such goods and could maintain suit for refund of earnest money in spite of the fact that the goods purchased were opposed to public policy and void and in such cases the plaintiff would be entitled to refund the earnest money in view of section 65 of the Contract Act. In the case of Mustafa Kamal and others, it was held by the apex court that when the contract becomes void benefit received by person is to be restored to the other party when either there was any defect in the contract or it was void and it was further observed that merely subsequentoact taking place after eight years of finalization of the contract and there being no evidence regarding consideration or some blank cheques which were not honoured subsequently and there being no evidence on their behalf taking such plea after eight years, beyond period of limitation was of no use to the party.
9. In the suit, it is yet to be proved by way of leading evidence, if there was in vogue the system of pagree in the market where the shop was located or that whether pagree was received by the late father of respondents of the shop. The learned Single Judge seems to have misguided in holding that since pagree was akin to Rent Law, same could not be agitated inasmuch as appellant's case was that under section 65 of the Contract Act the respondents were under obligation to compensate the appellant for the benefit they (respondents) derived under the void agreement (receipt of pagree).
10. For what has been observed above, we allow this appeal and restore the suit to the file.