' FAROOQ ALI CHANNA , J.---Through this second appeal, the appellant has called in question the concurrent findings of two courts below, whereby learned IV Senior Civil Judge Karachi-South (hereinafter referred as trial court) has partly decreed the Suit No, 1624 of 2003 (old Suit No, 974 of 1991) filed by the respondent against the appellant vide judgment and decree dated 13-7-2006 and 17-7-2006 respectively, maintained by learned VII Additional District Judge Karachi-South vide judgment dated 2nd April, 2008 passed in Civil Appeal No, 163 of 2006.
2. Briefly the facts of case are that the respondent filed suit for declaration, permanent injunction, possession and mesne profits, asserting that on approach of appellant a hire purchase agreement dated 26th May 1989, containing mutually agreed terms and conditions was executed between the parties, whereby the respondent had agreed to sell and appellant had agreed to acquire the restaurant site in project being Unit Nos.SB-2 & A-2 against total consideration of Rs, 14,00,000(Rupees fourteen lacs) out of which 50% was to be paid before possession and balance 50% was payable in 60 equal monthly installments together with markup at bank rate. The respondent on receipt of 50% amount handed over the physical possession of unit to the appellant, however, the appellant failed to pay the balance 50% of total consideration and abide other terms and conditions of agreement. Dated 26th May, 1989, therefore the respondent filed the suit with following prayers:--
(A) Decree for possession of Unit Nos. SB-2 & A-2, Sea Breeze Plaza, constructed on Plot No,ST-6, situated at Shahra-e-Faisal, Karachi.
(B) A decree in the sum of Rs,2,10,000 being the mesne profit for use, occupation and enjoyment of the area not belonging to the defendant under the Agreement.
(C) To decree future mesne profits at Rs,10,000 per month from the date of suit till vacation of the entire encroached area and its restoration to the plaintiff.
(D) A declaration that for reasons of the breaches of the contract committed by the defendant the agreement dated 16-3-1989 stands cancelled and the amount paid so far by the defendant stands forfeited.
(E) A permanent injunction against the defendant, his agents, representatives and any other persons claiming though or under him and/or driving or claiming any right or interest in the property or part thereof not to use, occupy and enjoy in any manner directly or indirectly an area, portion or place not sold or included in the apartment and meant for common use of the other occupants of the Building or by the children.
(F) A direction to the defendant his, agents, servants representatives at site to restore, deliver and handover to the plaintiff or its duly authorized representative all equipments games and other material, fitted/installed at the children platform.
(G) Cost of the suit.
(H) Any other reliefs, directions which this Hon'ble Court may deem appropriate under the circumstances.
3. The appellant contested the suit and filed his detailed written statement, denying all the adverse allegations, contentions and averments levelled against him, the appellant had further stated that he had never defaulted in payment of subsequent installments or violated the terms and conditions of agreement dated 26th May, 1989.
4. The trial court after framing 8 issues, recorded the evidence led by both the parties and after hearing the learned counsel decreed the suit of respondent partly to extent of prayer clauses "A" and "D" only, upheld by the Court of 1st Appeal as referred herein above.
5. Learned 'counsel for the appellant has contended that both the courts below did not consider the unquestioned major concrete parts of evidence of appellant, ignored the precedents of superior courts and statutory provision of law as such the impugned judgments were passed against the spirit of law. Learned counsel has further contended that appellant through legal notice dated 22-8-1991 offered the payment of balance amount to the respondent within time frame mentioned in agreement, the respondent has not denied the service of notice yet the courts below did not consider the above un-rebutted fact. The court below also failed to consider the object of filing the above suit as counter blast of proceedings filed by appellant against the respondent which are pending ,adjudication before the Hon'ble Supreme Court. The main contention of learned counsel was that the respondent under the contract act was bound to serve notice upon the appellant before cancelling the agreement, the respondent has failed, as such the suit was not maintainable hence the impugned judgments and decrees are liable to be set aside. In support of his contentions learned counsel has relied upon the cases reported as M.S. Kailasanda Serma v.
The President, District Board, Tanjore (AIR 1928 Madras 211) and Pakistan Industrial Development Corporation v. Aziz Qureshi (PLD 1965 (WP) Karachi 202).
6. Conversely, learned counsel for the respondent has argued that the judgments and decrees passed by the courts below are well discussed, based upon cogent reasons on each issue and does not suffer from infirmity or illegality. Learned counsel has further contended that the fairness of trial Court manifests from the admitted fact that out of seven prayers only 2 prayer clauses "A" and "D" were granted. Learned counsel when confronted with the legal question raised by learned counsel for the appellant, regarding non-service of notice before cancellation of agreement dated 26th May, 1989, he invited the attention of this court towards Para No, 7 of the agreement and stated that appellant had advance notice that if he committed default in payment of installments, the hiring of premises shall be terminated without any notice and the amount paid till that time shall be forfeited. In view of above specific paragraph in the agreement, there was no requirement of law to serve any further notice.
7. To coup-up the main prayer of respondent for cancellation of agreement dated 26th May, 1989 issue No, 7 was framed, which reads as under:-- "Whether the plaintiff can revoke agreement dated 26th May, 1989?"
8. The trial court decided the said issue No, 7 affirmatively in favour of respondent granting the prayer clause 'D' declaring the agreement to be cancelled in terms of breach of contract committed by the appellant, forfeited the amount paid so far by the appellant and in consequence thereof granted prayer clause 'A' regarding the possession of suit property. The trial court while deciding the said issue No, 7 has considered and discussed in detail all the factual and legal aspects of the case including the version of appellant regarding the payment of balance 50% sale consideration in installments and has held that appellant in his evidence had given details of payment manifest upto June 1999 only. In the circumstances, the appellant was required to produce the payment slips in support of his version, who in his cross-examination has also stated that he can produce all those receipts but he failed to produce the receipts, which shows that after the appellant was put in possession of suit property he stopped the installments. The trial court has also considered the legal aspect of cancellation of sale agreement and has held that the time fixed for payment of each installment was essence of agreement, the installments had to be paid on or before 5th of every month and on account of delay thereof the company had reserved right to cancel the allotment of the premises, forfeit the paid amount without any notice.
9. The evidence on facts and law was reappraised in Civil Appeal No, 163 of 2006 by the court of 1st appeal and discussed in detail while passing the impugned judgment dated 2-4-2008 concurring with the findings of trial court.
10. Regarding the plea of service of notice before cancellation of agreement taken by learned counsel for the appellant it is worth mentioning that the respondent has not cancelled the agreement dated 26th May 1989, they have adopted due course of law and-approached the competent court of law seeking the cancellation of agreement, the appellant contested the proceedings meaning thereby the appellant was on notice prior to cancellation of agreement, as such there appears no legal force in the plea of not sending the notice before cancelling the agreement by the respondent.
11. It is well settled proposition of law that the scope of second appeal is restricted and limited to grounds prescribed by law i,e, (a) the decision being contrary to law or to some usage having the force of law (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by Civil Procedure Code 1908 or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits and second appellate court is not expected to enter into reappraisal of evidence or to struck down concurrent finding of facts unless case falls within any of exceptions of section 100, C.P.C.
12. As discussed above, the appellant has made out no case which may fall within any of the exceptions described herein above and to interfere with the concurrent findings of courts below.
The appeal is therefore dismissed with no order as to costs.