' SADIQ HUSSAIN BHATTI, 1.--Being aggrieved by and dissatisfied with the impugned Judgment dated 8-12-2011 passed by the Vth Additional District Judge, Karachi East in Civil Appeal No, 56/2010 whereby he dismissed the appeal filed by the appellants against the judgment dated 28-1-2010 passed by the learned 9th Sr. Civil Judge Karachi (East) in Civil Suit No,619 of 2007 where by Suit of the respondent has been decreed, hence this II appeal.
2. The brief facts as stated by the respondent/plaintiff are that the respondent Purchased the flat No,A-60313, situated at 6th floor of the project of the appellants Known as "AL-Rauf Royal City" against total sale consideration of Rs,9,50,000 vide agreement dated 11-8-2004. The respondent paid a sum of Rs,200,000 on 11-8-2004 and Rs,150,000 in six instalments of Rs,25,000 each.
Rs,300,000 were to be loan to be obtained by the appellants repayable in thirty monthly instalments starting after date of possession of the said flat and balance amount of Rs,300,000 was payable by the respondent to the appellants at the time of registration of sub-lease by the appellants in favour of respondent and handing over vacant physical possession of the flat in question. That the appellants issued a letter/legal notice alleging non-payment on the part of the respondent and further stating that the said flat has,been cancelled and has been re-allotted to a new purchaser. Accordingly the respondent filed Suit No,619 of 2007 for specific performance of the contract between the parties. The appellants/defendants tiled their written statement stating that the respondent booked the said flat vide application dated 11-8-2004 against total amount of sale consideration of Rs,9,50,000. At the time of booking the respondent had paid a sum of Rs,200,000 and Rs,1,50,000 were paid in instalments. The respondent has to pay a sum of Rs,300,000 within three months from the date of above payment of Rs,1,50,000 and remaining amount was to be paid at the time of taking the possession of the said flat by the respondent within six month. Some meetings were held and respondent was asked to pay remaining amount so that possession could be delivered to the respondent but respondent failed to pay the outstanding amount. That the respondent has to pay a sum of Rs,300,000 along with the penalty for delaying the payment. It was averred that when Flat in question was booked the construction of the project was already completed. It was also stated that the registration of sub-leases has been suspended by the authorities as such it was verbally settled that against payment of entire amount, the possession of the Flat shall be delivered immediately and registration of sub-lease shall be effected as soon as the ban is lifted but respondent has not taken any steps to this effects in spite of notices and reminders as a result the Flat was cancelled and after cancellation it has been re-allotted to a new purchaser/owner. Despite the notices/letters for payment of outstanding amount were written as admitted by the respondent but respondent had not paid the amount. So far as the writing/Agreement is concerned that is fake/bogus as it is not signed by the sole proprietor whereas the terms and condition of the booking are already printed in the application submitted for booking of said Flat and respondent has admitted his signature put at the application. No attempts were made by the respondent to approach the appellants. From the date of booking of Flat the respondent has paid a sum of Rs,3,50,000 up to March, 2005 and thereafter plaintiff remained failed to pay remaining balance amount in spite of repeated verbal and written intimations. That apart from reminder dated 5-3-2005, the appellants have sent an intimation notice dated 12-3-2005 asking the respondent to pay/clear outstanding dues on account of Flat in question within ten days from the date of receipt of said notice but respondent did not pay the outstanding amount even then. The appellants was given one more chance through letter dated 22-3-2005 wherein he was asked to pay outstanding amount within seven days but respondent again took no steps for payment of remaining balance amount as a result the Flat has been cancelled by serving the respondent with a cancellation notice dated 10-1-2006 and after cancellation the appellants have re-allotted the subject Flat to its present new purchaser and appellants prayed to dismiss the suit.
3. On the basis of the pleadings of the parties the following issues were framed by the learned trial Court:--
(1) Whether the suit is maintainable?
(2) Whether defendant's employee has not signed the agreement/ schedule of payment dated 11- 8-2005?
(3) What her the plaintiff has not paid the instalment of sale consideration despite of letter of defendants?
(4) Whether the defendants are entitled to claim/impose any penalty on the plaintiff ?
(5) Whether defendant has cancelled the flat in question and re-allotted to other person prior to filing this suit ?
(5A) Whether the plaintiff is entitled for relief?
(6) What should the decree be?
4. That both parties have led their evidence and after hearing the counsel of the respective parties, the trial court has decreed the suit in favour of the plaintiff/respondent against which appellant has filed Appeal No,56 of 2010 which has been dismissed as such the appellants being aggrieved by impugned Judgment and decree passed by the two Courts below filed the instant 2nd Appeal.
5. Learned counsel for the appellant submitted that the suit filed by the respondent was not maintainable and that the trial Court has decided all relevant issues in negative but surprisingly decreed i1e suit which is mis-carriage of justice. That issues Nos.3 and t were specifically stressed by arguing that appellants despite various letters demanding remaining balance amount respondent has failed to pay the same as such allotment of the Flat has been cancelled and then re-allotted to its new purchaser but the same was ignored by the two Courts below. It was also argued that the trial Court has not decided the issue No,3 in its proper form as the respondent after initial payment made at the time of booking did not make any payment thereafter despite the letters written by the appellants to the respondent for balance payment. It was further argued that the appellate Court also failed to take into consideration the issue No,3 which remained undecided with out any finding as such impugned judgment and decree is illegal and based on mala fide.
That alleged remaining payment of Rs,600,000 was not deposited at the time of filing the suit nor during the pendency of Suit rather it has been deposited after passing the impugned Judgment and Decree of the trial court and the appellate court has drawn false inference and has not properly assessed that at what time alleged balance amount was deposited with the Nazir of Court. That the learned trial Court as well as appellate Court have erred in law and facts of the case while passing the impugned Judgments and decrees. That the Courts below have not appreciated and properly perused the pleading of the appellants and evidence led by the parties while deciding the case. He, therefore, prayed that the case may be remanded back to trial Court for deciding the issues afresh and in a proper manner.
6. Learned counsel for the respondent submitted that this second appeal being filed against concurrent findings of the two Courts below is not maintainable. He stated that in second appeal the scope is very narrow and he denied that any amount was outstanding against the respondent.
He further submitted that the entire amount as per the agreement between the parties was paid by the respondent to the appellants and there was no justification in canceflation of the allotment of the flat. He also argued that the respondent had performed his part of the agreement between the parties but the appellants were avoiding to perform their part. Therefore, the suit filed by the respondent was properly decreed by the trial Court. He stated that the two Courts below have passed well reasoned judgments which do not call for any interference from this Court.
7. I have heard the learned counsel for the parties and have perused the record and the case-law cited before me.
8. Before proceeding any further it may be observed that this second appeal has been filed under section 100, C.P.C. A perusal of grounds mentioned in section 100, C.P.C., shows that second appeal does not lie on the ground of error or question of fact. It only lies on ground of law or error in procedure which may have affected decision of case upon merits. Therefore, all that the learned counsel for the appellant was required to show was that there is a question of law arising out of the present second appeal or that there was some procedural error which may have affected the decision of the case on merits.
9. On the point of maintainability of the suit, the learned trial Court held that the Suit was purely of civil nature and sections 9 and 12 of the C.P.C. Are very much clear in this regard and Civil Court has jurisdiction to entertain all the nature cases except the cases which are barred by law, the alleged sale agreement was executed on 11-8-2004 and instant suit was filed on 21-5-2007 for specific performance of contact, which is well in time in the above circumstances. It was, therefore, held that suit of the plaintiff is maintainable under the law.
10. It was argued that issues Nos.3 and 4 were specifically argued by the appellate Court did not take the same into consideration. A perusal of the impugned Judgment of the learned trial Court reveals that issues Nos.3 and 4 were discussed jointly and were decided as under:-- "From the perusal of evidence of the parties brought on record it appears that there is no specifically penalty clause in the said agreement and plaintiff approached to defendant from time to time for possession of the subject flat. Plaintiff has produced certain documents on record which supported the contention of the plaintiff. Admittedly the possession of the subject flat is not banded over to the plaintiff. The loan was not sanctioned by the bank authority, though defendant has contended that at the time of booking the project was completed but in the same evidence he has admitted that electricity was provided in the project in the year 2005. The subject property was booked in the year 2004 meaning there by the project was not completed when the basic amenities were not available as flat by defendant therefore it can not say that plaintiff failed to pay the instalment as agreed, if plaintiff intend to avoid the balance payment as to why he again and again approached to the defendant which is evidence from the record that plaintiff severally approached the defendant for personal meeting but could not succeeded. In the light of above discussion I decided both these points in the negative."
11. So far as the judgment of the appellate Court is concerned, it specifically mentioned that "Learned counsel for the appellant particularly pointed out that while deciding this suit 7 issues were framed by the trial court out of which he stressed over issue No,5 that "whether the defendant has cancelled the flat in question and re-allotted to other person prior to filing of this suit." Therefore, the learned counsel prayed for remanding the case to the trial Court for deciding the said issue No,5 afresh. However, a perusal of the impugned judgment of the trial Court reveals that this issue was thoroughly discussed and decided in favour of the respondent after taking into consideration the evidence produced by the respective party.
12. In the case of Muhammad Zubair v. Mansoor Ali and others (2008 CLC 921) a learned Single Judge of this Court held as under:- "From the above discussed legal position, it is obvious that the concurrent finding recorded by the Courts below cannot be interfered with by the High Court while exercising jurisdiction under section 100, C. P.C. How so erroneous that finding may be unless such finding has been held right by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence. "
13. The point, therefore, arises for consideration in the present appeal is whether the findings of the Courts below on the issues are in consonance with the material available on record. The learned counsel for the appellant has not been able to show that decision arrived at by the two Courts below suffers from any misreading or non-reading of evidence or any procedural flaw or that the same were based either on irrelevant or inadmissible evidence. It was also not shown that any question of law arises out of this second appeal which needs determination.
14. The main plea of the appellants was that the respondent did not pay a sum of Rs,300,000 on time and as such they were entitled to recovery the same with penalty. It is an admitted position that a loan of Rs,300,000 was to be obtained by the appellants and he same was to be paid by the respondent in 30 instalments. If the appellants failed to arrange such loan it was not the fault of the respondent and the appellant cannot demand the same from the respondent within three months.
One of the condition of booking of the flat was that the appellants would arrange for a loan of R.s.300,000. If they were not able to do so they cannot derive a benefit from their own fault/failure.
So far as the question of penalty is concerned, it was not shown that there was any clause in the agreement between the parties catering for penalty in case of late payment. Even otherwise there was no late payment on the part of the respondent as he had paid the agreement sums on time.
15. There is a plethora of judgments of the superior Courts wherein it was held that concurrent findings of the Courts below could be reversed in case non-reading or misreading of evidence is shown but learned counsel for the appellants has not been able to show that the judgments impugned herein are a result of non-reading or misreading of evidence. It is also not shown that there is any error in procedure adopted by the Courts below or any question of law has arisen for determination by this Court.
16. In view of the above discussion, I find no merit in this second appeal which is dismissed.
Appeal, dismissed.