' ZAFAR AHMED RAJPUT, J.--- This constitutional petition is directed against the order dated 29-11- 2013 passed by the learned District Judge Karachi (Central) in Civil Revision No,22 of 2013 thereby, setting aside the order dated 8-10-2011 passed by the learned IInd Senior Civil Judge, Karachi (Central) on an application under Order VII, Rule 11, C.P.C., filed by the respondent No,2, rejected the plaint in Suit No,986 of 2011, filed by the petitioners.
2. Briefly stated the facts of the case are that the petitioners/ plaintiffs filed Civil Suit No,986 of 2011 against the respondents/ defendants Nos.1 and 2 for declaration, specific performance of contract, damages and permanent injunction before the Court of IInd Senior Civil Judge Karachi (Central) alleging therein that the respondent No,1 was the original owner of a building ground + 3, constructed on Plot No,365, admeasuring 72 Sq. Ft, situated in Block-4, Liaquatabad Township, Karachi. The respondent No,1 had let out one shop to the father of the petitioners at the monthly rent of Rs,500/- and thereafter the petitioner No,1 and his father established the business of milk in the said rented shop under the name and style of "Siraj Milk Shop". Father of the petitioners expired in the year 1983; therefore, the petitioners being sons, stepped into the shoes of original tenant in the rented shop by operation of law. It is the case of the petitioners that in the year 1993 they approached to respondent No,1 with the proposal to buy the rented shop along with an unconstructed backside portion (hereinafter referred as "disputed property"), on that the respondent No,1 agreed to the proposal and, being relatives inter se, entered into an oral agreement of sale, thereby the petitioners purchased the disputed property on total sale consideration of Rs,5,00,000/- out of which the petitioners paid Rs,2,00,000/- to respondent No,1 as a part payment at the time of oral sale agreement and the respondent No,1, in reciprocation of part performance, handed over the symbolic possession of rented shop already in possession of petitioners and physical possession of vacant plot situated on the backside of the rented shop..
Thereafter, in the years of 1994 and 1996, the petitioners paid outstanding amount of sale consideration i,e, Rs,3,00,000/- in two equal instalments of Rs,1,50,000/- each. The petitioners then contacted the respondent No,1 to perform his remaining part of contract and transfer the title of disputed property to the petitioners by executing registered sale-deed in their favour; whereupon the respondent No,1 promised to do the needful as soon as he would obtain the requisite documents. The petitioners being relatives trusted the respondent No,1 and remained silent. On 19: 2-2008 the petitioner No,1 received a legal notice from respondent No,2 through his advocate, thereby it was transpired that the respondent No,1 had gifted out his entire building including disputed property to the respondent No,2. The petitioners made contact with the respondent No,1, who assured them that he did not gift out the disputed property to his son, the respondent No,2.
The petitioners, however, replied the legal notice on 21-2-2008 through their advocate with clear instructions to deny the relationship of landlord and tenant between the parties but their advocate betrayed them and against their instructions, admitted the relationship of landlord and tenant between the parties. Then the petitioners were taken to the utter surprise when they saw court process published in the daily Nawa-e-Waqt dated 7-7-2011 of Rent Case No,256 of 2011, filed by the respondent No,2 against the petitioners. The petitioners went to the respondents No,1 and enquired about the rent case filed by the respondent No,2, whereupon the respondent No,1 disclosed to the petitioners that he had gifted out the entire property to his son (respondent No,2) and he also denied the fact of entering into any sale transaction with the petitioners. It is also the case of the petitioners that the respondent No,1 committed breach of contract and issued threats that caused mental agony and torture to them. It is averred that due to this incident the petitioners undergone shock and specially the petitioner No,1 suffered from depression resultantly they could not give proper attention to his business. Hence, the petitioners filed the said suit with the following prayers:---
(a) To declare that plaintiffs have acquired vested legal rights in the disputed property by virtue of 'oral agreement having binding force upon the parties.
(b) To declare and adjudge the gift deed in favour of defendant No,2, to the extent of disputed property, as illegal, without lawful authority and void ab initio.
(c) To declare that all the actions taken or intended to be taken on the basis of illegal and void gift deed as illegal, without lawful authority, null and void not binding upon plaintiffs.
(d) To cancel the gift deed to the extent of disputed property and the same may be delivered up;
(e) To declare the defendant to perform his remaining part of contract, thereby to execute the registered sale-deed in respect of disputed property in favour of plaintiffs. In alternate the Nazir of this Hon'ble Court may be directed to do the needful on behalf of defendant No, 1 .
(f) To direct the defendants to pay collectively and severally the damages as detailed in para No,21 supra.
(g) To grant permanent injunction thereby to restrain the defendants from dispossessing the plaintiffs from the disputed property through themselves or through their servants, subordinates, agents, or anybody else claiming under or through them and from creating charge thereon in any manner whatsoever.
(h) Any other relief or reliefs as this Hon'ble Court may deem fit and proper under the circumstances.
3. Respondents Nos.1 and 2 filed their written statement before the learned trial Court, wherein they have denied the claim of the petitioners. They also moved an application under Order VII, Rule 11, C.P.C. The petitioners filed their counter-affidavit to the said application. After hearing the parties, the learned trial Court dismissed the said application vide order dated 13-2-2013. The said order was assailed by the respondent No,1 in Civil Revision Application No,22 of 2013 before the learned District Judge, Karachi (Central), who set aside the order of learned trial court dated 13-2-2013 and allowed the said application of respondents and thereby rejected the plaint vide order dated 19-11- 2013 Being aggrieved by, the said order, the petitioners have preferred this constitutional petition.
4. Heard the learned counsel for the petitioners and perused the material available on record.
5. Learned counsel for the petitioners has mainly argued that the impugned order is illegal and not in accordance with law as the learned District Judge while passing the impugned order has only considered the relief of specific performance and has ignored the prayers for declaration and damages sought by the petitioners. According to him, the prayer for declaration sought by the petitioners in respect of forged gift is governed by Article 120 of the Limitation Act and this fact has not been considered by the Revisional Court and if presumed that the petitioners are not entitled for, specific performance but still they are entitled for the relief of damages, which could only be decided after framing of issues and recording of evidence of the parties. Hence, according to him the Revisional Court committed error in holding the suit of the petitioners as barred under Article 113 of the Limitation Act. He has also contended that the limitation is a mixed question of law and fact, which could only be decided after recording of evidence. He has further contended that the learned Revisional Court has referred the judgment of the learned Rent Controller in Rent Case No,256 of 2011 though such judgment has been challenged by both the petitioners in two F.R.As.
However, it is a settled law that while deciding application under Order VII, Rule 11, C.P.C. Only the averments of the plaint are to be taken into consideration. Lastly the learned counsel contended that the Revisional Court has committed material irregularity while relying upon legal notice issued to, the petitionei No,1 in the year 2008. In support of his contention, the learned counsel relied on the case of Kamaruddin Valika v. Government of Sindh and others (2004 YLR 373).
6. After perusal of material on record, it appears that the entire case of the petitioners rests upon the claim that they had entered into an oral sale agreement with the respondent No,1 in respect of the disputed property. There is no denial to the fact that the petitioners were tenant in the shop before claiming of entering into an oral sale agreement. It is also an admitted position that even after receiving the legal notice dated 16-2-2008 the petitioner never claimed to have entered into any oral sale agreement in respect of the disputed property with respondent No,1 upto the filing of their written statement in Rent Case No, 256 of 2011, filed by the respondent No,2 against them on 29-4-2011, wherein specific issue was framed with regard to the existence of relationship of landlord and tenant between the parties, which has been decided by the learned Rent Controller in favour of respondent No,2 and against the petitioners.
7. It is also an admitted position that on 16-2-2008 the respondent No,2 being landlord, through his counsel, served a legal notice upon the petitioner No,1 wherein he categorically stated that the petitioner No,1 was/is the tenant in said shop and paying monthly rent @ Rs,3,000/-, which has not been enhanced since long and that the petitioner No,1 sublet the said shop to one Muhammad Imran (petitioner No,2), without knowledge and permission of the respondent No,2. It was further alleged in the said legal notice that the petitioner No,1 unlawfully and unauthorizedly encroached upon the portion of backside of the rented shop and is using the same without consent of the respondent No,2. It was further alleged in the said legal notice that the subject shop was required by him for his personal bona fide use as he was running his business in a shop, which is situated adjacent to the rented shop and due to shortage of the place he intended to use the said rented shop for storage of goods.
8. The respondent No,1 replied the said legal notice on 21-2-2008 wherein he stated that the said shop was rented out, about 40 years back, to his late father Sirajuddin by respondent No,1, who is the father of respondent No,2, and after his death in 1983 the shop was taken over by his sons (petitioners) who are paying the monthly rent regularly as tenant. It is also stated in the reply that the back portion of the said shop was lying vacant, therefore, in 1993 the said portion was rented out to them by the respondent No,1 as part of the shop on payment of Rs,5,00,000/- and enhanced the rent to Rs,3,000/- per month permanently without any increase in future, which is being paid regularly. The petitioner No,1 also denied in his reply that the shop was required by the respondent No,2 for his personal bona fide use
9. It is crystal clear from the said reply of legal notice that the petitioners not only admitted their status in the disputed property as tenant but they also did not raise any plea of occupying the disputed property not as tenant but as purchaser. They have also not taken the position that under any oral sale agreement the respondent No,1 had sold out the disputed property to them. In this regard the plea taken by the petitioners is that their advocate betrayed them and despite their directions of denying the relationship of landlord and tenant between parties, he admitted the relationships. Such plea of the petitioners does not appeal to the mind of any prudent person. The advocate for the petitioners, having no adverse interest, could not go against the advice of petitioners and replied the legal notice against their directions. It is well-established position of law that the knowledge of client is the knowledge of his advocate. Therefore, the said plea of petitioners appears to an afterthought.
10. After admitting the relationship of landlord and tenant with the respondent No,2, it is difficult to understand how the petitioners can now repudiate their position as tenant and that of respondent No,2 as their landlord in view of the estoppel created by Articles 114 and 115 of the Qanun-e- Shahadat Order, 1984, which reads as under:---
114. Estoppel: When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
115. Estoppel of tenant and of licensee of person in possession: No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such license was given.
"Nemo contra fact suam venire potest" (No man can contradict his own act or deed). Estoppel is a legal rule of evidence which prevents a person from making a claim or allegation or denial that contradicts what it had previously stated, or what has been legally established, as a truth. After admission of petitioners that they are tenants of respondent No,2 in subject property, they are now estopped from claiming lc themselves as occupants in the subject property from 1993 as purchasers.
11. Under Order VII, Rule 11, C.P.C., while rejecting the plaint the Court has to take into account contents of plaint and the documents on which such plaint has been based from which, if it appears, that the plaint does not disclose a cause of action; or that the plaint has been improperly or insufficiently stamped or that the suit is barred by any law, the plaint shall be rejected. The cause of action is a set of predefined factual elements that allow a legal remedy. It means the basis of a law suit founded on legal grounds and the alleged facts which, if proceed would constitute all the elements required by the statute. For example: to have a cause of action for breach of contract there must have been an offer and acceptance; for a tort (civil wrong) there must have been negligence or intentional wrongdoing and failure to perform. The rationality behind invoking the said provision of law is to bury the still borne or incompetent suit at its inception to save the time of Court on a fruitless litigation.
12. The learned Revisional Court rejected the plaint of petitioners on the ground of limitation as the petitioners claimed to have entered into an oral agreement with respondent No,1 in 1993. The petitioners received a legal notice 'from respondent No,2 on 10-2-2008 claiming himself as landlord which was in clear terms refusal of performance, so far the petitioners case/claim is concerned.
Even then the petitioners did not file any suit for specific performance of contract soon after receiving the said notice. The petitioners filed instant suit for specific performance of contract, damages and permanent injunction on 8-10-2011 after 18 years of the alleged oral sale agreement and after three years and 8 months of receiving the said legal notice, which was even barred by 8 months from date of legal notice under Article 113 of the Limitation Act. Therefore, the learned Revisional Court rightly held that the suit of the petitioners was time barred and rejected the plaint of the petitioners.
13. So far as the, contention of learned counsel for the petitioners is concerned that while considering the relief of specific performance of the contract the learned Revisional Court ignored the prayers for damages and declaration in respect of gift sought by the petitioners is governed under Article 120 of the Limitation Act which provides a period of 6 years for seeking such declaration. We are of the view that when the petitioners in their reply to the legal notice of respondent No,2 dated 21-2-2008 have admitted the relationship of landlord and tenant with respondent No,2, and have not claimed to be the purchaser of the disputed property on the strength of any oral sale agreement of 1993, the principle of estoppel will operate against them in litigation. Hence, the petitioners have no cause of action to maintain the instant suit, as the status of petitioners is not more than that of a tenant, and it is a settled principle of law that tenant cannot question the title of landlord. Therefore, the petitioners cannot be entitled for declaration, specific performance of contract and damage as such the suit of the petitioners is not maintainable for want of cause of action.
14. So far as the case of Kamaruddin Valika (supra), cited by the learned counsel for the petitioners is concerned, the said decision is found to be distinguishable from the facts of this case. In the cited case the plaintiff had given in the plaint necessary details regarding correspondence between him and some of the defendants which prima facie established the existence of some commitment/agreement between them about transfer of some land in favour of plaintiff on payment of sale consideration and the learned Single Judge held that even if plaintiff fails to prove his case of specific performance of contract against the defendant, still a decree for compensation/damages could be passed against them. However, in the present case, as discussed above, there is no material attached with the plaint that the petitioners had entered into any sale agreement with the respondent No,1, on the contrary he has admitted in his reply to the legal notice of respondent No,2 to be his tenant.
For the forgoing reasons, we have not found any irregularity or illegality in the impugned order, which requires any interference by this Court under constitutional jurisdiction, therefore, the instant petition is dismissed in limine along the listed application.
' The petition was dismissed by our short order dated. 31-1-2014 and above are the reasons for the same.