AJMAL MIAN, J.-Since the above two appeals are against the common judgment/decree passed by the learned Single Judge in Suits Nos. 322/1969 and 168/69 we intend to dispose of the above two appeals by this common judgment.
The brief facts leading to the filling of the above 2 appeals are that Choudhry Hashmat Ali (hereinafter referred to as "the decreased purchaser") entered into 4 agreements in 1.965 with respondents Nos. 2 to 8 to purchase the suit land (hereinafter referred to as ---the land) through Exhs. 10/4, 10/1.5, 11/20 and 1,1/21. Under the above agreements, the deceased purchaser paid the full consideration mentioned therein. It may be pertinent to observe that prior to the above agreements, the deceased purchaser had entered into an agreement of purchase with late Mst.
Sher Bano, who was the predecessor in interest of respondents Nos. 2 to 8 in respect of the Suits land in 1961 and 1964. It further seems that under section 73-A of the Bombay Land Revenue Code 1879 (hereinafter referred to as the Bombay Code) before completing a sale the previous sanction of the Collector was required. It also seems that the deceased purchaser acting as the attorney under the registered power of attorneys Exhs. 10/16 and 10/17 applied to the Collector for the requisite permission. It seems that the permission applied for was refused by an order dated 12th September, 1967 by the Collector without assigning any reason. The deceased purchaser acting as the attorney for respondents Nos. 2 to 8 filed Revision Application No. L. R.-24/1967, which was allowed by the learned Additional Commissioner (Judicial) by his order dated 13th March, 1968 and the case was remanded back to the Collector, Karachi for granting permission to sell the land applied for on behalf of respondents Nos. 2 to 8 if the permission was not barred by other statute or law. It further seems that respondents Nos. 2 to 8 behind the back of the deceased pur--chaser informed the Office of the Deputy, Commissioner, Karachi that they. Had revoked the aforesaid power of attorneys in his favour. Upon receiving the above information, the Deputy Commissioner's office through its letter dated 5th June, 1968, Exh. 8/3 addressed to the deceased purchaser informed him that the concerned Khatedars in their statements recorded, had stated that he was no longer their attorney, and that they were no' willing to sell the land to him. He was also informed that because of that his request could not be considered. Upon the receipt of the above information, the deceased purchaser filed above Suit No. 322/1968 on 3rd December, 1968, whereas Suit No. 168/69 was filed on 12th April, 1969. It seems that during the pendency of above Suit No. 322/68, the present appellant, who had entered into an agreement of purchase dated 9th February, 1969, Exh. 12/1 in respect of some of the suit lands obtained permission from the Deputy Commissioner on 20th February, 1969 Exh. l3/3. It may also be pertinent to observe that during the pendency of above 2 suits the Colonization of Government Lands (Punjab) (West Pakistan Amendment) Ordinance, 1969 (Ordinahce No. 3 of 1969) (hereinafter referred to as the Ordinance of 1969) which came into force on 3rd November, 1969 repealed inter alia Chapters 1 to 6 of the Sind Land Revenue Code, 1872 (Sind Act V of 1879) and Chapter 6 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879) (i.e. Of the Bombly Code). In other words, section 73-A referred to hereinabove was repealed by the Ordinance of 1969, which was made applicable to Sind l under a notification dated 6th December, 1969 gazetted on 13th December, l 1969 Exh.
15. The above two suits were resisted by the present appellant as well as by respondents Nos. 2 to 8. On the basis of the pleadings the learned Single Judge framed as many as 9 issues in the first suit and 11 issues is the aforesaid second suit. Eventually, the above suits were decreed in favour of the deceased purchaser. The appellant being aggrieved by the above Judgment decrees has filed the present two appeals. It may be pertinent to observe that respondents Nos. 2 to 8 have not filed any appeal nor they are represented before us to support the above appeals. . 2. (a) In support of the above appeal Mr. S. M. Sadiq, learned counsel for the appellant has challenged the finding of the learned Single Judge on two issues only, namely, issue No. 7 in Suit No. 322/68 and issue No. 8 in Suit No. 168/69 which are common issues. His contentions are as follows :-
(i) That the suits land being admittedly under restricted tenure in view of section 73-A of the Bombay Code, the above agreements in favour of the deceased purchaser had become void and not enforceable in law upon refusal to grant the requisite permission by the Collector.
(ii) 'I bat the learned Single Judge erred in holding that since during the pendency of the 2 suits section 73-A of the Bombay Code was repealed, 2 suits could have been decreed, though the above suits should have been decided on the basis of the law as stood at the time of the institution of the same.
It may be pertinent to observe that Mr. Sadiq wishes to raise the following additional grounds, which were not raised by him before the learned Single Judge nor have been raised in the memos.
Of the above appeals :-- (i.e) That even under section 19 of the Colonization of Government Lands (Punjab) Ordinance 1969 the Commissioner's permission was required and, therefore, the suits could not have been decreed for specific performance of the sale agreements.
(iv) That under the agreements in question inter alia it was provided that in case of breach of the agreements, the deceased purchaser would be entitled to recover damages.
(b) On the other hand Mr. M. G. Dastgir, learned counsel for the deceased purchaser's legal representatives has made the following submissions :-
(1) That there was no refusal on the part of the Collector to grant requisite permission under section 73-A of the Bombay Code inasmuch as the Collector bad declined to consider the application for permission on the ground that respondents Nos. 2 to 8 had already revoked the power of attorneys in favour of the deceased purchaser.
(ii) That since at the time of the trial of the suits section 73-A was no longer on the statute book, the suits were to be decided on the basis of the law as then obtaining.
As regards the two additional contentions raised by Mr. S, M. Sadiq Mr. Dastagir's submissions were as follows :- (i.e) That the appellant is not entitled to raise the plea that under section 19 of the Ordinance 1969, the Commissioner's permission was required as this plea was not raised by the appellant before the learned Single Judge nor it has been raised in the grounds of the memos. Of appeals before this Court but the same has been raised first time today during the arguments. His further submission that even otherwise, on merits the above contention is directly in conflict with ground
(e) of the memos. Of appeals, wherein the stand taken by the appellant is that the Ordinance of 1969 was not applicable to the insta4t case as the suit land was not Government land since it was granted to Mst. Sherbano prior to 31st December, 1927.
(iv) As regards the covenants in the sale agreements. Entitling deceased purchaser to recover damages from respondents Nos. 2 to 8, it was contended by Mr. Dastgir that the same do not disentitle the deceased purchaser from claiming specific performance of the 4 agreements.
3. (a) Reverting to the first contention of Mr. Sadiq , that the land admittedly being under restricted tenure in view of section 73-A of the Bombay Code, the agreements in question had become void and not enforceable upon the refusal on the part of the Collector to grant permission. It may be pertinent to refer to the alleged refusal contained in the Deputy Commissioner's office letter date 5th June, 1968 Exh. 8/3, which reads as follows: - "Office of the Deputy Commissioner of Karachi. No. Rev/1919/67. Karachi, the 5th June, 1968.
To, Mr. Ch. Hashmat Ali son of Imam Din.
1-K-12, Nazimabad, Karachi.
Sub : Permission for sale of S. Nos. 30, 31, 32, 50 and 55 (whole) and 52, 53 and 54 (0-2-4 share) Deh Hab Tapo Manghopir. Karachi. Ref: Your application dated 6th May, 1968.
The concerned Khatedars in their statement recorded in this case have stated that you are no more their attorney and that they are not willing to sell their land to you hence your request therefore cannot be considered.
Sd/- for Deputy Commissioner, Karachi"
1t may be noticed that in fact the Deputy Commissioner did not refuse to grant the requisite permission. What has been stated in the above letter is that respondents Nos. 2 to 8 in their statements recorded by the Office of the Deputy Commissioner stated that the deceased purchaser was no more their attorney and that they were not willing to sell their land to him and because of that the deceased purchaser's request could not be considered.
(b) In support of his above eontention, Mr. Sadiq has referred to the case of Mst. Hawa v.
Muhammad Yousuf and others, (PLD 1969 Kar. 324) the case of Dalsukh M. Pancholi v. The Guarantee Live and Employment insurance Co. Ltd. (PLD 1947 P C 185) and the case of Ghulam Rasool and others v. Muhammad Anwar and others (PLD 1969 SC 254 ?).
(i) With reference to the case reported in PLD 1969 Kar. 324, it may be stated that in the above case the facts were that a suit for can--cellation of sale deeds was filed by Mst. Hawa on the ground that the sale deeds executed by her in favour of the defendant were null and void. The suit was dismissed by a learned Single Judge. However, upon appeal the Judgment decree of the learned Single Judge was set aside and the suit was decreed. It may be pertinent to. Observe that the suit was decreed by the appellate Court on the ground that before the sale could have been effected, the sanction of the Collector was prerequisite for all alienations under the Act III of 1899 and that the permission was also required under the Sind Credit and Transfer of Land Act, 1947. In our view, the above case has no application to the instant case for the reason that there is a distinction between a sale and an agreement to sell. 1f a sale is completed in violation/contravention of any provision of any law, it is void, but if an agreement to sell is made subject to compliance with the requirements of the relevant law, it is legal and enforceable provided the legal requirements can be complied with. In the instant case there were agreements only and not completed sales and, therefore, the same were not null and void. Furthermore, there was no refusal on the part of the Collector and hence the agreements had not become void or not enforceable under section 35 of the Contract Act ac contended by the learned counsel for the appellant.
(ii) Reverting to the case reported in PLD 1948 Privy Council 185 it may be observed that in the above case the subject matter of a sale agreement was the property, which was already attached by a compe--tent Court. In the agreement it was provided that the sale could be finalised on the receipt of the requisite permission from the Court. Which permission was refused by the Court without any default/omission on the part of the vendor. In these circumstances, it was held that the suit for specific performance was not competent as the performance of the sale agreement was contingent upon granting of the requisite permission by the Court, which permission was declined without any fault/default on the part of the vendor. The facts of the above case are also distinguishable from the instant case inasmuch as admittedly respondents Nos. 2 to 8 by their own default did not allow the Collector to consider the request for permission to sell in favour of the deceased purchaser.
(i.e) As regards the. Case reported in PLD 1969 S. C. 254, it will suffice to observe that in the above case the Supreme Court while dis--missing the petition for leave observed that a transfer prohibited by section 19 of the Colonization of Government Land (Punjab) Act 1912 is void even between the parties to the transaction in the absence of the con--sent of the Government is writing and that no specific performance of an agreement for sale could be ordered in the absence of the requisite permis--sion. The facts of the above case are apparently distinguishable from the instant case for the reason already referred to hereinabove while con--sidering the above Privy Council case.
4. (a) With regard to the second contention of Mr. S. M. Sadiq namely, that the learned Single Judge erred in not deciding the suits on the basis of the law obtaining at the time of the institution of the 2 suits and not of the basis of the repeal of section 27-A, of the Bombay Code, it may be pertinent to observe that his contention was that the right which had already accrued in favour of the appellant inasmuch as he obtained the requisite permission from the Collector under section 73-A, could not have been affected by the above amendment and secondly the amendment being in substantive law and not in procedural law, it could not have operated retrospectively. In support of his above submission he has referred to Maxwell on the Interpretation of Statutes, 12th edition page 220, Statu--tory Construction/ Interpretation of Laws by Crowford, 1940 edition page 566. The case of Messrs Afardan Industries Sakhakot Co. And others v. Government of Pakistan and another (PLD 1965 Pesh. 47), the case of Mian Rafiudin and 6 others v. Chief Settlement and Rehabilitation Commissionar and 2 others (PLD 1971 SC 252), and the above case of Mst. Hawa v. Muhammad Yousuf.
(i) With reference to Maxwell for Interpretation of Statutes, it will suffice to state that the auther at page 220 has observed as follows :- "In general, when the substantive Law is altered during the pendency of an action the rights of the parties are decided according to the law as existed when the action was begun, unless the new statute shows a clear intention to vary such right."
(ii) As regards Crawford, it may be stated that in para. 278 the author has observed that the rule that statute should not be given a con--struction which will give retrospective effect is specially applicable where such a construction will either affect or impair vested rights.
(i.e) Reverting to the case reported in PLD 1965 Pesh. 47, it may be observed that the facts were that the petitioner company had establish--ed a factory acting on the notification No. S. R. 0.-55 (R)/ 1961, which granted exemption from the levy of excise duty for a period of 4 years. However, before the expiry of above period the Government purported to withdraw the above concession through a notification dated 19th May, 1964. In the above-background of the facts, it was observed by a division bench of the Erstwhile High Court of the West Pakistan, the Peshawar Bench that the vested rights cannot be taken away.
(iv) With reference to the case reported in PLD 1971 S. C. 252, it may be stated that the question before the Supreme Court was, whether the appellant's claim for transfer of the cinema house should have been decided in accordance with paragraph 15 (2) of the Schedule and not according to the notification issued under the amended paragraph 15-A, whether the notification of the Central Government in paragraph 15-A which disentitled the appellant from the transfer of the cinema house was retrospective in effect and whether the above notification was ultra vires. The appeal of the appellant was dismissed and it was observed that he had no vested right in the transfer. However , Mr. M. R. Khan, J. In his judgment has dealt with the term `vested right' and his given examples which would create vested right.
(v) In our view, neither the observations of the two authors referred to hereinabove paras. 2 (a) (i) and (ii) nor the facts of the above cases have any application to the instant case. The appellant had not acquired any vested right merely by entering into an agreement or by obtaining the requisite permission from the Collector. Admittedly the agreements in favour of the deceased purchaser were prior in time by several years. Admittedly respondents Nos. 2 to 8 had received the full amounts of con--sideration under the said agreements from the deceased purchaser. In our G view, the permission obtained by the appellant from the Collector on 20th February, 1969, Exh. 13/3 did not create any vested right in his favour as to entitle him to get the contract specifically enforced. If the agreement in favour of the appellant could not have been specifically enforced in pre--ference to the sale agreements in favour of the deceased purchaser, the above permission was of no significance. The utility of the above permis--sion depended on the specific enforceability of the sale agreement.
(vi) With reference to the case reported in R-L D 1969 Kar. 324 it will suffice to observe that in the above case it was urged that the Collector can grant permission subsequent to the execution of the sale deeds and, therefore, the sale deeds were not void. The above contention was repelled by a division bench for the reason that the sale deeds which were executed in contravention of the provision of law were null and void, which could not have been validated retrospectively on the basis of the subsequent permission. Furthermore, factually on permission was applied for in above case. In our view, the above case has no relevancy to the points in issue.
(vii) It may also be pertinent to refer to the case of Abdul Rahim Fateh Muhammad Khan and another v. Kadoo and others (AIR 1930 Sind 12) in which learned Additional Judicial Commissioner Sind while construing section 73-A of the Bombay Code held that if a property which is under restricted tenure is transferred by a vendor without the previous sanction of the Collector such sale is voidable and not void as the vendor has the right to sell with the sanction of the Collector, and that it is not that be has absolutely no right to convey the property. In the instant case since the sale deeds were not executed the question as to whether a sale without the permission would be void or voidable is not involved.
(b) Reverting to Mr. Sadiq's second limb of the argument, namely, since the Ordinance of .1969 bad brought above amendment in substantive law and not in procedural law, the above amendment in the absence of an express provision was not retrospective in effect, it will suffice to observe that the requirement to apply to the Collector for permission under section 73-A of the Bombay Code, in our view was a procedural matter, in this view of the matter, the benefit accrued in the form of non requirement of the permission under above section 73-A could be availed of by the parties, who had not executed sale deeds by the time of the above amendment. As the requirement of above section 73-A was that a sale could not have been completed without the permission of the Collector. This permission was not required in respect of an agreement to sell.
The deceased purchaser upon refusal on the part of respondents. Nos. 2 to 8 to obtain requisite permission had approached this Court for specific performance of the sale agreements. In our view this was the only remedy available to him, as be could not have filed an appeal against the aforesaid communication from the office of the Deputy Commissio--petitioner dated 5th June, 1968 for the obvious reason that the Collector had not refused to grant the requisite permission under section 73-A, but declined to consider the deceased purchaser's request on the ground that he was no longer the attorney of respondents Nos. 2 to 8 and that they were not willing to sell the land in his favour.
5. Reverting to Mr. Sadiq's above first additional ground that under section 19 of the Ordinance of 1969 the permission of the Commissioner was required, it will suffice to observe that this ground was not raised by the appellant before the learned Single Judge nor it has been raised by the appellant in the memo of appeals nor the respondent purchaser was put to notice prior today. In our view, Mr. Dastgir's submission that the appellant cannot be permitted to raise this ground first time during the arguments without any notice to the deceased purchaser's legal representa--tives seems to be correct. Even otherwise in our view this contention is in direct conflict with ground (e) of the memos, of appeals, which reads as follows:-
(e) That the learned Judge has erred in not taking into considera--tion that the aforesaid notification applied only to Government lands, whereas the land in suit by reason of its having been granted to Mst. Sherbano and/or her predecessor prior to 31st December, 1927 was not Government land."
It is evident that in the above ground the case set-up by the present appellant is that the Ordinance of 1969 was not applicable as the suit land was not a Government land for the reason that it was granted to late Mst. Sherbano prior to 31st December, 1927. .
6. (a) As regards the remaining additional contention, namely, that the agreements provided covenants entitling the deceased purchaser to recover demages and, therefore, specific performance should not have been granted by the learned Single Judge, it may be observed that this ground was also not raised by the appellant before the learned Single Judge nor it has been raised in the memos of appeals, but has been urged first time today during the arguments. Since the question, we--there the trial Court has granted the appropriate relief in a particular case can be examined by an appellate Court, we have examined this ground 1n support of the above contention Mr. Sadiq has referred to clauses (4) and (5) of the agreements , which were identical which read as follows:- "(4)-That we, the executants, do hereby assure that prior to this day we have not sold the aforesaid land to anybody and nor have given any sort of power of attorney to anybody regarding these lands. If it is proved at any time that we had sold the aforesaid land and had given power of attorney, we would be accused of chea--ting and liable to be punished legally.
(5)-If. God forbid, if the aforesaid buyer could not get permission to sell due to some, legal flaw or our carelessness then we shall be responsible to pay the double of the price prevailing at that time and also to all sorts of loss and expenses."
He has also referred to the case of Abdul Cader Abdeen v. Abdul Careem Mohamed (PLD 1958 P C 150). On the other hand Mr. Dastgir has submitted that under section 12 of the Specific Relief Act the deceased purchaser was entitled to get the sale agreements specifically performed notwithstanding the above clauses in the agreements. In support of his contention, he has referred to the case of Sakina Bai and another v. Kurnool Muhammad Bashir (PLD 1967 Kar. 158) the case of Hakim Ghulam Rasool v. Shaikh Imdad Hussain and another PLD 1968 Lah, 501).
(i) Referring to the case reported in PLD 1958 P C 150, it may be observed that in the above case a suit for specific performance in respect of a sale agreement pertaining to an immovable property was decreed by the District Judge, but it was reversed by the Supreme Court of Ceylon. The matter went in appeal before the Privy Council. The Privy Council while considering the law obtaining in Ceylon i.e. The Roman and Dutch Law, observed that the accepted view in that country was that every party who had his turn of the permission prima facie enjoys a legal right to demand performance by the other party, but that right was subject to the overriding discretion of the Court to refuse the remedy in the interest of justice, or where the contract provided for an ascertained sum as liquidated damages. In our view the above case has no application to the instant case inasmuch as explanation to clause (d) to section 12 of the Specific Performance Act provides that unless and until the contrary is proved the Court shall presume that the breach of a contract to transfer immoveable property cannot be adequately relieved by compensation in money. In the above Privy Council case in the agree--ment an ascertained sum as the amount of liquidated damages was mentioned and agreed to between the parties, whereas in the instant case admittedly no amount as liquidated damages has been specified in the agreements in question.
The determination of the amount of liqui--dated damages in terms of the above quoted clause 5 of the Agreements, involves disputed question of fact as to the market rate at the material time. It is an admitted position that this point was not agitated before the learned Single Judge, and therefore, no evidence was brought on record by. Either of the parties on the question of market value of the land on the date of the breach or on the date when the suits were decreed.
Furthermore, since default on the part of respondents Nos. 2 to 8 was deliberate, above clause 5 of the agreement could not have been pressed into service. In this view of the matter, the learned Single Judge has exercised his discretion justly and properly in decreeing the two suits for specific performance particularly when there was no issue raised nor it was agitated before him.
(b) On the other hand the cases relied upon by Mr. Dastgir negatives the above contention of Mr. Sadiq. In the case reported in PLD 1967 Kar. 158, Qadeeruddin, J (as he then was) held that notwithstanding that there may be a covenant in the sale agreement providing that the purchaser would be entitled to recover compensation, would not disen--title a plaintiff from claiming specific performance of a sale agreement as the Court has to presume by virtue of explanation to clause to section 12 of the Specific Relief Act that a breach of a contract to transfer an immo--veable property cannot be adequately relieved by compensation in money. The same view found favour with a division bench of the Lahore High Court in the above case reported in PLD 1968 Lah. 501. We are in respectful agreement with the view found, favour with the Courts in the above two cases.
7. For the aforesaid reasons the above 2 appeals do not merit and, therefore, the same are dismissed .With costs.