' SADIQ HUSSAIN BHATTI, J.---The Appellant is aggrieved by the order dated 13.10.2009, whereby the Appellate Court dismissed the appeal filed by the present Appellant against the judgment dated 24.12.2008 and decree dated 20.1.2009 passed by VIII-Senior Civil Judge, Karachi (East) whereby the suit filed by the Plaintiff/ Appellant was dismissed.
2. The facts of the case are that the Respondent No,I announced a residential project in the name of 'Adam Arcade', situated at Shaheed-eMillat Road, Karachi and Respondent No,2 booked a flat therein being Flat No,402, 4th Floor, Adam Arcade, main Shaheed-e-Millat Road, Karachi (hereinafter referred to as the "suit property"). On 30.9.1989, Respondent No,2 entered into a Sale Agreement in respect of the suit property with the husband of the Appellant. The husband of the Appellant made full payment of the sale consideration to Respondent No,2 and also paid Rs,9000/- to Respondent No,2 for execution of Sub-Lease in respect of the suit property. The husband of the Appellant requested the respondent No,1 to execute the Sub-Lease in favour of his wife i.e, the Appellant. Such entry was made in the record of the Respondent No,1 and possession of the suit property was also handed over to the Appellant. The Appellant repeatedly requested Respondent No,1 to execute the Sub-Lease in her favour, but she was kept on false hopes and in the meantime Respondent No,1 shifted its office from the said project. The Appellant issued legal notice dated 23.1.2006 to the Respondent No,1, which was not responded. Finally, in the month of February, 2006, the Appellant filed a suit for Specific Performance of the Contract against the Respondent No,1, while Respondents Nos.2 and 3 were made as pro forma Defendants in the suit. Since none of the Respondents appeared before the trial Court, therefore, they were declared ex-parte and the Plaintiff/Appellant was directed to file affidavit-in-ex-parte proof. The Plaintiff/Appellant filed affidavit-in-exparte proof and the trial Court vide its judgment dated 24.12.2008, dismissed the suit being barred by time. The judgment of the trial Court was assailed by the Appellant by filing Civil Appeal No,16 of 2009, which was also dismissed vide the impugned order, hence this appeal.
3. Notices were issued to the Respondents Nos.1 and 2, but the same could not be served upon them, however, in view of the amendment in Rule 14 of Order XLI, C.P.C., service upon Respondents Nos.1 and 2 was dispensed with as they remained ex parte before the Courts below and the appeal was admitted for regular hearing vide order. Dated 08.2.2010.
4. Mr. Neel Keshav, learned counsel appearing on behalf of the Appellant submitted that the trial Court erred in dismissing the suit of the Appellant on the ground of limitation, as the Appellant is in possession of suit property since 1989, therefore, the question of limitation does not arise at all. In support of his contentions the learned counsel relied upon the case of Abdul Karim v. Safia Mirza [1986 M LD 1333] and Abdur Rashid v. Mubarik Ali [1994 CLC 1617]. Learned counsel for the Appellant further submitted that the impugned order of the Appellate Court is also not sustainable on the ground that after first agreement was executed between the husband of the Appellant and Respondent No,2, the same was modified with consent of the Respondent No,2 and allotment of the suit property was made in the name of the Appellant that too with the consent of the Respondent No,2, He also submitted that entire sale consideration was paid to the Respondent No,2 through cross cheques and the possession of the suit property was handed over to the Appellant and the continuous possession of the Appellant in respect of the suit property without any objection from any quarter is clear proof of the right of the Appellant over the suit property. Finally, the learned counsel argued that it is a well-known fact that in Karachi builders usually run away without completing all the formalities in respect of the flat/shops sold by them to the buyers for the reason that sometimes codal formalities for construction of the project are violated or the builders just wanted to extract more money from the buyers/allottees.
5. I have heard the learned counsel for the Appellant, perused record and case law cited before me.
6. Suit filed by the Appellant / Plaintiff was dismissed by the trial Court on the ground of limitation.
Learned counsel for the Appellant contended that the learned trial Court was not just in doing the same as in part performance of the contract, the vendor has put the Plaintiff / Appellant in possession of the suit property. In support of his contentions, learned counsel has relied upon the case reported as Abdur Rashid v. Mubarik Ali [1994 CLC 1617], wherein following observation was made:-- "That the doctrine of part performance as embodied in section 53-A of the Act is neither subject to the limitation as prescribed under Article 113 in schedule to Limitation Act nor is circumscribed by section 54 of the Act or by section 49 of the Registration Act. "
7. In view of the above, the trial Court was not justified in dismissing the suit of the Plaintiff on the ground of limitation as it is not denied by anyone that Plaintiff is in possession of the suit property since 1989. Learned V-Additional District Judge, Karachi (East) dismissed the appeal filed by the Appellant against the judgment of the trial Court in the following words:- "It would be appropriate to determine the status/legal character of the appellant, who has filed suit under Section 27-A of Specific Relief Act, for specific performance of contract in respect of suit property. On pursuant of the record it that alleged sale agreement dated 30.9.1989 was executed between one Mrs. Zakia Pervaiz Butt W/o Pervaiz Aslam Butt and Mr. Kesholal S/o Gobind Ram in respect of suit property viz, apartment No,402, 4" Floor, situated at Shaheed-e-Millat Road, Karachi, which was signed by them as vendor and vendee. Similarly the alleged receipt of payment dated 30.9.1989 shows that Mrs. Zakia Pervaiz Butt has received a sum of Rs,50,000/- on account of advance money/part payment towards the sale consideration from Mr. Kesholal. Now the question arises that when the appellant did not enter in the alleged sale agreement whether she can file suit for specific performance of contract under the relevant provision of law? Whether any sale agreement executed between the appellant and the respondent No,1, admittedly nothing available on record to establish that the respondent No,1 has participated in respect of sale proceedings of the suit property, neither respondent No,1 entered in a sale agreement as a party nor signed it as a witness. How the appellant become an aggrieved party to file suit for specific performance of contract. Whatsoever the contract was taken place it between Mrs. Zakia Pervaiz Butt and Kesholal. Thus the appellant has no locus standi to file suit against any respondents."
8. The Appellant in paragraph 6 of the plaint in Suit No,1075 of 2006 has claimed that "the sale agreement between Pro forma Defendant No,2 / vendor and the Plaintiff Vendee was executed on 30th Sept. 1989" and the Vendor handed over peaceful physical possession of the said property to the Plaintiff / Vendee on 18.11.1989 through Defendant No,1 since then said property is in the physical possession of the Plaintiff. Photostat copy of the agreement dated 30.9.1989 is available on record, which shows that the same was executed between Mrs. Zakia Pervaiz Butt wife of Pervaiz Aslam Butt as Vendor and Mr. Kasholal son of Gobindram as the Vendee. There is no mention therein of the Plaintiff/Appellant namely Jaiwanti Bai, however, perusal of paragraph 3 of the memo of appeal shows that correct position has been mentioned therein, therefore, the statement made in paragraph 6 of the plaint is wrong. Same averment was made in paragraph 6 of the memo of appeal before the first Appellate Court. It may be mentioned here that in the plaint as well as memo of appeal, the Appellant claims that she has entered into agreement with Vendor i.e, Zakia Pervaiz Butt and that she has made all the payments to the Vendor, but in fact none of these facts could be proved by her as the agreement was executed between the Vendor and husband of the Appellant and in same manner payment was also made by husband of the Appellant to the Vendor, therefore, the learned Appellate Court was justified in holding that the Appellant has approached the Court with unclean hands.
9. A perusal of clause 7 of the agreement dated 30.9.1989 shows that as per this caluse, the Vendor has undertaken to execute General Power of Attorney/Sale Deed in favour of the Vendee or his nominee. Thus, if a suit is filed by the said Vendee, it would be decided in accordance with law on merits, if press into service, caluse 7 of the said agreement may enable the Vendee to transfer. The suit property in his faovur or in favour of his nominee.
10. In view of above, I am of the considered view that the impugned order is well reasoned and does not suffer from any legal infirmity as on the basis of the averments made in the plaint and the documents filed in support thereof, the Appellant has no locus standi to file the suit. Accordingly, I dismiss the appeal and maintain the impugned order.