' AZIZ-UR-REHMAN, J.--- CMA No.2080/12. Through this application under section 151, C.P.C. The plaintiff [Muhammad Murtaza] is seeking direction to the Nazir of this Court for release/withdrawal of profit accrued on the deposited lump sum price/sale consideration of Rs.12,500,000/= to the plaintiff in compliance with court's order dated 03.12.2004 passed in the above suit, because the property remained in possession of the defendant No.1 (Mrs. Sarwat Perveen) until 04.10.2011, when the possession of the suit property was handed over by the Nazir of this court to the plaintiff.
1. Succinctly facts leading to the filing of the above application are that the plaintiff filed above suit against defendant No.1 [Mst. Sarwar Parveen] and another viz. PECHS through its Administrator wherein it was asserted, that the defendant No.1 being owner of Plot No.174-E, Block 2, PECHS, Karachi, admeasuring 600 sq. Yards was agreed to sell the said property to the plaintiff for a total lump sum price of Rs.12,500,000/= (Rupees one crore twenty five lacs only) through an agreement dated 3.12.2003.
2. Per averments of the learned counsel for the plaintiff, a sum of Rs.20,000 (Rupees two lacs only) was paid to the defendant in cash on 30.11.2003, whereas a further sum of Rs.1,050,000/= (Ten lacs fifty thousand only) was paid on 3.12.2003 vide Pay Order No.001668 drawn on Faysal Bank Limited, DMC Society Branch, Karachi. In this way a total sum of Rs.12,50,000/= was paid to the defendant as an advance payment.
3. The balance sale consideration amounting to Rs.11,250,000/= per assertion of the plaintiff, was payable within a period of six months from the date of agreement of sale i.e., 3.12.2003. Upon full payment of the lump sum sale price of Rs.1,25,00,0001= the plaintiff or his nominee was then to become entitle to occupy and possess full possession of the aforesaid property. On 29.12.2003 the plaintiff however, received a message from defendant No.1 through her estate broker namely Waliullah, whereby the plaintiff was informed that Mr. Askari Ansari, brother of defendant No.1 has come from London and he wanted to have a meeting with the plaintiff at the residence of defendant No.l.
4. The meeting was thus held on 30.12.2003 in presence of defendant No.1, in which Mr. Askari Ansari told the plaintiff that they do not want to sell the suit property. In the meeting the plaintiff was requested to agree on receiving back the earnest money. The plaintiff, however, refused to accept such proposal and instead urged the defendant No.1 for performance of contractual obligations.
5. On hearing of such refusal, Mr. Askari Ansari, brother of defendant No.1 in response told to the plaintiff that defendant. No.1 will not sale the property at any cost and again requested the plaintiff to take back the earnest money of Rs.12,50,000/= but such offer was not only refused by the plaintiff but instead the plaintiff forcefully insisted for the performance of contractual obligations.
However, per assertions of the plaintiff, from the conduct of the defendant No.1 and her brother, it appeared to the plaintiff that they had some other buyer who in fact was willing to pay more money than Rs.12,500,0001= as settled under the agreement of sale dated 03.12.2003 between plaintiff and Defendant No.l.
6. The plaintiff no doubt showed his willingness to perform his part of contract.
7 Consequently, the above suit was filed on 1.1.2004 for the following reliefs: -
(a) Direct the defendant No.1 to execute sale deed before the concerned registrar in respect of suit plot bearing number plot No.174-E, Block 2, PECHS, Karachi admeasuring 600 square yards in favour of plaintiff/his nominee and handover its peaceful vacant possession alongwith all title documents to plaintiff; or in case the defendant No.1 fails to do so, this Hon'ble Court may be pleased to direct the Nazir of :his Court to execute requisite sale deed in favour of plaintiff on behalf of the defendant No.1.
(b) Permanently restrain the defendants or any other person claiming through or under them from transferring, encumbering, alienating, creating any third party interest, and exercising any right, title or interest in the suit plot;
(c) Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances of the case, and
(d) Cost of the suit.
8. In response to the summons, the defendant No.1, filed written statement wherein the defendant No.1 did not deny the execution of the sale agreement, receipt of the amount of Rs.12,50,000/= as an advance payment. Besides, the period for completion of the contract of six months from the date of sale agreement executed between the plaintiff and defendant No.1 on 3.12.2003 was also not denied. The defendant No.1 however, asserted that upon approach of the plaintiff for purchase of the suit property the defendant No.1, had indeed informed plaintiff about the ground floor's occupation by Mr. Himayoun Nayyar Ansari, (who happens to be the brother of defendant No.1) as a tenant for last several years at the rent of Rs.16,000/. Per month. The defendant No.1 per her averments had categorically stated, that she only obliged to deliver the vacant possession of the portion of the house which is in her possession. Further in the written statement it was specifically asserted by the defendant No.1, that the sale consideration for the house in question if, had been fully vacant would have been far in access of that which had been agreed between the plaintiff and defendant No.1 [i.e., the lump sum price of Rs.12,500,000/=].
9. Keeping in view the admissions made in the written statement filed by defendant No.1, the plaintiff filed on 17.2.2004, an application under Order XII Rule 6 r/w. Section 151, C.P.C. Bearing [C.M.A. No.811/04] with a prayer for passing of a decree on the basis of admissions. The plaintiff besides praying for passing of a decree, again shown her willingness, to deposit the balance sale consideration of Rs.11,250,000 (Rupees one crore twenty lacs fifty thousand only) with the Nazir of this Court subject to decree of the suit, as prayed.
10. The suit filed by the plaintiff was ultimately decreed and for convenience purpose, the operative part of order dated 03.12.2004 is reproduced as under:- "Resultantly the application under Section 12 Rule 6, C.P.C. Is granted suit of the plaintiff for specific performance of the contract is decreed as prayed with a modification that physical possession of the house as a whole excluding the ground floor shall be handed over to the plaintiff in pursuance of this decree by defendant No.1 who shall also execute a registered sale/Conveyance Deed in favour of the plaintiff or his nominee after receiving the remaining sale consideration of Rs.1,12,50,000/= (Rupees one crore twelve lacs fifty thousand only) within 30 days from the date of this order. In case defendant No.1 shall avoid to execute and perform her part of the contract by executing registered sale/Conveyance Deed in favour of the plaintiff or his nominee or put him in vacant and peaceful possession of the house in suit excluding the ground floor, the plaintiff shall deposit the balance sale consideration amounting to Rs.1,12,50,000/= (Rupees one crore twelve lacs fifty thousand only) with the Nazir of this Court who shall execute the registered sale/Conveyance Deed in favour of the plaintiff in respect of the house in suit and put him in physical possession thereof to extent as ordered above. However, there will be no order as to costs".
11. Against the order/judgment and decree dated 03.12.2004, the defendant No.1 filed HCA No.269/04. [Mst. Sarwat Parveen v. Muhammad Murtaza]. During the pendency of the High Court Appeal, on 5.5.2005 a learned Division Bench of this Court passed a consent order on CMA No.160/2005 relevant portion whereof reads as under:- "By consent this application is disposed of in the terms that the appellant as well as respondent No.1 shall deposit their respective sums (Appellant Rs.1.25 million and Respondent No.1 Rs.11.25 million) with the Nazir of this Court within two weeks from the date of this order, without prejudice to the merits of their respective case, in this appeal, on deposit, such sums be invested in some profit bearing government scheme for the benefit of successful party."
12. The above High Court appeal filed by the defendant No.1 was dismissed on 26.4.2011. However, for the purpose of the present dispute between the plaintiff and defendant No.1 regarding entitlement over the accrued/accruing interest/profit on the lump sum sale price/sale consideration, invested by the Nazir of this Court pursuant to the order dated 05.05.2005, the observations of Hon'ble Division Bench [in para 30 on typed page 19 of the judgment dated 26.6.2011] are indeed helpful and worth to note for resolving of the present dispute between the parties.
13. Against the dismissal of the HCA No.269/04, [Mst. Sarwar Parveen v. Muhammad Murtaza and another] a Civil Petition No.511-K/11 was filed by Mst. Sarwar Parveen/the Defendant No.1 before the Apex Court which was also dismissed on 9.8.2011. Thereafter, the civil Review Petition No.05-K of 2011 was also dismissed on 10.10.2011.
14. On 16.9.2011 admittedly the Nazir of this Court executed a Sale Deed in compliance with High Court judgment dated 03.12.2004 which, of course, was successfully upheld up to the apex court.
Per order dated 04.10.2011 passed in the above suit whereby the Nazir of this Court was directed to handover peaceful possession of the premises to the plaintiff/Decree Holder i.e., on 04.10.2011 at 03.00 p.m. Because of the defendant No. l's failure to execute Sale Deed. The Nazir of this Court thereafter in compliance with court's orders put the plaintiff in possession of the suit property.
Relevant extract from the Nazir report filed on 13.3.2012 runs as under:- "Complying with Court's order the under signed with staff member accompanying with Mr. Altaf Associate of Mr. Masood Khan, counsel for plaintiff alongwith Muhammad Murtaza plaintiff proceeded at the site i.e., Bungalow on Plot No.174-E, Block-2, PECHS at 2. P.m. At outside the door on ground floor of aforesaid Bungalow Fida Hussain Chowkidar of ground floor was present. He was introduced and informed about compliance of above order. On which he said that he has the key of Bungalow which has handed over by Mr. Amin to him and then he opened the gate of ground floor. In the first instance the inspection of first floor was carried out which was lying vacant and no any house hold articles were lying therein. In such state the possession of first floor of above bungalow was handed to Muhammad Murtaza plaintiff in presence of above named persons."
15. Upon service, defendant No.1 in reply to CMA No.2080/2012 , filed her counter-affidavit in which she categorically denied the claim of the plaintiff over the profit/interest accrued/being accrued on the invested amount of Rs.1,25,00,000/=.
16. In answer to the counter-affidavit a detailed affidavit-inrejoinder was filed by the plaintiff wherein besides, denying the contents of the counter-affidavit, plaintiff's claim was further explained on the basis of events viz-a-viz defendant No.1 role as she played.
17. The nucleus point of dispute involved herein is whether plaintiff or the defendant No.1 is entitled to receive the benefit of interest/profit accrued/being accrued on the lump sum sale price of Rs.1,12,50,000/ deposited with Nazir of this Court and invested by him in a profitable scheme. The invested amount was comprising of Rs.12,50,000/= [which the plaintiff had paid as an advance to the defendant No.1] and balance sale consideration of Rs.1,12,50,000/= [which the plaintiff had to pay to the defendant No.1].
18. I have heard the learned counsel for the parties and gone through the entire record available before me.
19. Mr. Muhammad Masood Khan, learned counsel for the plaintiff vehemently argued that the interest/profit on the entire sale consideration of Rs.12,500,000/=, having deposited and invested is liable to go to the plaintiff. Per learned counsel for the plaintiff, because the plaintiff remained successful throughout in the legal battle. Apart from this, plaintiff was kept away from enjoying the peaceful possession of the subject property for no fault. Besides he further contended that not only the plaintiff suffered a lot but also deprived from the benefit of Rs.16,000/= per month which the defendant No.1 was receiving from the tenant viz. Mr. Himayoun Nayyer Ansari who happened to be brother of defendant No.
1. It was further contended, by the learned counsel for the plaintiff, that the plaintiff in compliance with judgment dated 3.12.2004, indeed had approached the defendant No.1 and offered the payment of balance sale consideration. But the defendant No.1 in her own wisdom, rather to say with malafide intention, did avoid the acceptance of balance sale consideration. Per learned counsel for the plaintiff, at the relevant time the plaintiff had also approached the Nazir of this court, for depositing the balance sale consideration of Rs.1,12,50,000/=, but the Nazir did not accept the amount of balance sale consideration, evidently on the ground, that defendant No.1 had obtained a status-quo order in HCA No.269/04 [Mst. Serwat Perveen v. Muhammad Murtaza and another].
20. Per learned counsel for the plaintiff, subsequently, in compliance with order dated 5.5.2005, passed by a learned Division Bench of this court, both the parties deposited their respective sums [i.e., a sum of Rs.1.25 million being amount received in advance by defendant No.1 and by the plaintiff a sum of Rs.11.25 million as balance sale consideration]. Mr. Muhammad Masood Khan, learned counsel for the plaintiff, emphatically contended that it is the plaintiff who is entitled to receive the profit/interest on the amount invested by the Nazir in profit bearing scheme, in terms of order dated 05.05.2005 as it was/is for the benefit of 'successful party'. Per learned counsel, order dated 5.5.2005 has never been questioned and has thus got finality. Per learned counsel, the possession given to the plaintiff on 4.10.2011, was indeed under the supervision of the Nazir of this Court and not voluntarily. He further contended that in various cases it has been decided that where the litigation remained pending on account of status-quo order or otherwise unfairly prolonged, by one of the parties then in such a situation accrued profit on invested amount is always given to one who remained out of possession during the period of litigation. Under the circumstances of the case per learned counsel, the interest/mark-up accrued/being accrued is rightfully claimed by the plaintiff. Lastly he contended that the amount deposited by both the parties pursuant to the order dated 5.5.2005 passed in HCA No.269/04, is manifestly, for the befit of successful party, which per learned counsel, in the case in hand, is the plaintiff and not the defendant No.
1. Learned counsel for the plaintiff in support of his contentions placed reliance on the case reported in 1981 SCM R 684, (Nazis Hassan v. Maj. (Retd.) Ejaz Ahmad Khan).
21. In contra Mr. Yousuf Moulvi, learned counsel for the defendant No.1 [Sarwat Parveen] forcefully argued that defendant No.1 is absolutely right in claiming the accrued/being accrued profit/interest on the lump sum amount of sale price/sale consideration i.e., Rs.1,25,00,000/=. Per learned counsel regarding the amount of sale consideration i.e., Rs.1,25,00,000/= interest/profit accrued/being accrued thereon, the successful party is the defendant/seller and not plaintiff /purchaser. The learned counsel for the defendant seriously opposed the claim of plaintiff over the profit/interest accrued/being accrued on the lump sum sale price/total sale consideration of Rs.1,25,00,000/=. Per learned counsel, no doubt the possession of the subject property was finally given to the plaintiff on 4.10.2011, but despite this, increase in the value of the property manifolds disentitle the plaintiff to claim the profit. He further contended that seeking of any direction in this regard by the plaintiff not only misconceived but also misleading. Per learned counsel for the defendant No.1, order dated 05.5.2005 is very clear regarding benefit of the profit/interest accrued/being accrued on the invested amount of lump sum sale price of Rs.1,12,50,000/=. Lastly learned counsel for the defendant No.1, forcefully submitted that the application is liable to be dismissed, otherwise, defendant No.1 being a lady of advanced age would be seriously prejudiced.
22. I have taken into consideration respective arguments of the learned counsel for the parties and also minutely scanned the case record. Insofar the contention of the learned counsel for the plaintiff regarding the deprivation of rent amount in the sum of Rs.16,000/= per month is concerned, in my view such contention is without any substance if, seen in juxtaposition of the judgment and decree passed in favour of the plaintiff. Per judgment and decree passed, it is worth to mention the possession of the ground floor being on rent at the relevant time was excluded from handing over to the plaintiff. Admittedly this part of the decree has not been questioned by the plaintiff. Even in the High Court Appeal, filed by Mst. Sarwat Parveen/defendant No.1, the learned ' Division Bench of this court while passing judgment dated 26.6.2011 in para 30 typed page 19 observed as under:- "It is pertinent to mention that the respondent No.1 during proceedings has even relinquished such right of complete vacant possession of the subject premises which in our humble view left no dispute or controversy between the parties."
23. Upon relinquishment of the vacant' possession of the ground floor, now the plaintiff, at least at this stage is not justified to say that the plaintiff was deprived of the benefit of any rent in respect of the relinquished ground floor or the seller/defendant, was in any manner benefited therefrom.
During litigation, the value of money since has considerably decreased and contrary to this the value of property has significantly increased. In this way, I am of the humble opinion, that it is the plaintiff and not the defendant who was more benefited than the defendant No. 1.
24. Indeed in the case reported in 1981 SCM R 684 [Nazir Hassan v. Maj. (Retd.) Ejaz Ahmed Khan] the Hon'ble Supreme Court held as under:- "Admittedly according to the basic agreement of sale executed between the parties a sum of Rs.3 lakhs was paid in advance by the respondent to the petitioner against its execution on the 29th June 1974 and according to one of the terms of this agreement, the remaining sale price of Rs.6 lakhs had to be paid by the respondent to the petitioner at the time of the registration of the sale deed before the sub-Registrar and the delivery of the possession of the bungalow to him within 45 days. Evidently the petitioner had failed to exercise his part of the agreement and the respondent had to file the suit for enforcement of the agreement through Court. On the 22nd of November 1974, the trial court decreed the suit of the plaintiff-respondent for specific performance of the agreement on deposit of Rs.6 lakhs by him before the 21st of December 1974.
The respondent deposited the sum of Rs.6 lakhs due from him in Court. But then the execution of the decree was stayed in appeal by the High Court at the instance of the petitioner. It was eventually on the 26th of July 1978 in course of the execution proceedings that the necessary sale deed was got executed and registered in favour of the respondent and the petitioner became entitled for the first time to receive the sum of Rs.6 lakhs lying in deposit as the balance of the sale price. Before this execution of the sale deed through court the petitioner was not entitled in law to withdraw the money from the court without having executed the sale deed in favour of the respondent. In this view of the matter therefore, we have no doubt in our mind that the petitioner was not entitled to the interest that had accrued on the sum of Rs.6 lakhs for the period before the 26th of July 1978. In the circumstances the order passed by the High Court is unexceptionable."
' But as is clear, the facts of the cited case are different from those in hand. In the case (supra), the question of 'relinquishment' regarding rented premises, the point of decrease in 'value of money' and increase in the 'value of property' was not raised and/or considered in the cited case.
25. As far as the contention of the learned counsel pertaining to sufferings of the plaintiff, on account of prolong litigation between the parties, is concerned, on this score also the plaintiff's case fails. In my humble view, a litigant cannot be penalized and/or blamed merely because much time was consumed during the trial. Any aggrieved party if exercising his right of appeal, review etc., even up to the apex court cannot be blamed or otherwise stopped.
26. As far as the contention of the learned counsel regarding interpretation of 'successful party' in terms of the order dated 05.5.2005 [passed in HCA No.269/04] is concerned, such interpretation in my view cannot be done in the present case. It is for the Hon'ble Division of this court which, of course, can appropriately interpret the order passed in HCA No.269/2004 [Mst. Sarwat Parveen v.
Muhammad Murtaza] on 05.5.2005.
' In view of the foregoing facts and circumstances, CMA No.2080/12 is dismissed, however, with no order as to cost.