ARSHAD HUSSAIN KHAN, J.--The present suit was filed by the plaintiff against the defendant for Specific Performance of Contract, Damages/Compensation and Permanent Injunction with the following prayers:-- A) Decree for specific performance of the agreement dated 30.9.2004 in respect of three plots bearing No.B-25, B-26 both admeasuring 400 sq. yards and Plot No. B-27 admeasuring 305 sq. yards situated in Rizwan Cooperative Housing Society, Sector 38-A, Scheme No.33, Gulzar-e-Hijri, Karachi, directing the defendant to execute the legal documents and transfer the plots in question in favour of the plaintiff after receipt of balance sale consideration i.e. Rs.55 Lacs and hand over its physical possession and on his refusal/going back from his commitment, the Nazir or any other officer of this Court may be appointed to do the needful on payment of stamp duty, registration and all other charges having become accrued against the plaintiff.
B) Grant damages to the tune of Rs.60 Millions against the defendant as rest of the amount i.e. Rs.55 Lacs has been held by the plaintiff for payment to the defendant on its call and due to suffering of mental torture and agony due to the acts of the defendant.
C) Restrain the defendant or any one acting on his behalf from transferring, alienating or creating third party interests in respect of the plots in question bearing Nos.B-25, B-26 both admeasuring 400 sq. yards and Plot No.B-27 admeasuring 305 sq. yards situated in Rizwan Cooperative Housing Society, Sector 38-A, Scheme No.33, Gulzar-e-Hijri, Karachi, or otherwise adopting any process detrimental to the interests of the plaintiffs.
D) Any other relief deem fit by this Honourable Court in the circumstances of the case.
E) Cost of the suit.
2. Brief facts leading to file present suit as averred in the plaint are that the plaintiff agreed to purchase immovable properties i.e. three Plots bearing Nos.B-25, B-26 and B-27 respectively, admeasuring 400 and 305 sq. yards situated in Rizwan Cooperative Housing Society, Sector 38-A, K.D.A. Scheme No.33, Gulzar-e-Hijri, Karachi (suit plots), through agreement to sell dated 30.09.2004. The total sale consideration for the suit plots were agreed at Rs.11 million, out of which the defendant received Rs.11,00,000/-. Thereafter, the defendant also received an amount of Rs.44,00,000/- through two cheques dated both dated 06.08.2005 and executed a memorandum of understanding in which the defendant has admitted receipt of total amount of Rs.55,00,000/- being 50% of total sale consideration. The plaintiff also got published public notice in Daily Nawa- e-Waqt. dated 27.10.2004 inviting objections to the aforesaid deal but no objection received from any quarter. Pursuant to the said memorandum of understanding though majority of original documents relating to the title of the suit plots have been handed over to the plaintiff, however, some of the documents, i.e. original of last conveyance deed dated 24.10.1998 was kept with the defendant and the plaintiff had only received the Photostat copy of the said document. From the said photostat copy it reveals that the conveyance deed in respect of suit plots was executed through Nazir of District Court Malir by virtue of decree dated 23.09.1998 obtained by the defendant in some litigation between defendant and one Amir Ali Moosa. Though the defendant had committed to hand over original conveyance deed on or before 20.08.2005, however, he failed to fulfill his commitment. Since 06.08.2005 the defendant had adopted delaying tactics and has not executed sale deed on one pretext or the other despite the fact that he has received 50% of total sale consideration whereas for 50% of balance sale consideration the plaintiff is prepared to pay. In the month of July 2007 the plaintiff through some sources came to know that the defendant has attempted to create third party interest in the suit plots and upon having such information the plaintiff got published public notice in daily newspaper newspapers daily Jasarat Karachi and daily Jang Karachi dated 25.07.2007 to avoid multiplicity of proceedings/litigations and in this regard a legal notice was also sent to the defendant. The defendant did not respond such legal notice and delayed the matter of transfer of suit plots in the name of plaintiff with marketable title as agreed in the agreement. As per terms of, agreement to sell, the defendant was under obligation to complete title documents before Sub-Registrar in favour of plaintiff within a period of 6 months since 31.03.2005 and thus has deliberately delayed the matter despite having receipt of 50% of total sale consideration. The plaintiff having no other option filed instant suit.
3. Upon notice of this suit, the defendant filed his Written Statement raising preliminary objection with reference to the maintainability of present suit. It is averred that though it was agreed in memorandum of understanding that the plaintiff will pay balance sale consideration to the defendant at the time of execution of sale deed before Sub-Registrar, however, the plaintiff thereafter never offered the said payment nor has shown his willingness for the same, whereas the defendant had handed over original documents of the suit plots to the plaintiff on 31.03.2005. It is also averred that since the plaintiff never come forward to offer payment of balance sale consideration, therefore, plaintiff has committed default, hence he is not entitled to claim relief in the present proceedings. It is also averred that the defendant had filed Civil Suit No.227 of 1997 in the Court of Senior Civil Judge Malir against one Amir Ali Moosa and others for Specific Performance of Contract pertaining to the suit plots, which was dismissed. Thereafter the defendant preferred Civil Appeal No.04/1998 before the Court of District Judge, Malir, which was allowed and the defendant (appellant in the appeal) was directed to deposit Rs.50,000/- with Nazir for executing registered sale deed in favour of the defendant by the Nazir, which amount was accordingly deposited and the Nazir subsequently executed conveyance deed in favour of the present defendant (the plaintiff in the suit 227 of 1997). The judgment passed in civil appeal was never challenged by Amir Ali Moosa, which attained finality. On 26.01.1998, one Syed Amiruddin filed application under Section 12(2) C.P.C. claiming therein himself attorney of said Arnir Ali Moosa in Civil Appeal No.04 of 1998, which was objected by the present defendant, however, such application was allowed and learned District Judge Malir vide order dated 01.02.1995 framed issues with directions to the parties to file the list of documents and witnesses within 7 days. The, defendant challenged said order in this Court through Civil Revision Application No.81/2005 which was admitted for regular hearing. It is also stated that after setting aside the judgment dated 28.07.1998 the defendant approached the plaintiff, informed him about the latest position of the case and refund of his paid amount by handing over cheque of Rs.44,00,000/- to the plaintiff but the plaintiff himself avoided to accept the said proposal of the defendant. The said cheque though was not encashed, however, it is still in possession of the plaintiff and he has not delivered it back to the defendant. It is also stated that the performance of the contractual obligations cannot be made in view of the aforementioned circumstances which are beyond the control of the defendant whose rights are at the stake as the litigation between the defendant and the previous owner of the suit plots namely Amir Ali. Moosa is still pending for adjudication in this Court. It is further stated that the defendant is not in a position to execute the conveyance deed in favour of plaintiff, however, he is ready to settle the matter with the plaintiff. The above litigations are already in knowledge of the plaintiff and the plaintiff despite having knowledge of the above proceeding is insisting for execution of conveyance deed, which is not possible in present scenario, hence, instant suit is liable to be dismissed.
4. On pleadings, this Court on 24.11-2008 by consent of the parties framed the following issues:--
1. Whether the suit is maintainable under the low?
2. Whether the Sale Agreement dated 20.09.2004 can be enforced/performed, so its effects?
3. Whether the defendant on receiving 50% of the sale consideration of demised premises i.e. Plots bearing Nos. B-25, B-26 and B-27 situated in Rizwan Cooperative Housing Society, Sector 38-A, K.D.A. Scheme No.33, Gulzar-e-Hijri, Karachi, from the plaintiff has not failed to perform his part of contract?
4. Whether the plaintiff is entitled for the damage to the tune of Rs. 60 millions due to misfeasance of the defendant as he deliberately violated the clauses 4 to 7 of the agreement dated 30.9.2004 which cause mental torture and agony for not disclosing purported imperfect title, if any?
5. What should the decree be?
5. Thereafter, with the consent of the learned counsel for the parties, commissioner for recording evidence was appointed. Who after completing the commission filed his report on 15.09.2009. From perusal of Commissioner's report, it appears that the plaintiff in support of his stance in the case examined (Muhammad Naseem Siddiqui) as PW-1 [Exh.P], and produced following documents:- No.# Documents Exhibit
01. Affidavit in evidence P-1
02. Agreement to sell 30.09.2004 P-2 03..Memorandum of understanding 'dated 31.03.2005P-3
04. Payment Receipt dated 31.03.2005 P-4
05. List of documents handed over to Mr. Naseem Siddiqui Acknowledge dated 06.08. 2005P-5
06. Delivery Letter of Possession dated 31.03.2005P-6
07. Receipt of Payment dated 30.09.2004P-7 Following Documents are not Exhibited but marked as 'X'
08. Copies two cheques of Muhammad Naseem Siddiqui dated 06-08-2005X-1 X-2 X-3
09. Copy of public notice dated 7.10.2004
10. Copy of conveyance deed dated 24.10.1998
11. Letter addressed dated 29.05.2004 to Mr.Akbar Ali by Administrator Rizwan Cooperative Housing SocietyX-4
12. Copy of public notice dated 25-07- 2007X-5
13. Copy of public notice dated 25-07- 2007X-6
14. Copy of legal notice dated 01-09- 2007X-7
15. Copy of postal receipt X-8
6. The PW-1 was subsequently cross-examined by learned counsel for the defendant. The cross- examination of the plaintiff, for the sake of ready reference, is reproduced as under:- "I am bachelor of architecture. It is correct that there are three plots bearing Nos.B-25, B-26 and B- 27 involved in this case. I have in my possession the original allotment orders, possession orders and acknowledgment of possession of all here plots. I did not produce original acknowledgment of possession, it is not correct that the original sale deeds of all three plots are in my possession. It is correct to say that in Ex.P-5 para 2 it is mentioned that the old sale deeds were delivered to me. As per para 2 of Ex.P-5 the original sale deeds were not delivered. I was given photo copies to old sale deeds of the plots. I was given copies of allotment orders, possession orders and acknowledgment of possession and transfer orders not the original again says that transfer letters were original. It is correct that there is not mention in Ex. P-5 about photo copies but the word copies are mentioned. I did not issue receipt of documents to the defendant only it is mentioned in agreement. The original of X-4 is with me. The original newspaper dated 25.7.2007 of Jasarat and Jang X-5 and X-6 are also in my possession. The said notices were published through my agent. The notice X-7 . was sent through my advocate namely Hafizur Rehman. I do have office copy of the said notice in original. It is not correct to say that the said notice was not sent to the defendant. It is not correct that the postal receipt X-8 is bogus. The said notice was posted by myself. I did not produce the delivery certificate of X-8. It is correct that as per Ex.P-6 the physical possession of B-25 full and possession of 50% of plot B-26 was delivered to me. At present the physical possession is with me. It is not correct that the physical possession of the plots is not with me but with Ali Akbar and the possession was not delivered to me. It is correct that the sale consideration of the three plots was one crore ten lac. It is correct that the sale agreement was executed on 30.09.2004 and an amount of Rs. Eleven lac were paid by me as signing amount. It is correct that as per clause 3 of the agreement Ex. P-2 the remaining amount Rs.Ninety nine lac was to be paid within six months i.e. 31.3.2005. It is correct that up to 31.3.2005 I did not pay Rs.99 lac to the defendant. It is incorrect to say that at my instance on 31.3.2005 memorandum of understanding Ex.P-3 was executed voluntarily says that it was at the request of the defendant but amount of Rs.44 lac were received by defendant. It is correct to say that during the period from the date of agreement Ex.P-2 till 31-3- 2005. I did not send any letter to the defendant about willingness to make payment to the defendant. The terms and conditions of Ex. P-3 were by consent of both the parties. I did not send the notice to the defendant during 31.3.2005 till December 2006 to the defendant for execution of sale deed on receipt of balance payment voluntarily says that because the defendant had no preparation to do so. It is correct that against the receipt Ex.P-4 I had issued two postdated cheques for Rs.44 lac as mentioned in Ex.P-4. It is not correct to say that on 31.3.2005 I had no money in my account.
(At this stage the counsel for the defendant put question. "I say that during the period 6.8.2005 till filing of the suit no balance amount of sale consideration was lying in your account" the counsel for plaintiff raised objection that this question is not within the issues framed. This is a case of enforcement of agreement and therefore this question cannot be said irrelevant) the witnesses however denied the suggestion).
It is correct that in para 4 of my notice X-7 it is stated that you were prepared to complete the contract and ready to pay. It is not correct to say that in my account at that time the amount was not lying however I had arrangement. It is not correct to say that I had not arranged. I did not file my bank statement. Sale deed X-3 was given to me by the defendant at the time of sale agreement. I did not get prepared the draft sale deed and informed the defendant. I received the copy of written statement of this case of the defendant.
I had received the copy of judgment dated 28.7.1998 in Civil. Appeal No.4/98 passed by the A.D.J.
Malir along with the W/S. I also received copy order 1.2.2005 passed in the C.A. 4/98 on the application under section 12(2) CPC along with written statement. I also received copy of memo of Civil Revision 8/2005 filed by the defendant along with written statement. I made enquiry about the above referred cases and status of the defendant about the properties. I did make enquiry about the Civil Revision 81/2005 as I have no concern. I know that the application for stay have been dismissed on 20.8.2008. The grounds have been given in the orders. It is not correct to say that I myself have defied the terms and conditions of the sale agreement and I am not entitled for relief claimed. I do not know if the title of the defendant is still not clear.
7. After evidence of the plaintiff, the defendant (Ali Akbar) examined himself as DW-1 [Exh.D] and produced the following documents: No.# Documents Exhibit 01 Affidavit in evidence D-1 02 Copy of judgment C.A. 4/1998D-2 03 Copy of application under section 12(2), C. P. C .D-3 04 Order dated 01.02.2005 on application under section 12(2) passed by 1st ADJ Malir in C.A. No.4/1998.D-4 05 Civil Revision No.81/2005 D-5 06 Admission of Revision No.81/2005 order dated 04- 04-2005D-6 The said witness [DW-1] was subsequently cross-examined by the counsel for the plaintiff. The said cross-examination for the sake of ready reference is reproduced as under: "I know English to some extent and have read over the contents of my affidavit-in-evidence. I had signed Sale Agreement Ex.P-2 with my free-will without any pressure it was in resident of the three plot bearing Nos.B-25, B-26, B-27 two 400 sq. yds. and one 305 sq. yds., for Rs.11000000/- (One Crore Ten Lac only) I had obtained the title of the plots as a result of court judgment passed in Civil Appeal No.04/1998. Earlier it was in the name of Ameer Ali Musa. The Sale Deed was executed through Nazir of the court. I did not produce the same with my affidavit. I have not brought it today, however no loans has been obtained on the basis of that sale deed from any bank or financial institution. It was in my knowledge at the time of sale agreement Ex.P-2 that on application under section 12(2) C.P.C. was filed. It is correct that in the Sale Agreement Ex.P-2 and in memo of understanding Ex.P-3 there is no mention about the pendency of application under section 12(2)
C.P.C. however this agreement was prepared by the plaintiff voluntarily says that I had in formed verbally to the plaintiff about the said application. It is not correct to say that agreement was prepared intently because of the pendency of said application. It is correct that the balance amount Rs. 5500000/- (fifty five lac) was to be paid at the time of registration of sale deed volunteering says that plaintiff did not execute sale deed as he had no payment, It did not come in my knowledge that the plaintiff got published a public notice regarding the sale transaction in resident of the suit plots. I came to know about the publication about 2 months from the date of publication. It is correct that I did not send any notice revoking the agreement as he failed to perform his contractual performance voluntarily says that I personally asked him verbally in his office. It is correct to say that till 2007 when plaintiff filed this suit I had not filed any suit in any court regarding revocation of the agreement voluntarily says that I along with my advocate had visited the office of the plaintiff and offered to return his deposit money and in this respect had given one cheque for Rs.4400000/- which the plaintiff did not present in bank. It is not correct to say that the statement regarding issue of cheque is afterthought and false. I did not produce any documents regarding issuance of cheque for Rs.4400000/- it is not correct to say that I had received any legal notice sent by Mr. Hifzur Rehman dated 1.9.2007. It is correct that since the date of payment i.e. 2004 amount of Rs.5500000/- are with me. It is correct to suggest that the suit property is still under litigation in R.A.81/2005. Which is pending before this court. It is not correct to suggest that I am delaying the said Revision Application in order to decide this matter. It is correct that there is no orders of stay in the court of District Judge Malir. It is correct that the title of property is still in my name and intact. At present this property cannot be transferred because of the stay order granted by Honorable High Court in R.A. 81/2005 and in this case. I do not know about the present market value of the property. At the time of agreement the sale price was settled with the consent of both the parties. It is not correct to say that on receipt of half payment I have become dishonest, I did not make payment nor made application before the court for depositing amount of Rs.55000001- after appearance in this case."
[emphasis supplied]
8. Learned counsel for the plaintiff, during the course of his arguments, reiterating the contents of the plaint, has contended that the plaintiff entered into a contract to purchase the suit plots with the defendant through Sale Agreement dated 30.09.2004 [Exh. P-2] for a total sale consideration of Rs.1,10,00,000/-, out of which the plaintiff paid 50% of the total sale transaction whereas remaining 50% was to be paid at the time of registration of sale deed. The defendant upon receiving 50% of the total sale consideration had handed over the physical possession of the suit plots and the original title documents, except the sale deed executed by Nazir of the Court in favour of the defendant, were also handed over to the plaintiff. All the documents/ receipts are admitted and available on record. After the lapse of considerable time when the defendant failed to fulfill his part of obligations, the plaintiff initially sent legal notice dated 01.09.2007 (Exh. X-7), however, the defendant despite such notice failed to fulfill his part of obligations under the sale agreement [Exh.
P-2] and Memorandum of Understanding [Exh-P-3]. The plaintiff filed the present suit for Specific Performance of the Contract, Damages and Injunction. It is further contended that the defendant in the present proceedings has attempted to back out from his commitment agreed in the agreement [Exh. P/2] and Memorandum of Understanding [Exh. P/3] and had proposed cancellation on the pretext that one Fazalur Rehman had intervened in the matter in Civil Appeal No.04/1998 who had filed application under Section 12(2) C.P.C. for setting aside the Decree passed in the appeal through which suit plots were auctioned through Nazir of the Court of District Judge, Karachi Malir. Whereas the factual position is that the Civil Revision No.81/2005 filed by the defendant was withdrawn on 25.05.2016 and the same has been dismissed as not pressed.
Furthermore, it has also recently come to the knowledge of the plaintiff that the application under Section, 12(2) C.P.C., filed by the above said Fazalur Rehman, has been dismissed on 24.12.2009 by the Court of 3rd Additional District Judge, Malir. It is further contended that in view of the above facts clear title to the property is with defendant and as such excuse of non-performance of the contract is not sustainable. It is also argued that the defendant has failed to perform his part of contract and this is a clear case of concealment of facts. Had the defendant informed the plaintiff and this Honourable Court that the title of the plots in question is clear since 24.12.2009, when the application under Section 12(2) C.P.C. was dismissed by the 3rd Additional District Judge, Malir, the matter would have been come to an end on its execution of title documents and in exchange of outstanding balance amount of Rs.55,00,000/- which was to be paid before the Sub-Registrar.
Furthermore, delay in completion of the transaction has been caused due to the negligence/surreptitious conduct of the defendant and now the demand of the defendant for enhancement of the amount of sale consideration of the suit plot to the tune of Rs.2,20,00,000/- clearly reflects mala fide on the part of the defendant. It is also argued that the balance payment of sale consideration as agreed has to be paid before Sub-Registrar as and when the defendant is ready to execute sale deed of the above said respective plots. Further the stance taken by the defendant that the plaintiff has not deposited the amount in the Court is frivolous and misconceived as the payment of the balance amount was conditional with the execution of the title documents and delivery of the possession. Lastly learned counsel argued that the plaintiff has established his case and as such he is entitled to the decree as prayed. In support of his stance in the case he has relied upon by following case law:-- i) 1986 SCMR 888 (Shamoon and others v. Ahmad and others. ii) PLD 2011 SC 119 (Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others) iii) PLD 1970 Karachi 770 (Messrs Nigar Pictures Karachi v. Messrs United Brothers Lahore and 6 others) iv) PLD 1983 SC 344 (Ghulam Nabi and others v. Seth Muhammad Yaqoob and others)
9. Conversely, learned counsel for the defendant during the course of arguments reiterating the contents of the written statement has contended that the defendant acquired ownership of the suit plots from one Ameer Ali Moosa through court proceedings whereby Nazir of the District Court, Karachi, Malir4, executed sale deed in favour of the defendant on 24.10.1998. Thereafter, on 30.09.2004 the defendant entered into sale transaction with the plaintiff in respect of suit plots. It is further contended that the plaintiff never shown his willingness and / or has taken any step to perform his part of his obligation to pay the remaining balance sale consideration, i.e., Rs.55,00,000/-. It is also contended that the plaintiff has failed to show that he had requisite amount at the relevant time to pay the balance sale consideration. Furthermore; he never filed any application or shown willingness to deposit the balance sale consideration of Rs.50,00,000/- in this Court from the date of filing of the case till date. It is also contended that the grant of relief for Specific Performance of the Contract is discretionary one. The plaintiff has withheld the balance amount of sale consideration, which was never deposited by him in the Court. Had the plaintiff deposited the balance sale consideration in the Court, it would have become more than Rs.20 million. It is also contended that if, plaintiff still wants to get the relief of specific performance of the contract he has to pay Rs.22 million. Learned Counsel also took the ground of lis pendens. Further it is argued that the present suit is liable to be dismissed, being frivolous: in nature. Learned counsel in support of his stance in the case has relied upon the following case law:- i. PLD 2015 SC 187 (FARZAND ALI and another v. KHUDA BAKHSH and others) ii. 2005 YLR 1905 (SAEED NASEEM CHEEMA v. Mrs. RUKHSANA KHAN) iii. SBLR 2007 Sindh 1139 (BHAI SAHIB NAEEM MOHUUDDIN AND others v. Col. (Rtd.) MAHMUD AZAM and other) iv. 2010 SCMR 286 (MUHAMMAD HUSSAIN and others v. Dr. ZAHOOR ALAM) v. PLD 2010 SC 952 (Mst. MEHMOODA BEGUM v. Syed HASSAN SAJJAD and 2 others)
10. I have given due consideration to the arguments advanced by the learned counsel for the parties as well as their submissions in writing, minutely perused the material/evidence available on record as well the "case law cited at the bar. My findings on the issues are as under:-
11. ISSUES NOS.1 AND 2: Since these issues are connected with each other and related to the very maintainability of the case, therefore, the same are taken up together. These issues have been framed on the basis of preliminary objections taken up by the defendant in his written statement.
Though none of the counsel for the parties advanced arguments on these issues, yet I feel appropriate to address these issues.
12.The question of 'Maintainability of lis' and 'Entitlement to relief' are two distinct things.
'Maintainability of lis' is a legal question, inter alia, related to a legal character of the person under the provisions of Section 42 of Specific Act, which requires any person entitled to any legal character or to any right as to any property, may institute suit against any person denying or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled. It would thus be safely .stated that the law authorizes a person to seek enforcement of his right to any property by instituting a suit against a person denying his right or title. Relevant judicial precedents are PARVEEN BEGUM and another v. SHAH JEHAN AND and another (PLD 1996 Karachi 210) and ABDUL RAZZAK KHAMOSH v. ABBAS ALl and others PLD 2004 Karachi 269).
Whereas 'Entitlement to Relief' is the question of facts to be proved through evidence. In this regard, it would be advantageous to reproduce Section 42 of Specific Relief Act as under:- "42. Discretion of Court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief"
From the perusal of above provision, I am of the opinion that section 42 of the Specific Relief Act does give a right to institute a suit to any person who has any right as to any property. The 'legal character' is the most important aspect of a lis [case] and in absence thereof one cannot maintain his/her lis though filed for a relief, recognized under 'Specific Relief Act or under any other law' except matters, qualifying requirement of Section 91 of the C.P.C. Furthermore, such aspect of the case can also be decided in a summary manner at initial stages. However, the party seeking entitlement to relief has to prove his entitlement through evidence and such aspect cannot be decided in summary manner but after a proper trial.
13.In the present case, the plaintiff seeks specific performance of contract, entered into between the plaintiff, pursuant to sale agreement dated 30.09.2004 [Exh.P-2] and Memorandum of Understanding dated 31.03.2005 [Exh. P-3] executed between the plaintiff and the defendant. In this regard, this Court in the case of AROMA TRAVEL SERVICES (PVT) LTD. through Director and 4 others v.
FAISAL AL ABDULLAH AL FAISAL AL-SAUD and 20 others (2017 YLR 1579) has expounded the terms 'contract' as follows: - "12. In the Law Dictionary, 5th edition, page 291, Black has given the meaning of 'contract' as "an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter of a legal consideration, mutuality of agreement and mutuality of obligations." 'Contract' has been defined as "an agreement between two or more persons intended to create a legal obligation between them and to be legally enforceable". Ref: David M. Walker Oxford Companion to Law, 1980 Ed: P.284. Anson has defined the word contract in the following words: "A contract consists in an actionable promise or promises. Every such promise involves two parties, a promisor and promisee, and an expression of a common intention and expectation as to the act or forbearance promised". Ref: Anson's Law of Contract, 23rd Edition, by A.G. Guest, 1971, p.
23. According to Treitel, "A contract is an agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on agreement of the contracting parties. This proposition remains generally true, in spite of the fact that it is subject to a number of important qualifications." Ref: G.H. Treitel, The Law of Contract, Tenth Edition (1999) by Sir Guenter Treitel, Sweet & Maxwell (1999), p.l. (Source: MOITRA'S Law of Contract and Specific Relief, Fifth Edition).
14.In the present case the defendant did not dispute the documents viz. Sale agreement [Exh. P- 2], Memorandum of Understanding dated 31.03.2005 [Exh. P-3] and payments made by the plaintiff in terms of the said documents towards the sale transaction of the suit property, however, after the said payment when the plaintiff had asked for possession and execution of conveyance deed, the defendant for one reason or the other failed to perform his part of obligation under the contract, hence the plaintiff, having legal character, within his right. subsequently filed the present case for enforcement of contract. However, the entitlement to the relief claimed in the suit would be decided on the basis of the evidence led by the parties. The upshot of the above discussion is that the suit is maintainable and the sale agreement executed between the parties is enforceable under the law and hence these issues are answered accordingly.
15. ISSUE NO.3. From perusal of the evidence available on record, it appears that the plaintiff entered into a contract with the defendant to purchase the suit plots, through agreement to sell dated 30.09.2004 [Exh.P-2] for a total sale consideration Rs.1,10,00,000/- (Rupees One Crore and Ten Lacs Only), out of which the plaintiff paid Rs.11,00,000/- (Rupees Eleven Lacs Only) till the date of execution of the agreement. However, subsequently on 3.1.03.2005 the plaintiff paid further Rs.44,00,000/- (Rupees Forty-Four. Lacs Only) towards sale consideration to the defendant and upon said payment a Memorandum of Understanding (MoU) [Exh.P-3] was executed between the parties whereby the term to the extent of para No.3 of the earlier sale agreement [Exh.P-2] was modified and the plaintiff in pursuance thereof was required to pay the remaining balance of 50% of the total sale consideration to the defendant at the time of registration of sale deed and upon handing over the vacant and physical possession of the third plot i.e., Plot No.8-27 and half portion of plot No. B-26. It is also imperative to mention here that the Defendant at the time of execution of MoU and upon receiving 50% of the total sale consideration, besides handing over the original documents pertaining to suit plots except the original title documents of the suit plots through list of documents [Exh.P-5] also handed over physical, possession of plot No. B-25 and possession of the half portion of plot No.B-26 out of three suit plots and in this regard the defendant also issues delivery letter of possession dated 31-3-2005 [Exh.P-6]. The plaintiff also got published public notice in the newspapers Daily Nawa-e-Waqt dated 27.10.2004 inviting objections in respect of sale transaction. From the record, it also appears that the plaintiff issued public notices in the Daily Jang and Jasarat dated 25.07.2007 whereby the public at large were forewarned from entering into any sale transaction in respect of suit plots. It has also come on record that the plaintiff through his advocate issued legal notice dated 01.09.2007 to the defendant whereby the plaintiff shown his willingness to perform his part of obligation under the sale agreement [Exh.P-2]. However, when no response was received from the defendant, the plaintiff filed the present suit. Further, pursuant to the said memorandum of understanding, though majority of original document's relating to the title of the suit plots have been handed over to the plaintiff, however, some of the documents, i.e. original of last Conveyance Deed dated 24.10.1998 was kept with the defendant and the plaintiff had only received the photostat copy of the said document. From the said photostat copy, it reveals that the conveyance deed in respect of suit plots was executed through Nazir of the District Judge, Karachi, Malir and the suit plots had been obtained by the defendant in some other litigation between the defendant and one Amir Ali Moosa in which judgment was passed on 28.07.1998 and in pursuance thereof on 23.09.1998 a Decree was got executed through Nazir of the Court, as stated above. From the record, it also appears that the defendant adopted delaying tactics and has not executed sale deed on one pretext or the other despite the fact that he has received 50% of total sale consideration, whereas for 50% of balance sale consideration the plaintiff has shown his readiness to pay through legal notice and subsequently by filing the present case.
Such interest of the plaintiff in the suit plots can be gauged from the fact that in the month of July, 2007, when the plaintiff came to know that the defendant is attempting to create third-party interest in the suit plots, the plaintiff got published public notice in the newspaper Daily Jasarat Karachi and the Daily Jang Karachi dated 25.07.2007 to avoid multiplicity of proceedings/litigations and in this regard a legal notice was also sent to the defendant. There is nothing available on record that the defendant ever responded said legal notice and/or the above said publications.
There is also nothing available on record the defendant ever written any letter to the plaintiff either for performance of the contract and or cancellation thereof. As per terms of agreement to sell and MoU the defendant was under obligation to complete title documents before the Sub-Registrar in favour of the plaintiff, however, the defendant despite having received 50% of the total sale consideration failed to fulfill his part of obligation under the terms of the contract.
16. From the record, it also reveals that the defendant derived the title of the suit plots from the order dated 28.07.1998 [Exh. D-2] passed by the Additional District Judge, Malir, Karachi in Civil Appeal No.04/1998, filed by the defendant against one Amir Ali Moosa, whereby the Nazir executed conveyance deed in favour of the defendant in respect of suit plots. For the sake of ready reference, relevant portion of the said Judgment is reproduced as under:- "I have heard counsel for the appellant while none is present on behalf of respondent and have perused the record placed before me and it has transpired that the trial court has decreed suit in terms of money which was alternate prayer whereas main prayer of specific performance was not allowed and no reason has been assigned for not allowing main prayer of the suit. In view of the above judgment and decree passed by the trial court on 15.01.98 and 24.2.98, respectively are hereby modified and suit of the petitioner is hereby allowed. The petitioner is directed to deposit balance payment of Rs.50,000/- with Nazir of the court and Nazir of the court is directed to execute registered sale deed in favour of the petitioner. Accordingly, appeal is hereby allowed as prayed but with no order as to cost."
[emphasis supplied] There is nothing available on record, which could show that the judgment passed in the said civil appeal was ever challenged by Amir Ali Moosa. From the record, it also transpires that on 09.03.2004 Fazal-ur Rehman, claiming himself to be the real owner of the plots in question purchased from sub-attorney namely; Syed Amiruddin son of Allah Din through a sale agreement, filed application under Section 12(2) of C.P.C. [Exh. D-3] in Civil Appeal No.04 of 1998, challenging the judgment and decree dated 28.07.1998 and 23.09.1998 passed in Civil Appeal 04 of 1998. The said application was subsequently disposed of, vide order dated 01.02.2005 [Exh.D-4]. Relevant portion of the said order is reproduced as under:- "I have considered the arguments advanced by the learned counsel for the parties anxiously as the arguments advanced by the parties are based on application of the documents. I am of the considered opinion that the application in hand cannot be decided without evidence, I therefore framed the following issues on application under section 12(2) C.P.C.
ISSUE NO.1. Whether the application under section 12(2) C.P.C. is not maintainable?
ISSUE NO.2. Whether the judgment dated 28-7-1998 and decree dated 23-9-1998 passed by this court was obtained through fraud, misrepresentation and liable to be set aside as such?
ISSUE NO.3. What should the order be?"
[emphasis supplied] The defendant challenged the above said order before this Court in Civil Revision 81 of 2005 and [Exh.D-5]. Record also reveals that this Court while issuing- notice on the said Civil Revision application on 04.04.2005 directed the parties to maintain status quo [Exh. D-6]. Learned counsel for the plaintiff at the time of arguments through his submissions in writing placed on record certified copies of (i) Order dated 24.12.2009 passed by the learned 3rd Additional District Judge, Malir, on the application under section 12(2) C.P.C. Appeal No.4 of 1998, and (ii) order dated 25.05.2016 passed by this Court in Revision Application No. 81/2005. For the sake of ready reference relevant portions of the above order are reproduced as under:- Order dated 24.12.2009 on the application under section 12(2) C.P.C. in Civil Appeal No.4 of 1998.
"From the above quoted unfolding it is clear that the alleged power of attorney executed by Ameer Ali Moosa in favour of Muhammad Ilyas, was found forged by the competent court of law meaning thereby the sub-power of attorney namely Ameeruddin has no legal title, mission and entity for executing the sale agreement or pretending himself to be the sub-power of attorney of the original owner namely Ameer Ali Moosa, even otherwise if the Ameeruddin was the sub-attorney of Muhammad Ilyas, he was not owning any power or authority upon the property of original owner Ameer Ali Moosa, thus my finding on Issues Nos.1 and 2 accordingly.
Issue No.3.
Keeping in view the above aspects and circumstances of the case, I'm of the constant view that the applicant/intervenor has no locus standi in this case, and application under section 12(2)
C.P.C. filed by the applicant has no merit, therefore, in view of issues Nos.1 and 2 and the discussion, the application of the applicant/intervener is dismissed with no order as to cost." emphasis supplied] Order dated 25.05.2016 passed by this Court in Revision Application No. 81 of 2005.
"Learned counsel appearing for applicant says that he has filed civil revision against the interim order of admission of application under Section 12(2) C.P.C. challenging the order in his favour.
However, no injunction was granted by this court against the order of admission of application under Section 12(2) C.P.C., therefore, application under Section 12 (2) was dismissed by the trial court. Therefore, this Revision has become infructuous and it is dismissed as not pressed."
[emphasis supplied]
17. From the above facts, it clearly transpires that when the plaintiff entered into subject transaction and sale agreement [Exh.P-2] was executed in respect of the suit plot there was a litigation pending in shape of application under Section 12(2) of C.P.C. before the Additional District Judge, Malir, Karachi, and the said fact was concealed from the plaintiff because had it been in the knowledge of the petitioner, perhaps the petitioner would not have entered into the Subject transaction. There is nothing available on record, which could show that the defendant had ever communicated the fact relating to the pendency of the proceedings in respect of the suit plots before sale agreement [Exh.P-2] and/or even before the execution of MoU [Exh-P-3]. By doing so the defendant has also violated Section 55(1)(a) of the Transfer of Property Act (IV of 1982), which says "The seller is bound": (a) to disclose to a buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover". More so, after gaining knowledge, it is the prerogative of the buyer to purchase the property with or without encumbrances. If he purchases a property with all the liabilities, then the encumbrances that are attached to the property automatically transfers to the buyer. The record of the present case reflects that the defendant-vendor assured the vendee- plaintiff in respect of encumbrances as follows:- "6. That the Vendor hereby assures and covenants with the Vendee and/or his nominee(s) that he is the full owner of the said property which is free from all sorts of claims, liens, charges and encumbrances whatsoever in nature and that he has good right, title and lawful authority to sell the said property to the Vendee and/or her nominee(s) in all respect.
[emphasis supplied]
18. From the perusal of the record, it also reveals that the defendant has also concealed the fact from the Court that the application under Section 12(2) of C.P.C. [Exh.D-3] was dismissed way back in the year 2009. Such act of the defendant speaks volume about the mala fide on his part.
Whereas from the conduct of the plaintiff, it appears that the plaintiff entered into the transaction as bona-fide purchaser without notice. However, since the lis pending before the Court has been ended in favour of the defendant, therefore, in the circumstances, there is no impediment left to the defendant for the performance of the agreement [Exh. P-2] and [Exh.P-3] and transferring the property in favour of the plaintiff. Furthermore, Section 18 of the Specific Relief Act, 1877, provides that a person entering into an agreement for sale of a property having imperfect title, but subsequently acquiring interest in the property is bound to make good the contract, out of such interest. Reliance in this regard is placed upon the cases of SHAMOON and others v. AHMAD and others (1986 SCMR 888).
19. In the present case sale agreements [Exh.P-2], MoU [Ext. P-3] 50% payment towards sale consideration and possession 50% of the suit plots are disputed. Furthermore, though in the sale agreement [Exh.P-2] time for performance of the, contract was mentioned, however, subsequently the defendant after taking further amount from the plaintiff to the extent 50% of the total sale consideration executed MoU [Exh.P-3] whereby the time for performance of the contract extended till registration of the sale deed. Even otherwise, in relation to contract of immovable property the rule is that the time ordinarily is not the essence, however, this by no means is an absolute rule and it is always open to the party, who claims exception thereto, to establish otherwise dependent upon the contents/text, letter and spirit of the agreement and/or from the intent and conduct of the parties, as well as the attending circumstances. In the present case the same is lacking.
20. Notwithstanding the above, evaluating the conduct of the plaintiff in so far as his willingness to perform his obligation under the agreement to sell is concerned, and/or examining his alleged failure to do so, it is pertinent to note that the plaintiff paid 50% of the sale consideration and in order to show his willingness he issued legal notice to the defendant and when the defendant had failed to reply the same he filed the present suit. This establishes his bona fide and his readiness / willingness for such purpose. As far as the capability of the plaintiff to pay the balance consideration is concerned, the defendant never asked from the plaintiff to pay the balance sale consideration and shown his willingness to perform his part of obligation under the contract, therefore, the question of capability of payment raised by the defendant does not appear to be reasonable and justifiable. Furthermore, from the material available on record, it also appears that the defendant did not send any notice to the plaintiff demanding payment or notifying cancellation of the subject agreement. The defendant did not resort to Section 35 of the Specific Relief Act even after the institution of the suit for Specific Performance by the plaintiff. In the circumstances, no negligence can be attributed towards the plaintiff and as such he is entitled for the discretionary relief for enforcement of the agreement to sell [Exh.P-2]. This issue is answered accordingly.
21. ISSUE NO.4. From the perusal of the record, it appears that the plaintiff in the plaint has stated that owning to continued refusal/denial the rightful claim of the plaintiff caused mental torture, agony and financial losses and as such the defendant is liable to pay damages to the extent of Rs.60 million to the plaintiff. It shows that the nature of the damages claimed by the plaintiff in the instant case falls within the ambit of general damages. It is settled principle of law that the question of mental agony was required to be established through cogent and reliable evidence mere feeling of resentment in one's mind is not sufficient to establish mental agony. If a person claims mental torture/agony or damage/injury, initial burden would lie upon him to lead evidence on such point. Furthermore, it is also settled that for determining the general damages for mental torture, agony, defamation and financial loss were to be assessed following the "rule of thumb" and said exercise falls in the discretionary jurisdiction of the court, which has to decide in the facts and circumstances of each case. Reliance in this regard can be placed to the cases of GOVERNMENT OF KHYBER PAKHTUNKHWA and others v. Syed JAFFAR SHAH (2016 MLD 223) and MUBASHIR AHMAD v. Syed MUHAMMAD SHAH through Legal Heirs (2011 SCMR 1009). Since the plaintiff claims damages therefore, the onus to prove this issue is upon the plaintiff and from the perusal of the evidence it appears that the plaintiff has failed lead evidence in this regard hence, I am of the opinion that the plaintiff has failed to discharge his burden to prove his stance on the issue. Accordingly, this issue is answered in negative.
22. ISSUE No.5. In the circumstances and in terms of the above findings on issues Nos. 3, I am of the considered view that in the instant matter the plaintiff has established his claim while the defendant has failed to substantiate his stance in the case. Accordingly, the suit of the plaintiff is decreed to the extent of prayer clause 'A' only.