Petitioner is aggrieved of judgments and decrees dated 14.01.201 1 and 19.09 .2009, respectively passed by learned Additional District Judge, Sahiwal - whereby petitioner 's appeal was dismissed - and by learned Civil Judge, Sahiwal, whereby suit of the respondents for grant of Mandatory Injunction was decreed.
2. Briefly facts, necessary for adjudication of this Revision, are that plot bearing No.47 Block-Z measuring 7 Marla - out of quota reserved for the defence / armed forces - was allotted to one Mr. Manzoor Hussain, who served in the army . The allotment letter dated 08.03.1989 is available on record, perusal whereof showed that allotment made was subject to performance of certain formalities / conditions, to be performed by 31st May, 1989, as specified in the allotment letter , failing which allotment would be deemed cancelled. The case of respondents was that despite repeatedly approaching the petitioner No.2 for completion of formalities, no progress was made in this behalf, which constrained the respondent allottee to file suit for seeking Mandatory Injunction, filed on 18.03.1997. The suit was filed through attorney , which was decreed and appeal against it, filed by the petitioner , was also dismissed.
Hence this Civil Revision.
3. Learned counsel for the petitioner submits that deceased allottee - who died on 19.02.2007 - had not fulfilled the formalities and conditions, which led to the cancellation of allotment per-se and no obligation can be claimed through mandatory injunction. It is averred that petitioners are not obligated to provide plot in question, upon the failure of the allottee to fulfill the formalities/conditions.
Learned counsel for the respondents supported the judgments of the courts below and submitted that allotment once made could not be cancelled subsequently , which had created vested and enforceable rights in favour of the allottee and entitled allottee to seek performance of obligation by the petitioners.
4. It is interesting to note that allottee never appeared before the court, as a witness. The assertions made and relied upon that allottee had repeatedly approached the petitioner No.2 for completion of formalities / conditions remained unproved, as the evidence led by other witnesses was only hearsay , otherwise inadequate to rebut the documentary evidence available on record. It is notable that before the passing of decree by learned Civil Judge, the allottee had expired, which fact was not brought to the knowledge of the court - which absence of allottee - at the time of filing of suit and during trial proceedings - is meaningful and significant. Irrespective of this fact I intend to proceed to adjudicate upon the lis, on the basis of available record.
5. I have examined the allotment letter , containing conditions - fulfillment or performance whereof are mandatory and, otherwise, essential to extend conclu sive rights to the allottee, failure to perform would result in termination of allotment. It is not the case of the respondents, legal heirs of allottee that requisite conditions were performed - it was pleaded that petitioners had not facilitated in the performance of conditions. This alleged reluctance on the part of the petitioners, unless established from cogent and persuasive evidence, would not obliterate the requirement of fulfillment of requisite conditions. The respondents have failed to bring strong evidence to show continuing obligation on the part of petitioners, enforcement whereof can be sought through mandatory injunction. There is no document or application available on record that allottee ever approached the petitioner No.2 - for completion of conditions - and there is no explanation that why he waited for 8 years before seeking enforcement of an alleged obligation. Hearsay evidence is insuf ficient to order performance of an obligation by the petitioners, as alleged.
6. The only legal issue that may arise is regarding the classification of the condition that whether the condition prescribed is a 'condition precedent' or 'condition subsequent'. To my mind, the condition attached is condition precedent and not a condition subsequent. I seek guidance from the judgment reported as "Muhammad Ishaq and another Vs. Mst. Sufia Begum" ( 1992 SCMR 1629 ), relevant portion whereof is reproduced hereunder; "G.H.L. Fridman in "The Law of Contract in Canada", 1976 Edition, at page 272, whilst referring to conditions precedent and conditions subsequent states that prior to the English Sale of Goods Act, 1893 the express conditions was implied by the Courts to refer to a term in a contract by virtue of which the contract could be postponed, so far as its taking effect was concerned, unless and until a certain event or occurrence took place, or could be rendered invalid and non-binding ab initio, if a certain event or occurrence happened. The former types of conditions were called conditions precedent, the latter conditions subsequent. An alternative form of language was to refer to the former class of conditions as suspensive (because they act to suspend the potential operation of the contract) and the latter resolutive (because the acted to resolve or render a contract effective that had already become operative). The learned author states it pages 275 and 276:- "The two issues are not entirely unconnected. For the obligations placed on a party or on the parties, and the effects of the non-fulfillment of the obligation or obligations, depend in the first instance upon whether what is involved is what has been called 'a true condition precedent--an external condition upon which the existence of the obligation depends', or is a condition in another sense, an ordinary or internal condition in effect a condition in the sense in which that term has become understood since the newer usages of the Sale of Goods Act. If the condition is a true condition precedent, there is no contract until it is satisfied. If the condition is the other sort of conditions, then, in event of its non-fulfillment, there may still be a binding contract upon the parties, depending upon the way in which the innocent party reacts to the breach of condition. A series of Canadian cases makes this difference very clear , even though the actual determination of the true character of the condition that is under consideration in any given instance may not always be simple and straightforward.
The distinction seems to lie in the fact that if, on its true construction, term is a cond ition precedent, its performance cannot normally be waived unilaterally by either party . It goes to the root of the contract, and the only way that its fulfillment can be dispensed with so as to leave the contract intact and valid is if the parties make a new or further agreement, either varying the original contract by omitting or bilaterally waiving the condition precedent, or rescinding the original agreement and replacing it with a new one, from which the condition precedent of the first contract is lacking. If the condition in question is one which is not a condition precedent to the coming into effect of a binding contract, then, either such condition may be waived by both parties agreeing together in the manner just stated, or it may be waived unilaterally , as long as such waiver is by the party in whose favour the condition was inserted into the contract. In other words, if a condition is for the mutual benefit of all the parties it is not susceptible of unilateral waiver . Thus a term may be a condition precedent or an ordinary condition; if the latter , if may be for the benefit of both parties or for the benefit of only one. Conditions precedent and mutually beneficial ordinary conditions may not be waived unilaterally . All others may. It is a question of law as to the or whether it is only for the benefit of one party . And the onus of proving that it is in the latter category is on the party asserting that such is the true legal character of the term in question."
7. Now applying the test, in terms of the distinction drawn inter-se 'condition precedent' and 'condition subsequent', it is evident that respondent allottee cannot unilaterally waive the conditions, required to be performed and it cannot be construed that conditions required to be performed were only for the benefit of the respondent. No right can be claimed without fulfillment of requisite conditions, that too by or before 31st May, 1989. Therefore, the allotment per-se creates no enforceable rights unless requisite conditions were met / performed - which requirement is a condition precedent and survival of the agreement is dependent thereupon. Reference is made to judgment reported as "G.R. Syed Vs. Muhammad Afzaal" (PLD 2007 Lahore 93), wherein distinction was drawn between condition precedent and condition subsequent, in the light whereof the requisite conditions referred in allotment letter are conditions precedent. It is evident from the contents of the allotment letter that in case of non-fulfilment of the formalities / conditions till a specific date, allotment would be deemed or treated as canceled, without any overt act on the part of the petitioners. Both the courts below have failed to appreci ate the fact that allotment was conditional and unless such conditions were fulfilled, no vested right or conclusive allotment can be claimed by the allottee. The contents of the allotment letter speak for itself; and so, does factum of non-fulfilment of requsite conditions.
8. In view of above, this Civil Revision is allowed , the judgments and decrees dated 19.09.2009 and 14.11.201 1 are set aside, as a result whereof suit of the respondents stands dismissed.