WIQAR AHMAD, J. This order is directed to dispose of the instant regular first appeal filed by appellant against the decree granted by way of summary judgment dated 05.07.2019 of the Court of learned Civil Judge-1 Buner at Dagger .
2. Admitted facts of the case are narrated as follows; Plaintif f enters into an agreement to sell with defendants No. 1 & 2 on 19.03.2018, which is also supplemented with another agreement dated 19.09.2018. Respondents No. 1 & 2 enters into an agreement with the appellant, whereby they agree to sell their land in Khasra Nos. 3322 to 3327 of Mauza Chinar comprising of approximately 30 kanals , out of 67 kanals 13 marlas to the appellant in consideration of Rs. 210,000,000/- (twenty-one hundred thousand). A sum of Rs. 10 million is received by respondents No. 1 & 2, beside transfer of eight (8) number of shops in their favour by the appellant in lieu of a sum of Rs. 80,000,000/- (rupees eight crores). Rest of the amount is agreed to be paid as per recital of the agreement dated 19.03.2018. Possession of the land is transferred to the appellant while mutation in respect of the same is agreed to be effected by respondents on payment of rest of the amount. A second agreement deed dated 19.09.2018 is also scribed which mentions that a total sum of Rs.
2,67,50,000/- is paid by the appellant and received by respondents No. 1 & 2 while eight number of shops situated at Buner Commercial Complex is again stated to have been handed over to them for adjustment of eight crores rupees. It needs mention here that respondents admits total sum of Rs. 2,69, 50,000/- in their written statement.
3. Relations between the parties turned soar. Appellant brought a suit against respondents No. 1 & 2, as well as initiated certain criminal proceedings against them. Suit of the appellant was filed for possession, declaration, cancellation, recovery and damages to the effect as stated in the respective headings of the plaint. Defendants in the case, who are respondents herein, filed their written statement wherein both the agreements dated 19.03.2018 and 19.09.2018 were admitted in toto beside receipt of part of consideration to the extent of Rs. 2,69,50,000/- as well as receipt of eight number of shops in Buner Commercial Complex in lieu of payment of eight crores rupees for transfer of approximately 30 kanals of land to the appellant. Dispute existed only to the extent of some allegations in respect of fulfillment of some obligations regarding respective parts of the parties and certain matters which were not subject matter of the instant proceedings and were subject matter of criminal proceedings, initiated separately .
4. Respondents then filed an application before the learned civil Court requesting therein for disposal of suit between the parties through a summary judgment. The application was finally accepted and suit was disposed of by Court of learned Civil Judge-1 District Buner through a summary judgment dated 05.07.2019. Feeling aggrieved from the said judgment, appellant has filed the instant appeal there-against.
5. Learned counsel for appellant at the start of his arguments stated that he was not aggrieved of disposal of the instant suit by way of a summary judgment and he was only aggrieved from relief part of the decree wherein the learned Court had though ordered restoration of payment of the money received in part performance of the agreement but had not ordered return of eight number of shops given to respondents No. 1 & 2 in lieu of consideration of rupees eight crores. The learned counsel was asked to give his statement in this regard in writing, which was accordingly submitted and placed on file.
6. Learned counsel for respondents No. 1 & 2 supported the impugned judgment and contended that appellant would not be able to claim even refund of the money paid in part performance of the agreement if they failed in depositing the remaining amount of Rs. 10,30,50,000/- according to the first part of relief, in which case, all the eight shops and the amount of consideration of Rs. 2,69,50,000/-would be deemed to have been confiscated in favour of respondents, according to the impugned judgment.
7. In rebuttal, the learned counsel for appellant stated that this would amount to undue enrichment of respondents at the cost of appellant because such a huge amount cannot be considered to be earnest money or liable to confiscation.
8. I have heard arguments of learned counsel for the parties and perused the record.
9. Perusal of record reveals that the essential facts necessary for disposal of the suit were admitted in the case in hand. The dispute between the parties remained only with respect to less significant, or inconsequential, or irrelevant matters that had happened in the meanwhile. As stated earlier , the following facts are admitted in the case in hand; a) that the parties have entered into an agreement to sell dated 19.03.2019 whereby respondents have agreed to sell their land measuring 30 kanals (approximately) to the appellant for consideration of Rs. 210,000,000/-, to which effect agreement dated 19.03.2018 had been entered by parties thereto, with their free will and consent. b) possession of about 30 kanals of land was transferred by respondents to the appellant at the time of execution of agreement dated 19.03.2018, while the appellant paid a sum of Rs. 10 million and transferred eight number of shops in Buner Commercial Complex, in lieu of a sum of rupees eight crores to respondents No. 1 & 2. c) further payment was made and another agreement was also scribed on 19.09.2018 whereby the respondents acknowledged receipt of a sum of Rs. 2,67,50,000/- but in written statement receipt of a sum of Rs. 2,69,50,000/- has been acknowledged. Remaining part performance of the agreement, is paym ent of Rs. 10,30,50,000/- by the appellant to respondents and transfer of title of the land by respondents to the appellant. d) that respondents No. 1 & 2 are though co-owners of the property agreed to be sold but are not exclusive owners of the said property . (They have however undertaken to manage transfer of title of the entire area of 30 kanals in favour of the appellant with consent of the other co-owners, from whose side they have also filed an affidavit along with their CM No. 1406-M of 2019, filed in the instant case).
10. On the basis of said facts, the learned civil Court has rightly accepted request of the respondents for disposal of the case by way of a summary judgment under the newly incorporated Order XV-A of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC" ). Said provision being relevant is reproduced hereunder for ready reference; Order XV -A--Summary Judgment
1. Application for summary judgment. Either party may move an application for summary judgment, identifying the whole claim or defense, or each claim or defense, as the case may be, on which summary judgment is sought, or the Court may grant such summary judgment on its own initiative, if
(a) It is satisfied that:-
(i) the respondents have no real prospect of succeeding on such claim or successfully defending such claim or claims, as the case may be; and
(ii) there is no genuine dispute as to any material fact requiring a trial and a party is entitled to judgment as a matter of law; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the Court is satisfied that it is appropriate to grant summary judgment.
Disposal of contested cases by way of summary judgment partially or as a whole has been new in our legal system. The above reproduced rule was incorporated in schedule to CPC in the province of Khyber Pakhtunkhwa.
Disposal of cases through summary judgments was earlier limited to only those cases where the defendant admitted claim of the plaintif f as a whole and where rendering of judgment for settling issues on legal claim, and application of law to facts of the case, did not require any deliberation, findings and factual determinations.
Introduction of this new mechanism was made after realization that protracted litigation has been costing the people heavy in terms of money and time, beside bringing the system of civil adjudication under stark criticism for delays, which is normally caused in disposal of cases. Other legal systems of the world are also embracing such like instruments for curtailing delay in litigations. Powers under the civil procedure rules in Britain provides for the practice and procedure of disposal of cases on the basis of summary judgments. The Hon'ble Supreme Court of Canada in the judgment titled as "Hrvniak v/s Mauldin" has widen the scope of summary judgments. Said judgment has beautifully expounded the need, scope as well as relevant consideration for review of summary judgments while emphasizing upon the need and utility of disposal of cases by way of summary judgments, wherein the Hon'ble Court held; Our civil justice system is premised upon the value that the process of adjudication must be fair and just.
This cannot be compromised. However , undue process and protracted trials , with unnecessary expenses and delay , can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result.
A shift in culture is required. The proportionality principle is now reflected in many of the provinces' rules and can act as a touchstone for access to civil justice. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. Summary judgment motions provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.
Summary judgment rules must be interpreted broadly , favouring proportionality and fair access to the affordable, timely and just adjudication of claims."
Regarding the scope of summary judgme nts, another Para is found relevant, which is also reproduced hereunder for ready reference; "Summary judgment motions must be granted whenever there is no genuin e issue requiring a trial when the Judge is able to reach a fair and just determination on the merits on a motion for summary judgment.
This will be the case when the process (1) allows the Judge to make the necessary findings of fact, (2) allows the Judge to apply the law to the facts, and (3) is a proportionate , more expeditious and less expensive means to achieve a just result."
11. The learned civil Court has rightly allowed request of respondents for resorting to the provision of Order XV-A CPC for passing a summary judgment in the case, as the necessary conditions for adopting such a course were very much available in the case in hand. Courts of law should not be hesitant in resorting to this provision when the necessary conditions enumerated therein are forthcoming. The appellant is also not aggrieved of disposal of the instant case by way of a summary judgment. He has rather been requesting this Court to maintain disposal of the instant case through a summary judgment and has given no objection in writing to that ef fect.
12. I would now take up objection of the appellant regarding the relief granted in the case. Concluding Para of the impugned judgment is relevant in this respect, which is reproduced hereunder for ready reference; "The defendants are even now ready to transfer 30 kanals land to the plaintif f The plaintif f is directed to deposit the outstanding amount in the account of Senior Civil Judge Buner within one month, failing which his suit shall be deemed to have been dismissed. Accordingly , by moulding relief in the facts and circumstances of the case, decree for specific performance is hereby granted in favour of the plaintif f subject to depositing the above mentioned amount whereafter , land measuring 30 kanals will be transferred to the plaintif f by the defendants. Since there are no major issues between the parties, therefore, the suit in hand stands decided in the aforementioned terms. After depositing the outstanding amount, the defendants would be bound to transfer land measuring 30 kanals in favour of the plaintif f, failing which the agreement shall stand terminated and the defendants shall return the earnest amount to the plaintif f; for , obligations are reciprocal in nature. File be consigned to record room."
13. Learned counsel for appellant has expressly stated that the appellant is no more interested in specific performance of the agreements and has been pressing for cancellation of the agreements and he was therefore particularly attacking the alternate relief granted by the learned civil Court whereby it had provided that if the appellant failed to deposit the remaining outstanding amount, his suit shall be deemed to have been dismissed.
Dismissal of the suit would naturally mean non-suiting the appellant and thereby declining him return of the amount paid and eight number of shops transferred to respondents as part performance of the agreement. The learned counsel for appellant seems justified in pleading that such a result would cause unlawful deprivation of the appellant and undue enrichment to respondents. It has been provided in the relief part that if respondents failed in transferring the land to plaintif f/appellant, they shall be under an obligation to return the earnest amount without making any mention of return of eight number of shops given in part performance of the agreement. I would first deal with the issue of return of the amount paid and eight number of shops transferred in part performance of the agreement in case of recession of the agreement.
14. The learned trial Court has mentioned in the impugned judgment, on the basis of assertion of respondents that defendant No. 1 and his other brothers were owners to the extent of 22 kanals in the transferred property and he had assured the Court that he would be bound to transfer the land measuring 30 kanals to the plaintif f/appellant.
The learned Court had relied upon section 18 (b) of the Specific Relief Act, 1877 which provided that a person who contracts to sell some property with an imperfect title thereto, may be compelled at the instance of the purchasers to arrange transfer of the property in favour of the purchaser free of any encumbrance. It is important to be noted that the appellant had never prayed for specific performance of the agreement. His suit was for cancellation of the agreement and restitutionary measures in respect of the amount paid and eight number of shops transferred as part performance of the contracts. Respondents have also brought no suit for specific performance of the contract.
Respondents had, albeit, prayed to that effect in their written statement. Now that the plaintif f/appellant has not been or feeling it difficult for himself to get the contract specifically enforced, he cannot be compelled on doing so, in the peculiar circumstances of the case. He could not deposit the remaining amount of sale within the period of one month given in the judgment of the learned trial Court. It is therefore the repercussions of recession of the contract, which have arisen for adjudica tion. The focus of arguments of learned counsel for the parties in the instant appeal, has also narrowed down the scope of the present appeal to the following questions for determination; 1) what should be the result of recession of the contract particularly regarding the part performed thereof, as well as regarding grant of general damages to respondents; 2) whether the plaintif f/appellant deserved restitutionary remedies in the case in hand, if so, to what effect, and extent;
15. The learned Court has treated the entire amount tendered to respondents in cash and kind as earnest money only. It appears that here the learned civil Court had fallen in substantial error. It is apparent from admitted facts of the case that the amount received and eight number of shops possessed by respon dents were not as a measure of payment of earnest money only, but as a part performance of the contract. Bare reading of the agreement dated 19.03.2018 reveals that performance of the said agreement had already commenced at the time of scribing of the same. This is evident from the fact that it has been disclosed therein that posse ssion of property measuring 30 kanals had been handed over to the appellant and that he had also transferred eight number of shops in Buner Commercial Complex to respondents. Appellant was also authorized to further sell or alienate parts of the said property . A similar situation was existing at the time of further part performance of the agreement dated 19.09.2018 whereby a total sum of Rs. 2,69,50,000/- was received and acknowledged by respondents No. 1 & 2. It amounted to more than fifty (50) percent of the entire sale consideration. How can this be considered as earnest money only and liable to confiscation, in case of non-performance of the contract. Holding it not returnable entirely would no doubt amount to unjust enrichment of respondents at the cost of the appellant. The concept of unjust enrichment is a common law concept based on equity , justice and good conscience. This concept was introduced for the first time in Eighteen Century in the case of "Mosses v/s Macferlan" (11558-17741 All E.R. 581 (KB.) . Lord Mansfieldin while handing down judgment in the said case, spoke of an action to recover money which "ex aequo et bono"
(according to equity and good conscience) or by the ties of natural justice and equity , the defendant ought to refund. The action was said to lie for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, implied) or extortion or oppression; or an undue advantage taken of the plaintif f's situation, contrary to laws made for the protection of persons under those circumstances. In the case of Kwei Tek Chao v/s British Traders and Shippers Limited" (1954 2 OB 459), it was decided that where a defendant breached a contract by his failure to render any performance, the plaintif f may either (a) base his claim in contract and claim for compensatory damages, or (b) base his claim on unjust enrichment, specially on the ground of (total) failure of consideration, and claim for restitution. In the case of "Mirza v/s Pateel" reported as "2016 SCMR 1637 ", the Supreme Court of United Kingdom has dealt with the issue in the following words; "13. A defendant's enrichment is prima facie unjust if the claimant has enriched the defendant on the basis of a consideration which fails. The consideration may have been a promised counter-performance (whether under a valid contract or not), an event or a state of affairs, which failed to materialize. (See Professor Andrew Burrows' A Restatement of the English Law of Unjust Enrichment, 2012, p 86, para 15).
In Sharma v Simposh Ltd [2013] Ch 23, at para 24, the Court of Appeal cited with approval Professor Birks' summary of the meaning of failure of consideration in his revised edition of An Introduction to the Law of Restitution (1989), p 223: "Failure of the consideration for a payment ... means that the state of affairs contemplated as the basis or reason for the payment has failed to materialize or , if it did exist, has failed to sustain itself"
For Mr Patel to show that there was a failure of consideration for his payme nt of moneys to Mr Mirza, he had to show what the consideration was, and that required him to establish the nature of their agreement.
In the case in hand, after the agreement fails or get rescinded, respondents would retain eight number of shops, a sum amounting to Rs. 2,69,50,000/-, and the appellant would return empty handed without getting anything as the land agreed to be transferred, has already been admittedly relinquished and would go back to the respondents as well. Such a result, which is likely to be produced by judgment of the learned civil Court, cannot be termed to be just and the resulting enrichment of respondents would no doubt be undue as well as unjust.
16. We find a description of restitutionary remedies in 32' Edition of Chitty on Contracts volume 1, in the following words; "Restitutionary remedies are available by reference to three distinct principles. The first of these is the unjust enrichment principle. Secondly , such remedies may also be awarded where the defendant has benefited from the commission of some form of wrongdoing such as tort, equitable wrongs and exceptionally breach of contract. In such cases the cause of action is founded on the wrong rather than unjust enrichment. Thirdly , restitution may also be awarded where the defendant has interfered with the property in which the claimant has a legal or equitable proprietary interest."
We have also found a similar description in English Law on the subject in 6th Edition of Polllock and Mulla's Contract Act at page No. 384 as follows; "Where plaintif f has been compelled by law to pay, or, being compelled by law, has paid money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability , under such circumstances the defendant is held indebted to the plaintif f in the amount."
Courts of law have always been taking restitutionary measures whether or not there has been privety of contract or requisite clauses of the contract to said effect, when they found the phenomena of unjust enrichment. Reference may be made to the judgment of Hon'ble Karachi High Court in the case of "Messrs American Orient Lines Inc. and another v/s Messrs New Jubilee Insurance Co. Ltd. and another" reported as "1990 MLD 2002 " and in the case "Rabien Sea Enterprises Limited v/s Abid Amin Bhatti" reported as PLD 2013 Sindh 290 as well the ibid case of the Supreme Court of United Kingdom.
17. Section 74 of the Contract Act, 1872 provides for compensation for breach of contract where penalty is stipulated. In the case of Province of West Pakistan v/s Messrs Mistri Patel & Co. and another " reported as PLD 1969 Supreme Court 80, the Hon'ble Apex Court has held that despite express stipulation in contract, Court, on equitable principles, can relieve defaulting buyer from forfeiture of earnest money if circumstances of the case justify such a course. In the case in hand, no such stipulation has been existing in the contract entered between the parties. In the case of "Messrs Khanzada Muhammad Abdul Hag khan Khattak & Co. v/s WAPDA through Chairman WAPDA and another" reported as "1991 SCMR 1436 ", the Hon'ble Apex Court has held that where a party was found negligent in carrying out the contracted work and is guilty of breach of contract, he has to pay damages to respondents and shall be liable to pay such damages as per terms of the agreement. It had also been laid down in the said judgment that where an amount is mentioned in the contract as penalty payable on breach of contract, the parties are entitled to recover actual damages not exceeding the amount mentioned in the contract, however if the Court consider such an amount as oppressive or highly penal in nature, the Court may refrain to grant such an amount and itself determine the amount which is reasonable in the circumstances of a particular case. Relevant observation of the Hon'ble Court is reproduced hereunder for ready reference; "Where an amount is mentioned in the contract as penalty payable on breach of contract, the parties are entitled to recover actual damages not exceeding the amount mentioned in the contract but in case of liquidated damages, a party is entitled to recover the same from the opposite party in case of breach of contract. However , where the Court considers that the amount mentioned in the contract as liquidated damages is oppressive, or highly penal in nature the Court may refrain to grant such amount and itself determine the amount which is reasonable in the circumstances of a particular case."
Section 73 of the Contract Act also provid es for compensation for loss or damage caused by breach of contract. In the case in hand, the amount of compensation has not been specified in the contract and it had just been mentioned that in case of breach of contract by the appellant respondents would be at liberty to initiate legal proceedings against him. The appellant cannot be burdened for such a heavy penalty for recession of the contract as has been made liable by the learned civil Court in the impugned judgment, which amounted to fifty percent of the entire contract amount. The principle of law laid down in the case of Mistri Patel & Company as well as in the case of Khanzada Muhammad Abdul Hag Khan Khattak and Company Supra provided that even in cases where liquidated damages has been provided in contract same may not be made payable by a party if the Court consider that amount as oppressive, or highly penal in nature. The said ratio has also been quoted with approval by the Hon'ble Apex Court in the latest case of "Space Telecom Private Limited Lahore v/s Pakistan Telecommunication Authority Islamabad through Chairman reported as 2019 SCMR 101. In the circumstances of the present case, appellant has rightly been found by the learned trial Court at some fault, but the said fault was not of a nature which could have burden ed him with such a heavy penalty of confiscation of the entire amount rendered in part performance of the agreement. The impugned judgment to that ef fect needs correction.
18. Specific damages caused as a result of frustration of the agreement may not be measured with precision in the case in hand nor would it be appropriate to remand the instant matter for recording of evidence in the subject case because it would neither serve interest of parties to the /is, nor would it serve the interest of justice. Both the parties would remain deprived of their substantial investment and would remain stuck in litigation not being able to utilize their respective properties, resulting into material loss to both of them. In the circum stances of the case an amount equal to ten (10) percent of the total paid amount of Rs. 2,69,50,000/- is considered as enough compensation for the general damage that may have been caused to respondents because of cancellation of the contract.
19. In light of what has been discussed above, the instant appeal is partially allowed to the extent that the relief granted by the lower Court in alternative of specific performance of contract is remodeled in the following manner;
1. that respondents shall deduct ten (10) percent of the paid amount Rs. 2,69,50,0 00/-, which comes out to be Rs.
26,95,000/- and return the remaining amount of Rs. 2,42,55,000/- paid to them by the appellant in part performance of the agreement. The amount shall be deposited in the trial Court wherefrom it shall. be withdrawn by the appellant.
2. Respondents shall also be bound to hand back possession of eight number of shops to the appellant within two
(2) months of passing of this judgment.
3. Appellant shall return possession of the area of 30 kanals handed over to him at the time of agreement to sell, to the respondents within 2 months, if not returned earlier .
20. Suit in the case in hand shall be deem ed to have been decreed, to above stated effect, which , decree shall be executed by the competent Court, accord ing to law, in case any of the parties failed in complying with the above mentioned directions within a period of two months.