ZAFAR AHMED RAJPUT, J.---This Civil Revision Application under Section 115 C.P.C. is directed against the judgment dated 20.10.2011, whereby the learned IIIrd Additional District Judge, Karachi-East while dismissing Civil Appeal No. 33 of 2010, maintained the Judgment and Decree dated 29.08.2009 and 24.12.2009, respectively, passed by the learned IIIrd Senior Civil Judge, Karachi-East in Civil Suit No. 546 of 2005.
2. Briefly stated facts of the case are that the respondent No.1 herein filed Civil Suit No. 546 of 2005 for declaration, permanent injunction, specific performance and damages against applicant alleging therein that he entered into an agreement with applicant for the purchase of Flat No. B-409, Block-4, 4th Floor, Laraib Garden, Gulshan-e-Iqbal, Karachi ("suit property") on 04.02.1996 at a total sale consideration of Rs.5,50.000/- which included H.B.F.C. loan of Rs.1,75,000/- and Rs.50,000/- towards water, gas and electricity charges, out of which he paid Rs.3,60,000/- by way of installments under valid receipts. It was further alleged by the respondent No.1 that it was agreed that the subject project known as "Laraib Garden" would be completed within 4 years but it was delayed inordinately and when he insisted for the completion/handing over possession to make final payment, he received from applicant inflated schedule of payment for extra construction amounting to Rs.28,000/- and instead of furnishing completion/possession date and total balance amount, the applicant cancelled the allotment arbitrarily. It was also pleaded by the respondent No.1 that he had already paid huge amount of Rs.3,60,000/- towards sale consideration and was/is ready to pay the balance amount but the applicant was not willing to accept further installment; as such, conduct of the applicant was unilateral breach of contract. It was case of the respondent No. 1 that the cancellation of allotment on the part of applicant indicates dishonesty, mischievous design and mala fide intention to deprive him from the benefits of appreciated cost of the flat and therefore, he also claimed rupees Ten Crore as damages/ compensation on account of pushing him to suffer cost of litigation, mental torture and humiliation etc.; hence, cause of action accrued to respondent No.1 for filing of the suit for the following relief(s):- a) Be pleased to declare that the acts and omissions of the defendants described in the memo of plaint are wholly illegal, unlawful, unilateral, breach of contract and mischievous, torturous and can be termed as civil wrongs. b) Be pleased to direct the defendants to convey the suit flat i.e. Flat No. B-409, Block-4, 4th Floor, Laraib Garden, Gulshan e-Iqbal, Karachi to perform his part of contract and to execute its sale deed, in favour of the plaintiff who is ready to pay the balance cost of the flat as and when desired by this Hon'ble Court. Alternatively if defendants failed to do so this Hon'ble Court may be pleased to direct the Nazir of this Hon'ble Court to execute the said sale deed in favour of plaintiff and completion of conveyance of the suit flat to the plaintiff. c) Be pleased to direct the defendant to pay damages/ compensation to the tune of rupees T en Crore. d) Be pleased to grant injunction against the defendants, their representatives, attorneys, associates, workers and all those working for them and acting on their behalf restraining them from wrongful selling gifting away , leasing, mortgaging, alienating and creating third party interest in any manner whatsoever , and doing anything inconsistent with the letter and spirit of the sale agreement and without due process of law e) Granting cost of the suit. f) Any other relief this Hon'ble Court may deem fit and proper .
3. The applicant contested the suit by filing written statements on legal and factual grounds, wherein he asserted that despite several letters and reminders, the respondent No.1 failed to make payment of agreed installments and other charges in time; as such, allotment of the flat in his favour was cancelled and he was requested to approach the office for refund of the amount deposited by him. The applicant also pleaded that since the respondent No.1 had committed default. he was not entitled for the relief claimed by him.
4. From the pleading of the parties following issues were settled by the learned trial Court:-
(1) Whether the suit as framed is not maintainable?
(2) Whether the plaintiff has no cause of action against the defendants?
(3) Whether the suit is undervalued?
(4) Whether the suit is barred by provisions of Limitation Act and provisions of sections 42 and 56 of Specific Relief Act?
(5) Whether the plaintiff has performed his part of contract. If so, what is its effect?
(6) Whether the act of cancellation of suit flat by the defendants, is lawful. If so, what is effect?
(7) Whether the plaintiff is entitled for the relief as claimed?
(8) What should the decree be?
5. The learned trial Court after recording pro and contra evidence of the parties, vide judgment and decree dated 29.08.2009 and 24.12.2009, respectively, decreed the suit as prayed for, excluding the relief clauses (e) and (f), directing the applicant to execute all necessary title documents/sub-lease of the suit property in favour of respondent No.1 within a period of 160 day from the date of judgment and in case applicant fails, the sub-lease would be executed through Nazir of the Court whereas respondent No.1 was directed to deposit the remaining balance sale consideration with the Nazir of the Court within a period of 120 days, failing which the suit would be deemed dismissed. Against the said judgment and decree, the applicant preferred Civil Appeal No. 33 of 2010, which was heard and dismissed by the learned IIIrd Additional District Judge, Karachi-East, vide judgment dated 20.10.2011. It is against those concurrent findings of two Courts below, the instant Civil Revision Application has been preferred by the applicant.
6. Learned counsel for the applicant has contended that the judgments passed by the learned Courts below are bad in law and facts; that the findings of learned Courts below are totally based on non-reading and misreading of evidence on record and they have failed to appreciate that the suit was barred by the provisions of Limitation Act; that the learned Courts below totally ignored certain admissions made by the respondent No.1 in cross-examination; that on account of default committed by the respondent No.1 in payment of monthly installment and other charges, the applicant was fully competent to cancel the allotment made in his favour; therefore, the respondent No.1 is not entitled for any relief claimed for except refund of amount paid by him; however, the learned trial Court decreed the suit as prayed excluding the relief sought by the respondent No.1 under clauses (e) and (f) but including the relief of damages under clause (c) for which neither any issue was framed nor evidence was adduced by the respondent No.1 nor even the reasons have been assigned by the learned trial Court in its judgment. In support of his contentions the learned counsel has placed his reliance upon the cases of Muhammad Aslam Khan and another v. Government of N.W.F.P. through Secretary, Food and Agriculture. Peshawar and 3 others (1989 CLC 2034), Abdul Sattar v. Mst. Anar Bibi and others (PLD 2007 Supreme Court 609), Mubarik Ali through L.Rs v. Amroo Khan through L.Rs. (2007 SCMR 1714), Muhammad Aslam and 2 others v. Amir Muhammad Khan and others (2003 YLR 1870), Manzoor Ahmad v.
Haji Hashmat All through legal heirs (2000 CLC 419) and Agra Cooperative Housing Society Limited v.
Syed Akhtar Ali and others (1994 MLD 1747).
7. On the other hand, learned counsel for the respondent No.1, while supporting the judgments of the Courts below, has contended that both the Courts have gone through the record and discussed each issue minutely in the light of evidence on record and concurrently decided the case in favour of respondent No.1; that the point of limitation is not attracted to the situation and the suit was well within time and it did to suffer from any delay at all; that the learned counsel for the applicant has misinterpreted the evidence on record and has tried to mislead the Court. He has; however, admitted the fact that the respondent No.1 has not adduced requisite evidence in support of his claim for damages.
8. I have heard learned counsel for the parties and scanned the material available on record with their assistance.
9. It is now well settled principle of law that the powers of High Court in revisional jurisdiction under Section 115, C.P.C. are very limited and concurrent findings on questions of facts recorded by two Courts of competent jurisdiction on proper appraisal of evidence cannot be interfered with in exercise of revisional jurisdiction by High Court. However, such findings can only be interfered with if the Courts below have misread the evidence on record or have committed any jurisdictional error or any material irregularity and illegality in arriving at such findings. There is also no cavil to the proposition of law that although the scope of revisional jurisdiction is narrow, yet once the Court assumes jurisdiction in accordance with law, there is no restriction on its power to pass any order according to the settled principles known for administration of justice.
10. In the case in hand, so far as the claim of the respondent No. 1 with regard to booking of the suit property is concerned, that has been admitted by the applicant, yet it has been pleaded by the applicant that the respondent No.1 failed to make payment of the agreed installments in time and thus. he committed default and; consequently, the allotment of the suit property was cancelled vide cancellation notice, dated 10.07.2001; however, Muhammad Hanif, the witness/ attorney of the applicant in his deposition (Exh. "D/I") has admitted that after cancellation of booking, the applicant received payments from the respondent No.1 at four occasions. He has also admitted that the applicant could not arrange H.B.F.C. loan in favour of respondent No.1 and that the respondent No.1 asked the applicant through letter for the delivery of the possession of the suit property. Even if it is considered that allotment of the suit property was cancelled by the applicant on the ground of default, the subsequent act of the applicant of receiving installments at four occasions establishes that he rescinded his cancellation letter and, thus, the allotment of the suit property in favour of respondent No.1 was intact, otherwise applicant should have refused to receive the installments. As such, the respondent No.1 has fully proved his case for the grant of relief sought by him under prayer clauses (a), (b) and (d) of the plaint. Therefore, the findings of the Courts below require no interference of this Court to that extent. The case-law cited by the learned counsel for the applicant being distinguishable on facts does not advance the case of applicant in his favour.
11. As regards, the claim for damages sought by the respondent No.1 under prayer clause (c) of the plaint, it may be observed here that in paragraph 12 of the plaint the respondent No.1 has valued his suit for damages/ compensation at rupees one Crore but in prayer clause (c) he has sought direction to the applicant to pay compensation/damages to the tune of rupees ten Crore. It is; however, an admitted position between the parties that neither the trial Court has framed any issue on the point of entitlement of respondent No.1 for compensation/damages nor respondent No.1 has adduced evidence in support of his said claim and even the trial Court has not recorded reasons in its judgment for the grant of said relief; so much so, the appellate Court has not deliberated over this point in its judgment. The Courts below , thus, have acted in the exercise of jurisdiction with material irregularity while granting relief to respondent No.1 under prayer clause (c) of the plaint.
12. For the forging facts and reasons, the judgments and decrees passed by the Courts below to the extent of prayer clause (c) of the plaint are set aside. Resultantly , this Civil Revision Application is partly accepted, the decrees passed by the Courts below shall be modified accordingly . There shall be no order as to cost.