ASIM HAFEEZ, J. Instant Civil Revision is directed against concurrent findings / decisions, in terms whereof, suit for specific performance of agreement to sell, filed by the respondent No.1 - now represented through legal heirs, respondents No. 1 (i) to 1 (v) - was decreed vide judgment and decree dated 03.11.2010, against which appeal filed by the petitioners was dismissed vide judgment and decree dated 24.09.2011.
2. Facts, essential for the adjudication of instant Civil Revision, are that Ch. Muhammad Khan - predecessor-in-interest of the petitioners - ("deceased") held lease hold rights in the suit property - Plot No.161, measuring 600 Yards in Cantonment Lahore, by virtue of duly registered lease deed, and confirmed by the Ministry of Defence (M&L Department) Rawalpindi. Deceased allegedly executed agreement to sell dated 13.01.1981, for sale of the leasehold rights, which was duly registered. The suit property was agreed to be sold against consideration of Rs.150,000/-, out of which Rs.149,500/- was paid and acknowledged at the time of execution of agreement and delivery of possession to the purchasers, i.e., Shuja K. Chaudhary (respondent No.2) and Mst.
Tasneem Shuja (respondent No.3). Deceased, in acknowledgement of agreement to sell also executed General Power of Attorney dated 13.01.1981, duly registered and irrevocable, in favour of one Ghulam Mustafa, the father of respondent No.2. Respondents No.2 and 3, jointly, executed agreement to sell dated 22.06.1981, duly registered document, in favour of one Mst. Mumtaz Asghar, represented through the heirs, respondents No.1(i) to 1(v). Consideration for agreement to sell, later in time, was Rs.198,000/-, and out of which Rs.197,000/- was paid to the respondents No.2 and
3. And further a Special Power of Attorney was also executed in favour of Mst. Mumtaz Asghar, dated 22.06.1981 by Ghulam Mustafa. Original lessee died in the year 1992, upon whose death the suit property devolved upon heirs, who allegedly executed General Power of Attorney dated 14.01.1999, favouring petitioner No.6 - impleaded as defendant No.8 in the suit. Alleging, failure on the part of the heirs of the deceased to transfer the property, and in the wake of execution of GPA dated 14.01.1999, respondents No.1(i) to 1(v) filed suit for declaration in March 1999, wherein plaint was rejected under Order VII Rule 11 of Code of Civil Procedure 1908 vide decision dated 17.04.2000, on the ground that declaratory suit was not maintainable, but suit for specific performance. Appeal filed by respondents No.1(i) to 1(v) was also dismissed on 04.10.2001. This led to the filling of suit for specific performance on 20.11.2001 against the present petitioners, seeking enforcement of the agreement to sell dated 22.06.1981. Notably, first purchasers, by virtue of agreement to sell dated 13.01.1981, had never questioned the authority of the respondents No.1(i) to 1(v) to seek enforcement of alleged interest(s) in the property. Claim was contested by the petitioners - legal heirs of deceased - on the ground of failure to fulfil material condition of the agreement of 13.01.1981, requiring raising of construction upon the suit property, though execution of agreement to sell, General Power of Attorney, in favour of the respondents No.2 and 3, factum of substantially paid consideration and delivery of possession were not emphatically denied. Based on controversies, issues were framed, and evidence recorded. Upon conclusion of the trial, suit was decreed vide decree dated 03.11.2010, which was maintained by first appellate court vide judgment and decree dated 24.09.2011. Hence, this Civil Revision.
3. Learned counsel appearing for the petitioners read out clauses 1, 2, 3, 4 and 7 of agreement to sell dated 13.01.1981 - Exh.P-2 - to highlight failure to raise construction, by the first vendee, asserting that condition precedent was not performed, and default continues. Learned counsel submits that even respondents No.1(i) to 1(v), subsequent vendees, in terms of agreement to sell dated 22.06.1981, also failed to fulfill condition, which default was fatal to the enforceability of the agreement. And no rights could be claimed under alleged agreement to sell and General Power of Attorney - as GPA replicates condition of raising construction. Learned counsel also raised objections to the maintainability of suit for not impleading necessary parties. Reference is made to the cases of GOVERNMENT OF BALOCHISTAN, CWPP&H DEPARTMENT and others V. Nawabzada MIR TARIQ HUSSAIN KHAN MAGSI and others (2010 SCMR 115), HARSAN V. IQBAL PERVAIZ and 9 others (2016 YLR 2516) and TARIQ SHABEER V. MUHAMMAD IJAZ (2007 YLR 1369).
4. Learned counsel for respondents No.1 (i) to 1(v) supports the impugned judgments and decrees.
Submits that execution of the agreement to sell dated 13.01.1981 was proved, and otherwise reliance on the terms and conditions of the agreement constitutes an acknowledgment qua its execution.
Referred the case of CHIRAGH DIN and another V. AKRAM MOHIUDDIN and 4 others (2008 MLD 252). Learned counsel submits that filing of a declaratory suit, in the first instance, and bare rejection of plaint does not bar filing of suit for specific performance, which was still within limitation from the accrual of cause of action. Learned counsel emphasized that respondents, on the strength of earlier agreement to sell and agreement to sell, favouring predecessor of respondents 1(i) to 1(v), are lawfully entitled to claim and enforce their interest(s) in suit property.
Adds that possession was delivered to the respondents No.2 and 3 by virtue of earlier agreement, which was handed down to the respondents 1(i) to 1(v) under agreement dated 22.06.1981, who are entitled to claim benefit of Section 53-A of the Transfer of Property Act, 1882. Learned counsel referred to the decision in the case of Syed HAKEEM SHAH (DECEASED) through LRs and others V.
MUHAMMAD IDRESS and others (2017 SCMR 316). Further submits that agreement to sell was executed to sell the lease hold rights, which can be executed without prior permission, and permission can be sought at the time of transfer. Reference is made to the cases of Mst. BHAGHAN and 2 others V. Sh. MUHAMMAD LATIF and 2 others (PLD 1981 Lahore 146), SAMI UL HAQ V. Dr. MAQBOOL HUSSAIN BUTT and others (2001 SCMR 1053) and Mst. UMATUL MOBEEN V. MUHAMMAD AZIZ (2010 YLR 1216). Learned counsel for the respondents No.1 (i) to 1(v) has drawn attention of the Court to document Exh.D-2 - (letter of 25.09.1997 at page 108) - to emphasize that plan for construction was submitted but not approved, as plot was in the name of legal heirs of deceased.
5. Both the counsels had referred to various clauses of the first agreement to sell - Exh.P-2, of which clauses 1, 2, 3, 4, 7 and 8 were repeatedly read, which are reproduced hereunder, for ease of reference, "1. That the total consideration money for the sale/transfer of the lease hold rights of the said plot alongwith its superstructures if any constructed thereon has been mutually agreed and decided and settled at Rs.1,50,000.00 (Rs. one lac fifty thousand only) in cash & has been received in the following manner:- "i) Rs. 10,000.00/- Rs. ten thousand only in cash as earnest money dated 31.12.1980. ii) Rs.1,39,500.00/- Rs.one lac thirty nine thousand five hundred only in advance dated 10.1.1981 in advance money. iii) Rs.500.00/- Rs.five hundred only will be paid at the time of registration before the Sub- Registrar.
2. That with a view to get building constructed thereon and whereas the party No.2 has agreed to construct the same on their own expenses.
3. That party No.2 shall constructed the proposed building within the limited time allowed in the building lease according to the sanctioned plans. The party No.1 has delivered to the party No.2 the vacant possession of the said plot of land.
4. That on the party No.2 becoming the lessee of the said property as aforesaid, it will be the bounden duty of the party No.1 to do all and everything for the said plot of land sold with or without buildings thereon, - transferred conveyed and registered in the name of party No.2 or their nominee or not and also to execute all such deeds and instruments which party No.1 may be called upon to execute for more fully and perfect securing aforesaid transfer of lease hold rights of the party.... The party No.1, however, bears all the expenses in this regard.
7. That after the party No.2 has constructed the building on the plot noted above the party No.1 shall obtain the permission of the Department concerned for the transfer of the lease hold rights of plot and building constructed thereon in favour of party No.2.
8. That party No.1 shall obtain necessary clearance certificates from the Department concerned entirely at his own expenses and hereby undertakes to get the building lease transferred in favour of party No.2.
[Emphasis supplied]
6. Relevant clauses of General Power of Attorney dated 13.01.1981 read as under, "9. That after the completion and construction of the bungalow on the said land I shall have no right to sell, mortgage, gift or otherwise transfer the property except through my said aforesaid Attorney whose decision will be final. I shall not take possession of the property except with the willingness of my attorney only after paying all the expenses incurred by the said Attorney in construction of the houses/buildings & in improvement of the property.
12. In consideration of the services rendered and concern and interest of the attorney existing in the said property this General Power of Attorney shall be irrevocable.
Determination
7. One critical fact needs reference. Original lease deed contained condition of raising construction, which coincided with the condition incorporated in the agreement to sell. Timelines were provided in the lease deed for raising construction. What would be the effect of non-fulfilment of said condition of the lease deed, if any, is not the matter in issue before this Court. Notably, Ministry of Defence (Military Lands Cantonments) was not a party to the proceedings. This Court, therefore, refrains from commenting on the effect of not raising construction, in the context of requirements under the lease deed - since respondents No.1(i) to 1(v) have had to seek prior approval for at the time of effecting sale [their counsel had referred decisions that permission could be obtained at the time of sale, and not for agreement to sell]. This decision is restricted to determination of dispute regarding alleged rights claimed by the private parties - when deceased had agreed to sell lease hold rights. Clause 3 of the Agreement indicates the factum of timelines for raising the construction, by referring to building lease. Hence, effect of not raising construction, in terms of lease deed, is not subject of instant decision.
8. Fundamental question, in the wake of the submissions and the record, is whether agreements to sell 13.01.1981 and 26.06.1981 - subsequent being in favour of the respondents No.1(i) to 1(v) - are enforceable, in wake of non-performance of condition of raising construction upon the plot. And whether suit for specific performance can still be decreed despite non-fulfilment of the condition - claimed to be a requisite condition for effecting transfer.
Agreement to sell under reference contained two set of contractual obligations, the consideration part and condition of raising construction. As far as first part is concerned, admittedly, out of consideration of Rs.150,000/-, only Rs.500/- was payable, balance was paid since January 1981.
Whether condition of raising of construction is fatal to the survival of the agreement to sell?
Intentions are evident from the agreement, which did not provide consequences of default in case of failure to construct. Hence, failure to fulfil condition of construction would not jeopardize or frustrate material component, relating to the sale of lease hold rights, and enforceable per se irrespective of alleged failure to construct. There is another significant facet of the case. It is apparent that monetary consideration agreed was conclusive and final, which would remain unchanged, irrespective of raising of construction or not. Clause 1 of the agreement is clear, which included prospective construction as part of the consideration agreed. In terms of clause 2 of the agreement, vendee was responsible to raise construction at its own expense. Clause 4 indicates that transfer would be made upon construction. Hence, with or without construction, consideration price remains unchanged. Learned counsel for the petitioner was confronted to explain the effect of non-performance of condition regarding raising of construction and consequences for the petitioners, who had no plausible explanation. In fact, no prejudice would be caused to the seller / vendor, even if no construction was raised construction - which non-performance might create some issues in the context of terms of lease deed and effect whereof would be examined at relevant time by the authorities concerned. Learned counsel was asked that whether upon raising of construction, consideration of sale would appreciate, who conceded that it would not.
Undisputedly, sale consideration agreed would remain unchanged. Controversy is crystalized, whether, in the facts and circumstances of the case, agreement to sell is still enforceable or not?
Section 16 of the Specific Relief Act, 1877 provides an answer, which section is reproduced hereunder, for facility of reference, "16. Specific performance of independent part of contract. When a part of a contract which taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part".
9. Section 16 of Specific Relief Act, 1877 is an exception to section 17 of the Act, 1877 - which bars specific performance of part of the contract. It is evident from the perusal of the agreement that despite non-fulfillment of a condition of raising construction - which failure could not torpedo the enforceability of the agreement - a decree for specific performance can, independently, be passed, based on consideration agreed for sale. The advantages and disadvantages, in case of failure to construct had to be borne by the respondents No.1 (i) to 1(v), exclusively. Case at hand comes within the scope of section 16, ibid. And even otherwise non-fulfillment of condition to construct potentially or otherwise would not cause any damage to the petitioners, who had not denied the contractual arrangement for sale of lease hold rights - which otherwise provided no consequences of default in lieu of failure to construct.
Section 14 of Specific Relief Act 1877 is not attracted to the facts of the case, as no default was envisaged in the agreement for not raising construction and no question of compensation to the heirs of the deceased arose, in wake of the facts and circumstances of the case. Conduct of the petitioners is another relevant fact. Possession of the property was delivered, and no effort was made to seek cancellation of the agreement to sell, nor any notice issued by the petitioners to express intention to terminate the agreement. No illegality is envisaged upon decreeing the suit for specific performance by invoking Section 16 of Act of 1877. Scope of section 16, ibid, has been discussed and elucidated in the case of 'Sinaullah and others V. Muhammad Rafique and others'
(2005 SCMR 1408), relevant portion whereof is reproduced for ease of reference, "Partial specific performance can be ordered only in the cases strictly falling within the provisions of above sections 14, 15 and 16. Only those contracts can be specifically enforced which are capable of division then the part which can be specifically performed can be ordered to be specifically enforced. However, if an agreement or contract is such which is an indivisible agreement/contract consisting of one single transaction not permitting splitting up of the transaction, then such a case would not be covered by sections 14, 15 and 16 of the Specific Relief Act and the agreement or contract could not be ordered to be partially specifically performed".
10. In the light of the ratio laid, it is held that in the absence of consequences for failure to construct, the agreement is enforceable by splitting consideration component from the obligation of condition of construction, former being enforceable independently.
11. Learned counsels have also touched the issue of limitation. To my mind, no question of limitation arises. No specific date was provided for the execution of conclusive document - registered lease deed - or timelines for transfer of plot, clearly subjected to the condition of raising construction, whereafter lease hold rights are transferable. Matter falls within the second part of Article 113 of the Limitation Act, 1908, when no specific date for performance was prescribed. In this case, cause of action otherwise arose upon execution of General Power of Attorney, by the legal heirs of the deceased on 14.01.1999 - an act challenging the interests of the respondents No.1(i) to 1(v), wherefrom the suit filed was within the 3 years - suit was filed on 20.11.2001. Factum of rejection of plaint is inconsequential - on the premise of non-maintainability of suit for declaration. Suit filed on 20.11.2001 is within limitation from the date of execution of General Power of Attorney by the heirs of deceased, conveying intention to challenge the rights extended to the respondents No.1(i) to 1(v) in terms of the agreement. Execution of General Power of Attorney by the heirs of deceased, manifesting refusal to acknowledge claim of respondents No.1(i) to 1(v), which provides tangible reasons and cause of action for filing the suit. Judgments referred by counsel for the petitioners are distinguishable and authority laid therein extend no support to the petitioners. In these circumstances, no illegality was committed by the courts, which concurrently decreed the matter, against the petitioners. No case for interference is made out.
12. This Civil Revision is without any merit and the same is, hereby, dismissed. No order as to costs.