MUHAMMAD SHAN GUL, J. Through this judgment, the titled Civil Revision is sought to be decided.
2. The facts in brief are that respondent No.1 Mumtaz Ahmad filed a suit for specific performance of agreement to sell dated 09.08.2017 with regard to property bearing Khewat No. 256/247 Khatooni No. 492, Khasra No. 754 measuring 5 marlas situated in Mauza Channi Khichi Chenab Nagar against defendant Sharifan Bibi on the basis that he purchased suit property from the defendant regarding which an agreement to sell was executed and possession was delivered but when it came to the execution of a registered sale deed, defendant Sharifan Bibi refused and which is what compelled the plaintiff to file a civil suit.
3. The defendant resisted the suit filed by the plaintiff. Tariq Mehmood Sultan i.e. the petitioner before this Court first filed an application under Order 1 Rule 10 CPC for being impleaded as a defendant which was allowed whereafter he filed an application under Order VII Rule 11 CPC praying for rejection of the plaint. Vide order dated 02.10.2021 this application under Order VII Rule 11 CPC was accepted.
4. It was held by the trial court in its order dated 02.10.2021 while rejecting the plaint that since the petitioner before this Court i.e. Tariq Mehmood Sultan was the owner of the suit property and that since the suit property did not vest in Mst. Sharifan Bibi/vendor who had no title in the suit property the suit could not proceed because Mumtaz Ahmad, plaintiff/respondent before this Court had entered into an agreement to sell with Mst. Sharifan Bibi and not Tariq Mehmood Sultan and that there was no privity of contract between them.
5. This order was challenged by Mumtaz Ahmad respondent No.1 before the District Court and vide order dated 14.06.2022 an Additional District Judge allowed the appeal, set aside the order rejecting the plaint and remanded the matter back to the trial court to proceed with the suit as filed. It was opined by the appellate court in paragraph 9 as follows:- "Plaintiff has filed this suit for specific performance of contract on the basis of written agreement to sell dated 09.08.2017 against Mst. Sharifan the alleged vendor. The written agreement to sell prima facie bears the photograph, thumb impression and signature of that Sharifan Bibi. The petitioner Tariq Mehmood i.e. defendant No.2 was impleaded party in this suit after acceptance of his application U/o I, Rule 10 CPC. After impleading him as party as defendant in this suit, he filed this application U/o VII Rule 11 CPC, for the rejection of the plaint which stands accepted by the learned trial court vide his order dated 02.10.2021. Let's suppose that Mst. Sharifan Bibi was not the owner of the suit property at the time of agreement to sell and afterwards. Even then, if this suit agreement stands proved against the alleged vendor Sharifan Bibi having no title and the specific performance of agreement to sell could not be possible because of the absence of the title in favour of the vendor Sharifan Bibi, even than the vendee/plaintiff/appellant is entitled to recover the advance he allegedly made to Sharifan Bibi with further relief as the court thinks fit."
6. Aggrieved of this order, the petitioner has filed this civil revision. Besides reiterating the grounds taken in the petition, the counsel for the petitioner has based his case on the order passed by the trial court.
7. I have heard the learned counsel for the petitioner and can straightaway observe that initially the civil suit in question for seeking specific performance of agreement to sell and completion of contract dated 09.08.2017 was filed by respondent Mumtaz Ahmad against Sharifan Bibi only with whom he had executed an agreement to sell. The petitioner before this Court i.e. Tariq Mehmood Sultan was only added as a defendant in this suit on his own asking by means of an application under Order I Rule 10 CPC which was allowed vide order dated 09.11.2020 and the petitioner Tariq Mehmood Sultan was added as a defendant and an amended memo was filed. Therefore, the petitioner before this Court personalized the suit which had not initially been filed against him.
Furthermore, what is also relevant is that it is not as if Sharifan Bibi the original defendant in the civil suit and with whom the petitioner claims to have executed an agreement to sell was not the owner of the property in issue till 2015. It is only thereafter that she parted with it in favour of her nephew i.e. Tariq Mehmood Sultan the petitioner before this Court. Therefore, there does exist a relationship between Sharifan Bibi and Tariq Mehmood Sultan!
8. The trial court seized of the application under Order VII Rule 11 CPC, vide order dated 02.10.21, accepted the application filed by the petitioner Tariq Mehmood Sultan and ruled that the agreement to sell in question dated 9.8.2017 enforcement of which was being was between the plaintiff and Sharifan Bibi who had already parted with that property in favour of her nephew Tariq Mehmood Sultan in 2015 and since the agreement to sell had been executed nearly two years after Sharifan Bibi had parted with her entitlement over the suit property there was no agreement capable of being enforced. It was held that Sharifan Bibi had no title to the suit property at the time of executing the agreement to sell in question. The trial court ruled that there was no privity of contract between the petitioner Tariq Mehmood Sultan and respondent Mumtaz Ahmad and hence the suit could not proceed. The trial court, for reasons which are not discernible, did not shed any light on the aspect of relationship between Sharifan Bibi and Tariq Mehmood Sultan; did not take into consideration the aspect that Sharifan Bibi parted with the suit property only in 2015 before which she was the owner in possession or even about the possible collusion between Sharifan Bibi and Tariq Mehmood Sultan on account of their close relationship. Likewise, the trial court did not rule about the element of unjust enrichment on the part of Sharifan Bibi who had received earnest money but had been allowed to go scot free.
9. The respondent No. 1 Mumtaz Ahmad filed an appeal against this decision of the trial court and vide judgment dated 14.06.2022 his appeal was allowed and the reasoning for the same contained in paragraph 9 has already been reproduced in the preceding narrative. The rejection of the plaint filed by Mumtaz Ahmad was set-aside and the case was remanded to the trial court with a direction to proceed with the suit as per law and procedure.
10. It is indeed conspicuous that both courts below have failed to question the locus standi of petitioner Tariq Mehmood Sultan in first filing an application under Order VII Rule 11 CPC and then resisting the appeal filed by Mumaz Ahmad respondent. If there is no privity of contract between the petitioner and Mumtaz Ahmad and if it is only Sharifan Bibi who has been saddled with the defence of the suit in question then how does this aspect provide any cause of action to the petitioner before this Court? It is not as if he has been burdened with the process of defending the suit in question because it is already clear as has been held and recognized by the trial court as also the appellate court that there is no privity of contract between Tariq Mehmood Sultan and Mumtaz Ahmad. Therefore, the locus standi of Tariq Mehmood Sultan to first prefer an application under Order VII Rule 11 CPC and then to prefer the present civil revision is indeed questionable and not clear. Even if the suit filed by the respondent is allowed in totality against Sharifan Bibi, no harm will come the way of the petitioner Tariq Mehmood Sultan because Sharifan Bibi cannot possibly part with the property if she did not have a title to it and the only burden or liability that may come her way after a trial of the suit is the return of earnest money or at best damages and hence the approach of the petitioner through this civil revision is not only downright questionable but arguably misconceived and perhaps collusive!
11. What is even more important is the presence of trite law that holds that an order of remand can only be interfered with if the same is perverse, fanciful, whimsical or arbitrary and that short of such perversity a remand order is generally not interfered with.
12. What is even quite interesting and of the essence in the present matter is the fact that the learned appellate court has done nothing more than merely remand and send back the matter to the learned trial court so as for the learned trial court to proceed with the trial and not bring it to an abrupt halt on the basis of unconvincing legal and technical reasons. During the course of such trial, both parties shall be allowed to produce evidence and after a fair adjudication in consonance with Article 10-A of the Constitution, the matter will be brought to its legal and logical conclusion.
13. In matters where a case is remanded, the facility of civil revision is only (and repeat only) available when the order directing remand is either absolutely perfunctory, manifestly perverse or evidently illegal. In the present matter rather than being illegal or perverse, the judgment of the learned appellate court is certainly in line with law, in accord with fairness and in conformity with postulates of equity and in fact the order of the learned trial court rejecting the plaint under Order VII, Rule 11, CPC has been passed in a lackadaisical manner without due regard to precedent cases on the subject. The learned appellate court has rightly interfered with the order passed by the learned trial court and corrected it.
14. The Hon'ble Supreme Court of Pakistan in "Muhammad Hafeez and another v. District Judge, Karachi East and another" (2008 SCMR 398) at paragraph No.7 has held as follows:- "7. It is well-settled that in the event of conflict of judgments finding of Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of the Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgment are arbitrary, fanciful and perverse."
15. Likewise, the Hon'ble Supreme Court of Pakistan in "Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others" (2007 SCMR 969) has held at paragraph No.10 as follows:- "10. It is well-settled proposition of law that in the event of a conflict between the judgments of trial Court and the First Appellate Court, preference should be given to the views of the Appellate Court, who had the opportunity of examining and analyzing the evidence of the parties. The rule is, however, neither absolute nor inflexible. In case the judgment of the Appellate Court is not well- founded and the reasons assigned for taking a different view from that of the trial Court appear to be not warranted by record, it cannot be preferred. In the present case, oral as well as documentary evidence has been analyzed carefully, correctly and consciously by the Appellate Court, which has been rightly affirmed and not interfered with by the High Court, therefore, the judgments of both the above forums are not open to any exception."
16. The Hon'ble Supreme Court of Pakistan in "Noor and others" (2016 SCMR 2174), and "Allah Ditta and others v. Member (Judicial), Board of Revenue and others" (2018 SCMR 1177) has clearly opined that a civil revision, against an order of an appellate court whereby the appellate court remands the matter to a trial court, is not maintainable and for such a hurdle to be crossed the order of the appellate court sanctioning remand has to be manifestly perverse or absolutely illegal.
17. In "Allah Ditta and others v. Member (Judicial), Board of Revenue and others" (2018 SCMR 1177), it has been held as follows:- "Order of remand is not a final order and simply sends the matter for re-examination for the second time. It does not finally determine the claim or the rights of the parties. The forum to which the case is sent for fresh decision is free to re-examine the case and pass a fresh judgment.
Against any such subsequent decision, alternate remedy is available."
18. A perusal of the judgment passed in appeal reveals that the same is not perverse at all but is rather rooted in fairness and equity and that it only seeks to arrest unjust enrichment on the part of Sharifan Bibi and refuses to perpetuate it. The appellate court has done nothing wrong in remanding the matter back to the trial court and holding that even if the specific performance of agreement is not possible because of absence of title in favour of Sharifan Bibi, even then the vendee Mumtaz Ahmad is entitled to recover the advance earnest money with further relief as the court thinks fit if he is able to prove the agreement to sell in question.
19. In Kartar Lal Pirwani vs. Muhammad Waqar Azeem and 3 others (2018 YLR 2219) [Islamabad- DB] it has been held:
29. Now, when the appellant executed the agreement to sell dated 17.06.2015 with respondents Nos.1 and 2, the title in the suit plot did not vest in the said respondents. The title vested in respondent No.3 with whom respondents Nos.1 and 2 had entered into agreement to sell dated 04.06.2015. By executing agreement dated 17.06.2015 with parties who were not in a position to transfer the suit plot to the appellant, the latter took a risk. The appellant could not have expected respondents Nos.1 and 2 to transfer to him rights or title in the suit plot which respondents Nos.1 and 2 did not possess. An agreement to sell can be specifically enforced against a party/vendor who is not the owner of the property at the time of the execution of the agreement to sell, only after the title of such a party in the property is perfected. Indeed, in the case at hand, there was no privity of contract between the appellant and respondent No.3. Despite the fact that the agreement to sell dated 04.06.2015 between respondent No.3 and respondents Nos.1 and 2 contains a clause empowering respondents Nos.1 and 2 to sell the suit plot to a third party, with the withdrawal of the first suit for specific performance by respondent No.1 and the rejection of the plaint in the second suit for specific performance, all hopes for the transfer of suit plot by respondent No.3 in favour of respondents Nos.1 and 2 through the process of the Court were lost. But would this mean that the suit instituted by the appellant was to no end?
30. As mentioned above, the appellant in his suit, had also sought specific performance of the agreement dated 17.06.2015. The appellant had paid earnest money in the sum of Rs.35,00,000/- to respondents Nos.1 and 2. Could, in such circumstances, it be said that the appellant had no cause even against respondents Nos.1 and 2. It is clear that respondents Nos.1 and 2 cannot do both the things, namely, the enjoyment of the earnest money and also not be in a position to transfer title in the suit plot to the appellant. It is well settled that on breach of a contract for sale of immovable property owing to the defect in the vendor's title, the vendor is bound to refund the amount of earnest money to the vendee. Additionally, a vendor who breaks the contract by failing to convey the land to the purchaser is liable to damages for the purchaser's loss of bargain by paying the market value of the property less the contract price.
31. The appellant, in his suit, has not prayed for the award of damages against respondents Nos.1 and 2. However, a Court has discretion in the matter of granting appropriate relief. There is nothing in the law to prevent a Court from granting damages in lieu of specific performance even if the plaintiff has not prayed for the award of damages in his suit. Order VII, Rule 7, C.P.C. provides that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. It is also provided that the same Rule shall apply to any relief claimed by the defendant in his written statement.
32. Additionally, in a suit for specific performance, the Court has ample power under section 19 of the Specific Relief Act, 1877, to award damages even though the plaintiff had not prayed for such relief.
33. It is clear that the first part of section 19 only enables the person suing for specific performance to ask for compensation for its breach. He may do so either in addition or in substitution for such performance. The appellant/plaintiff, in the instant case, had not asked specifically for compensation for the breach of any contract. The second part of section 19 imposes a mandatory duty upon the Court to award compensation, whether it is asked for or not. The conditions that have to be satisfied before compensation is granted under the second part of section 19 are that the Court must decide that specific performance ought not to be granted; there must be a contract between the parties which must have been broken by the defendant against whom the compensation is to be granted; and the plaintiff must have proved his right to the compensation to be awarded. It is obvious that this part of section 19 comes into play only when there is privity of contract between the plaintiff and the party against which an order for damages for breach of contract can be passed.
34. In the case at hand, the learned civil Court was competent to award damages in the appellant's favour if he was able to prove that respondents Nos.1 and 2 had breached the agreement dated 17.06.2015. This is so even though the appellant had not prayed for the award of damages against respondents Nos.1 and 2 and even though the appellant could not specifically enforce the agreement dated 04.06.2015 against respondent No.3, because firstly, the appellant was not a party to the agreement dated 04.06.2015 and secondly, because respondent No.1 had withdrawn his suit for specific performance against respondent No.3......
(v) In the case of Natu Ram Barman v. Ulluk Chand Barman (AIR 1926 Calcutta 1041), it was held as follows:- "If the defendants were not willing to perform the contract, the plaintiff might very well say that he did not want to have the contract specifically performed, but that he would be satisfied if he gets the earnest money with proper damages. The plaintiff is, therefore, entitled to the damages."
(vi) In the case of K.H. Skinner v. Rosy Skinner (AIR 1925 Lahore 132), the Division Bench of the Hon'ble Lahore High Court came to the conclusion that in a suit for specific performance, the plaintiff is not bound to pray specifically for damages either in addition or in substitution as he has a choice of remedies open to him to apply for and the Court has discretion to allow damages if it finds that damages will be the appropriate remedy.
(vii) In the case of Arya Pradishak Pratinidhi Sabha through Lala Hans Raj v. Chaudhri Ram Chand (AIR 1924 Lahore 713), the plaintiff, in his suit for specific performance of a contract, had not prayed for the award of damages or compensation. Shadi Lal C.J. held that the rule of law which is enacted by section 19 of Specific Relief Act, 1877, is to the effect that if in a suit for the specific performance of a contract, the Court decides that specific performance ought to be granted but it is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly; and that the plaintiff is not obliged in a suit for specific performance to pray specifically for damages and that the Court has always a discretionary power to award damages in a suit for specific performance and ought to exercise that discretion when it is of the opinion that damages should be given.
39. The appellant cannot compel the specific performance of the agreement dated 04.06.2015 between the respondent No.3 and respondents Nos.1 and 2. This is moreso, after respondent No.1 withdrew his first suit for specific performance against respondent No.3 and the plaint in respondent No.1's second suit for specific performance was rejected. In such circumstances, the appellant cannot be said to have any cause of action against respondent No.3. But it is not permissible to reject a plaint partially. In the case of Khursheed Jehan v. Aziz Ahmed Naqvi (1990 CLC 1132), it has been held by the Hon'ble High Court of Sindh that Order VII, Rule 11, C.P.C. can have application only if all the reliefs claimed by the plaintiff are barred by any law. Furthermore, it was held that if some of the claims are barred, the plaint cannot be rejected partially.
41. For what has been discussed above, the regular first appeal is allowed and the impugned order and decree dated 13.09.2017 is set-aside; the case is remanded to the learned civil Court which shall give an opportunity to the respondents to file their written statements and thereafter frame issues and proceed with the trial. There shall be no order as to costs.
20. In Ismat Ara Begum through Legal Heirs and another vs. Malik Iftikharuddin and another (2002 YLR 2865), it has been held:
5. ......
In view thereof we have no doubt that a transferable title does not presently vest in the respondents enabling them to transfer the suit land to the appellants through execution and registration of a sale-deed. As such refusal of the learned Civil Judge to grant appellants a decree for specific performance of the agreement to sell through judgment and decree dated 19-12-2000 is unexceptionable.....
6. Both the parties have also assailed the impugned and decree directing payment by the respondents to the appellants of earnest money Rs.10,00,000 alongwith compensation of another Rs.10,00,000 with interest @ 20% per annum from the date of payment of earnest money till realization of the same. Appellants have challenged the decree for recovery of money in their favour to obtain a decree for specific performance of the agreement to sell the suit-land.
Since we have upheld the impugned judgment and decree declining appellants the decree of specific performance on grounds stated above, therefore, we are however, of the opinion that appellants are entitled to a decree for recovery of Rs.10,00,000 from the respondents for earnest money paid by them and for compensation/damages which under sections 18 and 19 of Specific Relief Act can be granted even without a formal prayer thereto in the suit.
In view of non-disclosure imperfections in and litigation upon respondents' title to the suit-land, appellants entitled to respondents compensation.
7. .........
As a result:.........
(i) decree of the learned Civil Judge for payment of Rs.10,00,000 by respondents to the appellants on account of earnest money paid by the appellants is upheld,
(ii) decree of the learned Civil Judge for payment of compensation and damages by respondents to the appellants is also upheld in principle but the same is set aside to the extent of quantum and interest as awarded by the learned Civil Judge;
(iii) the case is remanded to the learned Civil Judge for re decision in accordance with law, on the limited question of the quantum of compensation and damages to be awarded to the appellants after giving parties due opportunity of producing further evidence; and
21. In view of the precedent cases noted above, it is crystal that the judgment of the appellate court is in accordance with trite law and not irregular or erroneous as it has been so labeled by the counsel for the petitioner. The fact that respondent Mumtaz Ahmad cannot compel specific performance of the agreement in question against Tariq Mehmood Sultan petitioner does not take away anything from the fact that Mumtaz Ahmad respondent may be entitled to return of earnest money and even for compensation or damages since Sharifan Bibi cannot be allowed to aprobate and reprobate i.e. enjoy the earnest money and also not be in a position to transfer title in the suit property to the respondent. Unjust enrichment cannot be perpetuated!
22. It is well settled that upon a breach contract for sale of immovable property owing to a defect in the title of the vendor, the vendor is bound to refund the amount of earnest money to the vendee and may also be liable to damages which even if not prayed can be granted in terms of section 19 of the Specific Relief Act, 1877.
23. What is also evident is that a plaint cannot be rejected partially. Reliance with aplomb is placed on the case of Khursheed Jehan vs. Aziz Ahmad Naqvi (1990 CLC 1132).
Unjust Enrichment Unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law views as unjust. According to Webster Legal unjust enrichment is the retaining of a benefit conferred by another when principles of equity call for restitution to the other party. When an individual is unjustly enriched the law imposes an obligation upon the recipient to make restitution.
An illustration of unjust enrichment is receiving payment for something not completed and involving one party benefiting at the expense of the other party in an unfair circumstance. The elements of enrichment include a payment or transfer of property between the two parties. Those deemed unjustly enriched must reverse the position and pay the monetary value of the received benefit.
In Mirza vs. Patel (2016 SCMR 1637), it has been held at paragraphs 13 & 140 as follows: "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 materialise. (See Professor Andrew Burrows' A Restatement of the English Law of Unjust Enrichment, 2012, p 86, para 15)."
"140. Returning the parties to the status quo ante likewise side-steps the issue of illegality. This approach proceeds on the basis that the transaction should simply never have taken place or that the parties should be returned to the condition that they ought always to have occupied.
The contract is unpicked because it should not have been made. Mr Mirza is deprived of the money because it is unjust enrichment. No examination of the effect that the illegality has is warranted; recognition that there has been unjust enrichment is all that is required."
In Farjan Khan vs. Kamran Khan and others (PLD 2021 Peshawar 29), it has been held at paragraphs 15 & 16 as follows: "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."
"Courts of law have always been taking restitutionary measures whether or not there has been privity 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. Messrs New Jubilee Insurance Co. Ltd. and another" reported as "1990 MLD 2002" and in the case "Rabien Sea Enterprises Limited v. Abid Amin Bhatti" reported as PLD 2013 Sindh 290 as well the ibid case of the Supreme Court of United Kingdom."
The facts of the instant revision clearly attract the principles of law discussed above and therefore there is no illegality, irrationality, procedural impropriety or erroneous assumption of jurisdiction insofar as judgment of the Appellate Court under challenge is concerned.
24. In view of what has been noted above, the judgment of the Appellate Court is indeed in line with law and is thus to be preferred over that of the trial court. This petition calls for no interference and is therefore, dismissed.