On the conclusion of the hearing of this case on the 8th November 1973, I had by a short order quashed the proceedings instituted by Haji Suleman against the applicants Ahmedali, and Moizali under section 420/406, P. P. C. In the Court of 16th Additional City Magistrate, Karachi and I now proceed to record my reasons for the same.
2. Briefly stated the case of Haji Suleman and Mil. Hawabai, the respondents Nos. 1 and 2 in this case (hereinafter referred to as the com--plainant) against the applicants Ahmed A.I and Moizali (hereinafter referred to as the accused) is as follows:- The complainant was desirous of establishing a charitable trust for running a free Maternity Home and a school and for that purpose he required a plot of land measuring about 7000 sq. Yards where these institutions could be located. The complainant contacted brokers for this purpose and one Najmuddin showed a plot bearing No. L. R. 9-31-2 situated at Lawrence Road, Karachi. This entire plot consisted of an area of about 14000 sq. Yards. It is then the case of the complainant that broker Najrnuddin informed him that half of the area viz. About 7000 sq. Yards was available for sale. The two accused in the case are admittedly the owners of the plot and therefore negotiations in regard to the sale of about half of the said plot were carried on. The negotiations ultimately resulted in the execution of an agreement entitled as "Agreement of Sale" dated 23rd January 1970.
This agreement which has been produced on record as Exh. 1/A is a fairly detailed document and carries as an annexure a lay-out plan showing the area agreed to be sold by the accused to the complainant as encircled in Red Ink. Para. I of this agreement clearly states that the land purported to be conveyed by the accused to the complainant was as per site sketch and plan annexe) to the agreement. On a perusal of this site sketch it appears that the dimensions lenghthwise and breadthwise were clearly men--tioned. The sketch further shows that there were two bungalows bearing Nos. 1 and 2 on the plot of land that was agreed to be sold by the accused to the complainant.
3. It seems that on the date of the agreement viz. 23rd January 1970, the plot in question had already been forfeited by the City Deputy Collector for the reason of some unauthorised construction on the said plot. The agreement therefore, provided that the accused had agreed and assured that the plot in question would be restored to its former status of the grant. It is conceded case before me that this order of foreiture has been vacated by the City Deputy Collector so that the accused are in a capacity to convey the plot to the complainant.
It is admitted case that the price for the portion of the plot that was agreed to be sold by the accused to the complainant was fixed at Rs. 11 lacs, out of which a sum of Rs. 1,50,000 was paid as earnest money. Pare. 6 of the agreement further provided that on the accused persons' satisfactorily showing proof of waiver of the order of forfeiture by the City Deputy Collector, the complainant was to furnish Bank Guarantee of a scheduled bank in the amount of Rs. 5 lacs which was to be payable to the accused persons on the execution of the sale deed and delivery of the vacant posses--sion of the property. Para. 11 of the agreement again provides that the earnest money of Rs. 1,50,000 which had been received by the accused from the complainant was to remain in trust with the accused until such time that the lease of the plot in question was rectified to its original grant by the City Deputy Collector. It is conceded case before me that the lease has been restored and the order of forfeiture has been waived and recalled by the City Deputy Collector.
The most important clauses of the agreement are clauses 1 and 2, which are reproduced hereunder:- "(1) That in pursuance of the assurance and in consideration of this agreement of sale of about the half portion of the plot bearing No. L. R. 9/E1/2 consisting of bungalow No. I and under construction building on demolished bungalow No. 2 together with open plot including the area containing the Petrol Pump Which is demarcated by the existing boundary walls for the sake of this agreement as per Site Sketch and plan annexed to and forming part of this agreement. The measurement of the area is . . . . . . . Feet in length and . . . . . Feet in breadth.
The purchasers have paid the sum of Rs. 1,50,000 (Rupees one lac fifty thousand only) by way of earnest money by Pay Orders No. P0770809, dated 10-1-1970 for Rs. 1,00,000 (Rupees one lac only) and No. P0770810, dated 20-1-1970 for Rs. 50,000 (Rupees fifty thousand only) receipt of which is hereby acknowledged by the vendors.
(2) That the Sellers have agreed and assured that the plot in question will be restored to its former status of Grant within a month hereof and a true copy of the Extract restoring status of the plot in question will be obtained by the Sellers and furnished to the Purchasers, whereafter a kabala agreement will be entered into and executed by both the parties."
4. Clause I of the agreement clearly states that the accused persons had entered into an agreement of sale of "about" half portion of the plot. This clause further states that a site sketch and plan had annexed to the agreement and same formed a part of the agreement. What is more that the area agreed to be sold by the accused to the complainant has not been specified to the agreement itself. In fact a blank has been left at the place where the area was to be mentioned.
The next feature about this agreement is that the accused had agreed to get the plot restored to its former status of the grant within a month and therefore a kabala agreement was to be entered into and executed by both the parties.
It would thus seen that at the time this agreement was executed by the parties the area that was agreed to be conveyed by the accused to the com--plainant was not specified; it would also be abundantly clear that this agreement of sale executed on the 23January 1970; was to be followedrd by another kabala agreement. It is also not disputed before me nor in the evidence of the complainant himself, that the site plan or sketch was appended and annexed to the agreement and indeed the same has been signed by both the parties. This plan as stated above clearly shows the dimensions of the plot that was agreed to be sold by the accused to the complainant.
5. After the accused obtained the certificate from the City Deputy Collector, Karachi, raising the order of forfeiture of the plot, the com--plainant had advertised in the newspapers in regard to the communication to him by any person of any claim that they may have in regard to the property which was agreed to be sold by the accused to the complainant. Mr. Haji Motiur Rehman an Advocate of Karachi made a reply stating that his clients were the tenants and occupants of the outhouses of the bungalows and that eviction cases were pending against his clients at the instance of the accused before the Controller under the West Pakistan Urban Rent Restric--petition Ordinance. On the other hand a notice was given on behalf of the com--plainant to the accused through their Advocate wherein a foundation for a criminal case was sought to be laid. Para. 4 of the notice is as follows:- "(4) In the circumstances our clients take a very serious view that there had been a constant and deliberate efforts to deceive our clients and your clients knowing full well that at the time of entering the agreement of sale they could not give vacant possession of the property, made our clients to believe as such and part with the money and this comes within the mischief of section 415, P. P. C. In addition to this our clients have also come to know that your clients, while obtaining restoration of the plot, made false representation to the City Deputy Collector's office that both the brothers were partitioning the property and, therefore, under these subterfuge they obtained the restoration of the plot, instead of disclosing the factual position that at that time they had contracted to sell the property to our clients."
6. In the meantime however, viz. On 14th April 1970, complainant Haji Suleman filed a complaint against the two accused under section 420/406, P. P. C. In the Court of the Magistrate. It is the proceedings in this complaint which are sought to be quashed in these proceedings.
On a reading of this complainant the grievance of the complainant appears to be that a misrepresentation was made to him that half of the area of the plot which was about 7000 sq.
Yards was available for sale and was to be sold to him. It is further alleged in the complaint that the accused persons were to get the original status of grant of plot by the City Deputy Collector restored. In short the main grievance of the complainant is that he was given to understand that the area of the plot that was to be con--veyed to him was about 7000 sq. Yards whereas it is actually about 6000 sq. Yards.
7. The complainant has been examined in the Court of Magistrate at length. In his evidence he has admitted that an agreement was drawn up wherein the area was not specifically mentioned because the accused were not certain about the dimensions of the plot as the same were irregular. It has been further admitted by the complainant that the agreement executed on the 23rd January 1970, was a preliminary agreement, which would show that a further agreement was yet to be executed between the parties. In the same breath the complainant has gone on to state that he had come to know only after know execution of the agreement that he was getting an area of- 5000 sq. Yards and not 7000 sq. Yards. The statement is indeed fantastic because alongwith the agreement the sketch had also been signed by the parties and the same sketch clearly shows all the dimentions of the plot that was to be sold by the accused to the complainant. In fact the agreement itself shows that the area had not been mentioned and a space was left blank which would indicate the intention of the parties at the time of entering into the agreement. In that view of the matter I fail to understand as to how the accused can be held to have made any misrepresentation or a false declaration with regard to area of the plot that was to be sold by the accused to the complainant. What might have been the terms of the second agree--ment that was contemplated by the parties is a matter which is not reason--ably within the scope of the Criminal Court to determine. More so, because both the parties have filed civil suits which are pending in the High Court. I will advert to suit aspect of the case in the latter part of the judgment.
On the point of area of the plot that was purported to be sold by the accused to the complainant Abdul Latif, an Estate Broker has been examined. He has stated that he had taken the complainant to the accused and they had a talk in regard to this transaction. He has gone on to say that accused had told the complainant that the entire plot measures 14,000 sq. Yards and that the complainant could retain only half of it which would measure 7000 sq. Yards. He went on to say that the complainant thereafter had asked the accused persons to produce the documents and further negotiations were carried on through Najmuddin. 'This would show that the documents had been examined by the complainant before he entered into this transaction. In any case the pivot of the transaction between the parties is an agreement which is in writing and this agreement clearly does not show the area of the plot agreed to be sold to be 7000 sq. Yards.
8. Having dealt with the evidence of the complainant I pray state that the remaining evidence that has been brought on record by the complainant consists of the evidence of the banker through whom the earnest money was paid. Receipt of the earnest money is not denied by the accused persons. The next witness is one Qamruddin Ahmed who had at the behest of the complainant prepared a plan of the plot and has produced the said plan. According to this witness the area that was to be conveyed by the accused to the complainant as per the sketch appended to the agreement was 5870 sq. Yards which witness has further made an admission in favour of the accused by stating that an area of 1800 sq. Yards had been curtailed by the Karachi Development Authority. That would show that the total area of the plot was around 12000 sq. Yards and half of it would be nearly 6000 sq. Yards and according to this witness the accused were selling 5870 sq.
Yards which would be roughly half the total area of the plot. The next witness for the complainant was Haji Motiur Rehman, an Advocate, who had stated that there was some litigation between the accused and his clients in regard to having the said plot vacated. Mr. Haji Motiur Rehman has further admitted in cross-examination that the suits which had been filed as between the accused on the one hand and the occupants on the other have been com--promised. It seems that the occupants had obtained an injunction to restrain the accused persons from evicting them and by that compromise the suit of the occupants was to be dismissed and the injunction was to be vacated. In fact it was admitted by Mr. Haji Motiur Rahman in his evidence that the suits were compromised because the accused had agreed to pay compensation to the occupants. This would on the contrary show that the accused had taken proper steps to hand over the vacant possession of the plot to the complainant and in an effort to have the plot vacated, they had even agreed to pay compensation to the persons who had unauthorisedly occupied that plot. The last witness of the complainant was one Isratullah, a Land Inspector in the Karachi Development Authority. He has on the contrary produced a document, marked Exh. 6/1 on the record, which is a letter written by the Assistant Town Planner on the 18th September 1963, viz., 7 years before the date of agreement and addressed to the Architect (Central) of' the Karachi Development Authority and in that letter it has been stated that Plot No. 31/2 L R 9 viz., the plot in question in this case was not effected by the Schemes of the Karachi Development Authority. I cannot understand how the evidence of this witness can advance the case of the complainant.
9. However in the meantime both the parties have filed civil suits which are pending in this Court.
The complainant filed a suit on the 1August 1970, against the two accused for specific performance of the con--tract and for damages on account of the delay in completion of the sale.
This suit is pending, On the other hand the accused have also fled a suit against the complainant in this Court seeking a declaration and a mandatory injunction. This suit was filed earlier viz. On the 21st of May 1970, and the relief claimed is that it be declared that the preliminary agreement datedst 23rd January 1970, is not a concluded contract between the parties and the same has to be concluded by another kabala agreement and a mandatory injunction has been sought to direct the defendants (the complainant) to settle the terms of the concluded contract of sale.
10. On a consideration of all the material that is available on the record I am clearly of the view that the dispute between the parties is clearly of a civil nature. I am further of the view that no misrepresentation hays been made by the accused persons as inducement for the complainant to part with any money. I am convinced that the complainant had seen the property before purchase and had examined the documents in relation to the same and at the time of the agreement it was not actually decided as to what would be the area that was to be conveyed to the complainant but the piece of the plot that was actually to be conveyed was shown in the plan that was annexed to the agreement. There is a possibility that the accused or the broker may have stated that the plot would be about 7000 sq. Yards but it cannot be overlooked that the actual area of the plot was not mentioned in the agreement and in fact the places meant for mention of the area had been left blank. This blank is significant and shows the intention of the parties. It appears that perhaps the parties contemplated that a portion of the plot was under unauthorised occupation and may not be conveyed or perhaps that a portion of the plot may be taken by the Karachi Development Authority for its own purposes or for a variety of other reasons. Be that as it fray, the fact stands that the accused have not misrepresented to the complainant in regard to the actual position of the plot. They have also not misrepresented in regard to the yardage that was sought to be conveyed. An offence of cheating cannot be complete unless and until the prosecution proves some misrepresentation. In the present case there is no misrepresentation. Admittedly the accused ire the owners of the plot and the accused are in fact anxious to conclude the agreement with the complainant and for that purpose they filed a suit in the month of May 19'!0. On the other hand even the complainant has filed a suit and he has sought specific performance of the same contract. What would be the actual yardage or area which the accused have to convey to the complainant would have to be determined by the civil Court and surely, a criminal Court is not the venue for the determination of such questions as form the basis of an agreement in writing. The plain words of the agreement are clearly suspectible of interpretation on the hypothesis of honest dealings by the accused and do not show any dishonest misrepresentation on the part of the accused. I have also no difficulty in holding that in the nature of the facts in the case, the main document creating contractual relations between the parties is the agreement. A plain reading of the document clearly shows the intention of the parties at the time of entering into the agreement and all evidence in derogation of the agreement, if any, has already been recorded and the same makes out no criminal case.
11. The next point urged by the Advocate for the complainant is that the complainant has yet to examine more evidence. He had filed a list of the witnesses along with the complaint and most of the witnesses have been examined. Mr. Z. U. Ahmed states that he had to examine an official of the office of the City Deputy Collector to prove that the division of the pint was obtained by the accused on misrepresentation. On my asking what was the nature of that misrepresentation, the learned Advocate stated that in the application which the accused had made to the City Deputy Collector or sub-division of the plot they had stated that they being two brothers, wanted to sub- divide the plot so as to partition it. That would not show any misrepresentation made to the complainant. It is entirely for the accused to obtain sub-division in the manner in which they choose. But merely because they might have stated to the City Deputy Collector that they wanted to sub-divide the plot in order to partition the property between the two brother:, cannot amount to cheating the complainant. In my view it will be sheer waste of time to allow this witness to be examined because that will not advance the case of the complainant, more so as I have come to the conclusion that for the purposes of entering into this agreement the accused persons did not make any misrepresentation.
12. It has been further argued by Mr. Z. M. Ahmed that in the inherent powers of this Court under section 561-A, Cr. P. C. The scope of interference is very narrow and for that reason I should allow this case to proceed in the trial Court. I agree that the scope of the interference is indeed narrow but in this case I cannot overlook that this dispute is clearly of a civil nature and has been dragged to a criminal Court solely for the purposes of harassing the accused persons the accused had made no misrepresentation and the accused even now have filed a suit to seek a declara-- petition and a mandatory injunction from the civil Court so as to compel the complainant to conclude the agreement. On the other hand this complaint was filed on 14th April 1970, and 3-- years have already passed by now. During these 3-- years only 5 witnesses have been examined and from the discussion of the evidence of these witnesses I have come to the conclusion that the pendency of this complaint in the Criminal Court is an exercise in futility. No useful purpose would be served and it seems to me that the venue of the criminal Court is being used for the purposes of settlement of such disputes which should normally be the function of the civil Court to decide.
Indeed this Court on the original side is seized of suits of both the parties which I should think must be ripe for hearing now, since the suits were filed in 1970.
13. Mr. Hussain Adil, the learned counsel for the State had stated before me that the proceedings in the criminal Court may be stayed pending the decision of the civil suits. I have not been able to comprehend the actual significance of this argument but this concession on his part would clearly show that the dispute between the parties should be better settled in the civil Court and there was a possibility that on the civil Court deciding the issues between the parties, a criminal Court might not have the necessity of proceeding any further in the case. I cannot possibly see any other significance in such a stand taken by the learned State counsel and if I understood him correctly, I would interpret the stand taken by the State counsel to mean that the dispute was of a civil nature and should be determined by a civil Court. As otherwise, if it was not so, there would be no meaning in the proceedings before the criminal Court being stayed. In any case I am of the view that the criminal Court is being utilised as a medium for harassment of the accused persons in order to determine a civil dispute which exists between the parties.
14. On a consideration of the facts and the circumstances of the case I am of the view that the proceedings in this case which have been carried on for 3-- years by now are an exercise in futility.
No useful purpose will be served by allowing these proceedings to remain pending. The dispute is purely of a civil nature and can be decided by a civil Court only. For, all these reasons I will quash the proceedings in the case of Haji Sideman v. Ahmedali and another under section 420/406, P. P.
C. Pending in the Court of 16th Additional City Magistrate, Karachi.