1. ' MUHAMMAD HUSSAIN ADIL KHARTI, J.--The above High Court Appeal has been filed assailing the judgment and decree dated 28-2-1988, passed by a learned Single Judge of this Court dismissing Suit No, 307/1969, filed by the appellant against the respondent for recovery of Rs,65,500 on account of rent for the period commencing from 1-1-1952 to 30-11.1962 at the rate of Rs,500 per month.
2. It was averred in the plaint that Survey No, 240, situated in Deh Thano, Tapo Malir, Karachi, was owned by one Ghulam Muhammad, from whom the appellant obtained a portion thereof measuring 100' x75' on lease and granted sub-lease thereof to the respondent in January, 1952 for installation of petrol pump, which sub-lease continued up to 30-4-1967. In-between the aforesaid portion and Karachi-Hyderabad Road, there was a piece \ of land measuring 100`x35' (hereinafter referred to as the 'additional land'). According to the appellant the respondent came in possession and use of the aforesaid additional land also from January, 1952. In June, 1963, the respondent filed inter-pleader Suit No 237/1963 against the appellant and others, which was dismissed as withdrawn on 27-2-1968. In the said suit the amount of rent deposited by the respondent for the period ending on 30-4-1967 in respect of the area sub-leased by the appellant to the respondent, was withdrawn by the appellant. It is alleged that on 23-9-1968 the respondent paid to the appellant rent in respect of the additional land at the rate of Rs,500 per month for the period from December, 1962 to 30-4-1967. The said payment was accepted without prejudice to all legal rights and claims for the arrears of rent in respect of the aforesaid additional land from January, 1952 to November, 1962 and the appellant was entitled to recover the arrears of rent for the aforesaid period. It is also alleged that after prolonged discussion and exchange of correspondence, the respondent promised to pay the rent for the aforesaid period but deferred the payment till disposal of the pending cases in Court. In this respect he referred to two letters dated 8-12-1964 and 29-12- 1964, wherein, according to the appellant, the respondent had admitted and acknowledged the liability for payment of the aforesaid arrears of rent. The respondent after disposal of the litigation avoided to make the payment. Ultimately in June, 1967, the respondent required the appellant to produce the aforesaid two original letters dated 8- 12-1964 and 29-12-1964 for consideration by its Law Department. It is alleged that the appellant accordingly handed over the aforesaid original letters to the Company's Senior Supervisor, Mr. A.M. Khan. However, the respondent neither returned the aforesaid. Original letters, nor made the payment He, therefore, wrote to the respondent letters dated 7-11-1967, 5-2-1968, 13-2-1968, 7-5-1968, 17-9-1968, 17-12-1968 and 4-3-1969, calling upon them to pay the arrears amounting to Rs, 65,500.
2. ' It is then averred that on 18-12-1962, the appellant purchased the sub- leased portion as well as the additional land under a registered sale deed from the heirs of the deceased Ghulam Muhammad in the name of his minor son Saleem Ahmed. According to the plaint, the cause of action accrued to the appellant for recovery of the aforesaid amount of Rs, 65,500 in respect of the rent of the additional land when the same became due and payable by the respondent to the appellant and the respondent did not pay and subsequently on 8-12-1964, when the respondents admitted their liability to pay the rent for the period from January, 1952 onwards and deferred the payment till the decision of the pending cases in Court and finally on 27-2-1968, when the respondents' inter-pleader suit was dimissed.
3. The respondent in its written statement admitted the tenancy in respect of the land measuring 100'x75' with effect from May, 1957 created under a registered Deed of Lease dated 17-4-1957 and denied that they became tenant in June, 1952 as alleged in the plaint. The respondent had to file inter-pleader suit as adverse claims in respect of the said land were being made by others also.
3. The amount of rent deposited by the respondents in the inter-pleader suit was being withdrawn by the appellant from time to time under the orders of the Court. The lease expired on 30-4-1967 and accordingly on the demand of the appellant the possession of the land was handed over to him.
4. The respondents also filed an application for withdrawal of the inter-pleader suit which was accepted by order dated 27-2-1968. At the time of passing of the said order Advocate for the appellant admitted that the possession of the land was delivered to the appellant by the respondent. It was denied by the respondent that it had taken on lease the aforesaid additional land from the appellant. The appellapt used to harass the respondent after the withdrawal of the suit for payment of rent in respect of the additional land, which it was not liable to pay and ultimately settlement was arrived at between the parties on 18.9-1968 and the respondents paid a sum of Rs,26,500 to the appellant in full and final settlment of his outstanding claims and disputes of whatever nature connected with the land comprised in Survey No,240 including the additional land. The said amount was paid under cheque dated 18-9-1968 and the settlement was drawn on a non-judicial stamp paper of Rs,4. The appellant also passed on separate receipt in respect of the above amount. It was denied that any payment was made on 23-9-1968 as alleged in the plaint.
5. The document dated 23-9-1968 produced by the appellant was termed as fictitious and false. The other allegations made by the respondents and so also the story of return of the aforesaid original letters by the appellant to the respondent were denied. The respondent denied its liability to pay the aforesaid amount.
6. ' After filing of the written statement, the appellant filed an application for amendment of the plaint which was granted. He filed the amended plaint, wherein he denied the execution of the settlement dated 18-9-1968 and the receipt executed in respect of the amount of Rs,26,500. He also denied the delivery of possession as stated in the written statement and alleged that the respondent continued to be in possession even after expiry of the sub-lease.The learned Single Judge on assessm ent of the material on record dismissed the suit with no order as to cost.
4. We have heard the learned counsel Mr. Afzal Nabi for the appellant and Mr. Muhammad Anis for the respondent..
5. The learned Advocate for the appellant contended that the learned Single Judge discarded the letter dated 29-12-1964 (Exh.P/23) for the reason, as observed by him in his judgment, that the aforesaid letter was referred by the appellant only in his letter dated 13-12-1968 and it does not find mention in any other document. It was pointed out that the aforesaid letter of the respondent has been referred to by the appellant in his letters Exh.P/1, dated 17-1-1-1967, Exh.P/14 dated 17-9-1968, Exh.P/17 dated 17-12-1968 and Exh.P/18 dated 4-3-1969.
7. ' It was next urged that in addition to the above letters, the fact that the original of Exh.P/23 was written by the respondent to the appellant and was re-delivered by him to the respondent has been proved by Anwarul Majeed Khan in his deposition. The learned Single Judge was, therefore, not justified in, discarding the above evidence.
8. ' It was lastly urged that the aforesaid letter is not an acknowledgement of the debt as has been wrongly construed, under section 19 of the Limitation Act but is to be read as a promise in terms of section 25 (3) of the Contract Act for payment of the debt after decision of the cases pending in Courts. Suit No, 231/1963, filed by the respondent was disposed of on 27-2-1968 and the suit from which the appeal arises was filed on 27-5-1969, i,e, within three years from 27-2-1968 when the aforesaid suit was disposed of. He has referred to the following cases:--
(i) Maidens Hotel, Delhi v. Willnot (AIR 1935 Lah. 984).
(ii) Sriram Arjundas v. Governor-General-in-Council (AIR 1952 Cal. 443).
(iii) Sheobachan Pandey and another v. Madho Saran Choubey and others (AIR 1952 Patna 73).
(iv) United Bank Limited, Karachi v. K.S. Kamal (PLD 1977 Kar. 521).
9. ' No doubt the letter dated 29-12-1964, Exh.P/23, allegedly written by Mr. D.S. Lall, the Sales Manager at the relevant time, has been referred to in the aforesaid letters pointed out by the learned counsel for the appellant. We, however, find that in letters dated. 17-9-1968 and 17-12-1968 the appellant has also referred to letter dated 27-2-1967, addressed to the General Manager of respondent which does not refer to the said letter or to the promise in writing but stresses upon oral discussion wherein the General Manager of the respondent and not the Sales Manager had agreed to compensate the appellant suitably. The relevant portion is reproduced below: "You will please refer to legal notices of the subject-matter above.
10. ' In this connection you will please recollect that after the aforesaid notices were given to you, you had orally discussed with me, wherein you had agreed to compensate me suitably as soon as my title was clear and you had contended that my title was not clear at that stage and your inter- pleader, suit was still pending.
11. Now I may inform you that Appeal No,38/1962 filed by Mr. Noo Muhammad and others has been decided by the High Court of West Pakistan, Karachi Bench...."
12. ' In several letters written thereafter, reference has been made to the above letter dated 27-24967.
13. Reference may be made to letters dated 31-3-1967, 20-12-1967, 6-1-1968, 1-3-1968 and 31-1-1968. In these letters there is no reference whatsoever to letter dated 29-12-1964 or commitment made by Mr. D.S. La11, who was the Sales Manager at the relevant time. The appellant wrote lengthy letter dated 19-2-1968 to General Manager of the respondent, in which again there is no reference to the said letter dated 29-12-1964 or commitment made by Mr. D.S. La11, though it refers to commitments made by M/s. Hovery and'Mumtaz, the then officers of the respondent-company. The appellant also produced an acknowledgement as Exh.P/31, whereunder letter dated 27-2-1967, addressed to the Manager of the respondent was received. But no such acknowledgement has been produced with regard to, return of letter, dated 2942-1964 or in respect of the letters dated 7-114967, 17-9- 1968, 17-12-1968 and 4-34969.
14. ' In letter dated 20-12-1967, on the one hand, no reference is made to letter dated 29-12-1964 and on the other hand it refers to dispute with regard to quantum of rent. In this letter it is further pointed out that the respondent had promised to pay the rent of the additional land from 1952 if the case was decided in favour of the appellant and then points out that the case was decided in his favour about a year back. This reference appeart to be to the decision of Appeal No,38 of 1962.
15. Similarly the appellant has referred to several letters written by him to the respondent, in his letter dated 6-2-1968 but there is no reference made to Exh.P/23. Similarly no reference is made to letter dated 6-1-1968. The language of Exh.P/11, which is an undated letter but appears to have been writtenafter decision of case by this Court in December, 1966, is of great importance. In this letter the appellant has specifically stated that, he had delivered attested copies of lease agreement and sale-deed"' executed in his favour to the Legal Department, Had original of Exh.P/23 been in existence and had he delivered the same as alleged, to the respondent, reference to the above, also would have been made in the said letter; particularly so, when the respondent had not omitted to refer to the litigation pending with regard to the title of the land in dispute since 1947 and the offer of M.Mumtaz, the incharge of the Legal Department of payment of rent for the additional land, at the rate of Rs,350 per month, which, according to the said letter, he had not accepted and further pinpoints that he was made to understand that all the rent from 1952 will be paid to him after his title to the land was clear. It does narrate the offer and what he was given to understand, but not the written promise allegedly made by the respondent. The said letter clearly establishes that the respondent had never made any written commitment as pleaded by the appellant. It would thus be in consonance with logical deduction to hold that Exh:P/23, the photo copy, is a manipulated document.
16. ' There is another strong circumstance which belies the above plea. It is the legal notice dated 6-8- 1968 sent by the appellant to the respondent through his advocate, in which it is stated that the respondent had illegally occupied the additional land and raised construction on it without the knowledge and consent of the appellant who had objected to such action on the part of the respondent and the respondent agreed to pay its rent immediately after the decision of Appeal No,36 of 1962. In this letter the rent for the additional land is claimed from 1-1-1957 to July, 1968 at the rate of Rs,500 per month and not from January, 1952 to November, 1962. If the said letter is taken as a whole, it suggests that the additional land was occupied by the respondent and construction, if any, was raised therein by the respondent in 1957 or immediately before 1-1-1957.
17. The above letter by itself is sufficient to conclude that there was no commitment whatsoever for payment of rent for the period claimed in the suit and there was no existence of letter dated 29-12- 1964.
18. ' The learned Advocate for the appellant also relied on the evidence of Anwarul Majeed Khan in proof of the fact that the original of the aforesaid letter dated 29-12-1964 was returned by the appellant to the respondent. It may be pointed out that the appellant had specifically stated in the plaint that the said letter was delivered by him to the respondent in June, 1967. The above version was improved in the amended plaint filed on 11-5-1971, by disclosing that the said letter was delivered to Anwarul Majeed Khan. It is pertinent to note that the said witness was retired from the service of the respondent in the year 1968. The possibility that the said witness was won over by the appellant cannot be ruled out However, in his deposition the witness stated that the aforesaid letter was delivered to him by the appellant in early March or April, 1966. The above statement is, therefore, directly in conflict with the averments in the plaint.
19. ' It is also pertinent to note that the original of Exh. P/23 was delivered to the respondent, according to the, appellant, as it was required by the Legal Department of the respondent and no receipt was obtained for delivery of the said letter. The explanation of the appellant for delivery of the original letter, instead of the Legal Department, to the aforesaid witness, who did not belong to the Legal Department, is that he was not on good terms with the incharge of the Legal Department of the respondent, who, according to the appellant, had threatened to involve him in litigation. If the evidence in this regard is looked at in the background of the strained relations between the appellant and incharge of the Legal Department, it is highly improbable and hard to believe that the appellant had delivered the original letter to the respondent as alleged by him, instead of forwarding the same under a covering letter and obtaining acknowledgement thereof, as was done in respect of letter dated 27-2-1967.
20. ' The case set up in the plaint, if seen in the light of the intrinsic value of the aforesaid letters of the, appellant, particularly, the legal notice dated 6-8-1968, stands denuded and divested of all veracity and truth and leads to the only conclusion that the original of Exh.P/23, had never been in existence. In the above background the evidence of Anwarul Majced Khan, which is afflicted with inconsistency in the context of time also when the original of Exh.P/23 was allegedly returned to the respondent, does not inspire any confidence and deserves to be denounced.
6. Assuming that the respondent had written letter dated 29-12-1964, the question arises whether it was a promise in terms of section 25 of the Contract Act as contended by the learned counsel for the appellant.
21. ' Section 25 of the Contract Act reads as under:-- "25. An agreement made without consideration is void unless--
(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless
(2) it is a promise to compensate, wholly or in part, a person who had already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless
(3) it is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
22. ' In any of these cases such an agreement is a contract."
23. ' As noted above, the claim of the appellant pertains to the arrears of rent for the period ending November, 1962. Under Article 110 of the First Schedule to the Limitation Act, 1908, the limitation prescribed is three years for recovery of arrears of rent from the date when the arrears become due. In the impugned judgment, on assumption that the letter dated 29-12-1964 was written by the respondent, was an acknowledgement of the debt under section 19 of the Limitation Act, the suit was found barred by law, having been filed after three years from the date of acknowledgment. We find that the learned Advocate for the appellant had based his argument also on the proposition that the aforesaid letter contained promise to pay. To take the benefit of the aforesaid section 25 of the Contract Act, the following facts are to be established:--
(a) There must be a promise;
(b) Signed by a person to be charged therewith or by an agent generally or specially authorised in that behalf; and
(c) There is a debt which is barred by time.
24. ' Learned counsel for the respondent contended that the said section will be applicable only if the promise is in respect of a certain amount.
25. ' The first ingredient of the aforesaid section is promise. Promise is a word of art as used in the Contract Act. Therefore, in the first instance it is to be ascertained whether the said letter can be treated containing a promise as contemplated under the aforesaid section. The words "proposal" and "promise" are respectively defined in clauses (a) and (b) of section 2 of the said Act, which read as under:-- "(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;
(b) When the person to whom the proposal is, made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a' promise;"
26. ' In the letter dated 29-12-1964, it was proposed that the rent would be paid to the appellant after the decision of the cases pending in Courts. The aforesaid proposal would have become a promise in terms of section 2 (b) of the Contract Act, if the appellant had signified his assent to the said proposal. Therefore, what is to be seen at this stage is whether the appellant has signified his assent to the aforesaid proposal or not. It has come on record that there was litigation with regard to title of the suit which was decided finally by this Court in Appeal No,38/1962 in the year 1966. Suit No, 237/1963, which was filed by the respondent as inter-pleader suit, was withdrawn in the year 1968. The appellant, as it appears from the correspondence, which has been referred to hereinabove, had not accepted the aforesaid proposal as contained in letter dated 29-12-1964, as he had continued to demand the rent before the disposal of the aforesaid litigation. Reference may be made to letters dated 27-2-1967, 31-1-1968, 9-2-1968 and 6-2-1968. In these -letters the rent was demanded before the above suit came to be decided. It, therefore, can reasonably be inferred that the appellant had not signified his assent to the said letter as when the aforesaid letters were written at. Least Suit No,237/1963 was then pending and he insisted on payment of rent after decision of Appeal No,38/1962. Under these circumstances the proposal as contained in letter dated 29-12-1964 did not mature in the promise and consequently there was no contract in existence and, therefore, the suit was barred by law and no benefit can be taken of section 25 of the Contract Act.
27. ' Coming to the second ingredient of section 25, the promise is to be made by the person to be charged or by his agent generally or specially authorised in that behalf. According to the appellant such promise was made by the Sales Manager Mr. D.S. Lall but there, is no evidence on the record to establish that the said officer of the respondent was generally or specially authorised to make such a promise. The agreements of lease placed on the record were executed by the respondent through its duly constituted attorneys. The respondent is a limited company, incorporated under the Companies Act, 1913 and that such a promise could have been made only by such officer who was either an attorney or was so authorised by the company. The letter dated 2942-1964 having been not written by any such person, cannot be used by the appellant to enforce his claim against the respondent-Company.
28. ' Before parting with this aspect of the case, it may be additionally pointed out that the appellant has nowhere in the plaint stated that the author of letter dated 29-12-1964 was specially or generally authorised by the respondent to bind it for the charge made by him against the company. He did not say so even in his evidence.
29. ' The-learned Advocate for the respondent vehemently contended that it is one of the requirements of section 25 of the said Act that the promise should be in respect of a specific sum.
30. As has been already pointed out above, the correspondence reflects that there was no agreement between the parties on the quantum of amount payable and for the use and occupation of the additional land as the appellant was claiming a sum of Rs,500 per month and the respondent was not willing to pay the said amount and had agreed to pay only Rs,350. There is no letter of the respondent offering any amount in respect of the additional land, however, there are letters written by the respondent wherein he has referred to the offer of the respondents for payment of rent at the rate of Rs,350 per month. Thus there being no agreement with regard to the quantum payable by the respondent to the appellant, the letter dated 29-12-1964 was of no consequence. The learned counsel for the respondent relied on the case of Doraisami Padayachi and another v.
31. Vaithilinga Padayachi and others (AIR 1918 Mad. 1145), where the Full Bench has laid down that a promise to pay any amount which may be found due by the Arbitrator on taking the accounts of partnership between the parties does not amount to a promise to pay a debt within the meaning of section 25 of the said Act. We are in respectful agreement with the aforesaid observation as there can be a proposal and acceptance in respect of a specific amount. We say so for the reason that section 25 creates an exception for enforcement of the void agreements and, therefore the said provision is to be strictly construed. Consequently it follows that unless there is specific sum, there cannot be said to be any contract for the sum to be charged with.
32. ' Similarly in the case of Sheobachan and another (supra) relying on the aforesaid case of Doraisami Padayachi and another, it has been observed that a promise to pay' an uncertain sum is not a promise to pay a debt within the meaning of the aforesaid section.
33. ' In the case of Sriram Arjundas (supra), it was held that before the writing is made and signed, there must be an agreement by the acceptance of proposal and That agreement is to be recorded in writing and signed in accordance with the requirements of the section (ibid). Without accepting the proposition as has been propounded in the aforesaid reported case, it would be proper interpretation of section 25 (3) of the Contract Act, read with the definition of the words proposal and acceptance, to lay down that unless the proposal conveyed, has been accepted as such it would not by itself create a F binding contract between the parties.
34. ' In Maidens Hotel Delhi (supra), it was the specific sum which was acknowledged by the defendant with a promise to pay the debt by monthly instalments, till the whole amount was liquidated. The first instalment was paid and accepted by the creditor and thus the acceptance of the first instalment amounted to acceptance of the proposal which created a binding contract.
35. ' In the present case the correspondence referred to above between the parties reveals that there was no agreement on the quantum of rent. On the-one hand as per version disclosed in the letters written by the appellant, the respondent had offered to pay rent at the rate of Rs,350 per month, whereas the appellant was claiming rent at the rate of Rs,500 per month, all the time.
36. ' In other words, it cannot be said that there was a specific sum which was promised by the appellant to be paid by the respondent. The learned Advocate for the appellant contended that the specific period for which the rent was payable being known to the parties, the promise should be construed as a promise for payment of the rent for the said period. In so far as it goes and even if we were to accept it, the quantum of rent itself being uncertain, it is .Not possible to conclude that the promise was for a sum specific. On above reasoning also the said letter does not meet the requirements of section 25 (3) of the Contract Act.
7. The learned Advocate for the respondent contended that the appellant had purchased the property on 18-12-1%2 and therefore, he had no locus standi to claim the rent for the period preceding the aforesaid date. On the other hand, the learned Advocate for the appellant urged that on evidence it is established that although he became the owner of the land in the year 1962 but before that he had acquired the land on rent from the previous owner.
37. ' The appellant in his evidence stated that the respondent had illegally encroached upon the additional land without his permission and so also had raised construction thereon. Because of the aforesaid encroachment he had to pay rent to Ghulam Muhammad, the original owner from 1952.
38. It is thus not the case of the appellant that the respondent was inducted by him as a tenant in the aforesaid land. Even in the legal notice dated 6-8-1968, the stand of the appellant is the same. It, therefore, needs to be scanned whether the appellant had acquired any right in the said land, during the period for which rent is claimed in the suit.
39. ' The rent agreement, Exh.10/2, was executed, between the parties on 28-6-1954 in respect of the land measuring 100`xx75`. It is a registered deocument. The second agreement for the same land was executed between the parties on 12-4-1957. The appellant had entered into an agreement (Exh.10/5) with the heirs of late Ghulam Muhammad on 11-12-1962. It is recited in the aforesaid document that the land measuring 100'x75' Survey No,240 is in possession of the appellant from 11- 2-1953 under registered lease deed and under the said agreement the lessors had agreed to lease out another piece of land measuring 1005x35' for a period of eleven years commencing from 1-1- 1952 at the rate of rent of Rs,25 per month: It further shows that the rent of the said eleven years was paid to the legal representative of late Ghulam Muhammad at the time of execution of the said document on 11-12-1962. This document further states that the said additional land is in possession of the appellant. Before proceeding further, it may be interjected that the appellant was confronted with the above recitation in the said agreement. As against the above, the appellant deposed that he used to pay rent to Gulam Muhammad for the said additional land occupied by the respondent and obtain receipts from him, though he produced none of them. It is, therefore, not possible to accept the said evidence, in face of the recital in the above document, which appears to have been inartistically manipulated to support the claim in the suit. Had the appellant acquired the aforesaid land on rent from the respondent at any time before the execution of Exh.10/5, the above fact would have been detailed in the aforesaid document as one finds mention of the fact that the appellant was in possession of 1005x75' land from 11-2-1953. This document belies the entire case of the appellant with regard to the additional-land.
40. ' It is the case of the appellant that the respondent had agreed to pay rent for the additional land. If it were so, the appellant would have at least called upon the respondent to execute agreement in respect of the additional land also, in, line with the agreements executed in respect of the other land, but as admitted by him in his cross-examination, he did not do so. The appellant while ' executing the aforesaid two agreements with the respondent or 28-6-1954 and 17-4-1957, did not at all insist upon or demand rent or occupancy charges in respect of the additional land. The bulk correspondence produced by the appellant does not contain any demand of dispute during the contemporaneous period, with regard to the payment of the rent of the additional land. The earliest document in this regard placed on record is 29-12-1964, which has been already discarded being fictitious one.
41. ' The appellant having failed to establish that he had acquired any right in the said additional land, cannot maintain his right to realise rent thereof, for the period from 1-1-1952 to November, 1962.
42. Even when the said land was purchased, it was in the name of the appellant's son. The appellant as such had no locus standi to file the suit.
43. ' No other point was urged.
44. ' We find no substance in the appeal, which is hereby dismissed with cost.