1. ' By this common judgment, I intend to dispose of the above two suits as the parties to the suit and the subject-matter of the two suits is the same.
2. ' Briefly the facts are that agricultural land bearing survey Nos.84 to 86 and 89 to 91 and 96 to 98 situate in Deh Songal Tappo Songal Taluka, Karachi District Karachi admeasuring 161-14 acres were owned by Siddiq Gabole (defendants Nos. 1 and 2 in Suits Nos. 11 and 8 of 1972 respectively) and (Zehri Khan, defendants Nos.2 and 3 in Suits Nos.11 and 8 of 1972) and Mst. Jamiat (defendants Nos.
3. 3 and 4 in Suits Nos.11 and 8 of 1972 respectively) having the following shares: Siddiq Gabole Rs, 0-8-0 Zehri Khan Rs, 0-7-0 Mst. Jamiat Rs, 0-1-0 ' The abovesaid owners of the land are said to have entered into two agreements of sale on 27-11- 1964 and 5-1-1965 whereby they agreed to sell the entire land as mentioned above to Syed Akhtar Ali, the defendant No,1 in Suit No,8 of 1972 and plaintiff in Suit No,11 of 1972. According to these agreements, the net price of the land was settled at Rs,3,000 per acre; and that a total amount of Rs,5,700 was paid in advance at the time of execution of sale agreements to the owners. The said Syed Akhtar Ali thereafter entered into agreement of sale with Agra Cooperative Housing Society, the plaintiff in Suit No,8 of 1972 and defendant No,4 in Suit No,11 of 1972. This agreement was executed on 29-9-1966 whereby the said Syed Akhtar Ali agreed to sell Survey Nos.86 to 88 admeasuring 54-16 acres out of the abovementioned land to Agra Cooperative Housing Society at Rs,2 per square yard and received an advance of Rs,52,659.20 i,e, equivalent to 10% of the total cost of the said three survey numbers for which the said Syed Akhtar Ali had to furnish a bank guarantee. It was also agreed that a further sum of Rs,78,988.80 from the above cost would be paid within 15 years of the receipt of sale permission and yet a further sum of Rs,78,988.80 shall be paid by the end of December, 1966. It was also agreed as per this agreement that the balance price would be paid by the purchaser to Syed Akhtar Ali on or before 31-7-1967 which implied that the balance amount of Rs,3,15,855.20 were to be paid before the Registrar at the time of execution of the Conveyance Deed. It is also in the pleadings of the parties that subsequently on 4-5-1970 another agreement was executed by said Syed Akhtar Ali in favour of Agra Cooperative Housing Society on 4-5-1970 whereby he agreed to sell Survey Nos.84, 85 and 86 admeasuring 41-11 acres at the rate of Rs,2.75 per square yard and received an amount of Rs,2,50,000 at the time of execution of Agreement of Sale by way of advance. As per this agreement, a further advance of Rs,1,32,442.75 was to be paid to the said Syed Akhtar All by the purchaser and within one month thereof, the said Syed Akhtar Ali was to arrange mutation of Survey Nos.96, 97 and 98 and also Survey Nos.85, 84 and 86. It was also agreed that the second party to this agreement i,e, purchaser shall complete execution of sale-deed before the Registrar within two months from the date of mutation of said survey numbers and pay the balance of total consideration amounting to Rs,3,00,000 before the Registrar at the time of execution of sale-deed. It is the case of the plaintiffs in Suit No,8 of 1972 that though they had advanced a sum of Rs,4,68,342 and Rs,3,82,442.75 to the said Syed Akhtar Ali in consequence of the abovesaid two agreements respectively, but the said Syed Akhtar Ali did not finalise the transaction and executed the sale-deed. Rather he demanded increased price on the grounds that the original owners Siddiq Gabole and Zehri Khan were pressing him for payment of higher price. The parties exchanged a number of letters in this respect.
4. Since the said Syed Akhtar Ali did not execute the sale-deed, therefore, after giving him a due notice the Agra Cooperative Housing Society filed Suit No,8 of 1972 for specific performance or in the alternate refund of money, damages and injunction, against the defendants Nos.1 to 4. The said Syed Akhtar Ali also filed Suit No,11 of 1972 for specific performance of contract against the defendants Nos. 1 to 3 in which Agra Cooperative Housing Society was also joined as party. During the pendency of the suit, the said Siddiq Gabole expired and his legal heirs (a) to (k) were joined as defendants.
5. ' The defendant Siddiq Gabole filed his written statement wherein he took the plea that the said Syed Akbar Ali had been avoiding to make the final payment and get the sale-deed executed in spite of repeated demands. He further contended that on 25-10-1968 the said Syed Akhtar Ali gave final undertaking that he will complete the transaction within two weeks from the said date but still he failed to do so and, therefore, the transaction between them was repudiated vide notice, dated 8th December, 1969.
6. ' On these pleadings of the parties 16 issues were settled on 12-5-1975 in each case as under:--- ISSUES IN SUIT NO.8 OF 1972:
(1) Whether the suit is barred under Article 113 of the Limitation Act, 1908?
(2) Whether the defendant No,1 entered into Agreements of Sale dated 29-9-1966 and 4-5-1970 with khe plaintiffs with the express consent, knowledge and concurrence of the defendants Nos. 2 to 4 in respect of the lands in suit and are binding on them?
(3) Whether the defendants Nos.1 to 4 in connivance with one another wanted to increase the rates and force the plaintiffs to agree to the increase by delaying execution of the sale-deed?
(4) Whether or not the defendant No,1 committed breach of the Agreements of Sale dated 27-11- 1964 and 5-10-1965? If so, what is its effect?
(5) Whether defendants Nos.2 and 3 had legally repudiated the Agreement of Sale dated 27-11- 1964? If so, what is its effect?
(6) Whether the Agreements of Sale, dated 27-11-1964 and 5-10-1965 were subsisting on 4-5-1970 the day when the Second Agreement dated 4-5-1970 was executed between the plaintiffs and the defendant No,1? If not, what is its effect?
(7) Whether the Agreements of Sale, dated 29-6-1966 and 4-5-1970 between the plaintiffs and the defendant No,1 are binding on the defendants Nos.2 to 4? If so, to what extent and with what effect?
(8) Whether the transactions between the plaintiffs and the defendant No,1 in the shape of Agreements of Sale, dated 29-9-1966 and 4-5-1970 are collusive? If so, what is its effect?
(9) Whether on 1-6-1966 defendant No,1 executed an Agreement of Sale of Lands bearing Survey Nos.84, 85, 86, 89, 90, 91, 96, 97 and 98 of Deh Songal in favour of the defendant No,5?
(10) Whether defendant No,5 paid to defendant No,1 a sum of Rs,1,04,000 as part of the price of lands agreed to be sold to the defendant No,5? If so, what is its effect?
(11) Whether the Agreement of Sale dated 1-6-1966 between the defendant No,1 and defendant No,5 is binding on the defendants Nos.2 to 4? If so, to what extent and with what effect?
(12) What is the effect of defendant No,1's Agreement dated 1-6-1966 on the plaintiff's suit:
(13) Whether the claim of defendant No,5 in respect of the lands in dispute is bogus, time-barred and whether the defendant No,5 has come to Court with clean hands?
(14) Whether the defendant No,2 after rescinding the Agreement of Sale dated 27-11-1964 was competent to enter into an Agreement of Sale on 12-6-1970 with Muhammad Hanif son of Abdul Aziz? If so, whether the agreement so executed is valid?
(15) Have the plaintiffs any cause of action? If so, against which of the defendants?
(16) To what relief, if any, the plaintiffs are entitled? ISSUES IN SUIT NO.11 OF 1972:
(1) Whether the suit is time-barred under Article 113 of the Limitation Act, 1908?
(2) Whether proper court-fee has been paid on the valuation of the property in suit?
(3) Whether the plaintiff paid 10% of the sale price to the defendants Nos. 1 to 3 in terms of para. 3 of the Agreements of Sale dated 27-11-1964 and 5-10-1965?
(4) Whether plaintiff has paid to the defendants Nos. 1 to 3 a sum of Rs,1,59,701.19 under the two agreements dated 27-11-1964 and 5-10-1965?
(5) Whether or not the plaintiff agreed to perform his part of the contract by securing the Registration of sale-deed in terms of his undertaking dated 25-10-1968 within two weeks therefrom and latter committed a breach in respect thereof?
(6) Whether or not the plaintiff on 25-10-1968 received Rs,10,824 and Rs,9,471 from the defendants Nos.1 and 2 respectively on account of stamp duty and Registration charges and failed to complete the deal?
(7) Whether the plaintiff was ready and willing to perform his part of the contract and that its performance was refused by the defendants Nos.1 to 3? If so, what is its effect?
(8) Whether or not the plaintiff committed breach of the agreement of sale dated 27-11-1964 and 5-10-1965? If so, what is its effect?
(9) Whether the defendants Nos.1 and 2 could unilaterally terminate and/or abrogate the agreements executed between them and the plaintiff?
(10) Whether or not the rescission of the Agreement of Sale, dated 27-11-1964 by the defendants Nos. 1 and 2 is absolute? If so, what is its effect?
(11) Whether the Agreements of Sale dated 29-9-1966 and 4-5-1970 were executed between the plaintiff and the defendant No,4 with express consent, knowledge and concurrence of the defendants Nos. 1 to 3, as alleged? If so, what is its effect?
(12) Whether the defendant No,4 has made any payment to the plaintiff against the Agreements of Sale dated 29-9-1966 and 4-5-1970 with the knowledge of defendants Nos. 1 to 3? If so, what is its effect?
(13) Whether the plaintiff through an Agreement dated 1-6-1966 contracted to sell the lands in suit to defendant No,5 and received Rs,1,04,000 as part of the consideration?
(14) Whether the suit has been filed collusively to evade performance of the plaintiff's contract with defendant No,5?
(15) Whether the Agreement of Sale dated 1-6-1966 was executed between the plaintiff and the defendant No,5 with the express consent, knowledge and concurrence of the defendants Nos.1 to 3?
7. If not, what is its effect?
(16) To what relief, if any, is the plaintiff entitled?
8. ' In the meanwhile the defendant No,5 in both suits was joined under the orders of the Court. The plaintiff Agra Cooperative Housing Society had also made an application for joining the present defendants Nos.6 and 7 in the two suits on 6-5-1982 and an order was passed by this Court on 30- 5-1982 whereby the said defendants Nos.6 and 7 were ordered to be joined in the two suits.
9. Thereafter, the following 8 (eight) issues were proposed by the defendant No,7 in the two suits which were adopted as such and also one additional issue which are as under:---
(1) Whether the suit is barred under section 70 of the Cooperative Societies Act, 1925 as against the defendant No,7?
(2) Whether the suit is barred by the law of limitation under Article 113 of the Limitation Act, 1908 as against the defendant No,7?
(3) Whether the suit is barred and is directly hit by the provisions of section 115 of the Evidence Act, 1872 as against the defendant No,7?
(4) Whether there is any privity of contract between the plaintiffs and the defendant No,7? If not, what is its effect?
(5) Whether or not Muhammad Hanif, the defendant No,6 entered into an Agreement for Sale on 8- 7-1970 in respect of the land in suit with the defendant No,7 and after having acquired proprietary interest from Siddiq Gabol, the husband of the defendant No,2(a) and the father of the defendants Nos.2(b) to 2(k)?
(6) Whether or not Muhammad Hanif, the defendant No,6 received the entire sale consideration in respect of the land in suit from the defendant No,7?
(7) Whether Siddiq Gabol, the original Khatedar, Muhammad Hanif the defendant No,6 and the defendant No,7 entered into a Tripartite to Agreement on 12-8-1974 for the transfer of the land in question directly in favour of the defendant No,7 by executing a registered sale-deed before the Registrar, Karachi?
(8) Whether or not Siddiq Gabol, the original Khatedar and the husband of the L/R 2(a) and the father of the L.Rs,2(b) to 2(k) executed the sale-deed on 23-6-1975 in respect of the entire land in suit before the Sub-Registrar, Karachi in favour of the defendant No,7 and acknowledged the receipt of full sale consideration in respect thereof?
10. ADDITIONAL ISSUE: ' Whether sale of the land in suit by defendant No,2 to defendant No,6 and by defendant No,6 to defendant No,7 during pendency of the above suit is valid? If so, what is its effect on the claim of the plaintiff?
11. ' The defendant No,7 filed their written statement wherein they took further plea that they were bona fide purchaser besides they also raised legal pleas.
12. ' The two suits were consolidated for the purposes of evidence. The plaintiff in Suit No,8 of 1972 examined their Honorary Secretary Syed Inam Ali vide Exh.
5. The plaintiff in Suit No,11 of 1972 examined himself as Exh. 15 while the defendant No,7 examined their Honorary Secretary Zaki Ahmed as Exh.
6. All the witnesses have also produced a number of documents. No other party examined any witness. The evidence of the parties was accordingly closed and the matter came up for arguments.
13. ' I have heard Mr.Khalid Habibullah, the learned counsel for plaintiff n Suit No,8 of 1972 and Mr. S. Sami Ahmed, learned counsel appearing for Siddiq Gabol defendant No,1 in Suit No,11 of 1972 and defendant No,2 in Suit No,8 of 1972 while Syed Akhtar Ali, the plaintiff in Suit No,11 of 1972 has argued his case in person.
14. ' It is admitted by the learned counsel and the parties which fact is also supported by the evidence that during the pendency of the suit the abovementioned land comprising 9 survey numbers was partitioned amongst the owners and each of them i,e, Siddiq Gabol on one side and Zehri Khan and another Mst. Jamiat on the other side got separate survey numbers by way of left share in the property. It is also admitted by the learned counsel for the arties that during the pendency of suit, the said Zehri Khan and Mst. Jamiat aid a sum of Rs,21,00,000 to the plaintiffs in the two suits, Agra Cooperative Housing Society receiving Rs,9,00,000 and Syed Akhtar Ali received s.12,00,000. In consequence of this payment by Zehri Khan and Mst. Jamiat, the plaintiffs in two suits dropped their suits against Zehri Khan and Mst. Jamiat. The plaintiffs in the two suits in course of their arguments have not ressed their suits against defendant No,5 in each suit but they have pressed eir respective suits against the remaining defendants. After hearing the arguments of the learned counsel for the parties and taking into consideration the evidence recorded and the case-law cited at Bar, my findings on the issues are as under:---as the parties have submitted that they will argue the issues in Suit No,8 of 1972 only as the same will cover the issues in the other suit also.
15. ISSUE NO.1 AND ISSUE NO.2 FROM FURTHER ISSUES: ' The facts with regard to this issue are that on 27-11-1964 Siddiq Gabol entered into Sale Agreement with Syed Akhtar Ali. On 29-9-1966 Syed Akhtar Ali entered into an Agreement of Sale with plaintiff with regard to Survey Nos.96, 97 and 98 only. The second agreement between Syed Akhtar Ali and plaintiffs was executed on 4-5-1970 whereby he agreed to sell Survey Nos.84, 85 and 86. As regards the first agreement by Siddiq Gabol with Syed Akhtar Ali, it may be pointed out that the said Syed Akhtar Ali did not fulfil the terms of contract with regard to making payment as stipulated. However, fmally he was paid a sum of Rs,9,471 and Rs,10,824 vide Receipts Exhs.23 and 22 respectively on 25- 10-1968 by the two sellers Zehri Khan and Siddiq Gabol. These amounts have been paid to him by way of cost and charges of stamp duty and registration. On this very date, the said Syed Akhtar Ali also paid a sum of Rs,18,829 and Rs,20,440.38 to the sellers i,e, Siddiq Gabol and Zehri Khan vide Exhs.20 and 21. At the foot of these receipts Exhs. 20 and 21, he endorsed that he will pay the balance amount at the time of registration which shall be within two weeks from the date of execution of these receipts. Both the suits were filed in the Court on 3rd December, 1971. This shows that the two suits were instituted after a lapse of three years from the expiry of two weeks from 25- 10-1968 and would, therefore, on the very face appear to be barred by limitation under Article 113 of the Limitation Act. Article 113 of the Limitation Act provides that a suit for specific performance could be filed within three years from the date stipulated in the agreement or in case no such date is mentioned in the agreement, from the date of refusal. Reliance may be placed on the case of Hassan Aqdas v. Mir Muhammad and others 1990 CLC 1362. In the present instance Mr. Khalid Habibullah, Advocate has argued that since the amount towards the cost price was being accepted by the vendors even after the expiry of the stipulated date, therefore, the period of limitation should be deemed to have been extended. He has further submitted that in case of the contract of sale of the nature of property involved in the suit, time cannot be said to be essence of contract. He has further submitted that the receipts brought on record show that the vendors had been receiving amount towards sale price even up to the months of March and August, 1970 and, therefore, in the first instance, the period should be computed from these dates and thus the suit will be within time. He has further submitted that at the time the two Agreements were executed by the Vendor Syed Akhtar Ali with the plaintiff, the defendant Siddiq Gabol was also present and the said two agreements were with his knowledge and consent, and therefore, is binding on him.
16. However, there is nothing on the record to show if Siddiq Gabol was present at the time of execution of second or even first Agreement of Sale made by said Syed Akhtar Ali in favour of the plaintiff. The said Siddiq Gabol ismeither a witness on the said agreements nor it has been shown if he was part to any of the correspondence between Syed Akhtar Ali and the plaintiff. It is also admitted by Mr. Khalid Habibullah, Advocate that throughout this period, the present plaintiff did not issue any notice to the said Siddiq Gabol nor entered into any correspondence with him. The receipts which are on the record, produced by the plaintiff's witness, show that all the receipts arc executed by said Syed Akhtar Ali and not Siddiq Gabol. From these facts, it cannot be established if the said Siddiq Gabol had received any amounts other than those as mentioned in Receipts Exhs.
17. 20 and 21 and as per Agreements Exh.16. Mr. Khalid Habibullah, the learned counsel for the plaintiff has further relied on the oral evidence of the witness of the plaintiff and has further submitted that this witness has stated that the said Siddiq Gabol was present at the time of execution of the agreement in favour of the plaintiffs and has shown his consent and knowledge; and that this witness has not been cross-examined by the other side on this point and, therefore, his evidence in this respect should be accepted. I am afraid I cannot subscribe to this contention of the learned counsel as it is a cardinal principle of law that the plaintiff has to stand on his own legs and succeed on the basis of his own case. The principles of evidence also lay down that the burden to prove a certain fact lies on the party who comes to the Court or who would otherwise fail if no evidence was brought in support of his contention. In the present case it is urged by the plaintiff that the vendor Siddiq Gabol has received the payments even in the year 1970 and, therefore, the suit should be treated within time but he has failed to produce any such evidence. It is a normal practice that whenever a sum of money is advanced to somebody, a receipt is obtained. In the present case, the case of the plaintiff at the most could be that they had been paying the money to Syed Akhtar Ali and Syed Akhtar Ali in turn had been advancing the money to Siddiq Gabol.
18. However, this is not the contention of the witness of the plaintiff nor they have put any question to Syed Akhtar Ali in the cross-examination in this respect. In these circumstances it cannot be held that Vendor Siddiq Gabol had received any amount from any party after 25-10-1968 (Exhs.20 and 21). The second aspect of this transaction is that the Vendor Siddiq Gabol had entered into Agreement of Sale with Syed Akhtar Ali on 27-11-1964 (Exh.16) and from that date onwards, though he received some amounts from Syed Akhtar Ali but in spite of his repeated approaches the said Syed Akhtar Ali did not come forward to complete the sale transaction. Syed Akhtar Ali in his evidence has admitted that he was approached by the Vendor Siddiq Gabol but he had no money, therefore, he could not pay to Siddiq Gabol and complete the transaction. This Syed Akhtar All has also admitted his undertaking given on 25-10-1968 (Exhs.20 and 21) and also having received the amounts towards stamp duty and registration charges (Exhs.22 and 23).These facts clearly show that at least on 25-10-1968 the time was made essence of contract and that two weeks from the date thereafter and thus if the three years period is computed from this date then obviously suit is barred by limitation. Mr. Khalid Habibullah, Advocate has placed reliance on the following cases:
(i) Waheed Khan v. Mst. Nawab Bibi (1989 SCMR 445).
(ii) Haji Sattar Haji Muhammad v. Allah Rakha Dhanji (PLD 1963 .Kar 786).
(iii) Prasanta Kumar Sur v. International Contractors Ltd. (AIR 1955 Cal 101).
(iv) Anatullah Begum and another v. Munawar Akhtar (1988 CLC 2095).
19. ' In all the above cases, the principle that has been laid down is that time conk not be essence of contract if the parties to the contract did not mean it to be se or the contract did not so imply. It has also been held in the above cases that except where expressly provided the time could not be essence of contract; and that even if a period for completion of the contract is mentioned in the Deed, yet if the vendor has received subsequent payments the time would be deemed to have been extended till when such payments were received and the period of limitation would be computed therefrom. There is no cavil as regards this legal proposition is concerned. However, as pointed out in the present case the time was made essence of contract; and that it has come in evidence that the said Syed Akhtar Ali (plaintiff in Suit No,11 of 1972) could not complete the contract because he had no money, for which of course he has thrown the burden on the present plaintiff in Suit No,8 of 1972 by saying that they had tc pay him full consideration of the three survey numbers as mentioned in his firs agreement of sale dated 29-9-1966 (Exh. 6) on or before 31-7-1967. He ha further explained that if the plaintiff had paid him that amount by 31-7-1967 he would have paid the total consideration to the Vendor Siddiq Gabol am thus his contract with Siddiq Gabol would not have been repudiated with sah vendor. In the case of Syed Muhammad Saleem v. Ashfaqullah Khan (1981 CLC 1883) a learned Single Judge of this Court has held that in case can contract of sale of property, if the promisee neglect or refuses the performance of his promise then in such case the promisor is excused and he is not liable t perform his part of contract. In this very case it has also been held that the burden is on the plaintiff to prove that he had performed his part of contract and that time could be essence of contract if such intention of parties could be deducted from their conduct. In the present case as discussed above, it was the vendee himself who could not perform his part of contract at least in Suit No,11 of 1972 and thus the said suit as against the Vendor Siddiq Gabol stand barred by limitation.
20. ' Now this Siddiq Gabol is also joined as defendant in the other suit Mr. Khalid Habibullah, Advocate has vehemently argued that he has join him as defendant in his suit also for which he has placed reliance on the case of C. Doraiswa my Mudali v. Thangavely Mudalliar and others (AIR 1929 Ma 251) and Ghulam Muhammad v. Lakha Singh and another (AIR 1935 Lah. 181). The first case deals with a case of assignment of the right to enforce a contract while the second case deals with the Government lands. However, even if this contention of the learned counsel is accepted then he cannot get out of his own admission which shows that the Vendor Siddiq Gabol was a consenting party to the transaction between Syed Akhtar Ali and present plaintiff and, therefore, naturally he would be within the knowledge of the dealings between Vendor Siddiq Gabol and Syed Akhtar Ali and then why he slept over the matter since two weeks from 25-10-1968. The other aspect of this fact is that the said Syed Akhtar Ali in his evidence has stated that the present plaintiff did not advance him the money in due time and, therefore, he could not pay the same to the Vendor Siddiq Gabol thus frustrating his contract with Siddiq Gabol. In view of above discussion, I am of the view that the present suits as regards the Agreement of Sale between Siddiq Gabol and Syed Akhtar Ali (Exh.16) and Agra Cooperative Housing Society (Exh.6) are barred by limitations.
21. ' The other question involved is as to whether the suit is within time against defendants Nos.6 and 7, who are subsequent purchaser from Vendor . Siddiq Gabol. The record shows that the two defendants were joined in the suits on 13-5-1982 although it was stated by defendants Nos.2, 3 and 4 in their written statement filed on 25-5-1972 (paragraph 17) that the vendors had entered into an Agreement of Sale with defendant No,6 on 12-6-1970. This shows that in May, 1972 the plaintiffs in the two suits had acquired the knowledge of purchase by the defendant No,6. However, it is also admitted by the plaintiff that the final sale-deed was executed in favour of defendant No,7 through defendant No,6 on 23-6-1975 vide Exh.
10. This shows that the applications for joining the defendants Nos.6 and 7 as party to the suit were F made not only beyond a period of three years but after a lapse of 10 years, and therefore, suit would be barred by limitation against defendants Nos.6 and 7 in view of provisions of section 22 of the Limitation Act which reads as under:- "22.---(1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him be deemed to have been instituted when he was so made a party.
22. (2)....................................
23. In view of the above discussion, I hold that the two suits are barred by the law of limitation under Article 113 and section 22 of the Limitation Act. .ISSUES NOS. 2 to 8: ' All these issues are taken jointly by the learned counsel as they involve the common facts and points of law. The contention of the learned counsel for the plaintiff is that defendant Siddiq Gabol had entered into an Agreement of Sale with Sayed Akhtar Ali, who in turn entered into two Agreements of Sale with the plaintiffs. The learned counsel has further submitted that the Agreement to Sell between Syed Akhtar Ali and the plaintiff was made with the knowledge of said Siddiq Gabol and also that he was present at the time of execution of the Agreement. He has referred to the evidence of the plaintiff's witness Syed Inam Ali (Exh. 5) who has stated in his examination-in-chief that "in the meantime we remained also in touch with defendants Nos. 2 and 3, who were admitting that the money paid by us to defendant No, 1 was being paid by him to defendants". The learned counsel has further submitted that this statement of the witness has not been challenged in the cross-examination and, therefore, it should be deemed that this statement stands admitted and thus the defendant Siddiq Gabol would be bound by the said transaction. He has also placed reliance on case-law in support of his contention. There is no cavil about this legal proposition but the facts in the present matter are different. In this case, the said witness Syed Inam Ali was examined on 23-9-1985, whereas defendant Siddiq Gabol had expired much earlier while the suit against other defendant Zehri Khan was also withdrawn before the abovesaid date.
24. In these circumstances, this statement could not be challenged in cross-examination 'as the said person whose acknowledgement is sought to be pleaded was himself not alive. Since an acknowledgement of a dead person is being pressed in service, the plaintiff ought to have brought some other corroborating evidence to show that the said Siddiq Gabol had directly or impliedly consented to the transaction between Syed Akhtar Ali and the plaintiff. The learned counsel has candidly conceded that neither the said Siddiq Gabol is a witness of any Agreement of Sale between Akhtar Ali and plaintiff nor the plaintiffs have had any correspondence with said Siddiq Gabol nor even a notice has ever been given to Siddiq Gabol by the plaintiff. As regards his presence at the time of execution of the Agreements of &ale between plaintiff and Syed Akhtar Ali, it may be observed that there is no indication in the two Agreements of Sale showing the presence or consent of Siddiq Gabol. In these circumstances it cannot be presumed if the said Siddiq Gabol had any knowledge of the transaction between Syed Akhtar Ali and plaintiff. In view of above discussion there appears to be no direct privity of contract between the plaintiff and Siddiq Gabol nor can the said Agreement of Sale said to have binding effect on defendant Siddiq Gabol. It may also be observed that the relief sought in Suit No, 8 of 1972 would thus be dependent on the result of Suit No, 11 of 1972. It is only if Suit No, 11 of 1972 is decreed in favour of Syed Akhtar Ali that the Suit No, 8 of 1972 can be decreed in favour of plaintiff Agra Cooperative Housing Society. As discussed above it was Syed Akhtar Ali himself who did not fulfil his part of promise with the Vendor Siddiq Gabol and, therefore, he would not be entitled to relief claimed in Suit No, 11 of 1972. Syed Akhtar Ali has admitted that in spite of repeated approaches from the vendor Siddiq Gabol, he could not get the transaction finalised in his (Syed Akhtar Ali) favour as he could not pay the balance amount.
25. Thus, in these circumstances the said Siddiq Gabol would not be liable to fulfil his part of promise and would be at liberty to repudiate the same transaction. Mr. S. Sarni Ahmed, Advocate, while supporting the above contention has also submitted that the relief of specific performance is a discretionary and equitable relief which cannot be granted as a matter of right but the discretion is to be exercised on sound judicial principles. He has placed reliance on a Division Bench judgment of this Court in case of Ali Muhammad Khan v. Riazuddin Khan (PLD 1981 Karachi 170). He has also submitted that in the present case the said Syed Akhtar Ali, plaintiff in Suit No, 11 of 1972 has not only failed to prove that he was prepared to perform his contract but in fact admittedly he did not perform his part either and, therefore, he would not be entitled to any relief. In support of his above contention, he has placed reliance on the following cases:
(i) Muhammad Yakoob v. Muhammad Nasrullah Khan (PLD .1986 SC 497).
(ii) Mst. Khatoon Begum v. Mst. Barkatun Nisa Begum (PLD 1987 Kar. 132).
(iii) Aijaz Mahmood v. Sheikh Muhammad Jamil (PLD. 1987 Kar. 504)
(iv) Rehmatullah v. Tufail Hussain (1987 CLC 792).
(v) Bashir Ahmed v. Mst. Shahzadi Begum (1984 CLC 1348).
(vi) Dr. Aftab A. Khan v. Muhammad Iqbal and 2 others (1984 CLC 3158).
26. In light of the above case-law and the facts of the present case as stated above, there can be no other conclusion except that Syed Akhtar Ali, plaintiff in Suit No, 11 of 1972 had failed to perform his part of contract and, therefore, the relief sought in the said suit cannot be granted; and that suit had to be dismissed. The consequence is that Suit No, 8 of 1972 would also fail as the said Syed Akhtar Ali not having acquired the title of the land in dispute could not transfer the same to the plaintiff in this suit. Even the evidence of Syed Akhtar Ali, the plaintiff in Suit No, 11 of 1972 shows that he had failed to pay the amount during the stipulated period and, therefore, the said Syed Akhtar.
27. All could not perform his part of contract in Suit No, 11 of 1972. In these circumstances the Agreement of Sale between Syed Akhtar Ali and plaintiff in Suit No, 8 of 1972 became frustrated and could not be enforced.
28. ' Now the second question that would arise is as to whether any of three parties i,e, Agra Cooperative Housing Society, Syed Akhtar Ali or Siddiq Gabol is entitled to damages from any of the said parties and if so to what extent. It is an admitted position that Agra Cooperative Housing Society had advanced an amount of Rs,4,86,492 and Rs,3,82,442 under the two Agreements. Thus, a total amount of Rs,8,68,834.75 was received by Syed Akhtar Ali from Agra Cooperative Housing Society. This fact is also admitted by the learned counsel for the plaintiff in Suit No, 8 of 1972. It is also an admitted position that during the pendency of the suit, the original vendor had paid an amount of Rs,21,00,000 to the purchaser, and out of this amount Rs,12,00,000 were appropriated by said Syed Akhtar Ali while Rs,9,00,000 were appropriated by Agra Cooperative Housing Society.
29. Thus both the plaintiffs in the two suits have already received more than the amounts advanced by them and as discussed above, the transactions could not materialise because of failure on the part of the vendee to fulfil their part of contract. In view of these facts, the two plaintiffs in these suits had not suffered any loss or damage nor they have led any evidence to show as to what loss they have suffered nor they have proved any quantum of damages. Accordingly, these issues are answered against the plaintiffs in the two suits.
30. ' These issues pertain to defendant No, 5 and are not pressed by the learned counsel for the parties present. The defendant No, 5 are not contesting the suit nor they are any more concerned in the present suits. The issues answered accordingly.
31. ISSUE NO. 14 AND ADDITIONAL ISSUE: ' The learned counsel for plaintiff has submitted that since the Vendor Siddiq Gabol had the knowledge of onward transaction by his Vendee Syed Akhtar Ali with the plaintiff and the said transaction was with his consent, therefore, the Vendor Siddiq Gabol would be bound by the said Agreement between Syed Akhtar Ali and present plaintiff and could not sell the said land during the subsistence of this Agreement. He has further argued that the transaction in favour of defendant No, 6 and then defendant No, 7 is during the pendency of the suit and, therefore, would be hit by doctrine of lis pendens under section 52 of the Transfer of Property Act. Mr. S. Sami Ahmed, and Mr. Shakil Lari, Advocates for defendants have vehemently opposed this contention of the learned counsel. Mr. Shakil Lari, Advocate has submitted that in fact the Agreement between the Vendor Siddiq Gabol and defendant No, 6 was executed on 12-6-1970 and Agreement to Sell between defendants Nos. 6 and 7 was executed on 8-7-1970. He has placed reliance on the Agreement produced as Exh.
7. From this the learned counsel for defendant No, 7 has submitted that the doctrine of lis pendens would not be applicable as the transaction was effected prior to filing of the suit. It would be proper to reproduce the provisions of section 52 of the Transfer of Property Act in order to appreciate the abovesaid submissions of the learned counsel: "52. Transfer of property pending suit relating thereto.--- During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so to effect the right of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
32. A plain reading of the above provisions would show that the abovesaid section provides that the property, subject-matter of a suit, during the pendency of the suit cannot be transferred or otherwise dealt with by any party to the suit and such transaction if effected would be subject to the final decision in the suit. In the present suit, it may be observed that the two suits were instituted on 3rd December, 1971 while the transaction in favour of these defendants was effected in the year 1970 which fact is evident from the Agreement of Sale (Exh.7). In these circumstances, in the first instance the doctrine of lis pendens would not be applicable to the present case. Mr. Khalid Habibullah, the learned counsel for plaintiffs has placed reliance on the following cases:---
(i) Sher Muhammad and others v. Muhammad Ali and others 1990 MLD 232.
(ii) Mst. Makhdooma and 8 others v. Muhammad Arif and others PLD 1982 Kar. 212 and
(iii) Muhammad Usman and another v. Rehmatullah and others 1985 CLC 420.
33. ' In the above-cited cases, it has been held that a transaction during the pendency of a suit would be subject to ultimate judgment of the suit unless the subsequent purchaser proves his bona fides and his being purchaser for valuable consideration without notice. As already discussed, the Vendor Siddiq Gabol had no concern whatsoever with the Agreement of Sale between Syed Akhtar Ali and Agra Cooperative Housing Society and, therefore, when he was exonerated of his liability under Agreement to Sell with Syed Akhtar Ali, he was at liberty to sell away his property to any one that he chooses. The burden in this case is also on plaintiff in Suit No,8 of 1972 to show that this transaction between Siddiq Gabol and defendant No,6 was subsequent to the institution of the suit; and that the subsequent purchasers i,e, the defendants Nos. 6 and 7 were not the bona fide purchasers for valuable consideration without notice. The evidence of the plaintiff does not show that at any stage, the defendant No,6 or 7 had any notice of transaction as claimed by Agra Cooperative Housing Society. There cannot be any such evidence the above discussion on the other issues would show that the Vendor Siddiq Gabol had absolutely no concern whatsoever with the dealings between Syed Akhtar Ali and Agra Cooperative Housing Society. The notices Exhs. 5/3 and 5/5 published through newspapers clearly show that the original owners had given the same for general knowledge of public that they were no more bound by their Agreements of Sale with Syed Akhtar Ali as the said Syed Akhtar Allihad not fulfilled his part of agreement and also that the original owners were at liberty to sell the said property to anyone else. In spite of these two notices published in newspapers, the plaintiff Agra Cooperative Housing Society or Syed Akhtar Ali did not choose to give any notice or write to the Vendor Siddiq Gabol. In this view of the matter, I answer Issue No,14 and Additional issue in affirmative and hold that the said Vendor Siddiq Gabol was competent to enter into the transactions with defendant No,6 and with defendant No,7 and the same is valid.
34. ISSUES NOS.15 AND 16: ' In view of the findings on the above issues, the finding would be that no cause of action for filing of the suit accrued to the plaintiffs and the consequence is that the two suits are to be dismissed with no order as to costs.
35. FURTHER ISSUE NO.1: ' This issue pertains to the maintainability of suit in view of notice under section 70 of the Cooperative Societies Act, 1925. Mr. Shakil Lari, Advocate has submitted that the plaintiffs in Suit No,8 of 1972 and defendant No,7 are both Cooperative Housing Societies and the present matter touches the business of the Cooperative Societies and, therefore, the plaintiffs could not have filed the suit against the defendant No,7 unless a notice as contemplated under section 70 of the abovesaid Act is served upon the defendant No,7. The provisions of section 70 of the Cooperative Societies Act, 1925 read as under: "70. Notice necessary in suits.---No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint contain a statement that such notice has been so delivered or left."
36. ' He has placed reliance on the case of Muzaffar Hussain and another v. Yousaf and 4 others PLD 1976 Kar. 1107, wherein it was held by a learned Single Judge of this Court that in case of suit in respect of an act touching the business of registered Cooperative Society would not be under section 70. This suit was also a suit for specific performance dealing with lands in Tappo Songal Taluka, Karachi. Mr. Khalid Habibullah, the learned counsel for plaintiffs had submitted that in the present case, the notice was not necessary because the defendant No,7 were joined as party to the suit after institution of the suit on an application under Order I, Rule 10, C.P.C. In the present case, it may be observed that in the first instance the transaction between Vendor Siddiq Gabol and defendant No,6 and onwards transaction with defendant No,7 are both effected in the year 1970 and are prior to the date of institution of suit and secondly, even for that purpose, the provisions of section 22 of the Limitation Act are very much applicable to the present case and in that event the plaintiffs in the two suits ought to have served the required notice on the defendant No,7. The issue is answered accordingly.
37. ' The learned counsel for the parties have submitted that these issues have already been covered in arguments on above issue and, therefore, no further submission is required. These issues are answered accordingly.
38. ' In view of the findings on these issues, the two suits are dismissed with no order as to costs.
39. ' Above are the reasons for the short order announced in Court on 9th March, 1993.