' SARDAR SAID MUHAMMAD KHAN, C J.-- This appeal has been directed against the judgment and decree of the High Court, dated 16-4-1998, whereby the suit filed by the plaintiff-respondent No,1 was decreed.
2. The brief facts giving rise to the present appeal are that a declaratory suit was filed by plaintiff- respondent, Haji Abdul Rashid, alleging that he was a refugee from Indian-held Kashmir and was in possession of House No,22-D, Sector C-1 WAPDA Colony, Mirpur with the consent of the defendants.
It has been averred in the plaint that it was agreed upon between the plaintiff-respondent and defendants Nos.1 to 3 that after purchasing the said house along with others from the WAPDA, would be transferred to the refugee occupants on the payment of same price which would be paid by Azad Kashmir Government and others to the WAPDA. According to the plaintiff he, in pursuance of the decision taken by the Azad Jammu and Kashmir Government, deposited Rs,28,000 as part of price of the house and the remaining price was to be paid after the matter regarding the price of the house between the WAPDA and the Government of Asad Jammu and Kashmir was finalized.
Consequently, the price of the house in dispute between the Azad Kashmir Government and WAPDA was fixed to the tune of Rs,50,000 and the same was to be transferred after the payment of Rs,22,000, the unpaid price of the house, but instead of transferring the title in the house to the plaintiff/respondent as was agreed between him and the appellant, herein, the Government issued the impugned notice to the plaintiff on. 15-5-1980 to vacate the house. The plaintiff/respondent challenged the said notice of ejectment and sought declaratory decree in terms that he was entitled to get the transfer of the house in dispute to him on payment of remaining price of Rs,22,006. The trial Court, after taking necessary proceedings in the suit, decreed the same.
However, on appeal to the District Judge by the appellant, herein, the judgment and decree of the trial Court were set aside on the ground that no binding agreement was proved by the plaintiff- respondent whereby the defendant-appellant had undertaken to transfer the house on the same price which would be paid to WAPDA. An appeal was filed by respondent No,1 to the High Court which was accepted mainly on the ground that in view of the doctrine of promissory estoppel, the Government was bound to transfer the house in dispute to the plaintiff-respondent for the price which was paid by it to the WAPDA. It is against the aforesaid judgment and decree of the High Court that the present appeal has been filed.
3. Before dealing with the points raised at the Bar, it would be expedient here to reproduce below the reliefs sought by the plaintiff-respondent in his suit:--
(i) That the notice, dated 15-5-1980 issued to the plaintiff was illegal and mala fide;
(ii) that the plaintiff was entitled to get transfer of the house in dispute in his favour on payment of remaining price of the same to the tune of Rs,22,000
(iii) that the defendants were bound to transfer the house after payment the remaining price; and
(iv) that the defendant should be restrained from ejecting the plaintiff from the house in question or to transfer the same to any other person.
4. It would be expedient here to reproduce the relief which has been granted to the plaintiff by the High Court:- "In the aforesaid circumstances, it is held that the plaintiff/appellant was entitled to the transfer of house on the payment of the price settled with the Government of Pakistan (WAPDA) or at the most, on the payment of Rs,1,25,000 paid by the plaintiff/appellant. The notices issued to the plaintiff/appellant for ejectment are illegal, mala fide in law, therefore, these are declared inoperative on the rights of the plaintiff/appellant. The concerned authorities shall take further action for the transfer of proprietary rights of the House No, D-22, Sector C-1, WAPDA Colony, Mirpur, in favour of the plaintiff/appellant. The appeal stands accepted in the manner indicated hereinbefore and the judgment and decree of District Judge, Mirpur, dated 13-12-1994 are set aside." (Underlining is ours)
' It is evident from the reliefs prayed for in the plaint, reproduced above, and the one given by the High Court were partly different; the direction 'shall take further action for the transfer of House No, D-22, Sector C-1, WAPDA Colony, Mirpur in favour of the plaintiff/appellant' is in the nature of and akin to one which can be only given in a suit for the specific relief of a contract. Obviously, if at all there was an agreement between the plaintiff-respondent and the appellant, herein, with regard to the transfer of the house in dispute on payment of Rs,50,000, the proper course for the plaintiff was to file a suit for the specific performance of the contract but instead he filed a declaratory suit seeking one of the reliefs in terms that he was entitled to get transfer of the house in his favour and the Government was bound to do so and that he should not be ejected from the house in question.
Under 'section 42 of the Specific Relief Act, a declaratory suit with regard to immovable property is not maintainable if the plaintiff does not seek consequential relief to which he is entitled. If a declaratory suit does A not satisfy the said conditions, it is liable to be dismissed on this sole ground. For the sake of convenience, section 42 of the Specific Relief Act is reproduced as under:-- "42 Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: ' Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief that a mere declaration of title. Omits to do so." (Underlining is ours)
5. In the instant case, even if it is assumed for the sake of argument that there was any agreement between the Government and the plaintiff-respondent for the transfer of the house after receiving the price to the tune of Rs,50,000, the proper remedy for the plaintiff was to file a suit for specific performance of contract and not a declaratory suit seeking multiple reliefs in form of declaration as indicated above. In other words, the relief for the specific performance of contract was necessary as a consequential relief even in the declaratory suit as envisaged under proviso to section, 42, reproduced above. Apparently, it appears that the plaintiff avoided the relief of the specific performance of contract so as to save the court-fee on Rs,50,000, the alleged consideration of the sale; but he fixed the value for the purpose of court-fee as Rs,100. Thus, this being a case of conscious attempt to avoid court-fee, reflects upon the bona fides of the plaintiff and must be kept in mind while granting the discretionary relief under section 42 of the Specific Relief Act
6. Ch. Muhammad Anwar, Advocate, the learned counsel for the appellant, has argued that the High Court has committed an error in holding that the appellant and pro from a respondents were estopped by promissory estoppel to demand more price of the disputed house than Rs,50,000. He has argued that in fact there was no agreement between the appellant and plaintiff-respondent regarding the final price of the house in dispute on which the same was to be transferred to the plaintiff-respondent. He has submitted that Rs,28,000 were deposited by the plaintiff-respondent with the understanding that final price of the house would be fixed after the same would be purchased from the WAPDA by the appellant. He has referred to the correspondence and other notifications, particularly Government Notification, dated 5-7-1976. The learned counsel has argued that all these notifications and correspondence which stipulate that the house in question or for that matter other houses which were in the occupation of the refugees would be transferred to them on the same price on which they would be purchased, have been cancelled vide notification Exh.D.A./1, dated 9-12-1978. He has argued that under section 21 of the General Clauses Act, the Government was fully empowered to cancel these notifications. He has maintained that neither the previous correspondence nor notifications, dated 21-4-1976 and 5-4-1976, which have been cancelled, cannot be regarded as an agreement between the parties with regard to the final fixation of the price of the house in question. He has argued that irrespective of the revocation of the said notification etc., the fact remains that the said correspondence and notifications which stipulate that the plaintiff-respondent would be transferred the house in dispute on the same price which would be paid to the WAPDA by the Government, are merely an intention which pertains to a fact which would come into existence in future and not a contract regarding an existing fact creating an estoppel against the appellant. The learned counsel has argued that estopped cannot be created by such an assurance of a fact which was not in existence at the time of making a promise. According to the learned counsel, it is essential for creating a bar of estoppel that a fact about which the representation is made is in existence at the time of representation. He has argued that as during the aforesaid , notifications and correspondence, according to which the houses were to be transferred on the same price which would be paid by the Government to the WAPDA, came into existence when ownership of the house did not vest in the Government, the said correspondence, even if assumed to be a contract, would not create a bar of estoppel against the appellant. The learned counsel has made a reference to the commentaries on section 115 of Law of Evidence by M. Munir, Vol. II, in support of his contention. He has also referred to a case reported as Mst. Rehana Aziz v. Mst. Shakeela Ashraf 1998 SCR 281, wherein it has been observed that an illegal order can be withdrawn under section 21 of the General Clauses Act and the contention that such an order cannot be withdrawn at the instance of a party but can be only withdrawn suo motu by the authority concerned was repelled by the Court. While making the submissions in rebuttal of the arguments advanced by the learned counsel for the plaintiff-respondent, he has argued that the case of estoppel, part performance of the contract under sections 53-A and 43 of the Transfer of Property Act were not pleaded and argued by the plaintiff-respondent in the trial Court, therefore, the same cannot be resorted to. The learned counsel has argued that even otherwise, as no contract was in existence between the parties, there is no question of application of doctrine envisaged in sections 53-A and 43 of the Transfer of Property Act because the said provisions presuppose a 'contract' between the parties. He has argued that under section 53-A there must be a written contract between the parties and signed by the executant of the contract. The learned counsel has argued that in the instant case, the learned District Judge has rightly held that there was no contact between the parties with regard to the sale of the house on the same price which was to be paid to WAPDA. He has contended that the correspondence or Government notifications cannot be regarded as a contract between the parties.
7. In reply, Mr. Muhammad Sharif Tariq, Advocate, the learned counsel for the plaintiff-respondent, has argued that there is ample material on the record to show that the appellant and pro forma respondents agreed to transfer the house in dispute after realizing Rs,50,000 as its price. He has submitted that in pursuance of that assurance, the plaintiff-respondent had deposited Rs, 28,000 which he had deposited in the account of Mirpur Development Authority. He has submitted that the correspondence which is on the record, coupled with the notifications, dated 24-4-1976 and 5-7- 1976, clearly establish the case of the plaintiff-respondent that the appellant and the, preform respondents had in fact entered into a contract with the respondent whereby they were bound to transfer the house in dispute for Rs,50,000. According to the learned counsel, the correspondence between the WAPDA authorities and the Azad Kashmir Government, the copies. Of which were also sent to the occupants and the copies of the said notifications amply prove that there was a contract between the parties to transfer the house on the same price which was to be paid by the Government and Mirpur Development Authority to the WAPDA. He has argued that it is amply proved on the record that the price of 'D' Type Houses which was paid by the Government to WAPDA does not exceed Rs,50,000 each. But subsequently, the Government changed its mind and cancelled the said notifications and previous correspondence vide its notification, dated 9-12-1978 and, thereafter, illegally fixed the price of 'D' Type Houses which comes to the tune of about Rs,3,98,610 each. He has further submitted that when the plaintiff-respondent was served upon ejectment notice, dated 15-8-1980, he deposited Rs,97,000 more under protest as is evident from the application Exh P N , dated 18-8-1980. Thus, the learned counsel has submitted that the total amount paid by the respondent towards the price of the house comes to Rs,1,25,000 and, thus, the High Court did not commit an error in passing the declaratory decree in his favour in terms that he would be entitled to the transfer of the house for the said price. The learned counsel has argued that in fact the respondent-plaintiff was entitled to the 'transfer of house on payment of Rs,50,000 as was initially agreed between respondent No,1 and the appellant and pro forma respondents and, thus, they were estopped by promissory estoppel from changing their mind subsequently and demanding additional price of the house as stated earlier. The learned counsel has further submitted that the appellant and pro forma respondents were estopped from demanding additional price after the part performance of the contract: the plaintiff-respondent has deposited not only Rs,28,000 but also Rs,97,000, the total amount of Rs,1,25,000 as part performance of contract. He has made a reference to section 114 of Qanoon-eShahadat and sections 53-A and 43 of the Transfer of Property Act and has submitted that after the part performance of the contract, the appellant and pro forma respondents were, debarred to demand further amount as price of the house for transferring the same and even if the appellant was not owner of the house at the time of the said notification, he was bound to perform the contract after purchase of the house from WAPDA. He has cited the following authorities in support of his contentions:-- ' In case reported as Such Power Limited District Nasirabad, Balochistan v. Federation of Pakistan PLD 1998 Quetta 21, the contention of the petitioner in a writ petition was repelled holding that promissory estoppel had no application to the facts of the case because there was no condition in the relevant agreement that in future no legislation would be made for generating the revenue.
Obviously, the facts being distinguishable, the authority does not support the case of the plaintiff- respondent.
' In case reported as Naib-Subedar Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 1265, it has been held that section 53-A of the Transfer of Property Act does not create any title and a transferee can only protect his possession.
' In case reported as Muhammad Ayub v. Muhammad Gul Zareen 1993 CLC 384, it was observed that although section 53-A of the Transfer of Property Act itself does not create any title in the defendant, yet he can protect his possession of the land transferred.
' In case reported as Sh. Abdur. Rashid v. Sh. Mubarik Ali 1994 CLC 1617, it has been observed that the doctrine of part performance as developed by Equity Courts in England has been given statuary recognition under Section 53-A of the Transfer of Property Act and the same is applicable to the sub-continent. It has been observed that once it is shown that a contract between the parties was in writing and signed by the transferor and the transfer can be ascertained with reasonable certainty, the vendee is entitled to protect his possession which he had obtained under an agreement of sale.
' In case reported as Mst. Ghulam Sakina v. Umar Bakhsh PLD 1964 SC 456, it has been observed that when a transferee gets possession under a transfer deed which was compulsorily registerable but not registered, such a transferee is entitled to protect his possession under section 53-A of the Transfer of Property Act.
' In case reported as Mst. Fatal Bibi v. Settlement Commissioner PLD 1983 SC 163, it has been observed that section 43 of the Transfer of Property Act prescribes a rule of estoppel. Thus, where a person erroneously represents himself that he is authorised to transfer certain immovable property and transfers the same for consideration, if the transferor subsequently acquires any interest in the property during which contract of transfer subsists, such a transferee is entitled to the specific performance of the contract out of the interest subsequently acquired by the transferor.
' In case reported as Muhammad Sharif Khan v. Ghulam Abbas 1987 SCMR 106, a suit for declaration was filed claiming the ownership of the land on account of purchase. The suit was dismissed on the ground that the land purchased by the petitioner was in excess of the vendor's share. The petition for leave was granted to consider the question as to whether the vendor was bound to satisfy the claim of the vendee out of the land which subsequently came into his ownership.
8. We have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to whether the High Court was justified in second appeal in pressing into service the doctrine of promissory estoppel, if at all the same was applicable to the case in hand. It is well-settled principle of law that the doctrine of estoppel cannot be pressed into service at the stage of second appeal. It may be observed here that neither the promissory estoppel nor the question of part performance of the contract or that of benefit under section 43 of the Transfer of Property Act was pleaded in the plaint filed by the plaintiff-respondent. In fact the questions of promissory estoppel and part performance of the contract were raised for the first time before the High Court. It may be observed that the question of estoppel having not been pleaded could not be permitted to be raised at the stage of second appeal. A reference may be made to the following authorities:- ' In case reported as Baba Bamchandra Komli v. Kondoo Jagna Wadhai AIR 1940 Nag. 7, the plea of estoppel was denied to be raised in the second appeal for the first time.
' In case reported as Kanhayalal Pyarelal v. Bhaiyalal Kishorelal AIR 1934 Nag. 51, it was held that the plea of estoppel is mixed question of law and fact and facts should have been clearly pleaded on which estoppel was claimed. Thus, it was held that the plea of estoppel without having been pleaded cannot be allowed to be raised for the first time in the second appeal.
' In case reported as Anjuman Islamia of Bareilly v. Badhey Lal AIR 1939 All. 194, it has been observed that as the plea of estoppel was not pleaded in the written statement, the same cannot be set up at the stage of second appeal.
' In case reported as Pappanunal v. Alamelu Ammal AIR 1929 Mad. 467, it was held that as the plea of estoppel being an eminent matter of pleadings, the same cannot be raised subsequently.
' It is evident from the authorities cited above that the High Court was not legally justified to decree the suit of the plaintiff-respondent on the basis of promissory estoppel, if at all a decree can be passed on the basis of estoppel, at the stage of second appeal.
9. The next question which arises is as to whether the High Court was justified in holding that the notification, dated 21-4-1976 and 25-7-1976 entitled the plaintiff-respondent to the transfer of the house for Rs,1,25,000. It may be stated that the said notifications were cancelled vide notification, dated 9-12-1978 as has also been admitted by Abdur Rashid, respondent, in his statement as a witness. The perusal of the aforesaid Government notifications and the correspondence relied upon by the plaintiff-respondent would show that they could not be termed as an agreement between the plaintiff and the defendants with regard to the fixation of the price of the house. Even if it is assumed for the sake of argument that the notifications could be regarded as an agreement between the parties for the purposes of estoppel, the fact remains that the said notifications were cancelled by the Government Vide its notification, dated 9-12-1978. It is well-settled principle of law that a notification issued can be cancelled by the authority concerned if the fmal step in the matter has not been taken. In the instant case, the mere depositing of part of price of the C house cannot be regarded to be a final step in the matter. The final step can be regarded to have been taken only when the house is transferred to the plaintiff-respondent after realizing the price demanded by the appellant-defendant. Apart from this, when the aforesaid notification and correspondence came into existence, the ownership of the house vested in the WAPDA and not in the Azad Kashmir Government or Mirpur Development Authority. Any assurance or promise made when the Government or Mirpur Development Authority had not become owner of the house, could not create an estoppel to demand more price from the plaintiff-respondent. The estoppel would be created only if a representation is made regarding an existing fact and not a fact which was to come into existence in future. A reference may be made to the following authorities in support of the view:-- ' In case reported as Subodh Chand Mitter v. Bhagwandas Sha AIR 1947 Cal. 353, relying on the dictum of the Privy Council in a case reported as Ariff v. Jadunath Mazumdar AIR 1931 PC 79, it was observed that as the oral statement of the lessor that he would not eject the lessee was merely a promise and, thus, the representation being not of an existing fact but merely of an act to be performed in future, would not create estoppel. It was further observed that as the lessee failed to obtain the specific performance of the contract or damages for breach of contract within time, there was no estoppel to eject him from the land leased; he was only entitled to remove the structures.
' In case reported as Devibai v. Dayabhoy Motilal AIR 1926 Sind 42, it was held that the doctrine of estoppel by representation is applicable to some state of facts which is in existence at the time of the representation and the promise de futuro which, if binding at all, would be binding as a contract and not by pressing into service the doctrine of estoppel.
' A reference may also be made to the commentaries on Law of Evidence by M. Munir, wherein, while dealing with the question as to whether the doctrine of estoppel can be pleaded on the facts which came in existence in future or not, it was observed as under:-- "Representation must relate to an existing fact or a past event: mere statement of intention or a promise de future does not create an estoppel.-- A representation, in order to give rise to an estoppel, must be a statement which purports to affirm, deny, describe, or which otherwise relates to any existing fact, circumstance, or thing, or any past event. A mere statement of intention to do something in future is not; therefore, such a representation as would give rise to an estoppel. The doctrine of estoppel by representation only applies to representations as to some state of facts alleged to be at the time actually in existence, and not to promises de futuro which are not binding unless they amount to. Contracts. There is an obvious distinction in psychology between a statement of a present intention to act in a certain manner, and an undertaking or engagement so to act. The former neither Creates an estoppel, nor is actionable at law, except for fraud; whereas the latter is enforceable as contract. Where, therefore, a party cannot succeed against his opponent on the basis of contract (either because there was no contract in fact, or the contract is for any reason unenforceable) and it is, therefore, only possible for him to succeed if he can establish a representation which the other party will be estopped from contradicting, and the statement on which he relies is no more than a promise de futuro he has always been left without any remedy. Mere expression of intention, though they may excite expectations, do not amount to a contract and are not, therefore, enforceable. This principle is, thus, stated by Stephen, J.-- There is a class of false representations which have no legal effect. These are cases in which a person excites expectations which he does not fulfil, as for instance, where a person leads another to believe that he intends to make him his heir, and then leaves his property away from him. Though such conduct may inflict greater loss on the sufferer than almost any breach of contract; and may involve greater moral guilt than many common frauds, it involves no legal consequences, unless the person making the presentation not only excites the expectation that it will be fulfilled, but legally binds himself to fulfil it, in which case he must, as it seems to me, contract to fulfil it'."
10. There is yet another aspect of the matter. As has already been pointed out that the plaintiff- respondent did not sue for the specific performance of the contract, rather he has filed merely a declaratory suit. It is well settled principle of law that the doctrine of part performance of the contract cannot be made as a weapon of offence. It is merely a shield which can be used-in defence. In other words, irrespective of the fact that the doctrine of part performance was not pleaded in the suit by the plaintiff-respondent, even otherwise, that could not be made basis for a declaratory decree in favour of the plaintiff. A reference may be made to ,the following authorities:- - ' In case reported as Pearey Lal v. Prithi Singh AIR 1954 All. 422, it has been observed that section 53- A of the Transfer of Property Act can be used as a shield and not as an offensive weapon; the said doctrine cannot be pressed into service for the sake of acquiring valid title in the property.
' In case reported as Kashi Prasad Sukhiram v. Bedprasad Parmeshwar AIR 1940 Nag. 113, it has been held that section 53-A of the Trajisfer of Property Act does not entitle a person to sue on the basis of same; it only enables him to defend his right to possession.
' In case reported as Hikmat Khan v. Shamsur Rehman 1993 SCMR 428, it has been held that in case of an unregistered document which is compulsorily registerable, the doctrine envisaged under section 53-A could not be used as a weapon to assert title over the property; it can only be used as defence in answer to the claim of possession by the vendor or any other person claiming through or under him.
It is evident from the above case law that even if it is ignored that. The doctrine of part performance was not pleaded, the fact remains that no decree could be passed on the basis of the same because the estoppel cannot be used for establishing a title, in the immovable property.
That can only be used to protect the possession, if at all the same is applicable.
' In the light of what, has been stated above, we accept the appeal and set aside the declaratory decree passed by the High Court and dismiss the suit filed by the plaintiff-respondent with no order as to the costs.