' This consolidated judgment is intended to dispose of FAO No,50 of 1999 titled as Syed Ahmad Saeed Kirmani v. Raja Ashfaq Sarwar and Capital Development Authority, Islamabad through its Chairman as well as FAO No,51 of 1999 titled as Syed Ahmad Saeed Kirmani v. Raja Ashfaq Sarwar, Safeer Ahmad and Nisar Ahamd respondents. The dispute pertains to incomplete house on Plot No,8, Street No,7, Sector F-6/3, Islamabad about which an agreement to sell was brought into black and white on 5-7-1987 between Syed Ahmad Saeed Kirmani petitioner and Raja Ashfaq Sarwar respondent No,
1. The sale price was fixed at Rs,30 lac out of which earnest money of Rs,5 lac was paid through cheque drawn on Allied Bank Limited, Asghar Mall Chowk, Rawalpindi which fact was acknowledged by Syed Ahamd Saeed Kirmani. About the same property the fresh agreement of sale was executed on 22-7-1987. The third agreement of sale was executed on 1-10-1987 when Raja Ashfaq Sarwar agreed to pay further amount of Rs,5 lac in addition to the aforesaid sale price of Rs,30 lac out of which an amount of Rs,5 lac had been paid as expressed above.
2. On 29-7-1998 Syed Ahamd Saeed Kirmani instituted his suit against Raja Ashfaq Sarwar, Safeer Ahmad and Nisar Ahamd wherein he narrated the inception of the agreement of sale receipt of Rs,5 lacs as the earnest money and non-payment of the remaining amount of Rs,30 lacs. He narrated in his plaint that the incomplete building standing on the aforesaid plot was demolished whereby he incurred the loss and was entitled to recover an amount of Rs,24,88,330 as determined by a renowned architect. He projected his stand to the effect that the aforesaid agreements to sell dated 5-7-1987, 22-7-1987 and 1-10-1987 had become ineffective which did not create any right or title and the earnest money stood forfeited and thereafter he was entitled to obtain the possession of the same. According to him the cost of building material in the sum of Rs,3 lacs owned by him and lying on the disputed property had also been used by the respondent No,1 who was raising a construction on the same without entitlement and that he could also recover the mesne profits at the rate of Rs,10,000 per month with effect from 22-7-1987 till the delivery of the possession.
According to Syed Saeed Ahmed Saeed plaintiff-appellant due to the conduct of Raja Ashfaq Sarwar respondent and non-payment of the remaining amount of Rs,30 lacs as well as the demolition of the incomplete house standing on the disputed property. He was entitled to recover the aforesaid benefit, possession and the proposed declaration. He also made an application for the grant of temporary injunction getting Raja Ashfaq Sarwar respondent restrained from raising any construction on the suit property as according to him he was not entitled in the matter. He maintained that he has a prima facie case, that balance of convenience was in his favour and that in case of dismissal of his petition he would suffer an irreparable loss. This application was resisted by Raja Ashfaq Sarwar as well as the other two respondents-defendants who in the written reply asserted that there was no justification to grant the temporary injunction prayed for and in this regard it was specifically agitated that no efforts were made by Sye4 Ahmad Saeed Kirmani for the transfer of the house in his favour and that he was always willing to perform his part of the contract. After hearing the parties learned trial Court dismissed the said application with the reasoning that on the basis of the legal protection provided under section 53-A of the Transfer of Property Act, 1882 Raja Ashfaq Sarwar respondent is entitled to remain in possession and utilize the property as required and desired by him. Consequently the application for the grant of temporary injunction getting the respondent restrained from raising the construction at the disputed plot was dismissed. Feeling aggrieved Syed Ahmad Saeed Kirmani filed F.A.O. No,51 of 1999 which has been resisted by Raja Ashfaq Sarwar respondent.
3. On 31-7-1998 Raja Ashfaq Sarwar instituted his suit against Syed Ahmad Saeed Kirmani as well as Capital Development Authority through its Chairman, Islamabad, for specific performance of agreements of sale, dated 5-7-1987, 22-7-1987 and 1-10-1987 about the disputed house on Plot No,8, Street No,7, Sector F-6/3, Islamabad i,e,, the disputed property. He contended that on the basis of the sale agreements he paid an amount of Rs,5 lacs as earnest money out of Rs,30 lacs while the remaining amount of Rs,25 lacs was to be paid by him to Syed Ahmad Saeed Kirmani after getting cleared the dues, if any, against the said house/plot by him. He also relied on reconstituted agreement, dated 1-10-1987 whereby he himself had agreed to further pay an amount of Rs,5 lacs.
He maintained that Syed Ahamd Saeed Kirmani was bound to complete all papers for the transfer of house in his name but due to some unadvoidable official delay he could not complete the papers so far and that he was entitled to the specific performance of agreements of sale. He filed an application for the grant of temporary injunction getting Syed Ahmad Saeed Kirmani restrained from dispossessing him from the suit property and also alienating the same in any manner to any other person. He contended that he has a prima facie case, that balance of convenience was in his favour and that in case of dismissal of his petition he would suffer an irreparable loss. This application was resisted by Syed Ahmad Saeed Kirmani who contended in the written reply that there was no justification to grant the temporary injunction prayed for as the earnest money of Rs,5 lacs stood forfeited and the agreements of sale, rescinded. After hearing the parties learned trial Court gave the weight to section 53-A of the Transfer of Property Act, 1882 in favour of Raja Ashfaq Sarwar and granted the temporary injunction prayed for. Feeling aggrieved Syed Ahmad Saeed Kirmani preferred F.A.O. No,50 of 1999 which has been resisted by Raja Ashfaq Sarwar.
4. The interested parties and the subject-matter are the same and as expressed above both the appeals are being disposed of through this consolidated judgment. It is, however, proper to express that the proceedings were conducted in F.A.O. No,50 of 1999 and F.A.O. No,51 of 1999 together by me and the respective consolidated arguments were addressed by the learned counsel for the parties according to their respective assertions in both the appeals.
5. It is pertinent to mention that vide order dated 27-7-1999 Malik Mubeen Ahmad, Advocate, Rawalpindi was appointed as the Local Commissioner to visit the disputed property and to submit his report with respect to the construction being raised at the spot. He was asked to get prepared the site-plan through the agency of some Draftsman. I had to pass the order as the stand taken before the Court was that no construction was being made at the spot. I stopped the construction and directed to submit the sanctioned site plan for raising the fresh construction at the spot. It stood transpired that the previous construction at the spot was demolished. Malik Mubeen Ahmad, Advocate submitted his detailed report, dated 29-7-1999 wherein he mentioned about the raising of the construction of basement on the disputed plot. However, the shuttering was not laid for, lentor purposes. He got prepared the basement plan for House No,8, Sector F-6/3, Islamabad from Mr. M. Sohail which is a part of this report and his file at present. The report of the Local Commissioner coupled with the site-plan has made out that incomplete construction of the house in dispute standing on 5-7-1987, which is the admitted fact according to all the three agreements of sale, stands eclipsed obviously through demolition and physical removal by Raja Ashfaq Sarwar.
6. I have heard the learned counsel for the contesting parties and gone through the record before me. At the very outset I would refer to the premium extended by the learned counsel for Syed Ahmad Saeed Kirmani appellant that Raja Ashfaq Sarwar respondent shall not be dispossessed otherwise than due process of law especially when he has instituted a suit for possession which is pending.
7. Learned counsel for the appellant canvassed that the initial agreement of sale was incepted on 5-7-1987 when sale price was fixed at Rs,30 lacs out of which earnest money in the sum of Rs,5 lacs was paid to him and that thereafter the sale price was further enhanced to an amount of Rs,5 lacs on 1-10-1987 making the total sale price at Rs,35 lacs out of which the initial earnest money in the sum of Rs,5 lacs had been paid. He continued that the house has been demolished and that without the sanction of the site plan the construction is being raised at the spot. He expressed that Syed Ahmad Saeed Kirmani has no intentions to dispossess Raja Ashfaq Sarwar otherwise than due process of law and that in the aforesaid circumstances the legal protection as contained under section 53-A of the Transfer of Property Act, 1882 is not available to Raja Ashfaq Sarwar respondent. According to him the initial agreement of sale was incepted more than 12 years before and by payment of Rs,5 lacs only and also through demolition of the incomplete house the respondent is desirous to reap the legal benefit who is not entitled thereof. He maintained that Raja Ashfaq Sarwar respondent had no entitlement to raise the construction of the house at the disputed plot and that Syed Ahmad Saeed Kirmani was entitled to utilize the plot according to his own .Desires. On the contrary learned counsel for Raja Ashfaq Sarwar respondent referred to section 53-A of the Transfer of Property Act, 1882 and laid the emphasis that the possession of the plot was procured on the basis of agreement of sale, dated 5-7-1987 when the earnest money in the sum of Rs,5 lacs was paid and that thereafter the property could be utilized by the said respondent as desired by him. He showed the willingness to pay the remaining price of Rs,30 lacs as well as raising the construction at the spot at the risk and cost of Raja Ashfaq Sarwar respondent which would not be demanded by him in case he lost the battle in the legal field. He maintained that the situation was created by Syed Ahmad Saeed Kirmani and due to official delay the matter could not be finalized especially when the suit property was also mortgaged with the bank against loan encumbrance. He added that the learned trial Court has correctly exercised discretion in favour of Raja Ashfaq Sarwar and that both the appeals are liable to be dismissed.
8. 1 am aware that the deeper merits of the dispute in hand are not to be analysed and dissected.
However, the fact of the matter is that an amount of Rs,5 lacs was paid by Raja Ashfaq Sarwar to Syed Ahmad Seed Kirmani on 5-7-1987. Even though Syed Ahmad Saeed Kirmani sent him the notices for the performance of his part of the contract yet he has not proceeded in the matter in the sense that neither he sent any notice to him nor made any application before any Court to show his readiness to pay the amount nor moved the concerned Department/Office of Capital Development Authority to proceed thereof. He has shown his complete inactiveness towards the rights of Syed Ahmad Saeed Kirmani and it is rather surprising that he demolished the incomplete house constructed at the spot, removed the material or utilized the same, got excavated the plot and raised the construction of the basement without the sanction of the map from the Capital Development Authority and obviously in violation of the relevant rules. There is nothing on record to make out that he was willing and ready to perform his part of the contract or that except that payment of the earnest money of Rs,5 lacs he took any step towards the completion of the agreement. On the one side the assertion of Raja Ashfaq Sarwar is that Syed Ahmed Saeed Kirmani did not proceed further by getting the matter settled 'within the Capital Development Authority while on the other side he started excavating the plot after demolition of the building standing thereon and started the construction of the basement i,e, the house without obtaining the permission from Capital Development Authority. I would express that he is not entitled to the legal benefit of section 53-A of the Transfer of Property Act, 1882. If it is approved in the present circumstances then it would be breeding up of law-breaking and raising on ground the contactual privities which cannot be the intention of the law of the land. Raja Ashfaq Sarwar used the incomplete house, demolished the same,, did not pay the remaining huge amount of Rs,30 lacs and started the construction of the house. In the circumstances of the matter it can safely be held that he is not entitled to the discretion of the Court and that the impugned order of the learned Court dismissing the application of Syed Ahmad Saeed Kirmani getting restrained Raja Ashfaq Sarwar from raising the construction at the spot is violative of law and devoid of judicial propriety.
Rather in the circumstances Syed Ahmad Saeed Kirmani cannot be restrained from getting the possession of the suit property who even otherwise, as expressed above, has given the undertaking that he would not dispossess Raja Ashfaq Sarwar otherwise than due process of law as he himself has instituted a suit for possession against the respondent. Obviously he believes in rule of law and the aforesaid undertaking is enough to safeguard the interest of Raja Ashfaq Sarwar respondent.
9. It was pointed out by the learned counsel for Raja Ashfaq Sarwar respondent that he is willing to raise the construction at the spot at his own risk and cost. I would express that the said undertaking need not be given the weight in view of my own long-standing experience in the subordinate judiciary and in the High Court since the year 1963. This type of undertaking has never played the positive role and especially in influential persons who even after losing the legal battle remain in possession of the property and do riot show regard to the rule of law as well as such type of undertaking. It is in our knowledge that Raja Ashfaq Sarwar is a sitting member of the Cabinet of Ministers of Punjab Province while Syed Ahmad Saeed Kirmani is an ex-Minister of the erstwhile Province of West Pakistan. I would express that the parties are influential and it is in the fitness of things and the interest of justice that the restraint order issued already on 27-7-1999 is affirmed. I, accordingly, pass an order thereof.
10. With respect to the relief granted to Raja Ashfaq Sarwar that Syed Ahmad Saeed Kirmani shall not alienate the suit property in any form, suffice it to refer to section 52 of the Transfer of Property Act, 1882. The suit is pending. Section 52 of the Transfer of Property Act, 1882 provides that pendente lite, neither party to the litigation, in which any right to immovable property is questioned, can alienate or otherwise deal with such property so as to affect his opponent. The consequence of the doctrine is that the transaction pending the suit shall not be allowed to affect the rights under the decree. The broad purpose of section 52 of the Transfer of Property Act, 1882 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Rather the proposed transferee other than the adversary in the suit has to remain bound by the principle of caveat emptor and the consequence of the doctrine is that the transaction pendent lite shall not be allowed to affect the rights under the decree. Consequently I hold that it is proper that Syed Ahmad Saeed Kirmani is restrained from alienating the suit property in any form till the decision of the suit.
11. At this stage I would express that keeping in view the dispute involved in both the suits pending between the same parties about the same property, it is proper that an order for consolidation of the suits is passed even at this stage and it is directed that the proceedings shall be conducted in the suit for specific performance of agreement of sale instituted by Raja Ashfaq Sarwar plaintiff.
The issues according to the epitomized pleadings of both the suits shall be formulated. The evidence shall be recorded and after hearing the arguments the suit shall be finally disposed of till 20-9-2000 positively under intimation to the Additional Registrar of this Court.
12. In view of what has been said above, F.A.O. No,50 of 1999 is disposed of by passing the order that Raja Ashfaq Sarwar shall not be dispossessed otherwise than due process of law which means that the suit instituted by Syed Ahmad Saeed Kirmani for possession shall proceed which shall meet its legal end and that Syed Ahmad Saeed Kirmani shall not alienate the suit property to any other person in any form keeping in view section 52 of the Transfer of Property Act, 1882. Raja Ashfaq Sarwar has paid only the earnest amount in the sum of Rs,5 lacs while an amount of Rs,30 lacs is outstanding. It was intimated that he has not alienated the suit property to any other person.
However, as abundant caution Raja Ashfaq Sarwar is also restrained from alienating the suit property to any other person in any form. As such the impugned order of the learned trial Court shall remain operative in the aforesaid terms till the decision of the suit.
13. F.A.O. No,51 of 1999 is accepted. The application for grant of temporary injunction is granted and Raja Ashfaq Sarwar is restrained from raising any construction on the disputed property who shall maintain the status quo as he has started the construction after demolition of the standing house and without obtaining the permission from Capital Development Authority and, thus, the report of the Local Commissioner shall remain operative in the matter.
14. In the circumstances the parties are left to bear their own costs of both the appeals.
15. The parties and their learned Advocates shall appear before Mr. Sohail Ibad, Civil Judge 1st Class, Islamabad on 7-9-1999.