' HAMID ALI MIRZA, J.---These three civil petitions for leave to appeal are directed against the common judgment dated 16-2-.1998 passed in R.F.As. Nos.29 of 1995 and 32 and 33 of 1996 by a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby all the three appeals were dismissed, hence these petitions which are being disposed of by this common judgment as same facts and law points are involved.
2. The brief facts of the case are that Plot No,NYA, admeasuring 2400 sq. Yards, situated in Zone-D, Sports Complex, National Park Area, Islamabad, was allotted to an unregistered firm, namely Silk Road Tours Service Company, established by petitioner Sarni ul Haq and two others, namely, Laila Tandoko Tokonaga and Naib Khan, for constructing a hotel as per allotment letter dated 24-4- 1985. The construction of the hotel was to be completed within four years. Petitioner Sami ul Haq entered into an agreement of sale of the said plot on 13-6-1990 with respondent Maqbool Hussain Butt for sale consideration of Rs,52,00,000 (rupees fifty-two lacs), out of which-a sum of Rs,11,00,000 (rupees eleven lacs) was paid in advance with delivery of the possession of the said plot at the time of execution of the said agreement. It is stated that as per subsequent agreement dated 16-7- 1990, the time for performance of the agreement was. Extended till 16-12-1990 on receipt of another sum of Rs,23,00,000 (rupees twenty three lacs) from respondent Dr. Maqbool Hussain Butt and only a sum of Rs,18,00,000 (rupees eighteen lacs) remained to be paid at the time of the transfer of the said property. It is stated that the petitioner did not fulfil his part of the contract as per terms of the agreement, in consequence thereof respondent Dr. Maqbool Hussain Butt filed. Suit No,74/145 of 1991/1994 for specific performance of the agreement dated 13-6-1990 amended by agreement dated 16-7-1990 against petitioner Sami-ul-Haq, Capital Development Authority and Mrs. Laila Tandoko Tokanaga. , Petitioner Sami-ul-Haq while defending the suit admitted the original agreement dated 13-6-1990 but denied the execution of the subsequent agreement dated 16-7- 1990. Messrs Silk Road Tours Service Company Limited filed Suit No,185/143 of 1990/1994 against petitioner Sami-ul-Haq and another seeking declaration and permanent injunction. Petitioner Sami-ul-Haq also filed Suit No, 218/144 of 1990/1994 against respondent Dr. Maqbool Hussain. Butt for possession, declaration with permanent and mandatory injunction.
3. The trial Court consolidated all the three suits, framed consolidated issues, recorded the evidence and after hearing the counsel for the parties, decreed Suit No,74/145 of 1991/1994 filed by respondent Dr. Maqbool Hussain Butt to the extent of specific performance of agreements dated 13-6-1990 and 16-7-1990 subject to deposit of the sum of rupees 18 lacs in Court till 23-5-1995 in the credit of Mrs. Laila Tadoko Tokonaga with directions to petitioner Sami-ul-Haq to transfer his rights and that of two other partners of Messrs Silk Road Tours Service:Company in favour of respondent Maqbool Hussain Butt subject to fulfilment of requirements of respondent C.D.A. By respondent Maqbool Hussain Butt granting permanent injunction to the effect of alienation and possession of respondent Dr.Maqbool Hussain Butt but dismissed for other reliefs prayed for so also Suit No,218 of 1990 (Sarni-ul-Haq v. Dr. Maqbool Hussain Butt) was dismissed, whereas connected Suit No,185 of 1990 was disposed of in the terms that Mrs. Laila Tandoko Tokanago was entitled to draw the sum of rupees 18 lacs deposited in Suit No,174 of 1991 subject to deduction of court-fee on said amount.
Against the said judgment and decree dated 20-4-1995, three R.F.As. Nos.29 of 1995 and 32 and 33 of 1996 were preferred by the petitioner Sami-ul-Haq before, Lahore High Court, Rawalpindi Bench, Rawalpindi, which were heard and dismissed by the impugned judgment.
4. We have heard the learned counsel for the petitioner and the caveator, and perused the record.
5. Learned counsel for the petitioner has contended that the impugned judgment was written after about 11 months from the date of hearing by the learned Division Bench of Lahore High Court, therefore, it was in violation of the rule laid down by this Court in (i) Iftikhar-ud-Din Haider Gardezi v.
Central Bank of India Limited 1996 SCMR 669; (ii) Muhammad Bakhsh and others v. The State 1989 SCMR 1473 and under Rules 30 and 31 of Order 41, C.P.C. He further submitted that the agreement to sell was not liable to be specifically enforced under section 23 of the Contract Act and section 19(2)
(g) of the Partnership Act, considering also that the subsequent agreement dated 16-7-1990 was a forged and fictitious document. He also submitted that at the most respondent Maqbool Hussain Butt would have been entitled to compensation or advantages which were received by the petitioner from him under such agreement or contract which was discovered to, be void under section 65 of the Contract Act. He further submitted that there was restriction on the transfer of the plot in dispute in terms of allotment, therefore, the agreement of sale could not be specifically enforced. He, in the end, submitted that sections 38 and 41 of the Transfer of Property Act were not applicable to the facts of the case. Besides the two above cited cases, the learned counsel has placed reliance upon (i) H.B.F.C. v. Shahinshah Humayun Cooperative H.B.S. 1992 SCMR 19; (ii)
Government of Sindh v. Khalil Ahmed 1994 SCMR 782(B); (iii) Mir Hasmat Ali v. Birendra Kumur Ghosh PLD 1965 Dacca 56; M.K. Muhammad and others v. Muhammad Aboobaker 1991 MLD 801; (iv)
Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906; Riaz Ahmed v. Amtul Hameed Koser 1996 CLC 678; Peyare Lal v. Mt. Misri AIR 1940 Allahabad 453 at 454; Bashir Ahmad v. Additional Commissioner 1983 SCMR 1199; Manzoor Hussain v. Ghulam Hussain PLD 1972 Lahore 855 and Arnim Bi v. Bivi 1993 MLD 1207.
6. Learned counsel for the caveator has submitted that the impugned judgment is legal and proper appreciation of evidence is made by the High Court, therefore, no exception could be taken to the findings arrived at by the learned Division Bench of the High Court.
7. So far the contention of the learned counsel that the impugned judgment was written after about 11 months, therefore, it was in violation of the rule laid down by this Court in the above cited cases and in view of Order 41, Rules 30 and 31, C.P.C., the said contention has no merit. It was conceded by the learned counsel for the petitioner that the judgment was pronounced by the Division Bench as soon as the arguments were concluded by the learned counsel for the parties, consequently there could not be said to be any violation of the rule laid down by this Court in the above cited cases. Rule 30 of Order 41, C.P.C. Requires that appellate Court, after hearing the parties or their pleaders, shall pronounce judgment in open Court either at once or on some future day of which notice shall be given to the parties or their pleaders. Rule 31 of Order 41, C.P.C., requires that judgment shall be in writing, which shall state (a) the points for determination, (b) the decision thereon, (c) reasons for the decision and when it is pronounced, it shall be signed and dated by the Judge or Judges.
Admittedly, the judgment was pronounced immediately after the conclusion of the arguments by the respective learned counsel for the parties and the impugned judgment stated all the contentions, the decision thereof giving reasons for the same, therefore, the impugned judgment could not be termed to be in violation of the law laid down by this Court and the said provisions of C.P.C. In Syed Iftikharuddin's case, the judgment was pronounced after eight months of hearing of appeal and there was non-compliance of Rule 31 of Order XLI, C.P.C. But the impugned judgment was pronounced on the same day after conclusion of arguments and it was in conformity with the requirement of Rule 31 of Order XLI, C.P.C. It may also be observed that the learned Division Bench has dealt with all the contentions of the petitioner's counsel in the judgment, therefore, no prejudice was caused to the petitioner. But it is always proper and advisable that after pronouncement of judgment, the High Court would write the judgment without unnecessary delay.
8. The next contention of the learned counsel for the petitioner is that the said agreements of sale were unenforceable in law on the ground that the allotment contained a bar to the transfer of the rights in plot and further the said agreement being against the public policy, was void and also that all the partners had not signed the agreements. The petitioner has not denied the execution of agreement to sell the plot to respondent Dr. Maqbool Hussain Butt. So far the execution of the subsequent agreement dated 16-7-1990, the receipt of a sum of Rs,23,00,000 (rupees twenty three lacs) for extension of time for the performance of the agreement has been proved by the respondent and the petitioner failed to bring satisfactory and reliable evidence to rebut the evidence of the respondent on record. It may also be noted that Naib Khan, the other partner of the firm, having signed the sale agreement as a marginal witness would be a consenting party to the agreement who did not come forward to deny the same. So far the third partner, Mrs. Laila Tadako Tokonaga, she made a statement before the Court acknowledging the contents of the agreement and the offer made by her was accepted by the respondent on payment of sum of Rs,18,00,000 (rupees eighteen lacs) as balance amount of the total Consideration in respect of plot in question.
The learned Division Bench at pages 11 and 12 of the judgment has observed:-- ' "We are, therefore, of the view that the agreement pertaining to the partnership of the property having (been) executed by and on behalf of the Firm, validly created rights in favour of the respondent and was as such enforceable in law. The agreement creating valuable rights in favour of respondent namely Dr. Maqbool Hussain Butt describes certain liabilities of the parties cannot be declared void for the reasons that the plot subject-matter of the agreement in question as per terms of the allotment was not transferable. The restriction on the transfer of the property placed by the C.D.A. Being a different matter does not render the agreement invalid or affect the validity of such agreement and the rights of the parties thereto. The main effect could be the non- implementation of sale by the C.D.A. Pending removal bar of transfer. The original allottee after payment of the full sale price to the C.D.A. Executed the agreement for the transfer of the plot in favour of the respondent and the condition of completion of construction attached therewith by the C.D.A. For the transfer of the property would not make the transaction invalid and restrict the passing of title to the respondents. It is noticeable that the C.D.A. Despite having the knowledge of the transfer in question and non-completion of the construction beyond the prescribed period did not proceed against the original allottee and had taken no step for the cancellation of the plot. The C.D.A. Even did not proceed in the matter at any stage pending disposal of the suit. This would show that the C.D.A. Had no intention to cancel the plot despite the violation of the terms and conditions of the allotment by the allottee and, therefore, the condition of the completion of the construction for transfer of the plot stood waived."
' It may be observed that agreement of allotment for the use of said plot was executed between the petitioner and C.D.A. To which respondent Dr. Maqbool Hussain Butt was not a party which contained amongst others clause 11 whereunder allottee was not to transfer his rights under the agreement of allotment by sale until after the payment of all the amounts due to the Authority etc. And, therefore, the said bar was subject to certain conditions to be, complied with by the allottee consequently the said restriction could be vacated/waived by C.D.A. On completion of the required conditions. The said agreement for the sale of the plot could not be termed to be void in its inception but voidable at the option of C.D.A. In the instant case C.D.A. Was in the know of the said transaction and failed to take any action against the petitioner for having contravened clause 11 of the agreement. The clause 11 of allotment agreement does not forbid the making of said agreement for sale but merely states that the allottee was not to transfer his right given to him under the agreement of allotment unless conditions mentioned in clause 11 are complied with consequently the said bar would not make the agreement for sale invalid or illegal. It may further be observed that the petitioner having admitted the execution of agreement to sell the plot in dispute, and also having received the consideration thereof cannot be allowed to back out from his promise on the equitable doctrine of estoppel. There is also no appeal from the side of C.D.A.
Against the impugned judgment. The contract could neither be said to be void from its inception nor could it be said to have become void or found to be void, considering that the said restriction was there in the agreement of allotment and it was never subsequently found or it became subsequently void, therefore, provisions of section 65 of the Contract Act would not be attracted. It may further be observed that the provisions of section 65 of the Contract Act could be availed of only by the respondent and not by the petitioner if the agreement of sale is shown to be void or is discovered to be void or if the contract became void but the instant agreement to sell cannot be said to have been discovered to be void or the contract could be said to have become void and the respondent has not approached the Court for restoration of the benefits or compensation, which the petitioner had received from the respondent under such agreement of sale. In all circumstances, provision of section 65 of the Contract is not available so far as the petitioner is concerned. Section 23 of the Contract Act imposes restrictions in respect of contracts which are considered to be against the public policy or which are illegal and void. The agreement entered into between the parties cannot be termed to be against the public policy or could be termed to be void or illegal considering that lawful contract was entered into for lawful consideration and purpose between the parties except that the bar with regard to transfer of rights in the property, it was for the C.D.A. To exercise or enforce barring clause and the C.D.A., on completion of formalities by the allottee, could waive/vacate the said bar. The allottee in the instant case had transferred what he possessed the rights under the terms of the agreement and C.D.A. Being the authority could have taken action against the allottee in case any of the terms of the agreement in respect of allotment was infringed but the said agreement between the parties with regard to sale of the property cannot be said to be illegal or against the public policy as terms of which could be enforced after removal of bar by C.D.A. By ex post facto permission. Reference may be made to Mst. Bhaghan v. Muhammad Latif PLD 1981 Lahore 146. In the circumstances, the provisions of section 23 of the Contract Act would not be attracted in the instant case. Besides, it be observed that bar contained in clause 11 of the allotment cannot be termed to be law consequently cannot be said to be forbidden by law, considering that prohibition in the bye-laws of a society or other statutory body cannot have force of law. Reference may be made to Akram Moquim Ansari v.
Asghari Begum PLD 1971 Karachi 763.
9. The contention of the learned counsel for the petitioner that the provisions of section 38 of the Transfer of Property Act are not applicable to the facts of the instant case, has merit and force. The phrase "circumstances in their nature variable" in section 38 of the Transfer of Property Act is generally referred to a case when facts constitute a legal necessity for the transfer of the immovable property by a person having limited and qualified power of disposal of such property like under Hindu Law. As such section 38 of Transfer of Property Act would not be applicable in the instant case. Besides it may be stated that Transfer of Property Act (IV of 1882) is not applicable to the Islamabad Territory. Reference may be made to Barkat Ullah Khan v. Abdul Hamid 1981 SCMR 1200. Paras. 6 and 7 reads:-- "6. Now the argument of the learned counsel that by the Constitution of 'Islamabad Capital Territory' as the 'Centrally Administered Area' by virtue of the provision of section 4 of the Province of West Pakistan (Dissolution) Order, 1970 (President's Order No,1 of 1970) the Transfer of Property Act. 1882, got automatically extended to Islamabad Capital Territory assumes that the Legislature had itself extended the provisions of the Transfer of Property Act 1882, to the Centrally Administered Areas as existed when the Act was passed and also to those areas which were even afterwards to be constituted as the Centrally Administered Areas. With due respect to the learned counsel, this assumption is neither borne out by the provisions of section 1 nor the provisions of the section can possibly permit an interpretation to the above effect. In this behalf, learned Single Judge in the High Court has rightly observed that 'the Legislature did not itself make it (Act) applicable to any part of the country, and it was left to the Provincial Governments to extend its application to the areas to which they were concerned by issuing notification in this behalf'. Learned Single Judge also rightly observed that 'the Act does not become applicable to Islamabad merely for the reason that it is a Federal Area'.
7. Mr. Bashir Ahmed Ansari admits that up to the date of the filing of the suit no notification had been issued by the Provincial Government extending the Act to Islamabad Federal Territory. In the absence of such a notification learned Single Judge in the High Court rightly held that the provisions of section 106 of the Act were not applicable but these are to be followed as principles of justice, equity and good conscience. Learned Single Judge also rightly held for the reasons stated by him that these principles were duly complied with and the suit could not be dismissed for non- service of the notice to the petitioner regarding the termination of his tenancy."
' None of the learned counsel for the parties has stated about issuance of notification till this date extending Transfer of Property Act (IV of 1882) to Islamabad Federal Territory. We also asked our Librarian to find out if any such notification was issued who after making search replied in the negative.
10. So far the cases cited by the learned counsel for the petitioner, they have different facts and are distinguishable to the facts of the instant case, therefore, same are of no help to him. The learned Division Bench of the High Court has given valid and cogent reasons for arriving at the findings, which, according to law, are legal and based on proper appreciation of evidence and law, therefore, no interference is called for. Leave to appeal is, therefore, refused and all the three petitions are hereby dismissed.