1. ' MUHAMMAD NAWAZ ABBASI, J.---The Capital Development Authority (C.D.A.), Islamabad authorized Messrs Naqson Rawalpindi respondent herein, for construction of small size houses in Sector 1/9, Islamabad, for allotment to Displaced Persons of Islamabad and others vide agreements, dated 19-8-1970 aitd 19-2-1974. Muzffar Islam Malik respondent was allotted plot bearing No,396 measuring 25 x 60 sq feet, 1/9, Islamabad in 1975.
2. 'The allottee in addition to the payment of price of Plot to the C.D.A. Also paid an amount of Rs,11,850 to respondent No,3 in instalments in connection with cost of construction and as per agreement, the remaining payment was to be made by the respondent No,1 on arranging loan from House Building Finance Corporation but on failure of respondent No,1 to make the payment of outstanding dues till 1984, the C.D.A. Taking notice of his default cancelled the provisional allotment of the plot in his name vide order, dated 11-6-1984 and later on the recommendation of Wafaqi Mohtasib restored it in the name of Messrs Naqson and further allotted to the present petitioner on her nomination made by Messrs Naqson. The petitioner having entered into an agreement with CDA made payment of the dues of the CDA as well as Messrs Naqson and was delivered possession of the house. Muzaffar Islant Malik on coming to know about the development taken place filed, a civil-suit in 1988 and learned Civil Judge, Islamabad, decreed the suit for Rs,2,66,666 and Rs,11,850.
3. The decree-holder .(respondent No,1 herein) being dissatisfied with the manner of disposal of suit preferred an appeal against the judgment and decree passed by the learned trial Judge and a learned Additional District Judge, Islamabad vide judgment, dated 10-5-2001 allowed the appeal with the observation that respondent No,1 was lawful allottee of plot and his allotment was liable to be restored subject to the payment of balance cost of construction.
4. ' Mst. Surriya Parveen, the petitioner, challenged the judgment of Appellate Court in the High Court through a Civil Revision bearing No,406-D of 2001 and a learned Single Judge of the High Court while upholding the judgment in appeal dismissed the revision petition in limine vide judgment, dated 13-7-2001. The petitioner has preferred this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeking leave to appeal against the judgment of the High Court.
5. ' Learned counsel for the petitioner has contended firstly, that respondent No,1 having failed to make payment as per schedule of payment, became defaulter and despite repeated notices given to him by respondent No,3 through the counsel he did not bother to discharge his liability and consequently C.D.A. After issue of notice on 11-4-1984 proceeded to cancel the plot vide order, dated 11-6-1984. Secondly, as per terms of the agreement of respondent No,1 with CDA, in case of non-payment of cost of construction as per schedule of payment given therein, the provisional allotment was liable to be cancelled and the same was cancelled for violation of this essential condition of the contract but the Appellate Court as well as the High Court were misdirected in coming to the conclusion that respondent No,1 was still lawful allottee. Thirdly, the suit for specific performance of the contract was filed on 25-5-1988 whereas as per contents of the plaint cause of action arose in favour of respondent No,1 on 11-6-1984, therefore, the suit was hopelessly barred by time but the Courts below while treating it a suit for declaration held that it was within time.
6. Fourthly, the two Courts ignored to take notice that equity would not favour to respondent No,1 in the given facts.
7. The respondent No,1, who is present in Court in person, he submitted that allotment in his name was cancelled without giving him a proper notice and that the construction work was not completed by the respondent No,3 as per commitment with the result that payment as per schedule given in the agreement, was withheld.
8. ' We find that the important issue relating to right of ownership of the house in dispute and the question that equity would favour to which party, was not properly attended to by the High Court.
9. We, therefore, to examine these questions grant leave to appeal in this petition. Meanwhile, the parties shall maintain the status quo.