1. Civil Miscellaneous Application No,4161 of 2003. By this order I intend to dispose, of Civil Miscellaneous Application No,4161 of 2003, an application under Order VII, rule 11, C.P.C. Moved by defendant No,5.
2. Facts relevant for the disposal of this application are that on 8-11-1987 plaintiff instituted the present suit for specific performance, injunction and in the alternative for compensation/damages of Rs,50 crores against defendants Nos.1 to 4. In the plaint he stated that he is member of a well known industrialist family. In the year 1984 he planned a project to set up a modern centre for recreation-cumamusement at Karachi on the pattern of Disney Land and located a large piece of land near Gizri Creek, Karachi suitable for such project. Plaintiff visited the site alongwith Architects and foreign consultants and made correspondence with defendants Nos.3 and 4 for grant of 500 acres of land. In the meeting of plaintiff with the defendant No,3 held on 8-5-1986 he was informed that it was decided to allocate 300 acres of land to him. Thereafter vide letter dated 6-7-1986 the defendant No,4 informed him that defendant No,2 has decided to offer such land to him at the rate of Rs,20,000 per acre, which offer was accepted by him through his letter dated 7-7-1986. Plaintiff further stated that he made investment/ expenditures of several million rupees to undertake the construction of project according to international standards but despite his repeated requests possession of land allocated for this purpose was not delivered to him. Plaintiff, therefore, served notice on defendants under section 80, C.P.C. On 22-12-1986 and thereafter filed the suit for specific performance of agreement, permanent injunction and in the alternative for damages/compensation in the sum of Rs,50,00,00,000.
3. During the pendency of the suit on 4-3-1996, Civil Miscellaneous Application No,1459 of 1996, an application under Order 1, rule 10, C.P.C. Was filed by the plaintiff for impleading defendant No,5 as party to this suit, which was allowed by a Single Judge of this Court on 5-12-1996. In this manner in the year 1996 defendant No,5 was also joined as party to the suit and accordingly amended plaint was filed on 12-12-1996.
4. Chowdhary Muhammad Jamil, learned counsel for defendant No,5 vehemently contended that plaint in the suit is liable to be rejected as it does not disclose any cause of action against the defendant No,5 and other defendants and further the suit is barred by law. Dilating upon his submission, learned counsel referred the provisions of Order VII, rule 3, C.P.C. And urged that in a suit for specific performance in respect of some immovable property it is the requirement of law that necessary particulars of that property which may enable the Court to properly identify such property, are to be disclosed by the plaintiff but in the instant case the plaint is silent in this regard.
He next contended that institution of suit in the year 1987 and joining of defendant No,5 as party to the suit in the year 1996 i.e, after nine years of the institution of the suit, clearly show that suit against defendant No,5 is barred by limitation, as a suit for specific performance is governed by Article 113 of the Limitation Act which provides only three years' period of limitation for institution of such suit. In this context, learned counsel has placed reliance upon the cases of Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC (AJ&K)
102 and Hakeem Muhammad Boota and another v. Habib Ahmed and others PLD 1985 SC 153.
Referring to the contents of para.21 of the plaint learned counsel reiterated that not only the plaintiff has no cause of action against defendant No,5 but against the other four defendants too he has no cause of action to file a suit for specific performance of contract as admittedly neither there is any written agreement between the parties nor any payment of sale consideration has been made.
5. Mr. Zafar Iqbal, learned counsel for defendants Nos.1 to 4, on his turn, adopted the arguments of Chowdhary Muhammad Jamil, Advocate without any addition and prayed for rejection of plaint.
6. In reply to the above submissions Mr. A.H. Mirza contended that existence of agreement between the plaintiff and defendants is established from Annexures 'F/1' and 'F/2' to the plaint and such plea has also been raised in the plaint, therefore, present suit for specific performance is very much maintainable in law. He contended that scope of Order VII, rule 11, C.P.C. Is limited, inasmuch as only the averments of the plaint are to be taken into consideration, with presumption of correctness, to examine the applicability of such provision of law. He further contended that even if, though not conceding, the claim of specific performance of plaintiff is rejected for want of proper identity or description of the land admeasuring 300 acres then the alternate plea of damages/compensation can still be enforced by him and appropriate decree can be passed by this Court. He submitted that in such circumstances when one of the reliefs claimed in the suit is maintainable then the plaint cannot be rejected as a whole or in part. With reference to joining of defendant No,5 as party to this suit learned counsel contended that defendant No,5 has been impleaded as a proper party to this suit to avoid multiplicity of litigation otherwise no relief has been claimed against them. In such circumstances even if the Court arrives at a conclusion that suit against defendant No,5, who has been impleaded party to this suit after nine years of institution, is barred by limitation then on this account too the provisions of Order VII, rule 11, C.P.C. Cannot be pressed into service for rejection of plaint against all the defendants. In this context he placed reliance upon the case of Allah Rakhio v. Khus Mir Khan and 4 others 1986 CLC 1828. With regard to the submissions of Chowdhary Muhammad Jamil about the non-availability of cause of action to the plaintiff learned counsel again referred the contents of plaint and the documents annexed thereto to show that an offer for sale of 300 acres of land was extended to the plaintiff by one of the defendants which was accepted by him and these facts furnish sufficient cause of action to the plaintiff for institution of suit, as after acceptance of offer of defendants a valid agreement has come into existence which could be enforced through Court of law.
7. I have carefully considered the arguments advanced by the learned counsel for the parties, perused the case record so also the cases referred at the bar.
8. It is an admitted position that the present suit instituted by the plaintiff is not merely a suit for specific performance but in the alternative, claim of compensation/ damages in the tune of Rs,50 crores has also been set up by the plaintiff. In the plaint plaintiff has given necessary details regarding correspondence between him and some of the defendants which prima facie show the existence of some commitment/ agreement between them about transfer of some land in favour of plaintiff on payment of sale consideration at the rate as mentioned in Annexures 'F/1' and 'F/2' to the plaint, thus, at this stage it cannot be said that plaintiff has no cause of action for filing this suit for specific performance. Even if plaintiff fails to prove his case for specific performance of contract against the defendants, against whom relief for specific performance has been sought then still, subject to proof, a decree for compensation/damages can be passed against the concerned defendants.
9. Reverting to the question of maintainability of the suit with reference to the provisions of Order VII, rule 3, C.P.C. It may be observed that if upon perusal of plaint the Court finds its contents insufficient to identify the suit property then for that purpose recourse could be had to the provisions of Order VI, rule 5, C.P.C. By calling upon the plaintiff to provide such better particulars which may enable the Court to identify the suit property or even the provisions of Order VI, rule 17, C.P.C. Could be followed in appropriate cases for this purpose. In the case of United Bank of India Ltd. v. Azirannessa Bewa PLD 1965 SC 274 the Honourable Apex Court, examining the alleged ambiguity in the plaint in the description of the land observed that it was the duty of the Court to determine such property with exactness from the evidence on record. The natural corollary of such observation is that a party could meet such deficiency of the plaint even at the stage of evidence.
Thus, in the instant case the plaintiff can avail benefit of above-referred provisions of Order VI, C.P.C. Or can also provide better particulars of suit property in his evidence. In such circumstances the plaint in the present suit cannot be rejected due to the alleged non-compliance of the provisions of Order VII, rule 3, C.P.C.
10. Taking up the question of limitation, it may be observed that when some defendant is joined party to the suit at some late stage of the proceedings, as in this case defendant No,5, then the question whether suit against him is time-barred is to be examined with reference to the facts that when plaintiff acquired knowledge of .The relevant facts which constituted cause of action against such defendant for impleading him as party to the suit and what relief is sought against him in the suit and not with reference to merely the date of institution of the suit. It is also pertinent to mention here that if some defendant has been joined only as pro forma or proper party to the suit, to avoid multiplicity of litigation, and no relief is sought against him then the suit will not fail against such defendant due to the mere delay in adding his name in the array of defendants. I also find much force in the submission of Mr. A.H. Mirza that even if this Court ultimately finds that suit against defendant No,5 is barred by limitation then plaint in the suit cannot be rejected on this account against the remaining four defendants. The cases cited by Chowdhary Muhammad Jamil in this context are also distinguishable and of no help to the case of defendant No,5.
11. The upshot of the above discussion is that this application is liable to be dismissed. Order accordingly.
12. Learned counsel for defendant No,5 has pointed out that there is specific order passed by the Honourable Supreme Court of Pakistan regarding day to day proceedings in the suit so that it may be disposed of within six months. It seems that such period has already expired. Office is directed to immediately place this suit before the learned Single Judge who is presently dealing with the evidence cases.
2. Orders on Nazir's Report dated 20-8-2003: It has been pointed out that the Nazir has not yet inspected the site as ordered on 12-8-2003. By consent let such exercise be completed within next one month. Disposed of.