1. ' This suit for declaration, specific performance of contracts, permanent and mandatory injunction with an alternative prayer for damages amounting to Rs,10 crores was instituted on 23-12-1998.
2. ' Plaintiff is a registered partnership firm and claims allotment of 20 plots admeasuring 400 sq.
3. Yards each in pursuance of the applications moved by the plaintiff in compliance of regulation 12 of 1973, K.D.A. Scheme No,KD.A./LS-11/9870 dated 24-4-1973. Plaintiff applied for allotment of 20 plots of 400 sq. Yards and 20 plots of 240 sq. Yards (hereinafter referred to as the said plots). Defendant No,1 issued directions for allotment of the said plots to the plaintiff vide letter dated 19-5-1973 addressed to defendant No,2 through the Land Manager. Plaintiff in compliance of the conditions providing for deposit of 10% occupancy value made payment vide Challan No,CC-326, dated 23-5- 1973 at the rate of Rs,14 per sq. Yard amounting to Rs,17,000 and informed defendant No,2 to this effect through letter dated 24-5-1973. Allotment of 20 residential plots of 240 sq. Yards each in K.D.A. Scheme No,24, Gulshan-e-Iqbal was communicated to the plaintiffs vide letter of defendant No,2 dated 14-6-1973 followed by offer for physical possession on 3-8-1973 after payment of balance amount. On receipt of full occupancy value, physical possession of 20 plots of 240 sq.
4. Yards was handed over to the plaintiff in addition to the amount of 10% occupancy value of the remaining 20 plots of 400 sq. Yards each which remained pending due to the imposition of temporary ban by the then Chief Minister on 7-2-1994. Plaintiff claims such plot to have been ascertained and demarcated in pursuance of letter, dated 9-3-1984 and shown in the site plan prepared after Survey bearing No,SCS-24 No,EE/SCH.24/794. These bear Plots Nos.8/198 to B/217, Block 4-A, K.D.A. Scheme No,24, Gulshan-e-Iqbal, Karachi. However, progress could not be made due to the aforesaid ban that remained in force.
5. ' Plaintiffs claim to have been following up the matter after imposition of Martial Law in 1979.
6. Through Resolution No,146, dated 1-3-1981 followed by a subsequent Resolution No,338, dated 7-6- 1981, the Governing Body of defendant No,2 ordered for refund of the initial 10% deposit made by other builders and construction firms who were not allotted plots under similar circumstances.
7. However, the, deposit made by the plaintiff was detained in view of substantial progress and assessm ent of plot numbers as discussed earlier. As the matter was not finalized plaintiff moved petitions dated 9-12-1989 and 20-12-1990 to the then Minister for Housing and Town Planning who called for summary. Subsequent complaints were made by the plaintiff on 4-8-1993 to the Commanding Officer, Army Headquarter, Karachi, followed by directions for issue of allotment in favour of the plaintiff. On inaction, plaintiff approached the Ombudsman who vide order, dated 13- 2-1993 ordered for consigning the same to record on certain assurances followed by letter dated 28-2-1993 whereby defendant No,2 conveyed that the matter of allotment of plots was under consideration of higher authorities. Plaintiff claims to have followed up the matter regularly before the authorities on different dates specified in the plaint and thereafter approached this Court by way of Petition No,D-542 of 1994. The only defence for delay pleaded by the defendant before the Court was the ban imposed by the concerned authorities. The said petition was dismissed with the observation that the appropriate remedy for the plaintiff would be to file a civil suit for disposal of the matter on merits.
8. ' Plaintiff claims to have waited for lifting of the ban and vide application dated 25-3-1997 again approached the defendant, specific dates of subsequent steps mentioned in para.11 of the plaint led to instructions contained in the note written by the Secretary, Housing and Town Planning dated 1-7-1997 on the report placed before him, "the said claim can be accommodated after lifting of ban in future by the Government".
9. ' The Government of Sindh, Housing and Town Planning Department, vide Notification No,SOH(KDA)HTP/6-82/97 dated 9- 9-1997 lifted the ban on allotment of plots. Plaintiff immediately approached the Chief Minister vide his letter, dated 10-9-1997. In pursuance of the same a summary, dated 26-6-1997 was placed before the then Chief Minister. Being dissatisfied the plaintiff served statutory notices dated 21-8-1998 on both the defendants which were not replied.
10. Plaintiff has placed reliance on the various endorsements, undertakings and assurances, discussed above, the decision by the Commanding Officer, Army Headquarters dated 24-1-1993 directing the K.D.A. Issue allotment of the said 20 plots to the plaintiff, and on failure to get redressed instituted the present suit.
11. ' Defendant No,2 contested the suit and filed their written statement on 17-2-1999 whereby they took the stand that the allotment of 20 plots of 400 sq. Yards in Gulshan-e-lqbal was in favour of the plaintiff was not finalized in view of the ban. It is also pleaded that vide the Governing Body Resolution No,146 dated 1-3-1981 followed by Resolution No,338 dated 7-6-1981 the amount deposited by the various builders were ordered to be refunded. Reliance is also placed on the Governing Body Resolution No,338, dated 7-6-1981 whereby it was resolved that the regrets may be conveyed to the respective companies together with conveyed to the respective companies together with cheques for the refund of total amount lying with the K.D.A. As a consequence of these decisions the plaintiff is riot entitled to seek the specific performance as prayed and the suit was liable to be dismissed. The above pleadings led to the framing of the following issues by this Court on 4-1-2000:-
(1) Whether the offer by the defendant No,1(KDA) vide letter dated May 19, 1973 (Annexure P.5 to the plaint) for the allotment of plots for construction of Bungalows and in pursuance thereof payment of 10% occupancy value vide paid challan, dated 23-5-1973 do not constitute a valid and binding contract between the plaintiff and the defendants?
(2) Whether the promise/note written by Secretary, Housing and Town Planning, Government of Sindh dated 1-7-1997, to accommodate plaintiff's claim for issuance of formal allotment order in respect, of 20 plots of 400 sq. Yards each in Scheme No,24, Gulshan-e-Iqbal, Karachi, after lifting of ban in future by the Government constitutes a fresh/additional contract between the plaintiff and the defendants?
(3) Whether the defendants have ever refused to perform their part of obligations or withdrawn their offer contained in the letter dated May 19, 1973, if not, its effect?
(4) What is the effect of lifting of ban, if any, on allotment of plots and settlement of old claims by the defendant No,1 vide Notification dated 9-9-1997 on the case of plaintiff?
(5) Whether any allotment order in strict legal sense was issued in favour of plaintiff?
(6) Whether the principle of promissory estoppel is applicable in the present case against the defendants?
(7) Whether the plaintiff is entitled to a decree specific.Performance of the contract?
(8) Whether the plaintiff is entitled to any relief including damages?
(9) Whether cause of action has accrued to the plaintiff for filing suit against the defendant No,2 K.D.A.?
(10) What should the decree be?
12. ' In support of their contention, plaintiffs have examined one Irfan Alain Siddiqui, Managing Partner of the plaintiff and General Attorney of other partners of the company, who has also produced documents Exh.P.1 to Exh.P.45. Defendant No,2 has examined Najeeb Ahmed Maher, Assistant Director Land of the defendant No,2 while defendant No,1 being formal party did not come forward to record any evidence.
13. ' Learned counsel for the defendants before arguing the case on merits raised the point of limitation which at the very first instance has been opposed by learned counsel for the plaintiff on the ground that the same plea was not taken in the written statement. The objection pertaining to limitation can be agitated at any stage as held by the Honourable superior Courts in various judgments and has to be considered by the Court. See East and West Shipping Company v.
14. Queensland Insurance Co. PLD 1963 SC 663.
15. ' Learned counsel for the defendants to support his arguments on the point of limitation contended that the 10% occupancy value was paid in 1973 and the suit has been filed in 1998 much after the limitation period: Learned counsel for the plaintiff in reply to that has contended that though the limitation period is three years but the same will be counted after lifting of ban vide Notification dated 9th September, 1997 Exh.P.35 as till that time the defendant had admittedly taken the plea that due to imposition of ban the plots could not be allotted to the plaintiff.
16. ' Accordingly, in view of the above position the suit is within the time and the objection is not tenable.
17. ' My findings to the above issues with reasons are as under:-- Issue No,1 ' Learned counsel for the plaintiff while arguing on this issue has referred to Exh.P.4 which is an application by the plaintiff to the defendant for allotment of suit plot followed by letter dated 19-5- 1973 (Exh.P.5) of the, defendant offering the suit plots to the plaintiff and finally Exh.P.6 which is a paid challan of Rs,17,000 being the occupancy value of the suit plot deposited by the plaintiff with defendant No,2. Thus, according to the learned counsel, in view of these documents, all ingredients of a valid contract viz. Proposal, offer, acceptance and consideration as provided under section 2(a) to (h) of the Contract Act had been there and the same constitute a contract between the parties. To further support the case of the plaintiff, learned counsel has also relied upon Allotment Letter, dated 14-6-1973 (Exh.P.8), Possession Letter dated 3-8-1973 (Exh.P.9) Challan dated 25-7- 1973 (Exh.P.10), Paid Challan (Exh.P.11), Payment Certificate dated 7-8-1973 (Exh.P.12), Letter dated 15- 8-1973 by the plaintiff to the then Land Manager of defendant No,2 (Exh.13). In support of his contentions, learned counsel has placed reliance on the cases of Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170, Sindh Industrial Estate v. Kemia Industries Ltd. 1999 CLC 1076, Khanzada Inamullah Khan v. Mst. Zakia Qutab PLD 1998 Pesh. 52, Ramjoo Mahomed v. Haridas Mullick and others AIR 1925 Calcutta 1087 and Habib Bank Limited v. Hussain Corporation Ltd. 1994 MLD 2276.
18. ' On the other hand learned counsel for defendant No,2 while refuting the contention of learned counsel for the plaintiff has argued that defendant No,2 has not given any undertaking for the allotment of suit plots in favour of the plaintiff. According to learned counsel Exh.P.5 is only an offer which on acceptance of the plaintiff became a promise and not a contract. Learned counsel has relied on AIR 1939 Rang.
86. In support of his arguments, learned counsel has relied on the cases of Mehran Sugar Mills Limited v. Sindh Sugar Corporation Limited 1995 CLC 707.
19. ' It has been held in the case of Sindh Industrial Estate (supra) as under:-- ' "In our view an agreement, which could be a binding contract and, thus, capable of being specifically performed consists of an offer, consideration and acceptance."
20. In this case the plaintiff has successfully proved that there exist three ingredients of the contract as held in the aforesaid case, and on the other hand the defendant has not been able to show any law in rebuttal to that the offer, acceptance and part payment of consideration are not disputed.
21. Accordingly, this issue is answered in negative in favour of the plaintiff.
22. Issue No,2 ' While arguing on this issue learned counsel for the plaintiff has relied upon C.P. No,542 of 1994 filed by the plaintiff and various letters addressed to the plaintiff by defendant No,2 assuring to allot 20 plots of 400 sq. Yards in Gulshan-e-Iqbal. He has also referred to Exh.P.26 which is a note by the Minister of Housing and Town Planning which is reproduced as under:-- ' "The applicant's undertaking in writing be obtained to withdraw the petition if his claim is satisfied.
23. Pl. Put up summary for Honourable C.M."
24. ' According to learned counsel for the plaintiff vide Exh.P.28 plaintiff made an undertaking to withdraw C.P. No,542 of 1994 and thereafter continued to pursue the mater for allotment of suit plots and consequently the Secretary Housing and Town Planning Sindh of defendant No,1 wrote a note which is reproduced as under:-- ' "All sorts of allotments have been totally banned by C.M. Sindh as well as decided by the Federal Cabinet. Can be accommodated after lifting of ban in future by the Government."
25. According to learned counsel in view of the above note, a new contract came into existence and defendant No,2 is obliged to allot the suit plots to the plaintiff after lifting of ban which was not done even after issuance of notification lifting the ban Exh.P.35 and thus, violated the new contract.
26. ' On the other hand learned counsel for the defendant has not been able to deny this actual aspect of the case.
27. ' Accordingly, this issue is decided in favour of the plaintiff. Issue No,3 It is an admitted position that the plaintiff was offered 20 plots which were accepted and 10% occupancy value of the plots was also deposited and the defendants have not produced a single letter showing their refusal to perform their part of obligation or any letter asking the plaintiff to take the amount deposit by it and the amount is admittedly still lying with defendant No,2. In this regard learned counsel has referred to the deposition of D.W. As follows:-- ' "I see Exh.P.16, it is correct to suggest the point for decision before the Governing Body was in respect of allotment of flat sites to the companies mentioned in Exh.P.16. It is correct that the similar is the position in Exh.P.17. It is correct to suggest that the name of plaintiff's firm is not appearing in Exh.P.16 and P.17, I do not know whether any limitation regarding Exh.P.16 and P.17 was conveyed to the plaintiff. It is correct that no such document has been filed by us in the present suit. It is correct to suggest that Exh.P.5 half of the offer has been fulfilled by defendant K.D.A. It is correct to suggest that in Exh.P.5 and P.6 it is not mentioned that the payment 10% would be ad hoc."
28. ' Learned counsel further contended that as there was no refusal on part of defendant No,2, plaintiff continued to pursue its case, as stated in the foregoing paras. Learned counsel while denying the claim of non-availability of plots by defendant No,2 referred to site plan Exh.P.15 and Item No,189 of Exh.P.20. Para.2 of Exh.P.21 also indicthes that plaintiff's request for allotment of plots was also approved by the Governing Body of K.D.A. Further letter dated 28-2-1993 (Exh.P.24) addressed by defendant No,2 to the plaintiff also indicates that the plaintiff's case was pending consideration.
29. Denying the contention of defendant No,2 that the Governing Body had decided to refund the amount of occupancy value, the P.W. Has produced Resolution No,146 dated 1-3-1981 and Resolution No,338 dated 7-6-1988 (Exh.P.16 and P.17) which reveal that the names of specific builders to whom the resolution is to effect, are mentioned in the body of the resolution. The name of the plaintiff does not appear in it and the point for decision, as mentioned at Sr. No,10. The said documents, was in respect of allotment 'of flat sites and not in respect of Bungalow sites but flat sites which is admitted by D.W. In his cross-examination.
30. ' In view of the above this issue is answered in negative.
31. Issue No,4 ' While arguing on this issue learned counsel for the plaintiff has referred to a note dated 1-7-1997 Exh.P.34 through which Secretary, Housing and Town Planning, defendant No,1, has given indication that the plaintiff may be accommodated on lifting of ban. Therefore, according to learned counsel for the plaintiff, the effect of Notification (Exh.P.35) lifting the ban should have been to comply with the said aforesaid order/note Exh.P.34 by allotting suit plots in favour of the plaintiff.
32. ' Keeping in view the above position as well as a perusal of said Notification in which it appears that an emphasized is given to old claims of allotment of plots, this issue is decided in favour of the plaintiff.
33. Issue No,5 ' It is an admitted position that no allotment for suit plots was issued in favour of the plaintiff rather plaintiff has come for specific performance of contract in shape of issuance of allotment order, therefore, this issue need no discussion or finding.
34. ' Issue No,6 ' Plaintiff has produced various documents discussed above and there is ample evidence that the defendants took specific steps for allotment of the suit plots on the basis of which a man of ordinary prudence would be persuaded to believe that the plots are being allotted to him. Estoppel attracts section 114 of Qanun-e-Shahadat Order and is reproduced as follows:-- "Estoppel..--- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
35. ' In view of the payment followed by the preparation of site plan and intimation of plot numbers and subsequent developments, case in favour of the plaintiff is made out to the extent of determination of this issue for which reliance as placed on the cases of Messrs Excell Builders v.
36. K.M.C. 1999 YLR 2657, M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1652, Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 and Chairman, Selection Committee/Principal, King Edward Medical College, Lahore v. Wasif Zamir Ahmed and another 1997 SCMR 15. This issue is answered accordingly.
37. Issue No,7 Based on my findings on above issues Nos.1 to 6, there is a validand subsisting contract and the defendant No,2 has failed to give any plausible reason to for not complying with its commitment.
38. Therefore, this issue is answered in affirmative and the plaintiff is entitled to a decree of specific performance of the contract.
39. Issue No,8 , The P.W. Though has stated in his affidavit-in-evidence with regard to losses the plaintiff has suffered due to non-allotment of the suit plots in favour of the plaintiff, however, neither his deposition is corroborated by any other independent witness nor any document has been placed on record which ratify the claim of the plaintiff with regard to damages. Accordingly, the plaintiff is not entitled to the relief of damages.
40. Issue No,9 ' In view of the above findings on issues Nos.1 to 6, the plaintiff has cause of action to file the suit against defendant No,2.
41. Issue No,10 ' Taking into consideration the various aspects of this case, as pleaded, the plaintiff is a builder. The plots were to be allotted for sale of built up units and in the ordinary course of his business he would have raised construction and sold out the property. The plots in question are a constituent to such property on which the plaintiff would have earned his profit. To ascertain the question of damages it is also required to take into consideration the position as it existed at the time of allotment. The plaintiff could have approached the Court when the cause of action accrued initially. In view of my findings to the above issues I hereby decree the suit as follows:--
(i) That the plaintiff be allotted residential plots to the extent of an aggregate area of 8000 sq.
42. Yards in the scheme 24 of Gulshan-e-lqbal, out of the builders quota, if available, on the terms and conditions as stated in Exh.P.5.
(ii) In case no area is available in Scheme. 24 Gulshan-e-Iqbal, an aggregate area of 8000 sq.
43. Yards be allotted to the plaintiff in any of the forthcoming schemes of Karachi Development Authority or its successor Authority, as the case may be, at the prevailing price fixed by the authority.
(iii) The sum of Rs,17,000 along with interest at the rate of 10% per annum will be adjusted towards payment of the cost of such plots that plaintiff will be allotted as stated at (i) and (ii) above.
(iv) In the alternative the plaintiff is entitled to damages to the extent of 10% of the price of the 20 plots in addition to refund of the sum of Rs,17,000 together with interest thereon at the rate of 10% from the date of payment till the date of refund.
(v) Cost of the suit in favour of the plaintiff against the defendant. accordingly.