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Petitioner: Mrs. Anjum Ara VS Respondent: Shabbir A. Halai
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title: Mrs. Anjum Ara vs Shabbir A. Halai Case No.: Suit Nos. 90 and 443 of 2004 Date of Judgment:2020-03-20 Reported As: 2021 YLR 1476 Result: Order accordingly
JUDGMENT
JUDGMENT ARSHAD HUSSAIN KHAN , J.---These counter suits filed by the parties against each other have been consolidated, vide order dated 31.05.2004 on the ground of common facts, issues and evidence as well. Hence, they are taken up together for disposal of the same. 2. Suit No.90/2004 was instituted by Mrs. Anjum Ara agains t Mr. Shabbir A. Halai on 23.12.2003 for Declaration and Cancellation of Sale Agreement Dated 02.04.2003, Possession, Damages and Permanent Injunction with the prayer to pass judgment and decree in favour of the Plaintif f against the Defendant as follows:- a) Declare the Sale Agreement dated 02.04.2003 as null and void in the eyes of law and same may be cancelled. b) Pass Judgment and Decree by directing the Defendant to hand over the physical / vacant possession of Bungalow No.54, First Street, Khayaban-e-Rahat, DHA, Karachi, to the Plaintif f. c) Restrain the Defendant, his Agents, Servants, Attorneys or whosoever claiming through or under him by granting permanent injunction, not to hand over the possession of Bungalow No.54, First' Street, Khayaban-e-Rahat, DHA, Karachi to any other person. d) Direct the Defendant to pay damages to the Plaintif f @ Rs.50,000/- per month as rental of said Bungalow with effect from 17.07.2003 until final disposal of the matter . e) Award all cost(s) and consequences against the Defendant for the redress of Plaintif f's grievances. f) Grant any other relief(s) deemed fit and proper under the circumstances of the present case. Whereas Suit No.443/2004, was filed by Mr. Shabbir A. Halai [defendant in Suit No.90/2004 ], against Mrs. Anjum Ara [plaintif f in Suit 90/2004], on 27.04.2004 for specific performance and injunction with the following prayers:- a. The Defendant and/or anyone else claiming through and/or under her, to specifically perform the sale agreement dated 2nd April 2003 and, inter alia, to do all acts deeds necessary to secure Form "B" Lease from Defence Housing Authority in respect of the Plot No.54, Ist Street, Phase-VI, Khayaban-e-Ra hat, Defence Housing Authority ,
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Karachi, admeasuring 600 Sq. Yds.. and transfer the same with construction there on by execution and registration of a proper conveyance deed in favour of the Plaintif f against balance payment of Rs.52,50,0000/- by the Plaintif f to the Defendant in terms of the aforesaid sale agreement; and/or alternatively the Nazir of this Court or any other person be appointed to effectuate and do the afore-stated acts and deeds to specifically perform the sale agreement dated 2nd April 2003 and, inter alia, to also do all acts pursuant thereto as could and are required to be performed by the Defendant for Specific Performance of the said sale agreement in the manner afore-stated. b. Injunction restraining the Defendant, her agents and/or anyone else claiming through or under her from creating any encumbrance, charge or third party interest in and over the subject suit property in any manner whatsoever . c. Costs of the present suit proceedings throughout and d. any other , better or additional relief(s) to the Plaintif f as may be necessary or considered appropriate under the law and in equity by this Court in the events and circumstances of the present case. 3. Briefly , the facts of the cases, as narrated in the pleadings of Mrs. Anjum Ara, hereinafter referred to as the Plaintif f, are that she being the sole, exclusive and lawful owner of Bungalow No.54 admeasuring 600 Square Yards, First Street, Khayaban-e-Rahat, DHA, Karachi [Suit Property] entered into a sale transaction with Mr. Shabbir A. Halai, hereinafter referred to as the Defendant to sell the suit property vide agreement dated 02.04.2003. It has been stated that as per terms of the subject sale agreement the transaction was to be completed by both the parties positively on or before 15.08.2003. It has been stated that under the terms of the contract the physical possession of the suit property was handed to the defendant solely to complete the remaining 20% of the construction work, however , the defendant illegally and without consent of the Plaintiff has occupied her bungalow and started living therein with his family after paying only the advance money of Rs.1.65 million and without releasing the huge balance sale consideration of Rs.52,50,000/. It has been further stated that only after payment of the balance sale consideration the defendant is entitled to have legal possession of the suit property . It has been also stated that due, to defendant's mala fide conduct and breach of contract, the plaintif f could not meet her obligations, under clause (3) of the sale agreement dated 04.04.2003, executed by her with one Muhammad Shamim for the purchase of a 600 Sq. Yds., an alternate accommodation bearing bungalow No.364, Defence Officers Housing Scheme No.1, Malir Cantonment, Karachi, by failing to pay the balance gale consideration amounting to Rs.5 million out of a total sale consideration of Rs.6.5. million and has suffered, vide clause (4) thereof, a heavy penalty @ 7.5 per month to the above vendor on the unpaid balance sale consideration. The defendant also deprived the plaintif f of substantial income / return on her huge investment blocked in the suit property and monthly rental @ Rs.50,000/- which at present stands at Rs.75,000/- per month prevailing in the subject location of DHA. It has been further stated that the defendant now has shown his willingness to pay to the plaintif f balance sale consideration of Rs.5.25 million whereas the prices of properties in DHA have tremendously appreciated and the present value of the suit property exceeds Rs.10 million, which would cause huge losses to the plaintif f in terms of equalization of money. It has been further stated that in view of the fraudulent conduct and breach of contract committed by the defendant, the sale agreement dated 02.04.2003 has lost its legal sanctity having become invalid, void and not enforceable against the plaintif f and as such the same is liable to be cancelled and the plaintif f is entitled to recover back the possession of the suit property besides damages. 4. Conversely , the stance of Shabbir A. Halai [defendant] in his plaint as well as written statement in the suit of Mrs. Anjum Ara [plaintif f] is that the agreement dated 02.04.2003 was lawfully executed between the parties in respect of the suit property . It has been stated that the defendant has fully performed his part of the sale agreement in letter and spirit, however , it is the plaintif f who instead of performing her part of obligation under the contract, preferred to indulge in endless chain of correspondence with ulterior motives and to wriggle out from her commitment under the aforesaid sale agreement and foist on the defendant consequences of her own breach and wrongs, acts of omission and/or commission. It has been further stated that the mortgage was redeemed and the loan encumbrances on the suit property was removed / discharged from the money paid by the defendant to the plaintif f in part performance of the sale agreement; thus after redemption of outstanding mortgage loan the value of the suit property appreciated for which the investment made by the .defendant as its buyer under the aforesaid sale agreement and it has created legal and equitable rights, interest and entitlement in and over the suit property in
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favour of the defendant which cannot be denied under the law. It has been further stated that due to paucity of funds the plaintif f was not only unable to redeem her outstanding mortgage loan on the suit property but was also unable to complete construction work of the suit property so as to render it habitab le. It has been stated that in part performance of the sale agreement the defendant paid substantial amount of money to the plaintif f towards part payment of sale price as advance for sale of the suit property out of which the plaintif f paid her outstanding mortgage loan on the suit property was redeemed and discharged to make it legally sale-worthy in favour of the defendant. It has been further stated that the plaintif f took possession from the defendant of her incomplete under construction suit property and subsequently under the terms of the sale agreement carried out and completed the construction with a total cost of Rs.20,00,000/- to render it in habitable and then after effectuating requisite documentation formalities and obtaining completion certificate from the Clifton Cantonment Board/DHA and to secure Form .B. Lease from DHA to ultimately enable her to legally transfer the suit property by execution and registration of proper conveyance deed infavqur of the Plaintif f as its buyer . It has been further stated that the defendant not only specifically performed his part of the sale agreement and fulfilled all his obligations and commitments much prior to the stipulated period in the agreement which was also brought to the knowledge of the plaintif f. Furthermore, the defendant also shown his readiness and willingness to gay the balance sale consideration to the plaintif f in accordanc e with the terms and conditions of the sale agreement. It has also been stated that the defendant is still ready and willing to specifically perform the sale agreement on his part, however , it is the plaintif f who did not fulfill her part of the contract and with ulterior motives thus the defendant filed the suit for specific performance of the agreement. It has been also stated that the defendant caused a public notice issued by her in Daily News, contents whereof are preposterous and libelous and intended simply to defame the defendant and issuance of such a public notice demonstrates the mischief and mala fides. It has been prayed that defendant's suit may be decreed whereas the suit of the plaintif f is liable to be dismissed with compensatory costs to the Defendant under section 35-A, C.P .C. 5. On 05.09.2005, out of the pleadings following issues were framed by this Court: 1. Whether the Plaintif f or the Defendant committed breach of sale agreement dated 02.04.2003, if so, its ef fect ? 2. Whether due to acts and deeds of the Defendant, sale agreement dated 02.04 .2003 has lost its legal sanctity and the same is no more valid and enforceable against the Plaintif f ? 3. Whether the Plaintif f is entitled to claim rental at the rate of Rs.50,000/-per month with effect from 17.07.2003 as compensation for illegal occupation and use of the suit property by the Defendant as his family's residence without consent of Plaintif f and without making payment of balance sale consideration of Rs.52,50,000/- and for causing losses to the Plaintif f, till final disposal of the suit or possession of the suit property is handed over to the Plaintif f ? 4. Whether the Plaintif f entered into an agreement of sale dated 04.04.2003 with one Muhammad Shamim [Annexure Y at page 151 of Suit No.90/2004] for purchasing a fully constructed bungalow No.364, measuring 600 square yards, Scheme No.1, DHA, Malir Cantt., for a total sale consideration of Rs.65,00,000/- and whether the Plaintif f could not fulfill her obligations under the said agreement due to Defendant's breach of sale agreement dated 02.04.2003 in respect of suit property , if so, its ef fect ? 5. Whether the agreement to sell dated 02.04.2003 between Plaintif f and the Defendant in respect of suit property is liable to be cancelled? 6. Whether the Plaintif f is entitled to claim possession of the suit property? 7. Whether suit No.443/2004 filed by Defendant Shabbir A. Halai against Plaintif f Mrs. Anjum Ara for specific performance of Agreement to sell dated 02.04.2003 is not maintainable? 8. Whether the Defendant is not entitled to seek relief of specific performance of the contract / agreement 02.04.2003 in Suit No.443/2004? 9. Whether the Plaintif f in Suit No.90/2004 was unable to redeem her mortgage on the subject property due to paucity of funds with her and such redemption of the mortgage loan was done with money paid to her by the Defendant under the Sale Agreement? 10. Whether the Defendant in Suit No.90/2004 as buyer has invested/incurred expenditure of Rs.20, 00,000/- on the subject suit property to render it habitable and sale worthy?
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11. Whether in the part performance of the Sale Agreement dated 02.04.2003 the Defendant was put in possession of the property and whether the Defendant has indicated through evidence his willingness to comply with his obligations contained in the Agreement? 12. To what relief, if any , the Plaintif f is entitled? 13. What should the decree be? Thereafter , the evidence was recorded through commission and after completion of the evidence, the Commissioner filed his report dated 18.09.2007, which was taken on the record on 24.11.2008 and the matter was directed to be fixed for final arguments. From the report of the commissioner for recording evidence, it appears that the plaintif f, in support of her stance, has produced in all eight (8) witnesses viz. (i) Dr. Lateef Siddiqut as PW-1, (ii) Muhammad Anees Akhtar Engineer as PW-2, (iii) Syed Iftikhar Ahmed of Ghandhara Consultant as PW-3, (iv) Muhammad Shamim Architect as PW-4, (v) Mr. Arifullah Khan Engineer as PW-5, (vi) Mr. Najeeb Iqbal Engineer as PW-6, (vii) Muhammad Farhan Builder as PW -7 and (viii) Syed Imran Ali as PW -8, whereas the defendant produced two (2) witness viz. (i) Shabbir A. Halai as DW -1 and (ii) Ali Asghar of Hashim Ali & Co. as DW -2. 6. Record also transpires that PW-1, Dr. Lateef Siddiqui, General Attorney/ Husband of the Plaintif f, during his examination has produced the following documents :- DOCUMENTS EXHIBITS Affidavit in evidence P/1 Original General Power of Attorney.P/2 Certified Copy of the Plaint of Suit No.90/2004.P/3 Certified copy of Written Statement of Suit No.443/2004.P/4 Photocopy of Sub-Lease Dated 03.01.1994P/5 Photocopy of Agreement of Sale dated 02.04.2003.P/6 Receipt and Letter of Possession dated 01.04.2003.P/7 Photocopy of Letter dated 05 .07 .2003P/8 Original Letter dated 15.07.2003P/9 Office copy of Letter dated 18.07.2003P/10 Office copy of Letter dated 28 .07.2003P/11 Office copy of Letter dated 04.08.2003P/12 Photocopy of Letter dated 08 .08 .2003P/13 Photocopy of Letter dated 11.08,2003P/14
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Photocopy of Letter dated 13.08.2003P/15 Original Letter dated 11.08.2003P/16 Copy of Letter dated 16.08.2003P/17 Photocopy of Letter dated 13.08.2003P/18 Copy of Letter dated 28.08.2003P/19 Original Letter dated 28.08.2003P/20 Photocopy of Letter dated 30.08.2003P/21 Original Newspaper Cutting dated 07.09.2003P/22 Photocopy of Letter dated 08.09.2003P/23 Photocopy of Letter dated 08.09.2003P/24 Photocopy of Letter dated 17.09.2003P/25 Original Letter dated 18.09.2003P/26 Photocopy of Letter dated 27.09.2003P/27 Photocopy of Legal Notice dated 14.10.2003P/28 Original Letter dated 22.10.2003P/29 Photocopy of Letter dated 28.10.2003P/30 Agreement of Sale {original] dated 04.04.2003 between Mr. Muhammad Shamim and Mrs. Anjum AraP/31 Original Receipt dated 04.04.2003P/32 Endorsement on the receipt dated 18.12.2003.P/33 Property V aluation Report dated 04.08.2001P/34 Builder Certificate issued by National Builders and Developers dated 16.06.2002.P/35
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Original Letter dated 18.10.2005.P/36-A Certificate dated 18.10.2005 P/36-B Original Letter dated 19.10.2005 of Pak Real Estate.P/37-A Survey Report dated 19.10.2005 of Sadiq and Sons Property ConsultantsP/37-B Summary Statement regarding proof of contentsP/37-C The above named Plaintiff's General Attorney was also cross-examined by the Defendant's counsel . Thereafter depositions were recorded of PW-2 as Exh.5, PW-3 as Exh.6 , who also produced the documents viz. Authority Letter dated 22.06.2006 as Exh.6/1, and letter dated 02.08.2001 of IHFL, where by M/s. Ghandhara Consultants were requested to carry out survey of the suit property as Exh.6/2. PW -4 as Exh.7, PW-5 as Exh.8 and lastly , deposition of PW-6 was recorded as Exh.9. The above said witnesses were duly cross-examined by learned counsel for the defendant. 7. After completion of evidence of the plaintif f, DW-1 came up for evidence and during his deposition, he has produced the following documents:- DOCUMENTS MARKED Affidavit in evidence Exh. D/1 Photocopy of Agreement of Sale dated 02.04.2003.D/2 Photocopy of Receipt of Aftab Brothers dated 11.02.2003D/3 Photocopy of Receipt dated 21.04.2003D/4 Photocopy of Letter of Possession dated 01.04.2003.D/5 Photocopy of NOC dated 07.04.2003D/6 Receipt and Letter of Possession dated 01.04.2003.D/7 Photocopy of Letter dated 08.04.2003D/8 Photocopy of Letter dated 23.04.2003D/9 Photocopy of Letter dated 26.04.2003D/10 Photocopy of Letter dated 20.06.2003D/11
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Office copy of Letter dated 05.07.2003D/12 Photocopy of Legal Notice dated 15.07.2003D/13 Photocopy of Letter dated 18.07.2003D/14 Photocopy of Letter dated 28.03.2003D/15 Photocopy of Minutes of Meeting dated 26.07.2003D/16 Copy of Letter dated 04.08.2003D/17 Photocopy of Letter dated 08.08.2003D/18 Photocopy of Legal Notice dated 1 1.08.2003D/19 Photocopy of Letter dated 13.08.2003D/20 Photocopy of Letter dated 16.08.2003D/21 Photocopy of Letter dated 25.08.2003D/22 Photocopy of Letter dated 28.08.2003D/23 Photocopy of Legal Notice dated 28.08.2003D/24 Photocopy of Letter dated 30.08.2003D/25 Photocopy of Letter dated 08.09.2003D/26 Photocopy of Letter dated 11.09.2003D/27 Photocopy of Letter dated 17.09.2003D/28 Photocopy of Legal Notice dated 18.09.2003D/29 Photocopy of Letter dated 27.09.2003D/30 Photocopy of Legal Notice dated 14.10.2003D/3I Photocopy of Reply to Legal Notice dated 22,10.2003D/32 Photocopy of Letter dated 28.10.2003D/33 Photocopy of Notice dated 06.12.2003D/34
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Photocopy of Pay Order dated 19.02.2003D/35 Photocopy of Cheque dated 01.04.2003D/36 Photocopy of Receipt dated 22.02.2003 from KUN Advertising AgencyD/37 Photocopy of Public Notice published on 25.02.2003D/38 Photocopy of Letter dated 06.04.303 of Hashim Ali & Co.D/39 Photocopies of Photographs D/40-A to D/40-0
The DW-1 was subsequently cross-examined by plaintif f's counsel and during his cross-examination he has produced the following documents:--
DOCUMENTSEXHIBIT Bank Statement [photocopy] in respect of A/C 1015-071- 001042-50 9, Bank Al-HabibD/41 Bank Statement in respect of A/C 1015-081-000452-01-6, in the name of M/s. Lucky TradingD/42 Photocopy of Income Tax ReturnD/43 Copy of Approved plan of the suit propertyD/44 Photocopy of Letters dated 11.11.2000, 13.1 1.2000, 15.07.1996 and 30.1 1.1996D/45-1 to D/45-4 Photocopy of Letters dated 15.7.1996, (sic)15.7.1996, 8.4.2000, 29.4.2000, 13.5.2000, 29.5.2000 Certificate dated 29.5.2000, letter dated 1 1.11.2000 and letter 20.1 1.2000D/46-1 to D/46-9 Notice published in Dawn Newspaper dated 29.10.2006.D/47 Later , the evidence of DW-2 was recorded and during examination he filed his affidavit-in-evidence which has been brought on the record as Exh.14. He was also cross-examined by learned counsel for the Plaintif f. 8. During the course of arguments, learned counsel for the plaintif f while reiterating the contents of their pleadings has contended that the plaintif f vide agreement of sale dated 02.04.2003 has entered into the sale transaction with
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defendant to sell the suit property for a total sale consideration of Rs.6.9 million, out of which defendant paid to the plaintif f a sum of Rs.1.65 million as advance token money while the balance sale consideration was to be paid as per clause (3), and the agreement was to conclude as per clause (4) whereby transaction shall be completed by both the parties positively on or before 15.08.2003. It is further argued that physical possession of the suit property was given to the defendant as per clause (2) of the agreement to enable the defendant to carry out and complete the remaining construction work to its entirety . He has argued that the quantum of remaining construction work to its entirety was defined and qualified as per clause (22) of the agreement which states that total cost towards construction of said property shall be Rs.20,00,000/- and the defendant was bound to follow a very strict and precise time frame as per clause (18) of the agreement, which provides that vendee to complete the remaining construction work at his own cost and expense as soon as possible within the said stipulated period of five months or earlier . This clause also provides that both the Vendor and the Vendee shall be entitled to employ their own chowkidar during the period of constructio n work going on the said property . It is argued that in flagrant violation of clause (18) of the agreement, the defendant had ousted plaintif f's chowkidar and taken over illegal possession of the suit property and started residing thereat with his family . Further argued that the defendant did not care to expedite work before 15.08.2003 and failed to release the balance sale consideration. It is also argued that after taking over physical possession of the suit property on 01.04.2003, the defenda nt failed to perform his part of contract per clauses 2, 3, 4, 18 and 22, he also failed to make the premises habitable as per the requirements of the Clifton Cantonment Board/DHA rules and regulations, therefore, the Plaintif f was unable to submit the completion plan and then apply for B-Lease on or before 15.08.2003 as per clause (18) which provides: After the B- Lease is obtained by the Vendor from Pakistan Defence Officers Housing Authority , Karachi, the Vendor shall get the sale deed duly registered in favour of the vendee and handed over legal title of the suit property . It is argued that to find an alternate accommodation and for the impending marriage of her daughter , the plaintif f vide agreement 04.04.2003 had contracted to purchase a new house bearing No.364 , measuring 600 Sq. Yds. DHA, Scheme No.1, Malir Cantonment, Karachi, for a sale consideration of Rs.6.5 million and in this regard she had also made an advance payment of Rs.1.5 million whereas the balance payment was made on or before 15.08.2003 assuming receipt of balance sale conside ration from the Defendant. However , the plaintif f failed to make payment the balance sale consideration on the date stipulated in the agreement due to defendant's failure to release balance sale consideration amount on or before 15.08.2003, thus the plaintif f incurred a financial loss of Rs.1.5 million by way of penalty on the unpaid balance purchase price of the new house. It is also argued that the plaintif f's lawful property is in illegal possession of the defendant since 17.07.2003, the plaintif f continues to suffer financial losses. Insofar as the defendant's suit for specific performance of the agreement is concerned, the learned counsel has argued that the relief of specific performance of the contract is a discretionary and equitable relief which can be granted only to a party who has come to the Court with clean hands and to show his willingness to pay the balance sale consideration, which is seriously lacking in the defendant's case. He further argued that the suit of the defendant even otherwise is liable to be dismissed as it is now well settled that a party seeking specific performance of an agreement to sell is essentially required to deposit the sale consideration in court and failure of a party to meet the said essential requir ement disentitles him to the relief of specific performance whereas the defendant in his case neither deposited nor showed his willingness and readiness to deposit the balance sale consideration in the court. He has also argued that in view of the fraudulent conduct and breach of contract committed by the defendant, the agreeme nt of sale has lost its legal sanctity and have become invalid, void and not enforceable. Learned counsel finally prayed that the Plaintif f's suit No.90/2004 may be decreed and Defendant's suit 443/2004 be dismissed with costs. Learned counsel in support of his stance has relied upon the following cases of Anwar Sajjid v. Abdul Rashid Khan and another [2008 YLR 1239 ], Saeed Naseem Cheema v. Mrs. Rukhsana Khan [2005 YLR 1905 ], Mst. Bidhai v. Muhammad Suleman through legal heirs [2006 YLR 1520 ], Muhammad Yaqub v. Muhammad Nasrullah Khan and others [PLD 1986 SC 497], Raja Nasir Khan v. Abdul Sattar Khan and another [PLD 1998 Lahore 20], Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs [PLD 2011 SC 657], Faiz Ahmad v. Muhammad Sharif and 6 others [2005 MLD 298], Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others [1999 SCMR 1362 ], Ayub Ali Khan…
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