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Petitioner: Muhammad Ali Shamim VS Respondent: Farah Idrees etc
Court Name: Lahore High Court Judge(s): Safdar Saleem Shahid Title: Muhammad Ali Shamim vs Farah Idrees etc Case No.: Civil Revision No. 37938 of 2019 Date of Judgment:2022-05-26 Reported As: 2022 LHC 4450 Result: Civil Revision Dismissed
JUDGMENT
JUDGMENT SAFDAR SALEEM SHAHID, J. Through instant civil revision Muhammad Ali Shamim petitioner has challenged the validity of judgment and decree dated 08.03.2019 passed by learned Addl. District Judge, Lahore whereby Judgment and Decree dated 07.02.2018 passed by learned Civil Judge Ist Class, Lahore was upheld. 2. It is pertinent to mention here that respondents No.1 & 2 filed the suit for Specific Performance of Agreement to sell dated 20.08.2004 alongwith Declaration and Permanent Injunction against the petitioner/defendant Muhammad Ali Shamim, whereas the petitioner has also filed the suit for Declaration, Possession and Mandatory and Permanent Injunction against the respondents namely Farah Idrees and Sheikh Muhammad Idrees respondents No.1 & 2. Both the aforesaid suits were consolidated by the learned trial court and consolidated judgment was passed by the learned trial court. 3. Brief facts of the case in hand are that respondents Farah Idrees and Sh. Muhammad Idrees / respondents Nos. 1 & 2 preferred suit for specific performa nce with permanent injunction against the petitioner , contending therein that respondent No.1 Farah Idrees entered into an agreement to sell dated 20.08.2004 with petitioner / defendant for purchase of land measuring 03 - Kanals bearing plot No. 11 , Block - C , Model Town , Lahore i.e. Half portion of said plot , which is total measuring 06 - Kanal for total consideration of Rs. 1,70,00 ,000/- Plaintif f / respondent No. 1 paid Rs.40,00,000/- as earnest mone y through demand draft No.498714 , dated 20.08.2004, while balance consideration Rs, 1,30,00,000 / - was to be paid on or before 15.10.2004 As per agreement to sell dated 20.08.2004 plaintif f / respondent No.1 and defendant / petitioner agreed that plaintif f / respondent No.1 shall assume the consequences and responsibility of two civil suits, which were pending at that time and all the costs in this respect shall be borne by plaintif f / respondent No. 1. Petitioner / defendant executed a power of attorney dated 20.08.2004 in favour of plaintif f / respondent No.2 for the purpose of handling and contesting those cases. That plaintif f / respondent No.1 was made entitle to get the sale deed / transfer papers executed through court in case
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the defendant to transfer the suit property . After settlement of disputes with the parties, said suits were dismissed by the concerned court. After that plaintif fs/respondents became ready to perform their remaining part of agreement and with the mutual consent of the parties, defendant/petitioner applied to the Cooperative Model Housing Society / respondent No.3 for issuance of NOC for transfer of property through execution of sale deed in favour of plaintif f/respondent No.2 and society issued NOC in favour of plaintif f No.2 on 16.12.2004. The plaintif fs / respondents No.1 & 2 requested the defendant / petitioner to execute the sale deed but he informed that on 29.12.2004 one Ali Muhammad filed a suit for possession through specific performance in respect of suit property , in which court passed the status quo order . The defendant / petitioner delivered the copies of that suit to plaintif fs/ respondents and also physical possession of suit property to plaintif fs as part performance of the agreement to sell but time for execution / transfer of property was mutually extended until the disposal of said suit or vacation of status quo. Due to pendency of suit and in presence of status quo order parties mutually extended the time for execution of sale deed on many occasions but defendant / petitioner started pressurizing the plaintif fs for payment of balance amount despite of fact that suit was pending. The defendant / petitioner with malafide issued notice dated 13.03.2006 to the plaintif fs to the effect that the agreement to sell dated 20.08.2004 has become null and void and demanded return of possession of the suit property , hence , respondents/plaintif fs Nos. 1 & 2 filed suit. 04. Whereas, the petitioner/defendant filed a suit for declaration, possession with permanent injunction , wherein it has been contended that he was always ready and willing to fulfill his obligation under the agreement to sell and to show his bonafide without receiving the balance amount applied for NOC before Model Town Society , however , purchaser failed to fulfill her commitment to make payment on or before 15.10.2004 . The petitioner / plaintif f of second suit opted not to exercise the right to forfeit the earnest money at this time as he was willing and interested in completing the sale transaction with the respondent/defendant No.1 and this possession was clarified to them through letter dated 18.01.2005. The suit of Ali Muhammad was manipulated by respondents Nos. 1 & 2 in order to frustrate the agreement to sell as they were unable to pay the balance amount. After repeated requests to the plaintif f No.1 / respondent No.1 for fulfilling her obligation to pay the balance amount , the defendant / petitioner wrote final letter on 13.03.2006 by exercising his right of forfeiture of earnest money under the agreement to sell and consequently , the agreement to sell stood null and void and no propriety right of any kind stood in favour of plaintif fs/ respondents No. 1 & 2 but with malafide they took possession of suit property unlawfully by evicting the security employed by the defendant / petitioner and raised the construction over the suit property . So, petitioner / defendant filed a suit for declaration, possession with permanent injunction. 05. Adversaries contested the suits by filling written statements and both the suits were consolidated by learned trial court vide order dated 21.03.2014 , wherein plaintif fs/respondents , of earlier suit / defendants of later suit were stood as plaintif fs while petitioner/defendant of earlier suit / plaintif f of later suit was stood as defendant/petitioner . Out of divergent pleadings of the parties following consolidated issues were framed: CONSOLIDA TED ISSUES: 1. Whether the plaintif fs entered into an agreement to sell dated 20.08.2004 with the defendant regarding the suit property? OPP 2. Whether notice dated 13.03.2006 is liable to declared as null and void ab- initio and a product malafide on behalf of the defendant and same is inef fective against the rights of the plaintif fs qua the property? OPP 3. Whether the plaintif fs are entitled to get decree for specific performance of the agreement to sell dated 20.08.2004 , declaration and permanent injunction as prayed for OPP 4. Whether the plaintif fs have stopped by their own conduct rendered the agreement to sell void as per para - 9 of the agreement to sell which is a mutually agreed and enforceable terms of the said agreement to sell mutually agreed between the plaintif f No.1 and the defendant? OPD 5. Whether the suit is bad for misjoinder of the parties in its present form , hence , same is liable to be dismissed? OPD 6. Whether the defendant is liable to be declared as lawful owner of the property and entitled to get the possession of the suit property? OPD 7. Whether the defendant is entitled to get decree for recovery of possession and permanent injunction? OPD
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8. Whether the suit of defendant is not maintainable in the eye of the law as the defendant has filed this suit just to blackmail the plaintif fs? OPD 9. Whether defendant has come to the court with unclean hands? OPP 10. Whether the defendant has no cause of action? OPP 11. Whether the defendant has filed the instant suit as counterblast? OPD 12. relief 06. Learned trial court also framed additional issues on the request of defendant / petitioner after accepting his application . Additional issues are reproduced hereunder: ADDITIONAL ISSUES 5-A. Whether the plaintif f breached the agreement to sell dated 20.08.2004? OPD 5-B. Whether the term breach by the plaintif f was fundamental in nature, which vitiate the agreement to sell dated 20.08.2004 and entitled the defendant to repudiate the agreement to sell? OPD 5-C. Whether the plaintif f is not entitled to an order of specific performance of agreement to sell dated 20.04.2008? OPD 5-D. Whether the plaintif f is in breach of status quo order passed by this learned court on 02.04.2012 in suit filed by the defendant titled " Muhammad Ali Shamim Vs. Farah Idrees etc "? OPD 07. After framing of issues both the parties were invited to furnish evidence. Oral evidence of the plaintiff 08. Plaintif f during this marathon of litigation has produced following evidence; Sr. No. PWs Name of witnesses 1. PW-1 Muhammad Idrees / plaintif f No.2 2. PW-2 Ch . Nazir Amad (stamp vendor) 3. PW-3 Sheikh Muhammad Arshad s/o Muhammad Nazir Documentary evidence of the plaintiffs Sr. No. Exhibits Name of witnesses 1. Ex-P-1 Special power of attorney in favour of Muhammad Idrees by Farah Idrees 2. Ex-P-2 Agreement to sell dated 20.08.2004 3. Ex-P-3 Pay order No.498714 dated 20.08.2004 4. Ex-P-4 Special power of attorney executed by defendant in favour of Muhammad Idrees 5. Ex-P-5 Certified copy of suit for possession through specific performance titled Muhammad Arif vs Syed Muhammad Ali Shamim alongwith order dated 04.09.2004 6. Ex-P-6 Certified copy of suit for specific performance titled Ch. M. Younis vs M. Ali Shamim etc" alongwith order dated 07.09.2004 7. Mark-A Copy of Share Certificate of the defendant regarding suit property . 8. Mark-B Copy of application moved by defendant for NOC issued by the Cooperative Model Town, Society , Model Town Lahore. 9. Mark-C Copy of NOC issued by the Cooperative Model Town, Society , Model Town Lahore. 10. Mark-D Copy of application to SHO Police Station Model Town, Lahore moved by defendant. 11. Mark-E Copy of legal notice dated 13.12.2004 issued by plaintif f No. 1 to defendant. 12. Mark- E/1Copy of legal notice dated 15.10.2004. 13. Mark-F Copy of cash / transfer slip dated 05.04.2016. Oral evidence of defendant / appellant
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Sr. No. PWs Name of witnesses 1. PW-1 Muhammad Ali Shamim / Defendant 2. PW-2 Naeem Bari , Inchage Record Department Property , Model Town Society Documentary evidence of defendant / petitioner . Sr. No. Exhibits Name of witnesses 1. Ex-D-1 Letter dated 29.03.12 issued by Cooperative Model Town Society Model Town , Lahore bearing Ref NO.CED / 755 / 12 2. Ex-D-2 Letter dated 28.03.12 written by defendant to the present Cooperative Model Town Society 3. Ex-D-3 Receipts of courier 4. Mark-DA Copy of reply to the legal notice dated 18.01.2005 5. Mark-DB Copy of letter dated 18.01.2005 issued by defendant to defendant No.2 6. Mark-DC Copy of letter dated 10.02.2005 issued by defendant to the plaintif f No.2 7. Mark-DD Copy of letter issued by defendant to the plaintif f No.2 dated 07.1 1.2005 8. Mark-DE Copy of reply to the show cause notice dated 19.10.2004 9. Mark-DF Copy of reply dated 13.03.2006 After hearing the arguments of learned counsel for the parties, the learned trial Court gave issue-wise findings on the basis of evidence as well as the pleadings the following relief was granted to the respondents/plaintif fs No.1 & 2:- The suit of the plaintiffs/respondents No.1 & 2 for specific performance of agreement to sell, declaration and permanent injunction is decreed in favour of the plaintiffs/respondents No.1 & 2 and against the defendant/petitioner as prayed for while second suit of the defendant/petition er for declaration, possession, mandatory and permanent injunction is hereby dismissed. 9. The aforesaid judgment and Decree was assailed before the learned Appellate Court through Civil Appeal No.50 of 2018 which was upheld by the said court vide judgment and decree dated 08.03.2019. Being aggrieved by the said judgment and decree, the petitioner/defendant filed the instant Civil Revision before this Court. 10. Learned counsel for the petitioner/defendant while arguing the case showed his reservation regarding the judgments of both the courts below with the version that the both the courts below ignored the main question in dispute between the parties; that agreement to sell Exh. P-2 was misinterpreted by both the courts below; that the contents of agreement to sell Exh.P-2 are very clear and conditions No.5 & 9 of the agreement to sell have been misinterpreted by both the courts below; that it was incumbent upon the respondent No.1/plaintif f to make the payment of remaining consideration to the defendant/petitioner on the targeted date i.e 15.10.2004 and only after receipt of balance consideration, the petitioner/defendant was under obligation to transfer the suit property in the name of the plaintif f/respondent No.1 but he (respondent No.1/plaintif f) failed to make payment of balance consideration within the stipulated period, rather , the plaintif f /respondents themselves managed to file a frivolous suit on behalf of one, Ali Muhammad, titled as Ali Muhammad vs Syed Muhammad Ali Shamim and got status quo order dated 29.12.2004; that the respond ents/plaintif fs were never ever ready to perform remaining part of their obligation under agreement to sell dated 20.08.2004 and they avoided the payment under the agreement to sell, hence the petitioner/defendant was constrained to issue a letter dated 13.03.20 06 to the plaintif fs/respondents, however , despite several verbal assurances from the plaintif fs and letters of the defendant/petitioner , no positive response was shown from the plaintif f's side. It was further argued that the due date for payment of the balance consideration under the agreement to sell dated 20.08.2004 was 15.10.2004 and non-compliance of the terms and conditions on the part of the plaintif fs/respondents rendered the same as null and void ; that the relevant evidence has also been misread by both the courts below which is necessary to be discussed and elaborated for just decision of the case; It was further argued that both the courts below had relied upon those factors which were not in existence in document Exh.P-2; that NOC from a model Town Society was not a question of Exh. P-2 (agreement to sell) but unnecessarily both the courts below had relied upon that factors which have been agitated
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by the respondents; that malafide on the part of the respondents/plaintif fs was obvious that they did not make the payment of balance consideration within the stipulated period inspite of having NOC from the concerned Department and they illegally and forcibl y occupied the property in question without any title but both the courts below did not consider this aspect of the matter; lastly while relying on the cases reported as Mst. Samina Riffat and others vs Sohail Asghar and others (2021 SCMR 07) and Inayatullah Khan and others vs Shabir Ahmad Khan (2021 SCMR 686) learned counsel for the petitioner submits that the relevant evidence was neither taken into consideration nor discussed by both the courts below , hence impugned judgments and decrees passed by both the courts below are not sustainable in the eyes of law; 11. On the other hand, learned counsel for the respondents/plaintif fs has vehem ently opposed the instant civil revision with the version that suit for Specific Performance of Agreement to Sell dated 20.08.2004 alongwith declaration and permanent injunction was filed within time and agreement to sell Exh. P-2 was an admitted document; that the respondents/plaintif fs have not only fulfilled all the required conditions but also produced all the relevant evidence before the learned trial court which was rightly considered and analyzed by both the courts below; that the defendant/plaintif f remained failed to perform his part of the agreement and by his own words and conduct, he extended the time of performance of contract, hence, time was not essence of agreement to sell dated 20.08.2004; It was further argued that it was responsibility of the plaintif fs/respondents to get decided two suits which were mentioned in the agreemen t to sell dated 20.08.2004 but in addition to that suits, at the time of issuance of NOC from Model Town Society a new civil suit for specific performance titled Ali Muhammad vs Muhammad Ali Shamim and status quo order dated 29.12.2004 passed in said suit came on the surface and its liability was on the defendant/petitioner but he failed to discharge his liability to get the said suit decided rather , the plaintif fs/respondents from their own pocket managed to get the said suit closed, hence, the defendant/petitioner not the respondents/plaintif fs should have to pay the cost for not performing his part of the contract. Thus, it is submitted that instant civil revision is liable to be dismissed. 12. Arguments heard. Record perused. 13. Instant civil revision has been filed against the concurrent findings of both the courts below . Prior to going into the detail of the proposition in hand, I would like to reproduce the section 2(e) of the Contract Act, 1872, definition of the Agreement which is the main subject of the proposition. Under the contract Act under section 2(e): "Agreement defined as " every promise and every set of promises, forming the consideration for each other is an agreement" It means that no more than concord a transaction between two parties, that may lead to a contract. It consists of mutual expressions, though not of harmon ious intentions or state of mind. It is by the conduct of the parties by their bodily manifestations, that the court determines the existence of the agreement. Indeed, an agreement is nothing more than a manifestation of mutual assent by two or more legally competent persons to one another . According to clause (e) of section 2 of the Contrac t Act, 1872 every promise and every set of promises, forming the consideration for each other in order to constitute an agreement. There must be a proposal from the second party and response of the other party constitute an agreement. In the instant case, both the parties entered into an agreement which is available on file as Exh. P-2. There is no dispute regarding its execution between the parties. The actual dispute between the parties is regarding the interpretation of condi tions No.5 & 9. I would like to reproduce both these conditions as under:- (5) That the seller has agreed to sell and the purchaser has agreed to purchase the above said plot at the total price of Rs.1,70,00,000/= (Once Crore and Seventy Lacs only), out of which Rs.40,00,000/= (Forty Lacs only), has been paid as advance/earnest money by the purchaser to the seller vide Demand draft No. 498714 of 20.08.2004, Bank Al-Habib Limited Branch, Main Branch, Lahore (which is hereby acknowled ged). The remaining amount of Rs. 1,30,00,000/= (One Crore Thirty Lacs only) shall be paid on or before 15th October 2004. The payment will be deposited in the seller 's following acco unt: Dr. Muhammad Ali Shamim, PLS Account No. 2255-3, Muslim Commercial Bank, Sidco Centre Branch near PIA booking office Karachi. The Seller will hand over all original documents relating to the property mentio ned above at the time of Final Payment, The seller shall execute a power of attorney in the favour of Sheikh Muhammad Idrees, the husband of the buyer at the time of execution of this
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agreement with the sole purpose to contest the two litigations as quoted above. However , all costs shall be borne by the purchaser and the purchaser shall not commit any charges, costs or liabilities on behalf of the seller . (9) In case the Purchaser fails to pay the balance amount as per the schedule in Para-5 above, irrespective of the reasons for the non-payment, the earnes t money will be forfeited and this agreement will be null and void, and in case the seller refuses or denies to transfer the plot, the purchaser has the right to get execution of Transfer Papers/Sale Deed through court or to claim double of the paid earnest money and also expenses incurred in this connection. I am fortified in my view by the law in case titled Syed Muhammad Saadat Ali Khan vs Mirza Wiquar Ali Beg and others (AIR (3), 1943 Privy Council 1 15) has settled this matter as follows:- (a) Deed-Construction-Rule of, indicated. In construing a written document the whole document should be considered, and it is from the language used therein by the parties and not from any preconceived notion of likelihood or unlikelihood that the intention of the parties is to be ascertained. It is wrong to start with an inspired assumption that it is unlikely that one party could or would have assented to a particular provision, and then to hold that because so unlikely a provision is not contained in the document in clear and express terms, it cannot have intended to apply . The petitioner/defendant took stance that time was essence in the agreement to sell dated 20.08.2004 because it provides for payment of balance conside ration as 15.10.2004 but the plaintif f No.1 failed to make the payment of balance consideration on the targeted date and even after the due date, therefore, penal clause of the agreement to sell mention in condition No.9 will become operative which disentitled the plaintif f No.1/respondent to get the relief on the basis of agreement to sell dated 20.08.2004. 14. Whereas the version of the plaintif fs/respondents was that defendant/petitioner failed to perform his part of the contract and by his own words and condu ct he extended the time for performance of the agreement, therefore, time was not essence of the agreement to sell dated 20.08.2004. 15. The agreement to sell dated 208.2004 is an admitted document, as both the parties have not challenged its execution or existence. The basic controversy between the parties is that the defendant/petitioner is treating the time specified in the agreement as an essence of the contract whereas the plaintif fs/respondents alleged that the date was stipulated in the agreement for completion of the agreement to sell and for effecting registered sale deed in favour of the plaintif fs/respondents and parties never intended to treat the time as an essence of the contract. The agreement Exh.P-2 is available on the file which shows that the parties had fixed the date of 15.10.2004 for payment of balance of consideration and for completion of the process of transfer of suit property in favour of the plaintif fs/respondents. As per agreement to sell (Exh.P-2) the plaintif f/respondents was to make the payment of balance consideration of Rs. 1,30,00,000/- on or before 15.10.2004 and the defendant /petitioner was to hand over the possession of the suit property to the plaintif fs/respondents and make himself available to sign all the documents which he has called upon to sign by the plaintif f/purchaser in connection with the transfer of the suit plot in favour of the plaintif f/respondents. In para/condition No.9 of the agreement to sell (Exh.P-2), the obligation was created for the plaintif f/ respondent No.1 that if she does not pay the balance of sale price to the defendant/petitioner within the targeted date, the earnest money shall stand forfeited and if the defendant refused or denies to transfer the suit plot, an option was given to the defendant/petiti oner to get sale deed through indulgence of the court or to claim double of the paid earnest money and also expe nses incurred in this connection. In the preceding paragraph, I have already mentioned the definition of the agreement under section 2(e) of the Contract Act. Meaning that intention of the parties is very much relevant to interpret the conditions mentioned in the agreement to sell. These conditions cannot be independently discussed and un-dissolved. The intention can only be assessed from the conduct and act of the parties. In the case of House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others (1992 SCMR 19), the Hounourable Supreme Court has laid down the principle of construction of an agreement in the following manner: The contract has to be construed strictly and literally without deviating or implying anything which is not supported by the intention of the parties and the language of the document. It is a salutary principle of consideration of document that nothing can be implied in a contract which is inconsistent with its expressed terms. In West
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Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi PLD 1973 SC 222, it was held that a stipulation not expressed in a written contract should not be implied merely because the Court thinks that it would be a reasonable thing to imply it. Such an implication can be made only on consideration of the terms of the contract in a reasonable…
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