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Petitioner: Messrs MODERN FOOD INDUSTRIES VS Respondent: Messrs SACO FURNITURES And OTHER
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title: Messrs MODERN FOOD INDUSTRIES vs Messrs SACO FURNITURES And OTHER Case No.: Civil Revision No.2012 of 1991 Date of Judgment:1998-10-26 Reported As: 2001 CLC 1701 Result: Revision dismissed
JUDGMENT
JUDGMENT The epitomised facts giving rise to this Civil Revision Petition No.2012 of 1991 are as under:-- Messrs Saco Furnitures Mcleod Road, Lore was allotted Industrial Plot No.349-S, measuring 2 Kanals4 18 Marlas and 180 square feet in the Industrial Area of Lahore Township Scheme, Lahore and after observing all the requisite formalities possession of the plot was delivered on 25-5-1977. A written agreement was entered into between the plaintiff/respondent No.1 on the one side and the Province of the Punjab through the Secretary to Government of Punjab Housing and Physical Planning Department Lahore and District Housing Officer, Lahore, Township Scheme, Lahore (defendants Nos.1 and 2)/respondents Nos.2 and 3 on the otherside. According to the plaintiff he constructed boundary wall, small room and a store after submitting the building plan for the purpose of sanction and that he stored considerable quantity of sand and concrete in the plot. The stand of the plaintiff is that at the time of making the development through construction of roads in the area the Engineering Department of the said defendants removed a large quantity of earth from the plot where a ditch was formed which materially impaired its utility. The then District Housing Officer cancelled the plot from the name of the plaintiff on 24-1-1980, which was allotted to somebody else (who were the Naseem Fabrics vide Exh.P.4) without serving any show-cause notice or allowing the plaintiff an opportunity of being heard. On that an appeal was preferred before the Project Director which was accepted on 24-5-1983 on the condition that the outstanding dues would be deposited within one month which was so done on 25-6-1983 and thus, the plot came to be vested in him. Thereafter, another Notice No.2603, dated 31-3-1985 was served upon the plaintiff bringing to the notice of the plaintiff the fact of the non-completion of the building according to clause No.3 of the sale/grant agreement within the prescribed period who was
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directed to show-cause within 15 days why the possession of land may not be resumed and the amount of security forfeited to Government. The plaintiff sent the reply, dated 13-4-1985 to the aforesaid show-cause notice wherein he expressed that there was no failure on his part to perform his part of the agreement. In the said reply he mentioned about the submission of the plan of the intended construction and expressed that on approval thereof the construction would be carried out immediately. The stand of the plaintiff is that nothing has been heard thereafter as he had been waiting in the matter as well as about the approval of the building plan submitted by him. According to the plaintiff ten months before the bringing of the suit on 23-4-1987 he (Shahid A.I Babar, Managing Partner) visited the site when he found some massonary work being carried on the plot who was surprised thereof. The inquiries were made when it was revealed that the defendant No.2 vide ex parte order, dated 6-6-1985 cancelled the allotment from the name of the plaintiff on the ground that he had allegedly failed to submit the plan and to complete construction over the site. The stand of the plaintiff is that this order was passed on his back without hearing him. It further came to the notice of the plaintiff that the District Housing Officer, Lahore had allotted the Plot in dispute bearing No.349-S, Township Scheme, Lahore to Messrs Modern Food Industries Limited (defendant No.4/revision petitioner) on 25-2-1986. The averment of the plaintiff is that the cancellation of the plot and its subsequent allotment is illegal, unlawful, mala- fide, void and without jurisdiction because an agreement for the sale of the plot was duly entered into between the plaintiff and defendants Nos.1 and 2 and there was no question of cancellation of the same without hearing him especially when whole of the consideration amount was paid and the building plan for the purpose of sanction was submitted. It is maintained that in any event raising of the construction was not an essence of the contract and thus, defendants Nos.1 and 2 could not rescin or cancel the transfer of the plot. The stand has been taken by the plaintiff that Messrs Modern Food Industries Limited defendant No.4/petitioner was fully aware of the fact about the transfer of the plot in his name and thus, he did not acquire any title on the same. According to the plaintiff he filed his previous suit on 25-5-1986 when the firm was not registered and that after the registration of the firm the fresh suit was being instituted. With the aforesaid background the plaintiff/respondent No.1 prayed on 23-4-1987 for declaration to the effect that the action of the District Housing Officer, defendant No.2 in cancelling the allotment of plot from his name and allotting the same to defendant No.2 with delivery of possession were without jurisdiction, void ab initio and inoperative against his rights. It was further prayed that the defendants may be restrained permanently from interfering in any manner with the allotment of the plot in the name of the plaintiff and for the sanction of the plan submitted by him. The prayer for a decree for specific performance of agreement dated 19-5-1977 in favour of the plaintiff and against the defendants was also made. 2. The suit has vehemently been resisted by Messrs Modern Food Industries, Lahore (petitioner/defendant No.4) who submitted the detailed written statement on 22-4-1990 wherein it was pleaded that the suit was not correctly valued for the purposes of court-fee and jurisdiction, that the Civil Court has no jurisdiction to try the suit as the appeal on the administrative side is competent before the appellate authority of District Housing Officer, Lahore, that the allotment from the name of Messrs Saco Furnitures plaintiff/respondent No.1 was rightly cancelled pertaining to the plot in dispute which was correctly allotted in his name and after obtaining its possession the construction has been raised after the sanction of the site plan and that he is a purchaser of the plot in good faith without notice for value with which the plaintiff/respondent No.1 has no concern. It was specifically mentioned in preliminary objection No.5 of the written statement at. Saco Furnitures has maliciously attempted to make unsuccessful Messrs Modern Food Industries in the fulfilment of the purposes of the scheme for his own ulterior motives especially when he had not set up the required industrial unit. It was maintained in preliminary Objection No.6 that the suit
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for specific performance of agreement of sale was not maintainable and that the only remedy available to the plaintiff was to sue defendants No's 1 to 3 for the recovery of the amount allegedly paid by him to the District Housing Officer, Lahore. 3. According to the pleadings of the parties following issues were framed: Issue (1) Whether the suit is under valued for the purposes of court-fee and jurisdiction? OPD-4 (2) Whether the civil Court has no jurisdiction to try this suit? OPD-4. (3) Whether the present; suit is false and fictitious and the defendant No.4 is entitled to special cods? OPD-4 (4) Whether the suit does not disclose any cause of action against the defendant No.4? OPD-4 (5) Whether the suit is liable to be dismissed in view of preliminary Objections Nos.5 and 6 of the written statement? OPD-4 (5-a) Whether the defendant No.4 has purchased the suit-property bona fide for valuable consideration and without notice? OPD-4 (6) Whether the cancellation of the allotment from the name of the plaintiff is illegal, mala fide and without lawful authority and the subsequent allotment to defendant No.4 is void, without jurisdiction and ineffective against the rights of the plaintiff? OPP (7) Whether the plaintiff is entitled to the decree for sped to performance of the a dated 19-5-1977? OPP (8) Relief. 4. The parties produced their evidence, oral as well as documentary. Mr. Mansoor-ur-Rehman Khan Afridi, Advocate, Lahore P.W.1 was appointed as Local Commissioner in the previous suit titled as Messrs Saco Furnitures v. Province of the Punjab who visited the spot on 12-6-1986 and prepared his report a certified copy of which was submitted as' Exh.P.I. It occurs in his cross-examination that Syed Hasnain Muqaddis Managing Director of Messrs Modern Food Industries furnished the site plan to him. It is proper to record that according to Exh.P.I thtre existed previous (old) foundations whereupon fresh construction had been raised by defendant No.3. In the previous suit Messrs Modern Food Industries was arrayed as defendant No.3. Muhammad Akram, Inspector Housing and Physical Planning defendant P.W.2 stated that the possession of Plot No.349-S comprising 2 Kanals, 18 Marlas and 180 square feet was allotted in the name of Messrs Saco Furnitures on 4-5-1977 and its possession was delivered on 25-7-1977; that agreement a copy of which was Exh. P.2 was incepted; that thepossession of the plot was delivered to the plaintiff on 25-5-1977; that the allotment was cancelled from the name of the plaintiff vide order, dated 24-1-1980; that the plaintiff preferred an appeal (copy of memo. x of appeal Exh.P.3); that the appeal was accepted vide order, dated 24-5-1483 and Exh.P.4 was its certified copy; that the plaintiff was allowed to make payment which he made on 25-6-1983 vide copy of challan form Exh.P.5 and that about the cancellation of the plot from the name of Saco Furnitures no notice was sent. He added that notice dated 31-3-1985, copy EXh.P.6, was sent and that the plaintiff made the application, dated 13-4- 1985, copy Exh.P.7. He added that the officers discussed the matter in the office and cancelled the allotment on 27-5-1985 from the name of Messrs Saco Furnitures plaintiff who was not summoned and that no reply to the application dated 13-4-1985 (Copy Exh.P.7) was sent to the plaintiff. He stated that according to the office note dated 25-2-1986 the order for resumption of the possession from the plaintiff was passed regarding which no notice was issued to the plaintiff and that according to the report of the Sub-Engineer the possession wasresumed from the plaintiff. In his cross --examination he stated that the plot could be cancelled on three grounds, viz., first non- deposit of the price; secondly non-submission of the site-plan of the proposed construction and non-completion of the construction at the spot. He continued that the plot was cancelled for the second time as the site plan from construction was not submitted and the construction was not
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completed. He stated that the plaintiff was intimated vide letter, dated 10-6-1985 about the cancellation of the plot from his name and that the appeal could be filed. He stated that show- cause notice; dated 31-3-1985 was issued before the cancellation of the plot from the name of the plaintiff and that in the application submitted by the plaintiff the prayer was about the withdrawal of the show-cause notice. He stated that the land was transferred at the rate of Rs.8,000 per Kanal. He expressed his ignorance about the completion of theconstruction of Messrs Modern Food Industries. Sh. Abdur Rauf, Advocate, Lahore P.W.3 was also appointed as the Local Commissioner who visited the spot and submitted his report Exh.P.W.3/1, dated 4-6-1986 with respect to the construction at the spot. Mr. Riaz Hussain, Advocate P. W.4 is the Legal Advisor of the -plaintiff-firm while Abdul Hameed P. W.5 worked as a driver in Babar & Company wherein Shahid A.I Babar has also interest. According to them the boundary wall was raised by the plaintiff firm upto the height of three feet. They also stated about the construction made by Messrs Modern Food Industries during the pendency of the suit, Shahid A.I Babar Managing Partner of plaintiff-firm figured in the witness-box as P.W.6 who narrated the facts of the case. He deposed that after obtaining the possession of the plot on 25-5-1977 he raised the boundary wall of the height of three feet and one room. He stated about the receipt of notice, dated 31-3-1985. He stated about the submission of the reply, a copy of which is Exh.P.7, alongwith which he submitted the proposed site plan for sanction wherein hementioned the reasons for non--construction of the building and wherein he had prayed for the sanction of the site plan on the basis of the reasons mentioned therein. He added that whenever he went to the defendants he was intimated that he would be informed about the sanction of the site plan. He stated that Abdul Hameed P.W.1 informed him about the construction being carried out at the spot and be visited the same and that thereafter to the office of the District Housing Officer he came to know that his plot was allotted to Messrs Modern Food Industries, defendant No.4 (revision-- petitioner). The added that the stay order was issued and the construction being raised by the defendant No.4 was stopped who was granted the permission to pour the cement in the shuttering and that thereafter the construction was to be stepped out the said defendant continued in violation of the order of the Court. He stated that the site-plan has not been got sanctioned by Messrs Modern Food Industries. He stated that the allotment from his name was cancelled and made in the name of Messrs Modern Food Industries without legal justification. He stated in his cross-examination that on 4-5-1977 Messrs Saco Furnitures was an unregistered partnership firm. He stated that he was also a partner of Babar & Company, Lahore. He added that machinery was to be purchased after the construction of the building. He denied the suggestion that neither he submitted that site plan for sanction nor made any effort to purchase the machinery. He admitted that the plot was under the possession of Messrs Modern Food Industries. He denied the suggestion that he wanted to make sale of the plot and searched for the customers. The plaintiffs produced in evidence Exh.P.8, copy of application dated 2-6-1986 submitted by defendant No.4 before the Senior Civil Judge, Lahore; Exh.P.9 copy of interim order, dated 25-5-1986; Exh.P.10, Copy of interim order, dated 12-6-1986; Exh.P.II, copy of order dated 10-6- 1986 (all three passed by the Senior Civil Judge, Lahore); Exh.P.12 and Exh.P.13 each copy of affidavit submitted by Hasnain Muqaddis Managing Director of Messrs Modern Food Industries, defendant No.4; Exh.P.14 report, dated 4-2-1988 of the process-server on a we sent to Messrs Modern Food Industries and Exh.P.15, certified copy of the report, dated 8-2-1988 of the Local Commissioner. In rebuttal Mr. Llisan Ullah Khan, Deputy Director (Administration) House Management Kot Lakhpat, Lahore D.W.1 stated that Messrs Modern Food Industries made the application to obtain a plot in the industrial area and that specific plot number was not mentioned by the applicants in the matter. He deposed about the allotment of disputed Plot No.349-S in the name of Messrs Saco Furnitures and its initial cancellation frorn his name. He stated that vide order, dated 25-2-1986 copy Exh.D.3, the plot was allotted in the name of Messrs Modern Food industries who raised the construction
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and submitted the Completion Certificate copy Exh.D.4, dated 24-12-1986. He stated that the agreement was executed by Modern Food Industries (defendant No.4) a copy of which is Exh.D.5 date 25-2-1986. (However, it is proper to express for the purpose of correction at this stage that this date is 29-5-1986). In his cross-examination he stated about the allotment of the land in the name of Saco Furnitures, its cancellation, its restoration and issuance of notice, dated 31-3-1985. He stated that the plot was cancelled from the name of the plaintiff on 10-6-1985. He stated that there was no order, dated 10-6-1985 and rather it was a letter. He referred to the noting of the officer and order for cancellation of allotment on which no date is mentioned. He admitted that on the issuance of the show-cause notice the reply was submitted by the plaintiff which was processed with and the plaintiff was informed about the cancellation of the allotment. He added that the plaintiff could himself contact the office which remained open during office hours. He stated that for the purpose of completion certificate it is necessary that the construction is completed and the factory has started. He denied the suggestion that without the completion of the building the Completion Certificate was issued wrongly by the department which is helping the Modem Food Industries' without any justification. Mr. Muhammad Akram, Deputy Director Housing and Physical Planning Township, Lahore D.W.2 stated about the allotment of the plot in the name of Messrs Saco Furnitures and its cancellation thereafter. Mr. Javed Iqbal Malik, Assistant Director, Directorate of Industries and Mineral Development Government of the Punjab, Lahore D.W.3 stated that application dated 7-8-1985 was submitted by Modem Food Industries for the allotment of the plot and that before the allotment the number of the plot was not mentioned by the applicant. Nadir Kamal Usman D.W.4 is the Managing Director of the Modem Food Industries revision petitioner/defendant No.4 who stated about the fact of the case. He referred to allotment letter dated 23-2-1986, copy Exh.D.6, whereby he was informed that in the meeting held on 11-2-1986 the allotment of two Kanal Plot in favour of Modem Food Industries was approved by the Provincial Allotment Committee. He produced Exh.D.7, copy of minutes of the meeting wherein the allotment of two Kanals plot was approved. But the number of the plot was not mentioned. He stated that he was handed over the possession of the property and in this regard he produced possession slip Mark "B" making out that the possession of the plot was delivered to Messrs Modem Food Industries on 26-2-1986. He stated that thereafter the construction was raised. He produced Exh.D.8, copy of agreement of sale dated 29-5-1986; Exh.D.9, copy of site plan and Exh.D.10, copy of Completion Certificate. He added that in the meanwhile he received the notice from the Court to the effect that the plot was previously in the name of some other person whereby the factory was closed and damages were incurred about which he produced the details Exh.D.11. He stated that the plaintiff was desirous to make sale of the property at Exhorbitant price. It occurs in his cross-examination that the temporary stay order was issued from the Court of the Senior Civil Judge, Lahore on 25-5- 1986 and the construction was stopped. He stated that he did not remember that he made the application on 2-6-1986 before the Court to raise the construction of ere factory at own risk and cost. He denied the suggestion that in violation of order, dated 19-6-1986 the construction was continued. He admitted that his application for allotment of the plot was accepted about which he received the information vide letter, dated 23-2-1986. He stated that the possession of the plot was handed over to him on 26-2-1986. He admitted that the agreement was incepted with, the Housing, Department on 29-5-1986. He denied the suggestion that on the boundary wall the further construction was raised. He denied the suggestion that the plaintiff met him and restrained him from raising the constriction at the spot. He added that alongwith Hasnain Muqadis he continued to contact the department. He admitted that during the pendency of this suit the construction was raised and the factory was running. After hearing the; parties learned trial Court decided the issues Nos. l and 5-A in favour of Modern Food Industries/defendant and decided issues Nos.2, 4 and 5 against the said defendant. Issues
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Nos.6 and 7 wge decided against the plaintiff. Issue No.3 about special costs was left. Consequently the suit was dismissed. It was held that the allotment from the name of the plaintiff of the suit was rightly cancelled and the property was validly transferred in favour of Modern Food Industries who raised the construction I at the spot being the purchaser of the same for value without notice. An I appeal was preferred which was accepted with the reasoning that the allotment from the name of Messrs Saco Furnitures was cancelled without any legal justification and that the Modem Food Industries did not acquire any title on the disputed plot. The judgment and decree passed by the learned I trial Court was set aside and the suit of Messrs Saco Furnitures (plaintiff-Respondent, No.1) was decreed. Feeling aggrieved Messrs Modem Food I Industries petitioner/defendant No ;4 has filed this revision petition. 6. I have heard the learned counsel for the contesting parties and gone through the record before me. At the very outset learned counsel for the petitioner argued that the suit instituted by respondent No.1 was barred by time because the allotment/transfer from the name of the plaintiff was cancelled regarding which letter dated 10-6-1985 (copy Exh.D.2) was issued and that afterwards the same plot was transferred in the name of the petitioner on 11-2-1986 in the meeting, the copy of the minutes of which has been produced as Exh.D.7 which was sent to the petitioner vide letter dated 23-2-1986 copy Exh.D.6 According to him the possession of the plot was delivered to the petitioner on 26-2-1997 through possession slip "Mark B" signed by the concerned Sub- Engineer on 26-2-1986. He added that the suit was instituted on 23-4-1987 i.e. Beyond the period of one year and that the same was barred by time. With respect to the cancellation of the allotment of the disputed plot from the name of Messrs Saco Furnitures plaintiff it was argued by the learned counsel for the petitioner/defendant No.4 that letter dated 10-6-1985 (copy Exh.D.2) as deposed by Aman Ullah Khan, Deputy Director, D.W.1 was issued, that thereafter the meeting was held on 11-2- 1986, that the possession was delivered to the petitioner on 26-2-1986 and that the agreement of sale was incepted on 29-5-1986. He added that due to the failure of the plaintiff to raise the construction at the spot the plot was cancelled from his name after the issuance of the show- cause notice, dated 31-3-1985 (copies Exh.P.6 and EXh.D.1). He added that in the meeting held on 11- 2-1986 the plot comprising two Kanals was recommended to" be allotted in the name of Messrs Modern Food Industries petitioner, the possession of which was delivered to him on 26-2-1986 vide Mark "B" and that afterwards the agreement of sale (Exh.D.5) was incepted. He referred to site plan Exh.D.9 submitted by flit- petitioner and sanctioned by the competent authority as well as site plats Exh.D.10 making out the completion of the building on 23-8-1986 about which the Certificate was issued on 17-12-1986, copy Exh.D.1. He maintained that after the cancellation of the plot from the name of Messrs Saco Furnitures, the same could be transferred in the name of the petitioner/defendant No.4 which was legally transferred in his name when the petitioner was not in know of the previous allotment of the same in favour of Messrs Saco Furnitures and thus, he purchased the same without notice for consideration. On the contrary learned counsel for respondent No.1/plaintiff laid the emphasis that the Housing Department proceeded in the matter with mala fides by cancelling the allotment of the plot from his name. He added that in reply to notice Exh.P.6, application (copy Exh.P.7) was made which was not disposed of as no information was given to the plaintiff. He maintained that no written material was put to Shahid A.I Babar P.W.6, Managing Partner of plaintiff Firm, about the cancellation of the allotment on 10-6-1985 when lie stood in the witness-box and thus, an adverse presumption may be drawn against the defendants. According to him the total price of the plot has been paid by the plaintiff and in the application dated 13-4-1985 (copy. Exh.P.7) the submission of the plan of the intended construction for approval is narrated which shall play the legal role as the receipt of the same is admitted. He maintained that in the meeting held on 11-2-1986 the allotment of one plot of two Kanals was recommended in the name of the petitioner/defendant No.2 when disputed Plot No.349-S was not
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allotted and thus, the said. Order would not entitle the petitioner to the allotment of the disputed Plot No.349-S comprising an area of two Kanals, 18 Marlas and 180 square feet which comes to about 3 Kanals and that the delivery of the possession of the said plot…
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