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Petitioner: REZA IQBAL VS Respondent: ROYAL GROUP though Attorney
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Ather Saeed Title: REZA IQBAL vs ROYAL GROUP though Attorney Case No.: High Court Appeal No,81 of 2010 Date of Judgment:2011-05-30 Reported As: PLD 2011 Karachi 524 Result: Appeal dismissed
JUDGMENT
JUDGMENT IRFAN SAADAT KHAN, J.---This High Court Appeal has been filed against the Judgment and Decree dated 29-3-2010 passed by the learned Single Judge in Suit No,995 of 2004 whereby the said suit, filed by the respondent for specific performance and injunction, was decreed in the following manner:-- "Upshot of the discussion is that the suit of the plaintiff is decreed in terms of prayer clause 1 with the direction to the defendant to specifically perform his obligation under agreement dated 13-4-2004 by renewing the lease of the Suit Property and sell and transfer the same to the plaintiff under the terms of the said agreement. Parties are left to bear their own cost." 2. Briefly stated, the facts of the case are that the respondent/plaintiff, via facsimile, entered into an agreement dated 13-4-2004, with the defendant/appellant to purchase the property bearing residential Plot No,51 of land bearing Sheet No,C.F-1-5, Survey No,19-A/1, Old Survey No,N/1/A/PO-22, admeasuring 1603 sq. Yds. Located at Old. Clifton, Karachi along with the double storey bungalow and other constructions situated upon it (the subject property) for a total sale consideration of Rs,40,000,000. It is stated that the appellant/defendant shown himself to be the sole owner of the subject property which earlier was acquired by him along with Mr. Ali Iqbal Rizvi and Mr. Hasan Iqbal Rizvi, through Sale-Deed dated 19-6-1976, but later on the said two partners released/relinquished their rights in the subject property in favour of the appellant/defendant, by way of Deed of Release dated 7-11-1994. As per the agreement, the respondent/plaintiff paid to the appellant/defendant a sum of Rs,1,000,000, as advance part payment, through cheque No,7473039, dated 19-4-2004, which was duly encashed by him. It is stated that, on the other hand, the appellant/defendant violated the terms mentioned in the said agreement by not renewing the
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lease of the subject property though he was required to do so. The respondent/plaintiff kept on reminding and requesting the appellant/defendant to fulfil his obligations and ultimately sent letters dated 19-8-2004 and 24-8-2004 in this regard. However, despite such efforts no steps have been taken by the appellant/defendant to complete such obligations and he remained in breach of the said agreement. It is also stated that it was agreed between the respondent/plaintiff and the appellant/defendant, through the said agreement, to draft a sale agreement containing mutually agreed terms and conditions and the sale agreement was to be signed 15 days after the payment of the advance payment and in this connection several drafts have been exchanged between them and finally draft sent by the appellant/defendant's counsel along with a letter dated 14-5- 2004, which was finalized by the respondent/plaintiff counsel and sent back to the appellant/defendant but since then the appellant/defendant has been avoiding its execution. It is further submitted that it seems from the conduct of the appellant/ defendant that he is not willing to complete the sale proceedings of the subject property and he is trying to evade his contractual obligations with mala fide intentions and it is apprehended that the appellant/defendant will create a third party interest on the subject property by putting a false/fictitious tenant thereupon, whereas on the other hand the respondent/plaintiff has so far fulfilled his all contractual obligations and willing to per under the same. The respondent/plaintiff showed his readiness to tender payment of the balance sale consideration provided that the appellant/defendant completes his obligations and satisfies the conditions precedent to the transaction as under the said agreement. Hence, the respondent/plaintiff filed the suit against the appellant/defendant with the following prayers:- 1) Direct the Defendant to specifically perform his obligations as under the said agreement dated April 13, 2004 by renewing the lease of the Subject Property immediately; and selling and transferring the Subject Property to the Plaintiff' under the terms of the said agreement. 2) Permanent Injunction restraining the Defendant from conveying, selling or transferring in any manner, or creating a false/fictitious tenancy or any third party interest/encumbrance in the Subject Properly except in favour of the plaintiff. 3) Cost of Suit; and 4) Any other relief(s) that this Honourable Court may deem fit and proper under the circumstances. 3. In response to the notices issued to the appellant/defendant, written statement was filed by him denying the averments made in the plaint. On the basis of the pleadings of the parties following issues were framed by the learned Single Judge:- 1) Whether the Annexiire - "A" and "A-1" to the plaint are forged and fabricated documents? 2) Whether the defendant agreed to sell the Suit Property to the plaintiff, if so, on what terms and conditions? 3) What should the decree be? 4. Thereafter the parties led their evidence and after hearing them, the learned Single Judge decreed the suit in the above manner. It is against the said decision that the present High Court Appeal has been filed. 5. Mr. Muhammad Masood Khan, learned counsel appeared on behalf of the appellant and submitted that the order passed by the learned Single Judge is illegal and uncalled for as the learned Single Judge has failed to determine the primary and fundamental issue involved iii the case as to whether the parties have entered into a concluded contract or not? As per the learned counsel, the learned Single Judge was not justified in not deciding the main issue and decided the case on the basis of the other issues, which were neither important nor relevant. As per the learned counsel, the learned Single Judge has not only failed to consider the evidences led before him but also has failed to consider the relevant material placed before him. The learned counsel went on to
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argue that the order passed by the-learned Single Judge is a result of non-reading, misreading and non-appreciation of evidences. The learned counsel submitted that admittedly there was no concluded contract between the parties and when there was no concluded contract between the parties decreeing the suit in favour of the respondent is against the norms of law. He submitted that the learned Single Judge has not decided the case on all the issues framed by him, as according to the learned counsel no decision whatsoever has been given on Issue No,3, which were framed with the consent of the parties vide order dated 25-3-2009, hence, as per the learned counsel this fatal omission has rendered the order non-est in the eyes of law, which is liable to be set aside. He further submitted that various timelines were fixed for concluding the contract but each time the respondent failed to abide by the terms of the contract. He also submitted that as no balance payment was made by the respondent, the appellant was not obliged to fulfil his part of the agreement the learned Single Judge was not justified in observing that it was the appellant who backed out of the agreement rather it was the respondent who did not adhere to the conditions mentioned in the said agreement. The learned counsel further submitted that the conduct of the respondent was contumacious as despite giving ample time to him he failed to abide by the conditions specified in the said agreement, which has totally been ignored by the learned Single Judge. 6. The learned counsel further submitted that no doubt initially token money of Rs,1 million was given by the respondent to the appellant but thereafter he kept on delaying the matter on one pretext or the other and finally filed the suit against him for fulfilling his part of the promise, which in fact was not kept by the respondent and this aspect has totally been ignored by the learned Single Judge. He further submitted that the learned Single Judge has totally ignored to consider the fact that in September, 2003 when a draft agreement of sale was sent to the respondent's counsel the same was not signed by the appellant which fact also proves that there was no concluded agreement between the parties and the suit filed by the respondent against the appellant on the premise that as there was a concluded contract between the parties and the appellant has failed to fulfil his part of promise, is not only mala tide but is also based on incorrect facts. The learned counsel further submitted that when there was no concluded contract between the parties how can the respondent enforce his legal rights upon the appellant, which aspect has not been considered by the learned Single Judge. He submitted that thus there was no occasion for the respondent to get any relief on the basis of specific performance as there was no concluded contract between the parties and it was the respondent who lingered on the matter and ultimately filed the suit with ulterior motives against the appellant. He further submitted that the findings of the learned Single Judge that the appellant was obliged to renew the lease was also not based on proper appreciation of the facts as the appellant never agreed to renew the lease of the subject property at his cost. He, in the end, submitted that the order passed by the learned Single. Judge suffers from, these illegalities and thus his order is liable to be set aside. In support of his above contention the learned counsel has relied upon the following decisions: 1) Abdul Khalid v. Muhammad Asghar Khan and others (PLD 1996 Lahore 367) 2) Suleman Ali v. Maqbool Hussain and others (2000 YLR 1983) 3) Mst. Rasheeda Begum and others v. Muhammad Yousuf and others (2002 SCMR 1089) 4) Ghulam Yasin Butt and others v. Manzoor Hussain and others (2003 UC 352 (sic) 5) Abbas All Shah and others v. Ghulam All and others (2004 SCMR 1342) 6) Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR a. 334) . 7) Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 Supreme Court 241) 8) Qazi Muhammad Saqib Khan v. Ghulam Abbas and others (2003 MLD 131) 9) Muhammad Rafique and others v. Sharaf Din and others (2006 SCMR 340)
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10) Custodian of Enemy Property Islamabad v. Hoshang M. Dastur and others (PLD 1977 Karachi 377) 11) Shajar All Hoti v. Usman Subhani (1985 CLC 342) 12) Al-Huda Hotels and Tourism Co. And others v. Paktel Ltd. And others (2002 CLD 218) 13) Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905) 14) Atlas Khan and others v. Muhammad Nawaz Khan and others (2010 SCMR 1217) 15) Bashir Ahmed v. Ahmed All (2007 SCMR 1047) 16) Messrs Karachi Gas Company v. Fancy Foundation (PLD 1984 Karachi 233) 17) Mst. Rashida Abdul Rehman v. Zahoor Hussain and others (2007 CLC 1372) 18) 2010 MLD 123 19) (19). Rafaqat Ali v. Muhammad Farid and others (2007 SCMR 1047) 20) Saeed Naseem Cheema v. Mrs. Rukhsana Khan [2010 MLD 123 (Karachi)] 21) Muhammad Nawaz Khan v. Mir Ahmad and another (1996 MLD 1389) 22) Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816) 23) Muhammad Hussain Khan v. Said Muhammad Khan and others [PLD 1988 SC (AJ&K) 184] 24) Mst. Hayat Zaib-un-Nisa v. Muhammad Asad Khan (2003 SCMR 1748) 25) Rehmatullah Khan and another v. Ghulam Farid and others (2009 SCMR 371 26) NLR 1994 (sic) 695 27) Hafiz-ul-Haq v. Haji Abdul Mastan (PLD 1994 Peshawar 235) 28) Sardar Ali v. Wazir Khan (2005 SCMR 1583) 29) Federation of Pakistan v. Mrs. Riaz Latif (PLD 199Q SC 90) 30) M. Salim and others v. Lahore Development Authority (1993 MLD 2312) 7. Mr. Arshad Tayyebally initiated his arguments in reply to the arguments of the learned counsel for the appellant and strongly opposed the arguments that there was no concluded contract between parties and the acceptance of Bayana' without entering into sale agreement does not confer a right on the respondent to claim specific performance of the contract when there was no contract. He submitted that he will be basically relying on Exhibits P/4 and P/5 being the fax sent by the present respondent to the present appellant through the office of the Architect Samar Ali Khan on 12-4-2004, highlighting the basis which had been allegedly agreed between the parties and a copy of the fax duly signed by the present appellant and submitted that it was a concluded contract. He further submitted that he made a payment of Rs,1 Million on 19-4-2004 in accordance with the provisions of Exhibit P/4 and since at that time there was an agreement in field therefore the present appellant accepted that Bayana and deposited the same in his bank account and it is still lying with him. The learned Counsel then took us through the written statement and the cross- examination of the present appellant and pointed out glaring discrepancies in these two documents whereby according to him, in one of these documents/depositions he is stating one fact and is stating a completely contrary fact in the other document/deposition. He then took us through the letters where he had been issuing as reminders to the present appellant to conclude the contract and get the lease renewed as he was obliged to do under the concluded contract but except one reply which was received from Mr. Anwar Mansoor Khan, Advocate, that despite trying his best the present appellant has not been able to get the lease renewed and therefore an offer was made. To the present respondent to purchase the property on 'as is where is basis'. The learned counsel then submitted that as far as the point is concerned that the acceptance of Bayana and the conduct of the present appellant reveals that there is an agreement between the parties then even if it is assumed that the fax was returned unsigned and was not returned by the present appellant the Courts have concluded that an agreement has been entered into and it has to be specifically performed. In this connection he relied on a judgment of this Court in the case of QAMARUL HASSAN V. UNITED BANK LIMITED reported in 1990 MLD 276 and also a judgment from the
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Indian jurisdiction in the case of HINDUSTAN CO-OPERATIVE INSURANCE SOCIETY LTD. V. SHYAM SUNDER AND OTHERS reported in AIR 1952 CALCUTTA 691. The learned counsel then came to the arguments of the learned counsel for the appellant that an issue which was framed i,e, whether there was a concluded contract between the parties has been left unanswered by the learned Single Judge and therefore the case has to be remanded back to the learned Single Judge to adjudicate on this issue and give findings. The learned counsel submitted that this issue is the same as the first two issues which were framed and enough evidence was led before the learned Single Judge and this issue was not framed after the leading of the evidence and therefore on the basis of such evidence this Court has ample and inherent jurisdiction to decide this issue itself as the Courts have always frowned on the cases being remanded back to the original authority. In this connection he relied on the judgment of this Court in the case of Major (Retd.) SYED BAQAR HUSSAIN SHAH v. Mst. RASHIDA BEGUM reported in 1992 MLD 2515 and HABIBULLAH v. AZMATULLAH reported in PLD 2007 Supreme Court 271. On the basis of above arguments the learned counsel submits that the order passed by the learned Single Judge is a well reasoned order and the Appeal is without merits and does not require consideration of the Court so the same may be dismissed. 8. Mr. Masood Khan, learned counsel for the appellant has filed synopsis of his arguments and in rebuttal after conceding that there could be some discrepancies between the various documents but these discrepancies cannot be made the basis for the suit being decreed. He submitted that for not paying the balance sale consideration, the arguments of the learned counsel for respondent is that he was never asked by the appellant to pay the balance sale consideration but he again referred to the so-called agreement which he has not admitted and accepted and submitted that there is no stipulation even in that alleged agreement that balance sale consideration will only be paid when the appellant demands for the payment of the same. He then referred to the cross-examination of Samar Ali Khan the Architect and tried to point out that even Samar Ali Khan has said that the fax which was returned as Exhibit P/5 was not signed. He has, however, been able to show us that Samar Ali Khan has not been able to recognize the documents P/4 and P/5 and the reason given by him was that his office is just being used as post office and such documents may be exchanged through his office without being seen by him. He, therefore, prayed that the order of the learned Single Judge can not be sustained by this Court and therefore this Appeal should be allowed and the order of the learned Single Judge be set aside. 9. We have heard the learned counsel for the parties and have perused the record and the case- laws relied upon. 10. From the pleadings of the parties and from the record the core issues involved in the present High Court Appeal are that "whether the appellant entered into a valid sale agreement with the respondent through letter dated 13-4-2004 or not?" and "whether the said letter could be considered to be a valid sale agreement as per the relevant provisions of the law or not?" 11. It is seen from the record that the appellant offered the said property for sale by way of advertisement in a newspaper. The respondent then contacted the appellant through Mr. Samar Ali Khan, who was his brother in law, and a meeting took place between the parties at the office of Mr. Samar Ali Khan on 9-4-2004. Thereafter a letter dated 12-4-2004, which is available as Exh.P/1 in the evidence file, was sent by the respondent to the appellant. As per the respondent, the appellant signed the said letter and re-faxed the same after agreeing to the terms mentioned in the said letter on 13-4-2004, which is available on record as Exh.P/3. Subsequently the terms mentioned in the said letter were reduced in writing on the respondent's letter head and were faxed to the appellant on the same date i,e, 13-4-2004, which is available as Exh.P/4. This letter was again re- faxed by the appellant to the respondent on the same day after signing the same and accepting all the terms and conditions as mentioned therein, which is available as Exh.P/5. As per the respondent signing and accepting the terms and conditions as mentioned in the said letter
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amounted to sale agreement. The total sale consideration agreed by the two parties in the said sale agreement was Rs,40.Million and an amount of Rs,1 million was paid by the respondent to the appellant on 19-4-2004 through cheque which was duly encashed by the appellant, which is available in the record as Exh.P/9. 12. The learned Single Judge while deciding the abovementioned issues came to the conclusion that the Exhs. P/4 and P/5 were neither forged nor fabricated documents and the agreement reduced in writing on the letter head on 13-4-2004 duly signed by the appellant constitute a sale agreement showing willingness of the parties to perform the part of their promise, hence, the same is a legal and lawful agreement and the appellant cannot withdraw himself from the said agreement and had to perform his part of the promise as duly agreed by him by signing the said letter and faxing the same to the respondent. The main emphasis of the learned counsel for the appellant is twofold, firstly he attacked that the said letter dated 13-4-2004 was neither signed by him nor faxed to the plaintiff/ present respondent hence, denied the very existence of the said letter dated 13-4-2004. The second limb of the argument of the learned counsel being, even if for the sake of arguments it is admitted, that the said letter was signed and faxed by the appellant even then no adverse inference could he drawn as the said agreement lacks basic ingredients of an agreement of sale, hence, the same could not be considered as a sale agreement in the eyes of law. 13. The decisions relied upon by the learned counsel for the appellant also are mainly on the issue that as the sale agreement lacks attestation by the witnesses, hence, the same could not be .Considered to be a valid sale agreement as per Articles 17 and 79 of the Qanun-e-Shahadat Order. The case-laws reported as PLD 1996 Lahore 367, 2003 U.C. 352 and PLD 2011 SC 241 have spelled out the law that if the basic requirements are not fulfilled and complied with the said would not be deemed to be a validly constituted document. In the other decisions reported as 2002 SCMR 1089, 2006 SCMR 340, 2004 SCMR 1342, 2003 MLD 131 and 1985 CLC 342 it was held by the Hon'ble Courts that onus to proof a contract lies heavily on the plaintiff. Somewhat similar view has been taken in the case reported as 2000 YLR 1983. The learned counsel for the appellant has vehemently denied the signing of letter dated 13-4-2004 and in this regard relied upon the decision reported as 2010 SCMR 334 that non-signing of an agreement by vendor keeps him immune from a claim by the vendee. He also relied on the judgment reported as PLD 1977 Karachi 377 wherein it was held that whether a party has reached a concluded contract or not is a question of fact. He further relied on a decision reported as 2002 CLD 218 wherein it was held by the Court that a proposal in a contract must be absolute and unqualified. In the decision reported as PLD 1991 SC 905, relied upon by the learned counsel, it was held by the Hon'ble apex Court that the Court while exercising its jurisdiction should not act arbitrarily but its reasons should be sound and guided by judicial principles. He further relied on the judgments reported as 2010 SCMR 1217 and 2007 SCMR 1047 wherein it was held by the Hon'ble apex Court that the Court has to take into consideration the circumstances surrounding the transaction beside whether the equitable relief of specific performance should be granted or not. The learned counsel relied on the judgments reported as PLD 1984 Karachi 233 and 2007 CLC 1372 wherein it was held by the Court that mere absence of a term in agreement regarding rights and liability of seller and purchaser would not make the agreement as invalid and unenforceable. In the decisions of 2010 MLD 123 and 2007 SCMR 1047, referred by the learned counsel, it was held that Court to exercise its jurisdiction judicially and not arbitrarily. The learned counsel also relied on the judgment reported as 2010 MLD 123 wherein it was held that if the balance sale consideration is not deposited in time the earnest money together with matching sum is not to be returned. In the cases of 1996 MLD 1389, 2003 SCMR 1748, 1982 SCMR 816, PLD 1988 SC (AJ&K) 184 and 2009 SCMR 371 it was held that failure on the part of the trial Court to decide the issues would be considered an irregularity in exercise of its jurisdiction. In the decisions reported as
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NLR 1994 page 695(sic.) and PLD 1994 Peshawar 235 it was held that mere fact that one person paid money to another it would not prove that he did so to advance loan. In the decision reported as 2005 SCMR 1583 it was held that where the plaintiff's witness failed to furnish trustworthy evidence to establish the transaction, the trial Court and the High Court dismissed the case and the Hon'ble Supreme Court declined to interfere in the matter. In the decisions reported as PLD 1990 SC 90 and 1993 MLD 2312 it was held that an appeal is a continuation of suit. Perusal of the above decisions would reveal that either the above judgments are distinguishable from the facts pertaining to the present case or state settled proposition of law to which there could be no two opinions. 14. On the other hand, the learned counsel for the respondent has relied on the decision reported as 1990 MLD 276 wherein it was held that "where a document was not duly proved by the person signing the same, but circumstances proved its execution, reliance could be placed on such a document". In this case it was further held as under:-- "The factum of remittance, at any event, having, even otherwise, been established the burden stood shifted on the defendants to show that the telegraphic message did not in fact come to be received or that it was not a proper message and, for this purpose, it was incumbent on them to produce documentary evidence which could have consisted of registers/files wherein receipts of such messages are recorded, for it can hardly be maintained that such delicate matters are not reflected in any record whatever. Since, the best evidence of…
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