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Petitioner: Mrs. Shabeena Farhat VS Respondent: M/s. Highway Housing Project and others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: Mrs. Shabeena Farhat vs M/s. Highway Housing Project and others Case No.: Suit No.119 of 2006 Date of Judgment:2019-09-02 Reported As: 2019 SHC 328 Result: N/A
Judgment Muhammad Faisal Kamal Alam, J: The present lis has been instituted by Plaintif f for Specific Performance of the Contract, Permanent and Mandat ory Injunctions and Damages. The Plain t contains the following prayer clause. "The Plaintif f, therefore, humbly prays that this Hon'ble Court may be pleased to pass Judgment and Decree in her favour as follows:- "a. Direct the Defendants 1 & 2 jointly and / or severally to specifically perform the contract created by receipt dated 09.11.1978, Notice dated 10.12.1979, receipt dated 05.01.1980, letter dated 03.03.1982 and receipt dated 01.03.1982 (annexures A, B, C. F & G to the plaint), by executing Lease Agreement/Sub - Lease in favour of Plaintiff and get it registered before the concerned Sub-Registrar in respect of commercial Plot No.CA/15, measuring 120 Square Yards, Highway Housing Project, at plot of land No.52, Deh Khanto Tapoo Landhi, Karachi, and to hand over vacant possession thereof to the plaintiff and in case the said defendants fail to comply therewith within a specific time, the Nazir of this Hon'ble Court may be directed to execute the aforesaid Lease Agreement/Sub-Lease in favour of the plaintiff before the concerned Sub-Registrar for and on behalf of the defendants No.1 and 2 jointly/or severally. b. grant damages in the sum of Rs.1,8 7,16,000/- to be paid by the defendants No.1 and 2, jointly and / or severally to the plaintif f, with further profit / markup @ 20% per annum from the date of suit till full and final realization of decreetal amount. c. for future loss of rentals of three shops at the rate of Rs.3000/- per month for each shop (total Rs.9000/- per month) and two flats at the rate of Rs.4000/- per month for each flat (total Rs.8000/- per month), total of aforesaid monthly rents Rs.17,000/- per month [mentioned in paras 5 (iii) & (iv) above] w.e.f. September 2004 onwards.
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d. In alternative of prayer clause (a), (b) & (c) above, the defendants No.1, 2 and 3 jointly and / or severally , may be directed to provide alternate commercial plot(s) having equal value to plaintif f?s claim in the present suit i.e. Rs.1,87,16,000/- and future rentals, in their latest Housing Scheme namely "Golden Palm City", situated at Gawadar , Balochistan. e). In the meantime till disposal of suit or realization of decretal amount, as the case may be, this Hon'ble Court may be pleased to restrain or injunct the sale, creation or transfer of any interest, by the defendants, jointly and / or severally , of commercial plots in "Golden Palm City", Gawadar , Baluchistan, as per Rate List (annexure "O" to the plaint) equivalent to plaintif f?s claim of Rs.1,87,16,000/- plus loss of future rentals. f. permanent injunction restraining the defendants No.1 and 2 jointly and / or severally from disposing of or alienating the commercial plot No.CA/15, measuring 120 Sq. Yards, at main plot of land No.52, Deh Khanto Tapoo Landhi, Karachi to anyone else or creating any 3 party interest thereon. g. grant any further better relief or reliefs which this Hon'ble Court may deem fit and proper in the circumstances of the case. h. grant full cost of the proceedings". 2. As per the averments of Plaint, the Plaintiff has booked an open commercial Plot No.C-A/15, measuring 120 Square Yards at the total costs of Rs.14,400/- (Rupees Fourteen Thousand Four Hundred only) in the Housing Project launched by Defendants by the name Highway Housing Project? . The entire sale price was paid but the possession of the subject plot was not delivered. Mr. Badar Alam, the learned coun sel for Plaintif f argues that after passage of considerable time when the Defendants did not fulfill their obligations, a Legal Notice was addressed to Defendants (produced in the evidence as Exhibit P/13) dated 26.06.2004. It is the case of Plaintif f, that the Defendants have launched another Housing Scheme, namely , Golden Palm City at Gwadar by using the funds of genuine allottees of subject Housing Project. It is further pleaded that Plaintif f has suffered colossal losses because in the intervening period, the costs of construction is increased manifolds and in this regard the Plaintif f has quantified her damages to the tune of Rs.1,37,16000/= (Rupees One Crore Thirty Seven Lac Sixteen Thousand only). The Plaintif f has also demanded that to compensate the latter , Defendants should allot a plot of same value as of subject property in its above named new Housing Scheme. 3. On the other hand, the Legal Team of Defendants led by Mr. Abdul Qadir Khan, Advocate, has controverted the stance and has vehemently argued that the present proceeding is hopelessly time barred, as the same is filed after 22 years from the date of transaction. It is further argued so also pleaded in the Written Statement that the Plaintiff is not entitled for any damages or compensation because the Defendants have committed no wrong against the person of Plaintiff nor acted in an illegal manner, which could rise the claim of damages. 4. From the pleadings of the parties, following Issues were framed by the Court vide order dated 18.1 1.2013. "1. Whether the defendant No.1 admittedly having already received entire consideration amount prior to filing of suit and lease money and stamp duty during proceedings in the suit, is bound to execute Indenture of Sub-Lease before the concerned Sub-Registrar , in favour of plaintif f, in respect of commercial plot No.CA/15 measuring 120 Sq. Yds., situated in its Housing Scheme at 52 Deh Khanto, Tapo Landhi, Karachi? 2. Whether the defendant avoided and failed to perform its obligations within a reasonable time to develop its Housing Scheme, handover possession of subject plot to the plaintif f and to execute Indenture of Lease in her favour , if so its ef fect? 3. Whether the plaintif f is entitled for specific performance of the contract if any, upon having committed breach by not paying the outstanding dues on time inspite of Circular / Notice dated 10.12.1979 and reported reminders dated 1 1.11.1981 and 24.02.1982 by the defendant? 4. Whether due to any act and omissi on by the defendant, plaintif f has suffered losses and is entitled to claim compensation / damages as prayed in the plaint, if so to what extent? 5. Whether the claim of the plaintif f is sustainable in law in absence of any express agreement/brochure? 6. What should the decree be?"rd
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5. Both Plaintif f and Defendants led the evidence by examining one witness each. It is also relevant to mention that initially the plaint (of present lis) was rejected on the Office Objection, vide Order dated 22.09.2004, but it was set aside in the High Court Appeal No. 241 of 2004 and the decision of the learned Division Bench is reported in 2006 CLC 430 . In the Order of 15-12-2008, paragraph 4 of the Written Statement has been referred, wherein, Defendant has stated that subject plot is still lying vacant and not leased out to any other party . There was some talk of compromise but it could not be materialized. 6. Findings on the Issues are as follows: ISSUE NO.1 : Affirmative. ISSUE NO.2 : Affirmative. ISSUE NO.3 : As under. ISSUE NO.4 : As under. ISSUE NO.5 : As under. ISSUE NO.6 : Suit partly decreed. ISSUE NO.3. 7. It is an important Issue to be determined first. If the reply is in Affirmative, that whether the Plaintif f has committed default, then obviously extending relief of Specific Performance would be difficult. It is admitted by the witness of Defendant [DW-1] in his cross-examination that entire sale price of Rs.14,400/- (Rupees Fourteen Thousand Four Hundred only) has been paid by Plaintif f to Defendants way back in the year 1982. It is a matter of record that vide order dated 03.02.2009, the Plaintif f deposited the requisite charges for execution of lease, so also acknowledged by the above named Defendants? witness. Exhibit-5/3 dated 09.11.1978 is the receipt issued by Defendant to Plaintif f for a sum of Rs.7,2 00/- (Rupees Seven Thousand Two Hundred only) as first installment for booking the subject plot, which is the half of the sale price offered. The document exhibited as P-5/5 dated 05.01.1980 is again an acknowledgment receipt issued by Defendants to Plaint iff against receipt of Rs.3,500/- (Rupees Three Thousand Five Hundred only) towards installment of the subject plot. Document exhibited as P-5/6 dated 11.11.1981 is a general reminder on behalf of Defendants to all allottees for payment of Rs.3,700/- (Rupees Three Thousand Seven Hundred only) as next installment. The document exhibited as P-5/7 dated 24.02.1982 is a general notice on behalf of Defendants to allottees, who have not cleared / paid the final installment. It has been acknowledged by the Defendant witness that after 5.01.1980, the Defendant never demanded the charges towards lease and registration in respect of the subject plot from the Plaintif f. In this connection the last document is Exhibit P-5/8 dated 01.03.1982, which is a receipt, issued by Defendant to Plaintif f clearly mentioning balance of full payment. ?. The Exhibit-5/9 is the correspondence dated 03.03.1982 of Defendants, where under , they have acknowledged the receiving of final payment from Plaintif f; all these documents are undisputed. Consequently, in view of the above evidence, Issue No.3 is answered accordingly, to the extent that Plaintiff has not committed breach and on 01.03.1982 vide a receipt of same date Exhibit P-5/8, which is an admitted document, the entire sale price was paid to Defendant, so also acknowledge by its witness. ISSUES NO.1 AND 5 8. These two Issues are pivotal. After appraisal of the evidence of witnesses of Plaintiff and Defendant, following undisputed position emerges_ i. The Defendants through Advertisement have offered sale of various plots in its Housing Scheme, namely , Highway Housing Project?. ii. The Plaintif f purchased the subject plot in pursuance of the Advertisement published in the Newspapers. iii. Defendants have addressed letters to Plaintif f for clearing her dues towards the subject plot from 10.12.1979 upto 24.02.1982; Exhibits P-5/4, 5/6 and 5/7, which show that Defendants were well aware about the whereabouts of Plaintif f. iv. It has been admitted by the Plaintif f?s witness that the present lis is filed after 22 years of the booking of the subject plot; whereas, the Defendant witness admitted so also the document/re ceipt dated 1-3-1982 issued by
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Defendant and Exhibited as 5/8 acknowledges that Plaintif f paid the entire sale price. v. Exhibit P-5/4, a demand Notice, in lieu whereof payment was made by Plaintif f, clearly states that process of lease and its registration had commence d and allottes, including Plaintif f were called upon to contact Defendants from 15.12.1979 to 30.12.1979. The evidence brought on record vividly shows that during the above period, the Plaintif f had approached the Defendants for payment of installment as directed in the aforesaid correspondence of 10.12.1979 (Exhibit P-5/4) because the Defendants have issued a receipt of payment dated 05.01.1980, produced in the evidence as Exhibit P/5/5; however , the process of lease and registration never completed. Subsequently , in the present proceeding, lease money was deposited by the Plaintif f. vi. That on 15.12.2008, it has been obser ved that the plot in question is still lying vacant and not leased out to any other party , so also mentioned in the Written Statement. Hence, the status quo is maintained in respect of the subject plot. 9. Even though, no Agreement has been produced by the either parties regarding which the Plaintif f is claiming Specific Performance but it is a matter of common knowledge that in such type of cases where a person, in the present case, present Plaintif f books a plot or Apartment in a Housing or multi storey building project, usually original Agreement is retained by the developer or builder , as the case may be. In any event, the factum of subject transaction is not disputed. Plaintif f has booked the aforementioned subject plot and the Defendants are admitting that, but as argued by the Legal Team of Defendants, that due to negligence of Plaintif f, the transaction in question has ended and the present lis is hopelessly time barred. Notwithstanding the above, it was more an obligation of Defendant to have a custody of any such agreement and hence should have been produced, so that all the terms and conditions of the subject transaction could have been brought on record for adjudicating the matter . 10. It is also a matter of record that lease money and other charges were also paid by the Plaintiff in the present proceeding and at some point of time it appeared that the parties may compromise the matter, but that could not happen. The case law relied upon by Legal Team of Plaintiff and Defendants with regard to the point of limitation and suit for Specific Performance has to be analyzed in view of the factual aspect of the case, that Defendants advertised their Housing Scheme, which is an offer, which was responded to by Plaintiff by booking a subject plot and making payments of the entire price, that is, acceptance by Plaintif f and the sale consideration is fully paid to Defendants. The subject matter of the dispute, that is the plot, is also ascertainable. Basic conditions of a contract has been fulfilled, that is, offer of Defen dants to sell the subject plot has been accepted by Plaintif f in lieu of a consideration (price), which too was fixed by the former and duly paid by the latter . Now the only question remains that whether the present transaction is barred by time. 11. The learned Advocate for Defendants has relied upon the following case law to augment his defence on limitation_ i). The first case cited by the learned counsel for Defendants is Province of the Punjab vs Muhammprice)ad Hussain PLD 1993 Supreme Court 147, wherein claim was made by the respondent in respect of a land after 30 years. The reported Judgment of Hon'ble Supreme Court has been carefully perused. The basic facts of this case are that the predecessor in-interest of respondent (of the reported case) filed suit on 27.07.1978 in respect of a property , which was claimed to have been purchased on 14.06.1946 from a Hindu Evacuee. It was averred that plaintif f / predecessor-in-interest of the respondents was not aware of his property and rights therein till 1977 and after getting particular of the property and documents, he instituted the suit which was decreed and the Judgment was maintained till the case reached the Hon'ble Apex Court in which all earlier decisions were overturned. The record of the case belied the claim of the respondents, as the property involved had changed many hands and in this regard earlier also the same claimants / respondents filed a proceeding before the Custodian of Enemy Property in which other necessary persons were impleaded but when the above suit was instituted those persons were not made party , which conduct of the claimant was deprecated by the Apex Court; in the context of this undisputed factual position, it was held, that once the period of limitation for bringing an action expires, then there is no such principle that it can be revived again. In my considered view, the rule laid down in the reported Judgment
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is not applicable to the facts of the present lis, because the Plaintif f has neither concealed the earlier facts nor valuable third party interest have accrued in favour of some other persons / parties nor the subject plot has changed hands; more so, present Plaintif f paid the full price at the relevant time. ii). The second case is 2010 CLC 532 (Anwar-ud-Din vs. Fahmida Akhtar and 8 others); an order delivered by this Court on an application of Order VII Rule 11 of CPC. A general principle with regard to law of limitation has been reiterated that the litigant has to first successfully cross the hurdle of limitation and thereafter merits of a case are to be examined. This has already been done in the present lis, when the above referred High Court Appeal was preferred by the present Plaintif f against rejection of his plaint, and the said appeal was allowed and the learned Division Bench set-aside the order and the same is also reported in 2006 CLC 430 (Mrs. Shabeena Farhat vs. Highway Housing Project and 2 others) , relied upon by Plaintif f?s counsel. Whether or not the decision of learned Division Bench has finally determined the controversy , would be decided in the paragraphs to follow . iii). The third case of Murad Bakhsh case (supra) 2017 CLC 646, is also distinguishable because in the reported case a mutation entry of 1979 was challenged in the suit in the year 2009, without specifying in the plaint, that when the petitioner / plaintiff (of the reported case) acquired knowledge of the mutation entry under challenge. In these circumstances, the decision of dismissing of his suit was maintained by the Revisional Court. iv). The fourth cited decision of Hon'ble Supreme Court handed down in Abdul Rashid Case (ibid) 2009 SCMR 1435, has been carefully perused and respectfully the same is also distinguishable because the said reported case is in respect of a time barred Service Appeal preferred before the Hon'ble Supreme Court under Article- 212 of the Constitution of Pakistan, 1973. The general principle of limitation has been reiterated that the "law favours the diligent litigant and not the negligent." v). The fifth case is of Rehmat Din and others vs. Mirza Nasir Abbas and others 2007 SCMR 1560; facts are that appeal was dismissed by Apex Court on non-prosecution and an application for its restoration was filed after 621 days; secondly, petitioners filed an appeal before the Hon'ble Supreme Court against persons / respondents who died during litigation. The ground as taken by the petitioners was that their Advocate on record passed away three years back, therefore, they were unaware about the dismissal of Appeal. The Hon'ble Supreme Court did not agree with the justification on the ground that (i) the name of petitioner?s counsel appeared in the Cause List when the dismissal order was passed; (ii) the Court cannot exercise the discretion arbitrarily, but it should be based on a principle of equity and fair play; (iii) valuable rights accrue in favour of opponents after expiry of limitation period; (iv) the object of law of limitation is to help the vigilant and not indolent; and (v) even if an important point is involved in a case, that would not be a justification to override the provisions of Limitation Law. It is also necessary to mention that the Hon'ble Supreme Court was of the view that the petitioners concealed the material facts from the Court, which makes the petitioner disentitled for an equitable relief. This decision relates to a situation where the parties were already litigating before a Court and when Appeal was dismissed, name of the Advocate for petitioners appeared in the Cause List. It is a settled rule that in such type of situations, already Courts have ruled that a party / person cannot claim that he or she was kept in dark about the proceeding. The ratio decidendi of this reported decision is altogether dif ferent from the facts of the present case. vi). The sixth decision relied upon by the learned Legal Team of Defendants is reported as PLD 2009 Lahore 52 [Pakistan Industrial and Commercial Leasing Ltd. vs. Haq Knitwear (Pvt.) Ltd]. A suit for recovery brought by the appellant (of the reported case) against the respondent, was dismissed by the learned Banking Court, which was challenged before the learned Appe llate Lahore High Court. After shedding light on the object and scope of Limitation Act, 1908, the established rule has been reiterated that filing of earlier civil proceedings and its rejection would not be a good ground in every case to take advantage of Section 14 of the Limitation Act, 1908, which provides for exclusion of limitation period, which was consumed bona fidely in some other litigation. Secondly , the learned High Court observed that earlier suit by the Leasing Company was not dism issed on account of some legal defect but it was filed unauthoizedly , which aspect does not fall within the ambit of afore-referred Section 14. Accordingly , the Appeal was dismissed. Ex facie, this case law is not attracted to the present lis.
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vii). The seventh case is of Bosicor Corporation (ibid) PLD 2007 Karachi 573; in this matter the dispute was about shareholding in the appellant company . The case of the appellant was that its substantial shareholding was offered to respondent No.1, primarily on a condition that the latter will serve the company for at least five years and when the respondent No.1 resigned in the intervening period, he was called upon vide a letter dated 30.09.1996 to surrender the shareholding / the disput ed Share Certificates, which he refuse d through his response dated 07.10.1996. The respondent No.1 addressed another letter dated 22.12.2003, exercising the option of first refusal, which was replied by respondent No.6 on 26.12.2003 and followed by institutio n of suit on 15.01.2004. In this backdrop, the learned Division Bench of this Court maintained the order of learned Single Judge, rejecting the plaint, and holding that the cause of action did not start when the last corresponden ce of 22.12.2003 was written by respondent No.1, but the cause of action started much earlier and once if commenced, the same cannot be stopped. viii). The seventh cited Judgment of Hon'ble Supreme Court delivered in the case of Nazaqat Ali (ibid) 2004 SCMR 145, is also very much distinguishable on the facts, as this reported decision is in respect of a Service Appeal preferred by an employee, who was terminated by the order dated 11.11.1993 and he firstly approached National Industrial Relations Commission on 20.07.1995, that is, after two long years from his dismissal and after rejection of his Application before NIRC he on 09.09.1997, he invoked the jurisdiction of Federal Service Tribunal, which met the same fate. Admittedly in the reported decision the petitioner knew about his remedies and the impugned action taken by the respondents, yet he did not take any action, but in the present case, the Defendant till date has not taken any action detrime ntal to the interest of present Plaintif f, which the latter could consider a wrong done to the person of Plaintif f. ix) Similarly , the eighth decision in Zafar Iqbal case 2003 YLR 673, learned Single Bench of this Court while exercising Revisional Jurisdiction, dismissed the revision, inter alia, maintaining the earlier decision of courts below, refusing specific performance, primarily on the ground, because the plaintiff (of the reported case) admitted in the cross-examination that he approached the vendor / seller for execution of sale agreement but it could not happen. The learned Court has rightly held, the vendor who died eight years before the filing of the suit, when refused the transaction, the proceeding should have been filed much earlier, because it was a sufficient notice to the plaintiff / Applicant that performance of contract has been refused. x). The ninth cited Judgment of Raisuddin (supra) in 2016 MLD 14, is also distinguishable for the reasons that (i) the sale transaction itself was disputed by the defendant / respondent (ii) it is held that if alleged agreement of sale is accepted, even then the suit admittedly filed after ten years of its execution, besides, other terms mentioned in the disputed Sale Agreement, were not complied with. In this backdrop, it is held, that merely serving of notice upon the vendor / respondent in the year 2006 would not provide a cause of action to the Applicant for maintaining the suit for specific performance after lapse of 10 years of alleged sale agreement and the Revision was dismissed. Conversely, in the present case, neither the sale transaction has been disputed nor the fact that the entire sale price of the subject plot has been received by the Defendant way back in the year 1982. xi). The tenth decision of Muhammad Husain (supra) reported in PLD 1974 Supreme Court 139, has been cited by Mr. Abdul Qadir Khan, the learned counsel for Defendants, to fortify his arguments that equity and fair play must yield to the provision of law. He has made this submission in order to address the observation of the Court that even if the Court thinks that equity and fair play leans in favour of Plaintif f, in view of the undisputed record of the case, as discussed herein-above, yet the present proceeding has to be dismissed being time barred and clearly hit by…
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