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Petitioner: Messrs BUILDING STORE and others VS Respondent: MUHAMMAD HANIF and others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title: Messrs BUILDING STORE and others vs MUHAMMAD HANIF and others Case No.: Execution No,Nil of 2011 Date of Judgment:2013-11-29 Reported As: PLD 2014 Sindh 34 Result: Office objection overruled
Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.---On 7-10-2010, the decree holders Nos. 2, 5 and 6 filed this Execution Application for execution of Compromise Decree dated 22-6-2001 passed by this court in Suit No,403 of 1997. The registrar raised an office objection that the Suit No,403 of 1997 was decreed on 22-6-2001 and execution application has been filed almost after nine years which is time barred. 2. In order to address the office objection, the learned counsel for the decree holder argued that for construction of suit property, the judgment debtors had submitted building plans for construction of Ground + 12 floors. The execution of the Decree is contingent upon completion of building (and/or shops reserved for the Decree Holders) as stated in the decree and the limitation period will start running only after the entire building and/ or shops have been constructed/completed and not prior to it. It was further contended that the building in question was partially constructed up to Basement + Ground 5 floors on 30-10-2009 as per the KBCA's Public Notice in the newspaper, hence the execution application is within time. Under the decree, the decree holders had no obligation except to pay amount specified in the decree in three instalments against transfer and delivery of the shops. 1st instalment of 50% was to be paid by the decree holders at the time of temporary/interim shifting of the decree holders from their present shops to the alternate shops which payment has already been made. The 2nd instalment of 25% was to be paid at the time of delivery of vacant possession of the new shops to the decree holders. The 3rd and final instalment of 25% was to be paid at the time of execution and registry of the sub-lease(s)/conveyance deed(s) before the concerned Registrar. The stage for the payment of the balance 50% payment has, thus, not arisen as yet due to the conduct of the Judgment Debtors who are refusing to hand over the shops to the decree holders.
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3. On 21-8-2002, the judgment debtors filed the building plan which was not approved and was returned with objections by KBCA on 4-9-2002. The judgment debtors submitted another building plan, which was contrary to the terms of the decree as the original shops reserved for the Decree Holders (viz. Original Shops Nos.14, 15 and 16) were removed due to alleged cut line reservation. Therefore, the decree holders vide letter dated 28-4-2003 filed their objections to KBCA and asked KBCA to withhold its approval until judgment Debtors submit building plan as per terms of the Compromise decree. The judgment debtors approached the decree holders repeatedly for withdrawal of their objections from KBCA. Meetings were held sometime in September-October 2003 between the decree holders and the judgment debtors and/or their representative in the presence of KBCA officials. A settlement was reached whereby the judgment debtors agreed to allot different Shops bearing Nos. 4, 5 and 6 to the decree holders in lieu of the original Shop Nos.14, 15 and 16 as mentioned in the decree and the decree holders on this basis consented to withdraw their objections before the KBCA against the judgment debtors' construction. The KBCA officials asked the judgment debtors and/or their representative to submit in writing a formal request for resuming construction. Consequently, the judgment debtors vide letter dated 5-9-2003 addressed to KBCA and confirmed the above stated agreement and specified the New Shops with numbers viz. Shop Nos.4, 5 and 6. The plaintiff No,3 filed a contempt application bearing C.M.A. No, 781 of 2004 against the JDs and an officer of KBCA in which it was alleged that the decree was violated by judgment debtors which was damaging its shop and that the KBCA's approval of the building plan was illegal. On filing of the contempt application, the judgment debtors' suspended most of their construction activity and whenever the decree holders approached the JDs to inquire about the progress of the project, they had blamed the suspension of work on the plaintiff. No,3 contempt application. In the meanwhile a Public Notice dated 30-10-2009 was issued by KBCA announcing that the judgment debtors have constructed Basement Ground + 5 upper floors on the Suit plot and were requesting for an extension till 30-12-2012 to complete the entire project (i,e, B + G + 12 upper floors). From this Public Notice the decree holders learnt for the first time that if not the whole project, at least a portion of the project relating to the decree holders (viz. The Ground Floor) was at least complete. Despite this, the Judgment Debtors were not handing over possession and transferring title to the decree holders in complete defiance of the Decree. The decree holders on 5-5-2010 and 21-5-2010 filed five applications in Suit 403/1997 (viz. C.M.As. 4425, 4426, 4427, 4428 and 5254 of 2010) and approached this court for inspection of the project. It has also recently come to the knowledge of the decree holders that in accordance with the decree, the judgment debtors have on 16-11-2008 handed over possession and transferred title in favour of Messrs Building Stores (i,e, Decree Holder No,1). The agreement dated 16-11-2008 executed between Muhammad Hanif and Messrs Building Stores relies on the terms of the decree whereas in the case of present decree holders, the judgment debtors are claiming that the decree stands frustrated. The decree holders have come to this court within the time period prescribed by Article 181 of the Limitation Act, 1908. It provides three years starting "when the right to apply accrues" i,e, when the Decree becomes executable. 4. According to the learned counsel, the limitation runs from at the earliest, when the fact of the ground floor completion known to the decree holder through the Public Notice dated 30-10-2009. Hence, the period of limitation at the earliest will start running from the date of knowledge i,e, when the Ground Floor became ready. However, it is important to appreciate that according to the decree holders, although construction of shops on the Ground Floor are superficially ready (including the Shops of the Decree Holders) but amenities stated in paragraph 17 of the Decree have still not been provided which means the shops are still not ready in terms of the decree. According to the judgment debtors, the shops could not be constructed due to the alleged cut-line reservation and the decree, therefore, now stands frustrated. So under no circumstances the
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execution application can be held to be time barred. It was further averred that the building is still incomplete as only Ground + 6 floors have been constructed to-date whereas the judgment debtors have submitted approved plans for the construction of Ground + 12 floors. Moreover. Neither building completion certificate nor partial completion certificate has been issued or filed by the judgment debtors to establish that the building was partially completed in the year 2005. The time period stipulated in the decree is directory and not mandatory in nature, since no consequence of its violation has been stated in the decree. Furthermore, the burden/obligation to construct and complete the building was cast on the judgment debtors and not the decree holders. ' The Office Objection is misconceived and liable to be over-ruled. In support of his arguments, he referred to the following case-law:-- (1) AIR 1974 Allahabad 275 (Abdul Rashid v. Sri Sitaramji Maharaj). A compromise decree for possession of lands in dispute passed on 17-11-1954 provided that the judgment debtor would remove the constructions and deliver possession of the property to the decree-holder after the latter served him with a notice giving him two months' time to remove the constructions. According to the decree, the decree-holder could serve notice upon the judgment debtor whenever the former desired to make his own constructions over the said land. It was further provided that in default of the judgment-debtor in removing his constructions and delivering possession on service of notice the decree-holder was to be entitled to execute the decree for possession. The decree- holder served a notice on the judgment-debtor on 22-10-1962, asking him to deliver possession of the land. The judgment debtor did not deliver possession and hence the decree holder filed an application for execution of the decree on 2-5-1963. Held that the execution application was not barred by time. Immediate executor of the decree was navigated by the terms of the compromise decree. Since it was left to the discretion of the decree-holder to serve two months' notice on the judgment debtor whenever the decree holder desired to make his own constructions over the land in dispute, limitation must run from the date of the service of the notice and not from the date of the decree. Consequently, Article 181 of the Limitation Act applied. The decree-holder served the notice on 22-10-1962 when he intended to make such constructions and the limitation started running only from that date. Therefore, the execution application was perfectly within time. The basic test is whether there is a right available to the decree-holder to apply for execution immediately or the fulfillment of some condition is a condition precedent and further whether the terms of the decree cast any obligation on the decree-holder to comply with that condition within a specified period. Where no such period is specified, the execution of the decree must be deemed to remain in abeyance and the limitation would commence only from the date when the plaintiff chooses to comply with the condition. AIR 1962 All 431 (1902) ILR 24 All 300 and AIR 1919 All 224 and AIR 1945 All 10, Approved: AIR 1931 All 326 Overruled; AIR 1931 Nag 54 Dissent from. (2) 2012 CLD 971 (Equity Participation Fund v. Messrs Abbrasive Products Co. Limited and others). It is settled in a number of judgments that one of the essential feature of the mandatory provision is not merely use of word "shall" which may be used merely to stress importance of compliance of particular requirement emphasized or prescribed in the enactment. Ordinarily where consequences of failure to comply with the direction or requirement of a statute are not stated, the direction is treated as directory and not mandatory. However there is consensus of judicial opinion where directions to do something in a particular manner entail some penalty or consequence, like in the instance case the consequences for not complying with the requirements of subsections (3), (4) and (5) of section 10 ibid: unless sufficient cause is shown, is visited by rejection of application for leave make's a provision mandatory (One may gainfully see PLD 1978 Kar. 926, PLD 2001 SC, 499, 2000 SCM R 1305 and 2001 SCM R 1001, PLD 2007 Kar. 243 and 2007 CLC 315).
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(3) 2001 M LD 1635 (Jamil Ahmed v. Karachi Building Control Authority and others). Section 6 bona fide purchaser. Sealing of the premises. Plot was reserved only for construction of residential apartments and the owner of the plot got approved building plan for construction of residential apartments, but in violation of the building plan shops were constructed and the Authority sealed the premises on account of violations of approved plan. Purchasers of the disputed shops who had entered the possession without obtaining an occupancy certificate could not be treated as bona fide purchasers as they had entered possession in flagrant violation of the requirements of Section 6 of Sindh Buildings Control Ordinance, 1979. Action of sealing the premises was justified in circumstances. (4) 2003 CLC 245 (Din Muhammad Qureshi v. Government of Sindh). Section 6(2) Constitution of Pakistan (1973), Article 199 Constitutional petition. Vacation of building for demolition. Report submitted by Authority in Court showed that, ejectment notices had been issued to occupants of building before causing demolition, but occupants had not vacated the same. In absence of occupancy certificate under section 6(2) of Sindh Building Control Ordinance, 1979, occupation of any part of building would be illegal. No interim or final order protecting occupation of occupants of building had been passed by any court. Three months' time was given to Authority by the High Court to eject occupants of building, if necessary, by force and to perform its duties according to law. 5. On the contrary, the learned counsel for the judgment debtors supported the office objection and argued that the execution application is time barred. It was also contended that decree is not executable beyond the scope of the Suit No, 403 of 1997 which otherwise has been frustrated on account of shops mentioned therein could not be constructed on the agreed location because of cut-line due to road widening scheme. Even if it is assumed that the judgment debtors had written letter dated 5-9-2003 to KBCA to allot Shops 4, 5 and 6 to the decree holders instead of Shops 14, 15 and 17, it will mean only that by this letter, the location of the shops was changed to the new location. Even then the completion period of these shops will be 24 months from the date of approval of Plan as per Clause 13 of the Decree. Admittedly, the Plan was approved on 22-4-2003 and time of completion of shops was expired on 21-4-2005. If there was breach of this clause, the decree holders had three years' time to file the execution application under Article 181 of the Limitation Act which expired on 21-4-2008 while the execution was filed on 7-10-2010. It was not the case that transfer of shops was contingent on completion of entire Project. A Project of basement, ground and 12 stories, could not be constructed and completed within 24 months. Clause 13 of the Decree stipulates time for completion of shops from the date of approval of Plan. If 24 months' time from the date of approval of Plan was not observed, the decree-holders ought to have filed execution application within 3 years from 21-4-2005. Perusal of entire Decree will show that nowhere the stories of the commercial building are mentioned and emphasis is only on shops. Even Sketch 'B' to the Compromise relates only to shops. Clause 13 mentions construction of shops and Clause 24 stipulates that after the Decree-Holders are shifted to their new shops their possession shall not be blocked by construction of or demolition work. Clause 13 of the Decree mandatorily provides completion of the shops and not the entire building, as claimed by the decree-holders within 15 months and further 9 months grace period from the date of approval of Plan. Clause 13 does not say at all that this period commences from the date of the completion of the building but it relates to the time limit for construction of the shops and not the entire building as contended by decree-holders. Nothing can be added to or subtracted from the Decree. 6. It was further argued that on account of Road Widening Scheme, the KBCA did not approve the plan as per sketch "B" to the compromise but the revise plan by cut-line of 31.5 fts. On Shahrae Liaquat and 22 ft. On Altaf Hussain Road was approved. All this was in the knowledge of the decree- holders that their shops are not going to be constructed as per sketch 'B' to compromise. The
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learned counsel vehemently denied that the judgment debtors ever wrote the letter dated 5-9- 2003 to KBCA, allegedly agreed to give Shop Nos.4, 5 and 6 to the decree-holders. It is easy to super-impose the signatures on any manipulated photocopy from another original document. It is clear that the decree holders from the very beginning knew that such letter does not exist. It was further argued that the law is that a decree, if at all it is executable is to be executed as it is. If it is to be amended. Then it has to be in writing by the parties to the decree and under/the orders of the court. Order XXI, Rule 2(3) C.P.C. States that any adjustment not made in writing shall not be recognized by the Court executing the decree. There is no writing between the decree-holders and the judgment debtors for amendment of the decree. In support of his arguments, he relied upon the following case-law:-- (1) 1988 CLC 2106 (Bank of America v. Messrs Mairaj Sons Ltd.). Order XXIII Rule 3 and Order XXI Rule 2(3). Consent preliminary decree subsisting between plaintiff and defendants. Fresh compromise at variance with previous one. Validity of. Where a suit had ended in a compromise leading to preliminary decree under provisions of Order XXIII, Rule 3 C.P.C., said provision could no more be invoked. Where a preliminary decree subsisted, there would be no further chance for recording of a fresh compromise. Existence of preliminary decree, as impediment, had to be removed before a fresh compromise was conceptually possible. Preliminary decree being in existence, having remained unchanged by way of appeal or review, a fresh compromise of suit between parties, which was at variance with the previous one and which had already culminated in a preliminary decree, would be out of question and could not be given effect to. Possibility of adjustment of a decree under provisions of Order XXI, Rule 2(3), C.P.C. However, could not be excluded but for that purpose a writing signed by both the parties was an essential prerequisite. Such prerequisite being lacking and not fulfilled in the case, plea of adjustment of decree would not be available. (2) AIR 1941 Lahore 149 (Udham Singh v. Atma Singh). A completed contract, which immediately extinguishes and takes the place of the decree is an adjustment within the meaning of Order XXI, Rule 2. If there is only an agreement to adjust the decree on the fulfillment of a future condition and the decree is still left in existence pending the fulfillment of the condition, then there is no adjustment. It is, of course, a question to be decided in each case by the executing court whether there has been a completed contract or not. 32 PLR 365: AIR 1931 Lah. 608: 132 IC 670, Overruled; AIR 1935 Lah. 589, Approved. (3) 1994 SCM R 349 (Ch.Muhammad Nawaz v. Ch.Rehmat All and another). Order XXI, Rule 34. Execution of consent decree. Petitioner seeking changes in decree while making application for execution of such decree, Effect. Consent decree could not be changed or altered unilaterally and without consent of the other side, particularly when such decree related to material consideration and conditions. Question whether compromise decree could be enforced after appropriate adjustment would not be possible particularly when time had been made essence of contract with the consent of both parties and on failure of a specific condition, third party interest had been created. Execution of consent decree as desired by petitioner, thus, was not warranted. (4) 1989 SCM R 640 (Muhammad Ali and others v. Ghulam Sarwar and others). Order XXI, Rule 35. Execution of decree. Duty of Executing Court. Executing Court cannot go behind the decree and has to execute it as it is, unless same is patently a nullity. (5) AIR (35) 1948 Nagpur 35 (Meghraj v. Kesarimal). Agreement to compromise a claim to execute a decree may be divided into three classes. In the first class, the decree holder agrees to give up all his rights under the decree on the judgment debtor's doing something or other, and there is no adjustment until the judgment-debtor has done whatever is promised. The second class of agreement is where the decree holder agrees to give up all his rights under the decree in return for a promise by the judgment debtor to do something or other; on the recording of such an adjustment, the decree becomes fully satisfied and the decree holder can enforce the fulfillment of
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the judgment debtor's promise only by a separate suit. It is now well settled that such an agreement amounts to an adjustment of the decree. (6) AIR 1954 Madras 1040 (Ramaswami v. Chidatnbaram). Reading section 56 of the Contract Act with section 35 of the Specific Relief Act the court itself, which passed the decree for specific performance, can and should declare its own decree void if the act becomes impossible of performance or by reason of some event which neither party could prevent. A agreed to sell his share in villages for Rs,45,000 to his co-sharer B. On A's refusal to execute sale deed and convey title, B filed a suit for specific performance and obtained a decree. Before the decree was executed the villages were notified under the Madras Estate Abolition Act and were taken over by the Government: Held that the decree became void and that was entitled to withdraw the amount of Rs,45,000 deposited by him in the suit for specific performance. 7. Heard the arguments. No doubt the filing of execution application is governed under Article 181 of the Limitation Act, which provides three years' limitation when the right to apply/accrues. The office raised the objection that the suit was decreed on 22-6-2001 but the execution application was filed after nine years, which is time barred. Counsel for the decree holder replied to the office objection that the decree was passed on 22-6-2001 and is contingent upon completion of shops mentioned therein. The limitation period will start from the date of completion of shops. The shops of plaintiff No,1 was completed sometime in November 2008 while the shops of the decree holder Nos.2, 5 and 6 were completed in the year 2010, hence the application is well within time. This objection was placed before this court for orders. 8. In order to reach some logical conclusion and rational as to the execution application within time or it is time barred, the court has to see the terms and conditions of the compromise which was culminated in a compromise decree. If the date of passing of decree is taken into consideration, there is no quibble to hold that the execution application is time barred but the court has to look into whether the decree passed in the suit was contingent upon certain terms and conditions or not. I have cautiously gone through the decree passed by this court in which the details of compromise reached between the parties have been incorporated. Paragraphs Nos.13 and 17 are somewhat relevant which are reproduced as under:-- "13. That the entire construction of all shops in the proposed building shall be completed in all respect within a period of 15 months with a grace period of nine months from the date of the approval of the building plan thereof. The said period of twenty four (24) months is further extendable only by the number of days curfew if any is imposed in the city." "17. That before handing over possession of the new shops to the plaintiffs as mentioned herein before the defendants shall complete the said shops in all respects and shall provide them electric connections, points and lights as in all other similar shops. Each shop shall also contain a bathroom with running water and sewerage lines/connection facilities and commode, wash basin and shower." 9. In paragraph 13 it was agreed that entire construction of all shops in the proposed building shall be completed in all respect within a period of 15 months with a grace period of nine months from the date of the approval of the building plan. It was further agreed between the parties that before handing over possession of the new shops to the plaintiffs as mentioned the defendants shall complete the said shops in all respects and shall provide them electric connections and each shop shall also contain a bathroom with running water and sewerage IC lines/connection facilities. 10. Now it is to be seen as to whether the shops were completed in accordance with decree along with its handing over possession with amenities or not. The decree holder case is that the building was partially constructed up to basement plus ground plus five floors on 30-10-2009 as per Karachi Building Control Authority public notice published in newspaper hence execution application is within time, which is the date when partial completion came into the knowledge of
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decree holder given rise to filing of this application. It was further argued that the project was partially completed and the amenities were not provided in terms of paragraph 17 of the decree which means that the shops were not ready in terms of decree. It was further argued that still the building is incomplete' as the judgment debtor submitted plan for the construction of ground plus 12 floors and even no completion certificate was obtained for the partial completed building nor any such certificate was produced to show or strengthen…
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