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Petitioner: Muhammad Saeed Akhtar VS Respondent: Taha Mobeen Qureshi
Court Name: Sindh High Court Judge(s): Nazar Akbar Title: Muhammad Saeed Akhtar vs Taha Mobeen Qureshi Case No.: (1) IInd Appeal No.65 of 2012 (2) IInd Appeal No.97 of 2012 Date of Judgment:2020-06-10 Reported As: 2020 CLC 1974, 2020 SHC 400 Result: N/A
Judgment NAZAR AKBAR, J. The appellants through these IInd Appeals have challenged the judgment dated 02.03.2012 passed by the Vth Additional District & Sessions Judge, East Karachi in Civil Appeal No.341/2010 & Civil Appeal No.358/2010 , whereby , the said appeals were dismissed and the impugned judgment dated 31.08.2010 passed by the VIth Senior Civil Judge, East Karachi in Civil Suit No.627/2005 filed by the Plaintif f (T. M. Qureshi) was maintained. 2. Brief facts of the case are that the appellant/plaintif f (T. M. Qureshi) filed suit No.627/2005 for specific performance, possession, mesne profit, injunction and cancellation of documents in respect of Bungalow No.13-A (one unit), Rehman Villa, Sector No.22-A, Scheme No.33, Gulistan-e-Johar , Main University Road, Karachi (the suit premises) against Karim Housing (Pvt.) Ltd. (hereinafter the Builder) as respondent No.1/defendant No.1 and others. The appellant averred that the Builder launched a housing project "Rehman Villa" through publication in leading Newspapers and offered unit/villa on fixed value of Rs.6,25,000/- including the HBFC Loan amounting to Rs.1,50,000/- . The appellant (T. M. Qureshi) filled the prescribed application form and initially paid a sum of Rs.45,000/- against receipt dated 14.09.1987 . The standard prescribed proforma issued by the Builder was containing terms and conditions of sale of the suit premises between the Builder and the appellant/plaintif f (T. M. Qureshi). The appellant according to the prescribed terms and conditions regularly paid agreed amount of installments towards the cost of the suit premises and from time to time till 13.12.1988 an amount of Rs.4,1 1,000/- had been paid and remaining balance was only Rs.64000/- excluding expected loan from HBFC. But the Builder completely failed to abide by his responsibilities according to the terms and conditions which include completion of construction work in 29 months and to apply for loan to HBFC. It is averred that in the year 1992 the Builder served the appellant/plaintif f (T. M. Qureshi) with a notice dated 13.04.1992 wherein it was mentioned / written that procedure of expected loan from HBFC is very difficult and long as such the Builder on its own has decided that appellant/plaintif f (T. M. Qureshi) must pay the expected loan amount in cash in three installments. It is also
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averred that the appellant/plaintif f (T. M. Qureshi) through a letter from the Builder was advised to be present at the office of Sub-Registrar alongwith his NIC for execution of lease of the suit prem ises but soon by another letter dated 09.09.1992 appellant/ plaintif f (T. M. Qureshi) was informed about postponement of the execution of lease and by the same letter promised to inform the appellant/plaintif f about the next date for execution of lease. The Builder did not inform the plaintif f about the next date and there was complete silence though the appellant/plaintif f (T. M. Qureshi) had informed the Builder in writing about change of his address and requested that further correspondence should be made on his fresh/new address. It is also averred that on 18.8.2000 he received a letter from the Builder about cancellation of the suit premises. In response to the said letter the appellant/plaintif f (T. M. Qureshi) visited the office of Respondent No.1/the Builder on 21.8.2000 and after comprehensive discussion with the Manager of the Builder/Respondent No.1 it was agreed that the cancellation letter stand withdrawn and the full and final payment will be settled and paid before handing over possession of the suit premises subject to payment of Rs.50,000/-. The appellant on the spot issued cheques No.130538 dated 21.8.2000 for the sum of Rs.50,000/- in favour of Respondent No.1/the Builder as a consideration of withdrawal of alleged cancellation letter , under written acknowledgement. Again the Builder/ Respondent No.1 neither completed the construction work, nor made any correspondence with the appellant/plaintiff (T. M. Qureshi) about the progress of work/construction or date of next payment or lease or possession or any other thing in respect of the suit premises. It is further averred by the appellant/plaintiff (T. M. Qureshi) that in the month of October, 2004 when his attorney visited the site of the suit premises it came to his knowledge that the Builder illegally, without any lawful authority has sold the suit premises to one Mr. Saeed i.e. Respondent/defendant No.2 and as soon as it came to his knowledge the appellant/plaintiff immediately contacted the Builder/Respondent No.1 and complained that with malafide intention to cause heavy monitory losses to the appellant/plaintiff (T. M. Qureshi) Respondent No.1 first transferred the suit premises in the name of one of his employee Ghulam Rasool and later on through said Ghulam Rasool sold the suit premises to Respondent/defendant No.2/ Saeed though the construction work of the suit premises is still incomplete and the alleged purchaser respondent/defendant No.2/Saeed is raising construction in the suit premises himself. It is averred that Respondent No.1/the Builder before cancelling the allotment of the suit premises was duty bound to serve the appellant/ plaintiff (T. M. Qureshi) with a notice to pay the dues, if any, which was to be followed by a notice of cancellation (terms and condition No.3) but unfortunately Respondent No.1/ the Builder never served notice to the appellant/plaintiff after settlement and withdrawal of cancellation letter dated 21.8.2000 on acceptance of cheque of Rs.50,000/-. Therefore, the appellant/plaintiff (T. M. Qureshi) filed suit bearing Civil Suit No.627/2005 for declaration, specific performance, possession, mesne profit/ permanent injunction and cancellation and also impleaded Respondent No.2 alongwith the Builder . 3. After notice/summon, Respondent No.1/the Builder filed written statement stating therein that suit is not maintainable in the law; it is barred under Article 11 of the Limitation Act, as the notice of the cancellation has been served on the appellant/ plaintif f (T. M. Qureshi) on 18.08.2000, and the suit has been filed on 11.1.2005 after more than three years. However , the contract of sale of the suit premises and its terms and conditions were admitted by the Builder and he has even relied on terms and condition No.17 regarding cancellation. The Builder has also admitted their own letter dated 18.8.2000 whereby allotment was allegedly cancelled but denied any settlement in response to the said cancellation letter . The payments of Rs.4,1 1,000/- made by appellant/ plaintif f was not denied but payment through cheque of Rs.50,0 00/- dated 21.8.2000 was denied. Respondent No.2/Muhamm ad Saeed Akhtar the appellant of IInd Appeal No.65/2012 also filed his written statement asserting therein that he is a bonafide purchaser of the suit premises. The suit of the appellant/ plaintif f (T. M. Qureshi) is not maintainable and the Court has no jurisdiction to entertain the suit as the suit property is situated within the jurisdiction of District Malir and present market value of the suit premises is more than Rs.55 lacs and plaint does not disclose cause of action to file the present suit, and the plaintif f (T. M. Qureshi) had no legal character as required under Section 42 of Specific Relief Act. The defendant No.3 also filed her separate written statement and took the same plea which were taken by defendant No.2/Muhammad Saeed Akhtar and prayed for dismissal of the suit with special compensatory cost. 4. The trial Court from pleadings of the parties has framed the following issues:-
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1. Whether the present market value of the property is not more than 55 lacs and this Hon'ble Court have limited jurisdiction upto 30 lacs only? 2. Whether the suit is maintainable according to law and plaintiff/attorney have legal character under section 42 of Specific Relief Act? 3. Whether the plaintiff purchased Bunga low No.13-A, "Rehman Villa" Sector 220-A Scheme No.33, Gulistan-e- Johar , Main University Road, Karachi, from defendant No.1 against valuable consideration? 4. Whether the defendant No.1 illegally unlawfully and without notice to the plaintiff sold the bungalow in question to the defendant No.2, if so to what effect? 5. Whether the suit is filed by the plaintiff/attorney against the proper party, as per own statement of the plaintiff, first property transferred to Ghulam Rasool or anyone else, from whom the property purchased by the defendant No.2, being said Ghulam Rasool is not necessary party and in absence of Ghulam Rasool, plaint/suit is not bad for want of necessary and property party? 6. Whether the plaintiff is entitled to the reliefs claimed, if so to what effect? 7. What should the decree be? 5. Attorney of the appellant/plaintif f (PW -1) namely Abdul Aleem Qureshi filed his affidavit in evidence on 12.07.2008 and he was examined as Exh.P/1. He produced photocopy of CNIC as Exh.P/2, General Power of Attorney dated Apri, 1988 as Exh.P/3, application form for allotment of bungalow in Rehman Villas (Blank) as Exh.P/4. Schedule of payme nt as Exh.P/5, allocation letter dated 13.12.1987 with the overwriting 1988 as Exh.P/6. Terms and conditions form of Rehman Villa (Blank) as Exh.P/7, payment receipt dated 13.12.1988 as Exh.P/8, payment dated 11.07.1988 as Exh.P/9, payment receipt dated 14.09.1987 as Exh.P/10, payment receipt dated 28.02.1988 as Exh.P/11. Payment receipt dated 13.12.1988 as Exh.P/12, payment receipt dated 19.04.1989 as Exh.P/13, payment receipt dated 16.07.1989 as Exh.P/14, payment receipt dated 12.09.1989 as Exh.P/15, payment receipt dated 12.01.1988 as Exh.P/16, letter dated 13.04.1992 regarding payment of remaining dues as Exh.P/17, letter dated 01.09.1992 and 09.09.1992 both addressed to plaintiff Taha Mubeen Qureshi mentioning subject as lease Rehman Villa as Exh.P/18 & P/19, copy of change of address dated 23.02.1998 as Exh.P/20, legal notice dated 18.08.2000 as Exh.P/21, letter dated 21.08.2000 as Exh.P/22, and photocopy of cheques dated 21.08.2000 amounting to Rs.50,000/- in the name of M/s. Karim Housing Pvt, Ltd., thereafter side of evidence of plaintiff was closed. Defendant No.2 Muhammad Saeed Akhtar was examined as Exh.D/1. Defendant No.3 Nazneen Kausar was also examined as Exh.D/2, she produced indenture of lease deed dated 25.05.2002 as Exh.D/3, and sale deed dated 4.5.2004 as Exh.D/4. Then the side of evidence of the defendants was closed. 6. The trial Court after recording evidence and hearing the parties partly decreed the suit of the appellant/plaintif f to the extent of prayer clause 1, 2 and 4 of the plaint by judgment dated 31.08.2010 . Against the said judgment, the plaintif f (T. M. Qureshi) and only Defendant Nos.2 & 3/Muhammad Saeed Akhtar and his wife preferred Civil Appeal No.341/2010 & Civil Appeal No.358/2010 respectively. The Builder has not preferred any appeal as he already knew that any possible decree against the Builder would not have any force against him as expected his part of duty was assigned to the Nazir of the Court. Both the appeals were dismissed by common judgment dated 02.03.2012 and the judgment dated 31.08.2010 by the trial Court in Civil Suit No.627/2005 was maintained. Both the appellants have challenged the said judgment of appellate Court here in these IInd Appeals. 7. I have heard learned counsel for both the appellants and perused the record as well as written arguments filed by them. Learned counsel for the Builder has filed power but he remained absent and did not avail the opportunity to even file written synopsis of his arguments. 8. To be precise the appellant/ plaintif f in IInd Appeal No.97/2012 is aggrieved only to the extent that the trial Court has omitted to grant him relief of handing over/ delivery of possession of the suit premises despite the fact that the action of cancellation of allotment of suit premises from the name of appellant/ plaintif f by the Builder has been held unlawful and it was further ordered that on failure of Respondent No.1/ the Builder , the Nazir of the Court to execute registered conveyance deed in respect of the suit premises in favour of the appellant (T. M. Qureshi). On the other hand Respondent No.2/the appellants in IInd Appeal No.65/2012 are aggrieved by the said partial decree
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to the extent of registration another conveyance deed in respect of the suit premises in presence of lawfully registered sale deed in favour of one of the appellants in IInd Appeal No.65/2012/ defendant No.3 in the suit. 9. Learned counsel for the appellant/Plaintif f has contended that the contents of the plaint have been admitted by the Builder/ Respondent/Defendant in the written statement which include the admission of the very existence of terms and conditions that constitute the agreement of sale between the parties. He contended that even the learned trial Court has accepted the very existence of sale agreement while partly decreeing the suit, however, the trial Court inadvertently withheld the relief of possession in prayer clause-3 whereby the appellant has sought directions to the builder to complete construction of the suit premises and deliver possession to the appellant/plaintiff. The learned trail Court having appreciated from the evidence that after having realized more than 85% of the sale consideration the Builder has violated the terms and conditions of the agreement which included mode and method of cancellation of allotment of the suit premises and, therefore, granted prayer clause 4 whereby Defendant No.1/the Builder has been directed to execute registered conveyance deed on payment of balance consideration amounting to only Rs.164,000/- in respect of the suit premises and in case of his failure by the Nazir of the Court. The grant of prayer No.4 without grant of prayer clause 3 for delivery of possession is in fact an incomplete decree in suit for specific performance of contract. The denial of delivery of possession of the suit premises even after payment of cost/price/ consideration would mean the obligation of the Builder to perform his part of contract would remain unperformed. Therefore, the omission of the trail Court has rendered the decree meaningless. He has further contended that the appellate Court while maintaining the decree has failed to appreciate that without modifying the judgment and decree by including the prayer clause regarding delivery of possession of the suit premises the judgment and decree was of no legal practical consequences. The appellate Court misled itself by misinterpreting an out of context sentence from cross-examination of the appellant wherein the appellant has stated that the appellants have not produced any agreement executed between the Builder/M/s. Karim Housing Private Limited and the appellant/ plaintiff though in the same breath the appellant has stated that form containing terms and conditions and schedule of payment have been filed along with affidavit in evidence. The learned appellate Court has failed to appreciate complete evidence resulting in the partial decree of the suit filed by the appellant. Learned counsel has also contended that pursuant to the decree the appellant has already filed execution application No.09/2012 for cancellation of sale deed of defendant No.3/appellant in IInd Appeal No.65/2012 and for registration of sale deed in the name of the appellant. 10. On the other hand learned counsel for Respondent No.2 and appellant in IInd Appeal No.65/2012 has vehemently contended that the decree is against the Builder and the learned trial Court has already observed in discussion of issue No.7 that there does not appear to be any fault on the part of defendants No.2 and 3 (the appellant in IInd Appeal No.65/2012) and yet in the discussion of the same issue No.7 the trial Court has declared that the basic act of the Builder (Defendant No.1) is illegal/null and void, therefore, as a result all subsequent acts became illegal. However, the learned Courts below have not specifically cancelled the sale deed in favour of the appellant and, therefore, the adverse effect cast on the title of the appellant should be declared as null and void and of no legal consequence. 11. In the case in hand both the appellants have derived their title from the Builder namely M/S Karim Housing (Pvt.) Ltd., one through a registered sale deed in his favour prior to the date of suit for specific performance and the other by virtue of a lawful decree against the Builder in the suit for specific performance. The Builder has appeared before the trial Court, he has filed written statement in which he has not denied payment of installments alleged in the plaint amounting to a sum of Rs.411,000/- during the period from 14.09.1987 to September, 1989 in 8 installments. The so-called cancellation letter dated 18.8.2000 was also admitted and in the said cancellation letter the Builder has mentioned that the appellant/plaintiff may collect the refund of amount paid by him from the office. This fact re-affirms that sale consideration as alleged by the appellant (T.M. Qureshi) has been realized by the Builder. It is also admitted position that the Builder has never completed the construction of the suit premises. In view of the admission of the Builder that parties were bound by the terms and conditions filed by the appellant/plaintiff with the plaint and also his admission of cancellation letter dated 18.8.2000, I believe few relevant terms and conditions are needed to be reproduced below:-
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4. All sums not paid on due dates shall bear interest at prevailing Bank Rate from the period of first notice and in case of non-payment the Company shall serve the Final Notice and then cancel the allotment and the accumulated amount will be refunded after deducting an amount equivalent to 10% of the total cost of the bungalow as establishment/service charges. 5. If the company fails to hand over possession of the bungalows by the due date then the company shall pay the interest at prevailing bank rate for the period of delay . 6. The buyer of bungalow , if so wishes, can also withdraw his/her money on surren dering to the company , the letter of allocation/allotment in original. In the event, the company will refund to the buyer with the condition that after suitable purchaser for his/her bungalow is found and within 15 days of the payment made by the second purchaser , the amount deposited till that time but after deducting an amount equivalent to 10% of the actual price of the bungalow as establishment/service charges. 12. It has come on the record from the evidence that after the alleged cancellation of allotment letter dated 18.8.2000 to the appellant/ plaintiff (T.M. Qureshi) the Builder lawfully or unlawfully, has found second purchaser and on 25.5.2001 he has executed registered lease in favour of the second purchaser namely Syed Umar Farooq. It means according to terms and conditions mentioned above the Builder was under obligation to refund the amount so far realized by him within 15 days to the appellant/plaintiff. The Builder after finding a second buyer, has also failed to comply with the aforementioned condition No.6 of the agreement with the appellant/ plaintiff (T.M Qureshi). Additionally, according to terms and condition No.5 the Builder having failed to complete construction by the due date which was 29 months' time from September, 1987. The record shows that the cancellation letter is dated August, 2000 and within 10 months from the said letter of cancellation the Builder namely M/s Karim Housing (Pvt.) Ltd. through his Managing Director (Haji) Adam Khan Jokhio son of Haji Abdul Raheem Jokhio has executed an indenture of lease dated 25.5.2001 in favour of Syed Umar Farooq and in the written statement filed on 27.8.2005 he has suppressed the fact that after the letter of cancellation he has sold the suit premises to second purchaser . In terms of the above reproduced terms and conditions the Builder was admittedly required to forthwith refund the amount of Rs.461,000/- having realized from the appellant/ plaintif f (T.M Qureshi) but the Builder neither in the trial Court and first appellate Court nor befor e this Court has even offered to return the said amount to the appellant though at every stage of the proceedings the Builder was represented by Muhammad Shafi Rajput, advocate . The contents of plaint against the Builder have to be even otherwise admitted as true and correct since the appellant/plaintif f has reiterated all facts from the plaint in his evidence and nothing has been shaken in cross-exa mination as the counsel for the Builder has not cross-examined the appellant/plaintif f nor the Builder or his representative has come in the witness box to disprove the version of the appellant. The second purchaser has sold the suit premises to Respondent No.3 through a registered sale deed on 4.5.2004 and both the registered lease from Builder to Umer Farooq and sale deed by said Umar Farooq to Respondent No.3 have come on record in evidence as Ex.D/4 and D/5 respectively . 13. In view of admitted position from the written statement of the Builder and evidence of appellant/plaintif f the trial Court was justified in decreeing the suit, however , both the courts below have failed to appreciate that when the appellant of IInd Appeal No.65/2012/ Defendants No.2 and 3 have not been found guilty of any malafide act on their part in purchasing the suit premises, the execution of sale deed by the Nazir of the Court to satisfy the partial decree would adversely affect the title of the appellant, though their possession on the suit premises has not been disturbed. In fact as contended by learned counsel for the appellant/ plaintif f the denial of prayer clause-3 has created legal anomaly on the status of title of the suit premises as subsequent execution of conveyance deed through the Nazir of Court would create another title document in presence of already existing sale deed in favour of appellant/defendant No.2 & 3 with possession. The subsequent sale deed through the Court in the hands of the appellant (T.M Qureshi) without possession of the suit premises would render the title of the other appellant Mst. Nazneen Kausar wife of Muhammad Saeed Akhtar ineffective. In view of this situation, I believe both the orders of the Courts below are contrary to law and in the given fact and circumstances, though the case of plaintif f/ appellant (T.M Qureshi) for specific performance of contract against the Builder was made out but it has become a case of hardship for the subsequent purchaser i.e. Respondents No.2 and 3 through a registered sale deed.
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14. It is settled principle of law that in certain situations even if the contract is found to be lawful and enforceable, the relief of the specific performance being discretionary can be withheld by the Court. However , when the Court finds that grant of relief of specific performance is made out but it would be a case of hardship to other side or unfair and inequitable to any third party who is not at fault, the Court can adequa tely compensate the appellant/ plaintif f in exercise of powers conferred on Court under Section 19 of the Specific Relief Act, 1877. The appellant/ plaintif f has proved payment of an amount of Rs.461,000/- to the Builder which included undisputed payment of Rs.4,1 1,000/- by December , 1988 . Therefore, the trail Court has rightly concluded that there was a contract between the appellant/ plaintif f and the Builder which has been broken by the Builder and the first logical consequence was to decree the suit for specific performance. But only execution of title document before the relevant registrar of the property is not specific performance of a contract of sale of immovable property when the plaintif f is not in possession of the suit premises in such eventuality , the execution of title document has to be coupled with delivery of possession of the suit premises by the seller or the Nazir of the Court as the case may be to the appellant/plaintif f. However , when the facts and circumstances of the case are such that the court cannot grant decree of possession of the suit premises to the appellant/ plaintif f as it was the position in the case in hand owing to the presence of bonafide purchaser of the suit premises, the court ought to have substituted the relief of specific performance with compensation as envisaged under Section 19 of Specific Relief Act, 1877. It reads as follows:- 19. Power to award compensation in certain cases.--- Any person suing for the…
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