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Petitioner: Mirza Shakeel Ahmed and others VS Respondent: Atif Tanveer Bhatti and another
Court Name: Islamabad High Court Judge(s): Arbab Muhammad Tahir Title: Mirza Shakeel Ahmed and others vs Atif Tanveer Bhatti and another Case No.: R.F.A. No. 14 of 2016 Date of Judgment:2023-01-12 Reported As: PLJ 2023 Islamabad 229, 2023 MLD 1715 Result: Appeal dismissed
JUDGMENT
JUDGMENT This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C,") is directed against judgment and decree dated 19.11.2015, passed by the learned Civil Judge-West, Islamabad through which, the learned Civil Court decreed the suit (i.e. Civil Suit No. 1641/2010) for specific performance and permanent injunction which was instituted by Atif Tanveer Bhatti (Respondent No. 1) in terms that Appellants No, 1, 3 and 4 were directed to appear before the Capital Development Authority (Respondent No. 2) for transfer of the suit house in the name of Respondent No. 1 and Respondent No. 2 was further directed to transfer the suit house after fulfillment of all legal/codal formalities. 2. The necessary facts forming background of the present appeal are that House No. 4, 711 Avenue, Sector F-8/1, Islamabad (hereinafter referred to as "the suit house') was owned by Appellant No. 1 (Nasira Parveen Sharif) (late), who entered into an agreement to sell dated 20.06.2002 (hereinafter referred to as "the sale agreement") thereby selling the suit house to Respondent No. 1 in return of a total sale consideration amounting to Rs. 70,60,000/-; that Respondent No. 1 paid an amount of Rs. 1 million to appellant, No. 2 in the shape of cash amounting to Rs. 250,000/- and an amount 7,50,000/- through pay order dated 20.06.2002 drawn on ABN AMBRO Bank, Islamabad Brach; that in terms of the said agreement, the suit house was to be transferred in the name of Respondent No. 1 within a period of ninety days from the date of the execution of the said agreement subject to the payment of the remaining sale consideration by Respondent No. 1; that Appellants No. 1, 3 and 4 were under legal obligation to clear all the dues, utilities bills, taxes till transfer of the suit house in Respondent No. Vs name; that the suit house was in possession of a tenant, which was to be vacated in terms of the sale agreement; that since the suit house could not be vacated; the said
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sale agreement was extended twice for a period of one month each; and that the non- performance of the said agreement caused Respondent No. 1 to institute the above-mentioned suit, which stood decreed in his favour, hence, the present appeal. 3. Learned counsel appearing on behalf of the appellants contended that the findings arrived at by the learned trial Court are erroneous in nature; that while decreeing Respondent No. l's suit, the learned trial Court has erred by not considering the fact that in the year 2015 the value of the suit house was increased substantially as against its value which was in the year 2002; that the learned trial Court has disregarded the vested rights of the appellants; that Respondent No. I had categorically admitted in the plaint that there was a pre-requisite as to the finalization of the sale transaction; that Respondent No. 1 did not honour his commitment in terms of the sale agreement; that the sale agreement executed between the predecessor of the appellants and Respondent No. 1 was contingent upon fulfillment of certain conditions enumerated in the sale agreement; that Respondent No. 1 failed to perform his part of obligation; that since the terms and conditions set forth in the said agreement were not complied with by Respondent No. 1, thus the performance of the said agreement could not have been sought by Respondent No. 1; that no agreement to sell which created vested rights in Respondent No. 1's favour was finalized; that all these aspects of the matter escaped Notice of the leaned trial Court; that the learned trial Court brushed aside the "appellants" stance while decreeing Respondent No. l's suit; that the impugned judgment and decree arc the result of mis-reading and non-reading of the evidence/record available before the learned Court below, concluded the learned counsel for the appellants. Learned counsel has prayed for the present appeal to be allowed and in consequence thereof the setting aside of the impugned judgment and decree was sought. While concluding the arguments, learned counsel relied upon the cases reported as 2017 SCMR 2022, 2021 MLD 15 (Islamabad), 2021 SCMR 686 and 2021 MLD 15 (Islamabad). 4. Conversely, learned counsel appearing on behalf of Respondent No. 1 has opposed the contentions advanced by the learned counsel for the appellants by contending that the agreement to sell in question did exist in Respondent No. 1s favour; that it was the predecessor of the appellants who failed to perform her obligations towards performance of the sale agreement; that Appellant No. 1 while appearing as DW-1 did not utter a single word as to the fact that Respondent No. 1 was not in a position or was unwilling to perform his part of contract during the cross-examination; that the said DW has categorically admitted that the delay in transferring the suit house was caused due to the non-vacation of the suit house by the tenant; that it is well settled principle of law that the parties are under an obligation to abide by their pleadings; that the appellants have failed to perform their part of obligation in terms of the sale agreement; that the conduct of Respondent No. 1 prior to the execution of the said agreement and till its finalization and even till instituting of the suit remained unchanged; that the Court is under legal obligation to see as to which party was under a default and escalation in the price during the litigation cannot be considered as refusal to give effect to the legally executed sale agreement; that the learned Court below applied its judicial mind by appreciating the evidence in its true perspective; that the impugned judgment is well-reasoned and thus, does not call for interference by this Court; that the learned Court below committed no illegality while decreeing Respondent No. 1's suit. Learned counsel for Respondent No. 1 prayed for the dismissal of the present appeal. While concluding his arguments, he placed his reliance upon the judgments reported as PLD 1964 Dhaka 202, 1994 SCMR 1858, 1988 SCMR 1696, 2000 SCMR 1845, 2001 SCMR 1992, 2006 SCMR 562, 2014 SCMR 1621, 2015 SCMR 21, 2016 SCMR 1248, PLD 2016 SC 730, PLD 2012 Sindh 92 and 2017 YLR 794. 5. Heard the contentions advanced at the bar and perused the record with the able assistance of the learned counsel for the parties.
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6. Perusal of the record would transpire that on 7.7.2003, a suit for specific performance and permanent injunction was instituted by Respondent No. 1 praying inter alia for a direction to be issued to the defendants/appellants to do all the acts necessary for the transfer of the suit house in the name of the former including delivery of possession of the suit house to him after receiving the balance sale consideration from him. The said suit was contested by Appellant No. 2 (who passed away during pendency of the suit) as well Respondent No. 2/C.D.A. by way of filing their separate written statement. In the written statement, Appellant No. 2 took the position that Respondent No. 1 did not perform his part of obligation under the agreement to sell. Furthermore, she took a stance that Respondent No. 1 had failed to pay the balance amount of sale consideration in terms of the agreement to sell. The execution of the sale agreement as well as the receipt of the down payment/earnest money has candidly been admitted in the written statement. The divergence in the pleadings of the parties was summed up by the leaned trial Court on 20.03.2015 by framing the following issues:- 1. Whether the plaintiff is entitled to get decree for specific performance of agreement to sell dated 20.06.2002 and permanent injunction as prayed for? OPP 2. Whether the suit of plaintiff is time barred? OPD-1 3. Whether the plaintiff has no cause of action to file the instant suit and suit is liable to be dismissed under Order VII Rule 11, C.P.C..? OPD-1 4. Whether the instant suit is not maintainable? OPD-1 5. Whether instant suit is false, frivolous and vexatious, therefore, defendant is entitled for special cost u/s 38-A CPC? OPD-1 8. Whether the instant suit is barred u/s 49-E of CDA Ordinance, OPD-2 8A Whether the plaintiff has no subsisting right in his favour to file the suit? OPD (1B & 10) 6B Whether the sale agreement dated 20.06.2002 stood cancelled? OPD (IB & 10) 7. Relief. 7. Before proceeding to examine the pleas urged by the learned counsel for the appellant, it is expedient to state that the execution of the sale agreement and the terms and conditions thereof are admitted in the written statement filed by Appellant No, 2, Besides this, no other specific defence has been set forth in the written statement alleging therein that Respondent No. 1 was not ready and willing to perform his part of the agreement or that he lacked the capability to do so. It is well settled proposition of law that a fact which has been admitted, needs no proof, especially when such admission has been made in the written statement. Reliance in this regard may be placed upon the judgment reported as PLD 1976 SC 242. Furthermore, it is also well settled that no litigant can be allowed to built and/or to prove his case beyond the scope of his pleadings. Therefore, the only plea that remained to be determined by this Court is whether or not Respondent No. 1 paid the sale consideration within the time period specified in the sale agreement. 8. A careful scrutiny of the record reflects that on 20.08.2002, a sale agreement was executed by and between Mrs. Nasira Parveen Sharif Ahmed (Appellant No. 2) (late) (i.e. predecessor in interest of the appellants) and Atif Tanveer Bhatti (Respondent No. 1), whereby the former, being owner of House No. 04, 07th Avenue, Sector F-6/1 Islamabad, measuring (40x110) 488 square yards (i.e. the suit house), agreed to sell the same in return of a total sale consideration amounting to Rs. 70,60,000/- (Rupees seven million and sixty thousand only), which was indeed an irrevocable price. On the very same day i.e. 20.06.2002, Appellant No. 2 received an amount of Rs. 10,00,000/- (one million) from Respondent No. 1 as down payment/earnest money in the following manner:- a. Rs. 1,00,000/- (Rupees one hundred thousand only) case vide receipt dated 18.06.2002; b. Rs, 7,60,000/ (Rupees seven hundred and fifty thousand only) vide pay order No. POI 088848 dated 20,08.2002 drawn on ABN AMRO Bank Islamabad; and
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c. Rs.1,50,000 (Rupees one hundred and fifty thousand only) cash on the date of the execution of the said agreement i.e. 20.08.2002. 9. It was further agreed by the parties that the remaining sale consideration i.e. R. 60,80,000/ (Rupees six million and sixty thousand) was to be paid after ninety days post execution of the said agreement i.e. on or before 20.09.2002. It Is pertinent to mention that at the time of the execution of the said sale agreement, the suit house was in possession of a tenant and it was further agreed upon by the parties that the vendor i.e. Appellant No 2 will get vacate the suit house within a period of ninety days and upon its vacation, will serve notice of vacation onto Respondent No. 1, who was then obliged to pay the remaining sale consideration within a period of ten days from the date of the receipt of vacation notice. For case of reference, Clauses 08 and 04 of the said sale agreements are reproduced herein below, which read thus: - "3. That the final amount of Rs-80.60.0001- (Rupees six million and sixty thousand only) will be paid after ninety days of singing the sale agreement. 4. That the first part, will get the possession of the house within the above-mentioned time period and will serve a notice of vacancy to the second party which will Shen nay the remaining amount in 10 days from the date of notification" (Emphasis supplied) 10. It was further reciprocally agreed upon by the parties that in case Appellant No. 2 (i.e. the seller) fails to transfer the suit house in the name of Respondent No. 1 (i.e. the purchaser) or his nominee or further fails to deliver possession of the suit house to Respondent No. 1 within the stipulated time period, then the former was to return the double amount of the earnest money/down payment to the latter and vice versa if Respondent No. 1 was to fail in payment of the remaining sale consideration within the time frame stipulated in the sale agreement, then the amount (i.e. the earnest money/down payment) already paid by Respondent No. 1 (purchaser) was to be forfeited by Appellant No. 2. It was further agreed upon between the parties that the suit house was to be handed over to Respondent No. 1 after getting it emancipated from all sorts of encumbrances. For the sake of reference, Clauses 06, 10, 11, 12 and 13 of the sale agreement are reproduced as under:- "06. That time is the essence of this agreement and incase the first party fails to transfer the house in the name of the second party or his nominee or in obtaining possession in the specified period it will pay double the amount he has received. Reciprocally, if the second party fails to pay the remaining amount in the given time period then the first party will forfeit the amount paid by him as down payment. 10. That he first party assures the second party that they have not obtained any loan from any bank or financing institution private or government against the same property and will bear full responsibility in case. 11. That the first party will hand over the house in good and acceptable condition with all fixtures to the second party. 12. That the first party is responsible to transfer the house and assures that it is free from all sorts of encumbrances. 13. That the first party after receiving full and final amount of the total sale consideration will transfer the house in the name of the second party or his nominee without hesitation." (Emphasis supplied) 11. It is an undisputed fact that the sale agreement was executed between Appellant No. 2 and Respondent No. 1 coupled with the fact as to the receipt of one million as earnest money by the former. As mentioned above, the suit house was .rented out and it was specifically mentioned in the sale agreement that Appellant No. 2 will get possession of the suit house within a period of ninety days from the date of the execution of the sale agreement and as such will serve a notice of vacation upon Respondent No. 1 intimating the latter as to the fact of the suit house's vacation.
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Upon receipt of such a vacation notice, Respondent No. 1 was required to pay the remaining sale consideration within a period of 10 days post receipt of such a notice failing which the amount already paid by him, wets to be forfeited. 12. Indeed, in order to effectuate the sale agreement, time was of the essence. The time within which the suit house was to be vacated by the appellants was to come to an end on 20.09.2002. It is an admitted fact that Appellant No. 2 did not issue any notice to Respondent No. 1 requiring the latter to come up with the remaining sale consideration in order to complete the sale transaction. The appellants also did not resort to Section 35 of the Specific Relief Act, 1977 (hereinafter referred to as "the Act") even after the institution of the suit for specific performance by Respondent No. 1. But in effect, it was Respondent No. 1, who in order to demonstrate his bona bona fide intension and goodwill sent intimation letter No. 2 (Exh.P-5) on C 18.09.2002 to Appellant No. 2 requesting the latter to transfer the suit house in his name. Furthermore, Respondent No. 1 also intimated Appellant No. 2 that he arranged the entire sale consideration which could be received. In order to see Respondent No. l's bona fide intention, it would be apposite to reproduce the said intimation letter in its entirety, which reads as follows: "(Intimation Letter No. 2) "Mrs. Nasira Parveen Sharif Ahmed" Subject: Intimation for Transfer of House No: 4, 71th Avenue, F-6/1, Islamabad Dear Madam! Respectfully, it is to bring to your kind notice that the finalization date of the Sale Agreement between us regarding sale of House No. 4, 7th Avenue, F-6/1, Islamabad is September, 20, 2002. According to the sale agreement remaining amount out of the total sale consideration is ready therefore on my behalf the said house may be transferred at any date on or before September. 20. 2002. It is requested therefore to kindly complete the transfer formalities of your side on or before September 20.2002 i.e. to obtain the physical possession of the said house. to obtain NOC from CDA for transfer of house and availability date of your physical presence in CDA on the transfer date. Looking forward for your full cooperation in regard. Thanking you in anticipation. --Sd- Atif Tanvir Bhalli September, 18.2002 Copy to: 1. Mrs. Nasira. Parveen Sharif Ahmed. 2. Mr. Shahid Hassan Kirmani." (Emphasis supplied) 13. It is also an admitted fact that Appellant No. 2 could not get the suit house vacated within the time period mentioned in the sale agreement. Perusal of the intimation letter (Exh.P-5) shows that Respondent No. 1 was ready to perform his part of obligation under Clause 4 of the sale agreement by expressing his intention as to the payment of the remaining sale consideration to Appellant No. 2. However, instead of getting possession of the suit house on 20.09.2002 from the tenant as contemplated under Clause 4 of the sale agreement, Appellant No. 2 requested Respondent No. 1 to extend the time for performance of the sale agreement, which request was acceded to by Respondent No. 1. Subsequently, through mutual consent, the time was extended by one month i.e. up to 20.10.2002 through amendment in the sale agreement dated 20.09.2002 (Exh.P-4). The relevant excerpt of the said amendment in the sale agreement is reproduced herein below for ready reference: "That the first party will get the possession of the above-mentioned house i.e. House No. 4, 7th Avenue, F-6/1, Islamabad within 30 days from today i.e. September 20, 2002 and will serve the
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notice to the purchase 10-days in advance for final payment within the specified period of 30-days and will also complete other transfer formalities. However, other terms and conditions remain same as per the Sale Agreement between both parties executed, on June 30, 2002." 14. Likewise, through further amendments/extensions dated 20.10.2002 and 20.11.2002 (Exh.P-5 and Exh.P-6), time for performance of the sale agreement was extended twice for a further period of one month each. Thereafter, Appellant No. 2 got issued from the CD.A. an application (Exh.P-7) for the transfer of the suit house which was valid up to 09.03.2003, but appellant No. 2 did not honour her commitment by transferring the suit house within the specified time period. Yet again, Appellant No. 2 got issued another application for transfer of the suit house. This letter was valid up to 27.05.2003, but Appellant No. 2 again failed to get vacate the suit house from the tenant. 15. As discussed above, according to the terms and conditions set out in the sale agreement (Exh.P-2), Respondent No. 1 was duty bound to arrange the remaining sale consideration within three months from the date of the execution of the said agreement viz 20.09.2002 which he did arrange on 18.09.2002 (i.e. two days prior to the expiry of 90-day period) and also intimated Appellant No. 2 as to his readiness of payment the remaining sale consideration on the date fixed in the said sale agreement. Additionally, there is no notice on the record from Appellant No. 2 warning Respondent No. 1 that if the latter did not abide by his commitment/obligation in terms of the sale agreement by paying the remaining sale consideration, the earnest money/down payment shall be forfeited. 16. It would not be out of context to mention that earlier Respondent No. 1 had filed civil suit No. 227/2003 praying inter alia for performance of the sale agreement in question, which was decreed in his favour vide judgment and decree dated 18.12.2012. In the judgment and decree dated 18.12.2012, the learned Civil Court directed Respondent No. 1 to deposit the remaining sale consideration in the Court within a period of one month from the date of the said judgment and decree. The said directions of the learned Court below were duly complied with by Respondent No. 1 by depositing the remaining sale consideration in the Court on 18.01.2013. However Appellant No. 2 despite availing extensions qua performance of the sale agreement for almost three consecutive months, failed to perform her part of obligation under the sale agreement by not getting the suit house vacated from the tenant and transferring the same in the name of Respondent No. 1. Thus, it could safely be said that Respondent No. 1 was vigilant enough about his obligation under the sale agreement inasmuch as he intimated Appellant No. 2 on 18.09.2002 i.e. two days prior to the expiry of ninety days that the remaining sale consideration is ready and requested Appellant No. 2 to perform her part of agreement by transferring the suit house in his name. Moreover, through the said letter of intimation (Exh.P-3) Respondent No. 1 also requested Appellant No. 2 to complete the transfer formalities on her part on or before September 20, 2002 i.e. to obtain physical possession of the suit house, to obtain NOC from the CD.A. for transfer of the suit house, and availability date of her physical presence in the CD. A. on the transfer date. But, Appellant No. 2 could not pay any heed towards her obligation under the sale agreement. 17. The appellants assert that the sale agreement was cancelled. Appellant No. 1 appeared in the witness box as DW-1A and deposed on oath that the sale agreement was executed between Respondent No. 1 and Appellant No. 2 to which, he was a marginal witness. He also admitted that Respondent No. 1 had paid an amount of Rs. 1 million to Appellant No. 2. He further deposed that since Respondent No. 1 could not arrange the remaining sale consideration within a period of ninety days, therefore, the sale agreement was not enforceable. However, during his cross- examination, he categorically admitted that Appellant No. 2 was under obligation to serve vacation notice upon Respondent No. 1 and it was not in his knowledge as to whether such a notice was served upon Respondent No. 1 or not. He further admitted that he cannot produce the vacation
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notice. It was also admitted by him that time for performance of the sale agreement was extended at the request of his mother i.e. Appellant No. 2. He also admitted that Appellant No. 2 could not get vacate the suit house from the tenant till 7.7.2003. 18. Since Appellant No. 2 was unable to get the suit house vacated within the time period mentioned in the sale agreement, it is perhaps for the reason that the suit house was being subjected to non-conforming use and in this regard, in 1996, 1999 and 2003, violation notices had been issued to the appellants. Adeel Hussain, Sub-Assistant Estate Management, CD.A. appeared in the witness box as DW-2 and admitted that when the violation notices were issued, the suit house was being subjected to non-conforming use and it was in possession of one Dr. Sohail Ahmed, who filed a civil suit against the CD.A. as well as Appellant No. 2; and that in the said suit, he (Dr. Sohail Ahmed got an injunctive order, which was received in the CDA's office and the same was produced as Mark-G. The said DW has categorically admitted that the suit house is non- transferable unless the violations as pointed out by the CD.A. are removed. Thus, it could safely be observed that indeed Respondent No. I had fulfilled his obligation as set out in the sale agreement and it was Appellant No. 2, who failed to perform her part of obligation under the sale agreement. 19. Needless to mention that a suit for specific performance of contract is aimed at for a discretionary remedy and the relief of specific performance, being discretionary in nature, the conduct of the plaintiff, is of paramount importance. The plaintiff who is seeking the performance of a contract in such a suit for specific performance ought to demonstrate his ability, readiness and willingness to the effect that he is ready to perform his part of contractual obligation throughout the entire proceedings and until the passing of the decree. However, in case, the plaintiff does not show his readiness or ability so as to perform his part of contractual obligation through his conduct, then he cannot claim the specific performance of the contract. It is well settled that a…
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