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Petitioner: Mrs. Naveen Irfan Puri VS Respondent: Mst. Shama Parveen and 3 others
Court Name: Sindh High Court Judge(s): Adnan Iqbal Chaudhry Title: Mrs. Naveen Irfan Puri vs Mst. Shama Parveen and 3 others Case No.: Suit No. 1254 of 2015 Date of Judgment:2018-09-03 Reported As: 2019 YLR 1700, 2018 SHC 917 Result: suit allowed
Judgment ADNAN IQBAL CHAUDHRY J. - 1. The suit properties are two adjoining plots, Survey No.20 and Survey No.52, Sheet No.C-F-1-5, Clifton Quarters, Karachi, admeasuring 2400 sq. yds. and 2600 sq. yds respectively. Both these plots are situated adjacent to the Mohatta Palace. At the relevant time, both the suit plots were jointly owned by the defendants 1 and 2 such that the defendant No.1 (Shama Parveen) was owner of 62.50% of both plots, while the defendant No.2 (Shamim Ahmed) was owner of 37.50 % of both plots. Case of the plaintiff: The case of the plaintif f as set-out in the plaint refers to three (3) sets of contracts which are discussed as follows. Sale Agreement dated 19-12-1996: 2. By Sale Agreement dated 19-12-1996 both the defendants 1 and 2 agreed to sell both the suit plots to the plaintif f. From the side of the owners/sellers, this Sale Agreement was executed by the defendant No.2 (Shamim Ahmed) for himself and as Attorney of the co-owner/ defendant No.1 (Shama Parveen). The sale consideration agreed under this Sale Agreement for both the suit plots was Rs.60,000,000 (Rupees Sixty Million) only, out of which Rs.10,000,000 was paid on or before the Sale Agreement, Rs.20,000,000 was agreed to be paid on or before 19th January , 1997, while the balance sale consideration of Rs.30,000,000 (Rupees Thirty Million only) was agreed to be paid "on or before 19th July/August, 1997". The execution of this Sale Agreement dated 19-12-1996 is not disputed by any of the parties. 3. It is the case of the plaintif f that right after the Sale Agreement dated 19-12-1996 she learnt from news reports that to preserve the Mohatta Palace that was adjacent to the suit plots, the Government had restrained the defendants 1 and 2 from constructing on the suit plots; that the Government had decided to convert the suit plots into a public park and as compensation, the defendants 1 and 2 had been offered alternative plots; that when the plaintif f confronted the defendant No.2 with the news reports, he assured her that he would sort out the matter with
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the authorities, and that if he failed, he would give the plaintif f alternative plots, and until then the plaintif f would not be required to pay the balance sale consi deration of Rs. 50 million; but despite that, the defendants 1 and 2 sent a legal notice dated 08-04-1997 to the plaintif f threatening forfeiture of the part payment and cancellation of the Sale Agreement dated 19-12-1996 unless the balance sale consideration was paid; that thereafter the defendant No.2 duped the plaintif f?s husband into making further payments to the defendant No.2 in cash and to his brother , and in this manner , by 12-04-1997 a sum of Rs.43,000,000 had been paid by and on behalf of the plaintif f towards the sale consideration agreed under the Sale Agreement dated 19-12-1996. Sale Agreements dated 02-10-1997: 4. The Sale Agreements dated 02-10-1997 were between the plaintiff and the defendant No.1 only, not the defendant No.2. It is the plaintiff's case that when the defendant No.1 returned to Pakistan (whose Attorney was the defendant No.2), the plaintiff and the defendant No.1 entered into two Sale Agreements dated 02-10 1997, one each for the two suit plots, whereby the defendant No.1 (Shama Parveen) agreed to sell half of her share in the suit plots, i.e. 31.25 % in each of the suit plots, to the plaintiff for a total sale consideration of Rs.3,906,250; that on the same date i.e. 02-10-1997 the defendant No.1 also executed two General Power of Attorneys, duly registered, one for each of the two plots, in favour of the plaintiff's brother, authorizing him to transfer the suit plots; that on the same date ie. on 02-10-1997 the defendant No.1 also delivered possession of 31.25% of each of the suit plots to the plaintiff; that subsequently, the plaintiff's brother, exercising mandate under the General Power of Attorneys dated 02-10-1997, executing two registered Conveyance Deeds dated 03- 03-1998, one each for the two suit plots, for transferring title of 31.25% of both the suit plots to the plaintiff. Consequently, the plaintiff became co-owner of both the suit plots which came to be owned 31.25% by the plaintiff, 31.25% by the defendant No.1 and 37.50% by the defendant No.2. Oral contract dated 30-05-1998: 5. The plaint further states that subsequent to the aforesaid written contracts, the plaintiff also entered into an oral contract dated 30-05-1998 with the defendant No.1 (not the defendant No.2). This oral contract is alleged to be for purchasing the remaining 31.25% share of the defendant No.1 in each of the suit plots for a sale consideration of Rs.23,100,000/-, which, per the plaintiff, was paid to the defendant No.1 in cash. 6. Per para 18 of the plaint, it is the plaintiff?s case "That since the execution of the sale agreement (dated 19-12- 1996) the Plaintiff has been requesti ng and reminding the Defendants Nos.1 and 2 to complete the sale/commitment for the remaining property , but they have failed to fulfil their promise. They have misled and deceived the Plaintiff. Though till date the Defendants nos.1 and 2 have never refused to complete the sale agreements whether written or oral." Per the plaint, the suit was filed in July 2015 when the defendant No.2 attempted to dispossess the plaintif f from the suit plots by use of force. The plaint prays for a decree against the defendants jointly and severally for the following: "a) order specific performance of Agreement of sale dated 16-12 1996 (sic - should be 19-12-1996) and the oral agreement dated 30 05-1998 against the Defendants nos. 1 and 2, jointly and severally; b) direct the Defendants nos. 1 and 2 to complete sale of this suit property by executing the sale deed jointly and severally for the remaining 68.5% share in favour of the Plaintiff; c) in default of prayer (b) the Nazir may be directed to execute the sale deed for the remaining 68.5% share in the suit property in favour of the Plaintiff; d) permanently and pending disposal of the main suit restrain the Defendants 1 and 2, their officers, agents and privies from dispossessing the Plaintiff, raising any construction over the suit property or creating any third party rights in relation to the said suit property or encumbering the suit property in any manner whatsoever, including acceptance and taking over of alternate plots; e) direct the Nazir of this Hon?ble Court to conduct inspection of the suit property , so as to ascertain (by taking photographs) who is in possession of the same; f) direct the Defendants nos. 1 and 2 to refund Rs.1 crore, jointly and severally , in the ratio commensurate with their referred shares alongwith markup at bank rate and order indexation from the date of payment by the Plaintiff till the date of refund. g) grant costs;
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h) grant any other adequate relief deemed fit in the circumstances." Case of defendant No.2 (Shamim Ahmed): 7. The case of the defendant No.2, as borne from his pleadings, is that prior to the Sale Agreement dated 19-12- 1996, the defendant No.1 had divested herself of her entire 62.50% share in both the suit plots by way of executing a sale agreement in favor of the defendant No.2 along with registered and irrevoca ble Power of Attorneys; that the plaintif f had satisfied herself of this fact and that is why in entering into the Sale Agreement dated 19-12-1996 she dealt only with the defendant No.2; that after the initial payment of Rs.10 millio n, the plaintif f never made any further payment under the Sale Agreement dated 19-12-1996, and thus vide legal notice dated 08-04 1997, the Sale Agreement dated 19-12-1996 was terminated; that since the defendant No.1 had already sold her share in the suit plots to the defendant No.2 (by sale agreement and registered Power of Attorneys as aforesaid), she could not have entered into the subsequent Sale Agreements dated 02-10-1997 with the plaintif f. It is further the case of the defendant No.2 that he was in exclusive physical possession of both the suit plots all along, and that such physical possession had been taken by the plaintif f unlawfully by use of force just before filing the instant suit . 8. Mr. Mushtaq A. Memon, learned counsel for the defendant No.2, informed that the defendant No.2 had filed suit to challenge the transaction between the plaintiff and the defendant No.1, which had allegedly been done behind the back of the defendant No.2. Regards the physical possession of the suits plots allegedly taken over by the plaintiff unlawfully, the defendant No.2 has filed Suit No.2449/2015 under Section 9 of the Specific Relief Act, 1877. By a consent order dated 15-05-2018 passed in Suit No.2449/2015, pending the recording of evidence in that suit, the defendant of that suit who is the plaintif f herein, was restrained from creating any third party interest in the suit plots, and the suit plots were brought under the supervision of the Nazir of this Court, but without prejudice to the case of the plaintif f in this suit. Case of the defendant No.1 (Shama Parveen): 9. Per her written statement, the defendant No.1 does not deny that the Sale Agreement dated 19-12-1996 had been executed by the defendant No.2 also as her Attorney. She states that in May 1997 she had been informed by the defendant No.2 that he had terminated the Sale Agreement dated 19-12-1996 for failure of the plaintiff to pay the balance sale consideration. The defendant No.1 denies having entered into the oral contract dated 30-05-1998 with the plaintiff. It is the case of the defendant No.1 that on receiving sale consideration of her share in the suit plots respectively from the defendant No.2 and the plaintiff, she (the defendant No.1) sold 31.25% of her share in both the suit plots to the defendant No.2, and the remaining 31.25% share in both the suit plots to the plaintiff by way of sale agreements coupled with registered Power of Attorneys. Therefore the defendant No.1 claims no further interest in the suit plots. CMA No.1 1934/2015 under Order VII Rule 1 1 CPC and the legal objection on maintainability of the suit CMA No.11934/2015 under Order VII Rule 11 CPC by the defendant No.2, and CMA No.10616/2015 under Order XXXIX Rules 1 & 2 CPC by the plaintif f had been heard together . But given its consequences if granted, I proceed to deal first with CMA No.1 1934/2015. 10. The grounds taken in CMA No.11934/2015 for rejection of the plaint are also amongst the grounds taken by the defendant No.2 in his written statement for dismissal of the suit. As elucidated by the Supreme Court of Pakistan in the case of Haji Abdul Karim v. Florida Builders (PLD 2012 SC 247), hereinafter Florida Builders?, though rejection of plaint? and dismissal of suit? are distinct concepts with different consequences, but while examining the plaint for the former , the Court retains its inherent power for the latter . That import from Florida Builders is in the following paras of the said judgment: "12. After considering the ratio decidendi in the above cases, and bearing in mind the importance of Order VII Rule 11, we think it may be helpful to formulate the guidelines for the interpretation thereof so as to facilitate the task of courts in construing the same. Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of
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justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision. Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e - Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint." Therefore, while examining the plaint of this suit for rejection or otherwise, I am guided by the above guidelines laid down in by the Supreme Court of Pakistan in Florida Builders . 11. The application for rejection of the plaint is premised on two grounds. First, that the suit is barred by limitation; and second, that the plaint is verified by an unauthorized person. A discussion of the submissions made by learned counsels on the ground of limitation is as follows. Submissions on behalf of the defendant No.2: 12. Mr. Mushtaq A. Memon, learned counsel for the defendant No.2, submitted that the date for performance of the Sale Agreement dated 19-12-1996 was fixed as "19th July/August, 1997", which would mean that the same had to be performed latest by 31st August, 1997; that such being a "date fixed", it was the first part of Article 113 Limitation Act, 1908 that was attracted; that consequently limitation for the relief of specific performance of the Sale Agreement dated 19-12-1996 expired on 31-08-2000 and this suit filed on 23-07-2015 is hopelessly time-barred. To attack the suit on limitation, Mr. Mushtaq A. Memon primarily relied on the case of Haji Abdul Karim v. Florida Builders (PLD 2012 SC 247), hereinafter Florida Builders?, which case in addition to Order VII Rule 11 CPC, is also a discourse on Article 113 Limitation Act, 1908. Regards the oral contract dated 30-05-1998 that is alleged by the plaintiff between herself and the defendant No.1, Mr. Mushtaq A. Memon submitted that though the said oral contract was denied by the defendant No.1, but in any case, in view of Article 103 Qanoon-e-Shahadat Order, 1984, the alleged oral contract cannot be relied upon to contradict the written Sale Agreements. Submissions on behalf of the plaintiff: 13. Though the counter-affidavit on behalf of the plaintiff to CMA No.11934/2015 contended that the mention of "19th July/August, 1997" in the Sale Agreement dated 19-12-1996 was not a date specific, and hence not a "date fixed" within the meaning of the first part of Article 113 Limitation Act, 1908, Mr. Farogh Naseem, learned counsel for the plaintiff did not press such point and conceded that the date so mentioned was a date fixed. That being so, he was confronted with the case of Florida Builders (PLD 2012 SC 247) wherein it has been held by the Supreme Court of Pakistan that where the sale agreement contains a date fixed, a suit for its specific performance attracts the first part of Article 113 Limitation Act, 1908 and "....the limitation shall commence forthwith from the date fixed by the parties, notwithstanding the alleged failure, inabilities of the respondent to perform its part of the obligations, the alleged interaction between the parties, their conduct, which shall have no relevance in the context of the limitation of those suits covered by the first part of the Article." Mr. Farogh Naseem candidly accepted that for the relief of specific performance to survive, the case of the plaintiff would need to come out? of Florida Builders. In order to do that, he pointed to page 257 of the judgment in Florida Builders where it has been recognized that the date fixed in the sale agreement may be extended or dispensed with by the parties by an express agreement, and he submitted that in the facts of the instant suit the date fixed in the Sale Agreement dated 19-12- 1996 had in fact been extended by an express agreement which were the subsequent Sale Agreements dated 02-10-1997 between with the plaintiff and the defendant No.1. He submitted that the effect of the subsequent Sale Agreements dated 02-10-1997 was that while the other clauses of the Sale Agreement dated 19-12-1996 continued to subsist, the clause fixing the date of performance stood dispensed-with and novated within the meaning of Section 62 Contract Act 1872, and consequently it was the second part of Article 113 Limitation Act, 1908 that was attracted where limitation runs from the date of notice of refusal, which notice, per learned counsel, was acquired by the plaintiff in July 2015 when the
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defendant No.2 attempted to wrest away physical possession of the suit plots from the plaintiff. Per learned counsel, in these circumstances, the suit was not time-barred and not hit by Florida Builders. In support of his submissions, Mr. Farogh Naseem relied on the cases of Siraj Din v. Khurshid Begum (2007 SCMR 1792); Ghulam Nabi v. Muhammad Yaqub (PLD 1983 SC 344); Inam Naqshband v. Haji Shaikh Ijaz Ahmed (PLD 1995 SC 314); and Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189). He submitted that Section 62 Contract Act, 1872 also envisages partial novation of a contract and it is not that a complete substitution of the contract has to be shown to attract Section 62 Contract Act. As regards the fact that the subsequent Sale Agreements dated 02-10 1997 were executed by the defendant No.1 alone and not the defendant No.2, Mr. Farogh Naseem submitted that since the suit plots were joint property and sale consideration was paid for both of the suit plots, it did not matter that the subsequent Sale Agreements dated 02-10- 1997 were not signed by the defendant No.2. 14. Mr. Farough Naseem, learned counsel for the plaintiff further submitted that the oral contract dated 30-05-1998 between the plaintiff and the defendant No.1 was a second novation of the date fixed under the original Sale Agreement dated 19-12-1996, and that in view of Proviso (2) to Article 103 Qanoon-e-Shahadat Order, 1984, such oral contract can be relied upon against the written contracts. However, he submitted that for the present purposes, even if the oral contract dated 30-05-1998 was ignored, the written Sale Agreements dated 02-10-1997 were sufficient to show that the date fixed under the original Sale Agreement dated 19-12-1996 had been dispensed with. Rebuttal on behalf of the defendant No.2: 15. In rebuttal, Mr. Mushtaq A. Memon, learned counsel for the defendant No.2 submitted that under Section 62 Contract Act, 1872, novation takes place only if all parties to the original contract agree to substitute it; but here, admittedly, the defendant No.2 who was party to the original Sale Agreement dated 19-12-1996, was not party to the alleged novation, and thus the question of novation of the original Sale Agreement dated 19-12-1996 does not arise at all. To support his submission Mr. Mushtaq Memon relied on the cases of Hawabai v. Sharif (PLD 1961 (W.P.) Kar 412) and Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189). He further submitted that novation is a substitution of the original contract, and not a mere variation of its terms as held in the cases of Mohammad Nazir v. The District Judge, Gujranwala (1988 CLC 2469) and Dr. Khalid Kamal Khan v. Dr. Arshad Kamal Khan (1992 CLC 1887); and that since the plaintiff has specifically prayed for specific performance also of the original contract (Sale Agreement dated 19-12-1996), the plea of novation was misconceived. Lastly, Mr. Mushtaq Memon submitted that since the plea of novation has not been expressly pleaded in the plaint, it cannot be considered at all as laid down in the case of Fazal-ur Rehman v. Sughra Haq (2007 SCMR 564). Discussion and finding: 16. In Florida Builders (PLD 2012 SC 247), while discussing the two parts of Article 113 Limitation Act, 1908, and in addition to the extract in para 13 above, it has also been held by the Supreme Court of Pakistan as follows: "These two parts of Article 113 are altogether independent and segregated in nature and are meant to cater two different sorts of specific performance claims in relation to the limitation attracted to those. A case squarely falling within the ambit of the first part cannot be adjudged or considered on the touchstone of the second part, notwithstanding any set of facts mentioned in the plaint to bring the case within the purview of the later part. In other words, as has been held in the judgments reported as Siraj Din and others v. Mst. Khurshid Begum, and others (2007 SCMR 1792 ) and Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) "when the case falls within first clause the second clause is not to be resorted to". However , the exemption, the exclusion and the enlargement from/of the period of limitation in the cases of first part is permissible, but it is restricted only if there is a change in the date fixed by the parties or such date is dispensed with by them, but through an express agreement; by resorting to the novation of the agreement or through an acknowledgment within the purview of section 19 of the Act. And/or if the exemption etc. is provided and available under any other provision of the Act howe ver, to claim such an exemption etc. grounds have to be clearly set out in the plaint in terms of Order VII Rule 6, C.P.C." It was acknowledged by Mr. Farogh Naseem, learned counsel for the plaintif f, that the date of "19th July/August, 1997" mentioned in the Sale Agreement dated 19-12-1996 was a "date fixed", and thus it had to be performed by 31st August, 1997. It is not the case of the plaintif f that any of the exceptions or excluding provisions of the Limitation Act, 1908 are attracted. Therefore, but for Mr. Farogh Naseem?s argument that the date fixed in the Sale
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Agreement dated 19-12-1996 had been dispensed with (which argument is examined infra), the plaintif f cannot come out? of the case Florida Builders, making the relief for specific performance of the Sale Agreement dated 19- 12-1996 time-barred after 31-08-2000. 17. Adverting now to the argument of Mr. Farogh Naseem that the date fixed in the Sale Agreement dated 19-12-1996 was dispensed with by the parties, he had submitted that that was done under the subsequent Sale Agreements dated 02-10- 1997 which had the effect of novating the date fixed? in the Sale Agreement dated 19-12-1996, as opposed to novating the entire Sale Agreement dated 19-12-1996. Indeed, the argument was made with the purpose of keeping alive the other clauses of the original Sale Agreement dated 19-12-1996 failing which, the prayer for its specific performance does not lie. Before examining the merits of that argument, I observe here that the plea that the date fixed under the Sale Agreement dated 19 12-1996 had been dispensed with or novated, has not been taken in the plaint at all. It has been held in Florida Builders (PLD 2012 SC 247) and Fazal-ur-Rehman v. Sughra Haq (2007 SCMR 564) that the failure to categorically plead novation in terms of Order VII Rule 6 C.P.C. is fatal to such plea, and that much would have sufficed to reject such plea outright. But nevertheless, to answer the point of law raised, I agree with Mr. Farogh Naseem that novation under Section 62 Contract Act, 1872 can be said to be of a part of a contract, however not in the sense expounded by him, but I say that in the sense that there can be a contract that can be divided into severable and distinct obligations (as opposed to being an entire contract?), or there can be an independent contract within the main contract, such as an arbitration clause. In such situations, the word contract? in Section 62 Contract Act, 1872 where it refers to the original contract, refers to a severable or independent contact. It is also to be kept in mind that since a contract can also be an oral one, the word "contract" also appearing in Section 62 Contract Act does not necessarily mean the deed/instrument that embodies the contract, but the agreement between the parties, which agreement and parties may be multiple under one deed. However, whether the novation is of the severable contract or the independent contract within the contract, or whether it…
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