Present: Gulzar Ahmed, J.
Messrs SUNLEY DEVELOPERS PRIVATE LIMITED through Authorised Officer,
Messrs MUMAIR ASSOCIATES through Attorney
Suit No. 9 and C.Ms. Nos.53 and 2790 of 2008, decided on 31.12.2008.
Limitation Act, 1908 (IX of 1908)--
----Art. 113--Civil Procedure Code, (V of 1908), O. VII, R. 11--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of contract--Limitation--Rejection of plaint--Scope--While dealing with the question of rejection of plaint under O.VII, R. 11, C.P.C. the contents of the plaint were to be assumed to be correct and same would be rejected if it was shown that the plaint on its face was barred by law of limitation--Where the plaint on its face did not show that same was barred by limitation, its rejection would not be justified. [P. 209] A
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit for specific performance of agreement to sell--Rejection of plaint--Scope--All the items on which grievances had been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the defendant--Heading of the agreement though mentioned same to be an "agreement to sell" but its reading showed that it was not so but was a complete conveyance of the land by defendant to the plaintiff with giving of irrevocable general power of attorney for selling of the plots and recovery of sales proceeds and making of sub--leases in favour of prospective purchasers--Held, to the extent what was read from the agreement itself and complaints made in the plaint, there seemed to be no cause of action for filing of the suit by the plaintiff--Application for rejection of plaint was allowed. [Pp. 211 & 212] B & D
1986 SCMR 497; PLD 1987 Kar. 132; PLD 1985 SC 153; PLD 1987 Kar. 292; 2001 CLC 946 and 1988 CLC 722 ref.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit for specific performance of agreement--Lease--Rejection of plaint--Scope--Agreement, though showed selling of 950 residential plots but their exact location was mentioned to be partly in specified survey numbers and as to where the remaining part of the land was situated, the agreement was altogether silent--Except for there being a covenant from the side of the defendant that it had a subsisting lease of land, no particulars or details were given about purported lease as to from whom it was obtained, what was its date, its nature, right given under it and to what specific land it related; agreement and plaint were altogether silent on this aspect of the matter--Where a document which, in the present case, was agreement to sell purported to have conveyed the land of 950 plots by the defendant to the plaintiff, it had to mention full particulars and details of the lease--Even the copy of purported lease was not attached with the plaint nor was available on record which would lead to the only inference that there was no existence of lease of the suit land--Application was allowed. [Pp. 211 & 212] C & D
Mr. Muhammad Sadiq Hidayatullah, Advocate for Plaintiff.
Mr. Nazar Akbar, Advocate for Defendant No. 1.
Nemo for Defendants Nos. 2, 3 and 5.
Date of hearing: 31.12.2008.
(1) & (2) These are the two applications one is under Order XXXIX, Rule 1 & 2, C.P.C. filed by plaintiff and the other is under Order VII, Rule 11, C.P.C. filed by Defendant No. 1. The Defendant No. 1 has filed counter affidavit to the first mentioned application while the plaintiff has filed objections to the second application to which rejoinder has been filed by Defendant No. 1. Both the counsel for the parties have made extensive submissions.
Learned counsel for Defendant No. 1 has contended that no notice was given by the plaintiff to Defendant No. 1 and that the suit is time barred and even otherwise plaintiff has no cause of action for filing of the suit. In support of his submissions he has relied upon the cases reported in 1986 SCMR 497. PLD 1987
132. PLD 1985 SC 153, PLD 1987 Karachi
292 and 2001 CLC 946. Karachi
On the other hand learned counsel for plaintiff has submitted that the plaintiff has made full payment of the consideration amount to the Defendant No. 1 and was put in possession of the property and that Defendant No. 1 was required to demolish the boundary wall and the agreement is irrevocable. He has finally contended that plaintiff's right is protected under Section 53-A Transfer of Property Act and has relied upon the case reported in 1988 CLC 722.
I have considered the submissions made by learned counsel and have gone through the record.
The suit has been filed for specific performance of contract, declaration and injunction. It is alleged in the plaint that plaintiff has entered into an Agreement to Sell dated 30-4-1998 with the Defendant No. 1 for purchase from Defendant No. 1 housing scheme by the name of Gulshan-e-Rumi upon besides other survey numbers including Survey Nos. 108, 109 and 110 situated in Deh Safooran, Tapo Gadap, Taluka & District East, Karachi on which 950 residential plots of 120 and 133 square yards have to be constructed and the plaintiff has agreed to purchase these plots. The consideration of Rs.750 per square yard including all outer and internal development charges together will all rights, title and interest with full vacant possession and free from encumbrances, charges and disputes. It is alleged that on the signing of the Agreement Rs. 100,00,000 was paid and further Rs.50,00,000 was also paid as per the schedule of the Agreement. It is alleged that on signing of the sale agreement and payment of Rs. 150,00,000 the defendant handed over actual vacant possession of the property to the plaintiff. Plaintiff got the lay out plan approved for 685 units/bungalows and obtained N.O.C. for sale of 218 units/bungalow, through its sister concern M/s. Sobia Enterprises from the Cantonment Board. The construction and development work was stopped because of the notice of Defendant No. 4 namely Cantonment Board who asked for obtaining of N.O.C. from Civil Aviation Authority. It is alleged that as per agreement the Defendant No. 1 had to obtain N.O.C. from competent authority and that the defendant failed to get demarcation of boundary wall of the said housing scheme. Defendant also failed to make internal development as per agreement of laying carpeting of roads and separate approval of the residential plots. It is alleged that plaintiff pressed the Defendant No. 1 to honour the terms of the agreement who kept the plaintiff on false promises and ultimately in March 2007 defendant failed to provide all the required N.O.C. and approval of residential status of housing scheme and construction and carpeting of road was not done. It is alleged that the defendant has threatened to dispossess the plaintiff and refused to honour the terms of the agreement. It is alleged that the cause of action for the suit accrued to the plaintiff in March 1997 when the plaintiff paid and defendant received a sum of Rs. 100,00,000 and handed over the vacant possession of the suit property and thereafter when plaintiff paid further sum of Rs.50,00,000 to the defendants and ultimately in March 2007 when the defendant failed to honour the commitment made in the agreement.
So far the first submission of the learned counsel for the plaintiff that no notice was given by the plaintiff to the defendant for seeking compliance of the said agreement and to show its own willingness to perform the agreement, it may be noted that no specific provisions of law was cited by the learned counsel to show that giving of a notice for filing of suit for specific performance is mandatory and without it the suit will not be maintainable. It appears to me that there is no legal requirement for giving of a notice before filing of a suit for specific performance of contract but prudency requires that giving of notice be adverted to before entering upon costly and time consuming affair of litigation. The exchange of notice and reply, in many cases may bring parties to some agreeable solution of the dispute or at least narrow down contentious issues between them and also crystallize their respective stand on point or points on which disagreement exist. This facilitates Court proceeding as it will only address to the narrowed controversy and answer to it. Since no specific law has been cited for giving of a notice before filing of the suit for specific performance of contract, therefore, this question cannot be considered for rejection of the plaint under Order VII, Rule 11, C.P.C.
As regards the second submission of the learned counsel that the suit is time barred, Defendant No. 1 counsel has contended that even if the plea of the plaintiff that it has paid the amount of Rs. 15,000,000 is accepted in accordance with the schedule provided in clause (2) of the agreement still the suit will be time barred, as it has not been filed within 3 years from the last payment shown in the schedule. The schedule shows that a sum of Rs. 10,000,000 was paid on the date of agreement i.e. 30-4-1998, Rs.2,500,000 within 30 days of the signing of the agreement and further Rs.2,500,000 on expiry of 60 days from the date of agreement. Thus the last payment would be around 29-6-1998.
Article 113 of the Schedule to the Limitation Act, 1908 provides limitation period for filing of suit for specific performance of contract that of 3 years from the date fixed for the performance and if no such date is fixed then from the date the plaintiff has notice that performance is refused. Admittedly, no date is fixed in the agreement for the performance, therefore, the second part of the provision will apply where limitation has to run from the date of refusal to perform the agreement. Plaintiff in the plaint has pleaded that refusal to perform the agreement has been made by the Defendant No. 1 in March 2007. The Defendant No. 1 has not shown any document that there was refusal on its part to perform the agreement prior to the date which is alleged in the plaint. In the absence of any such prior refusal, the question as to whether there was a refusal to perform the agreement by the Defendant No. 1 in March 2007 is a question of fact which can only be determined after evidence is recorded by the parties. After all while dealing with the question of rejection of plaint under Order VII, Rule 11, C.P.C, the contents of plaint are assumed to be correct and it will be rejected if it is shown that the plaint on its face is barred by the law of limitation. The plaint, on its face does not show that it is barred by limitation law.
As regards the last arguments of the learned counsel for the Defendant No. 1 that the plaintiff has no cause of action for the suit, it may be noted that the Agreement to Sell was made between the plaintiff and Defendant No. 1 in respect of housing scheme of Gulshan-e-Rumi on land besides other survey numbers including survey Nos. 108, 109 and 110 in Deh Safooran, Taluka and District Karachi East. Second recital of the agreements provide that the Defendant No. 1 has agreed to sell, transfer, convey and assign to the plaintiff a total area of 115975 square yards partly from the said survey numbers for development and construction of approximately 950 residential plots of 120 and 133 square yards at an agreed sale consideration to be calculated at the rate of Rs.750 per square yard each inclusive of all development charges together with tight, title and interest with full vacant possession, free from all encumbrances. Developing charges is defined in clause (b) of this recital with is as follows :--
(b) The agreed Sale consideration to be calculated at the rate of Rs.750 per each square yard of the said Land shall also be inclusive of all the internal development charges such as construction and carpeting of Roads as per approved Layout Plan, separate approved Plans from the concerned authorities with all required N.O.C.'s together with approval of their Residential status under the said Housing Scheme, permission/N.O.C. for sale and allotment of the said plots to the individual allottees including the permission/N.O.C. for construction in respect of the plots involved in the said Land from the concerned authorities of the Cantonment Board and from all other concerned Governmental Authorities."
Clause (2) of the agreement shows payment of Rs. 10,000,000 as partial payment towards consideration and further two payments of Rs.2,500,000 in two instalments of 30 days and 60 days respectively from the date of agreement. Clause-3 contains schedule on earn and pay basis and it provides that 65 % out of the amount to be recovered by the plaintiff on account of sale proceeds of 950 residential plots from prospective purchasers shall be invested by the plaintiff upon construction of model bungalows, bungalows on account of development and on other construction work and payment to the Defendant No. 1 of 25% out of the amount recovered by the plaintiff from the perspective purchaser for adjustment of full and final consideration of the land and the rest 10% will be retained by the plaintiff against investment in the housing scheme. By clause-4 Defendant No. 1 covenants with the plaintiff that the lease in respect of the land of 950 residential plots under sale is in full force, valid and subsisting and that the Defendant No. 1 has full power and lawful authority to sell, transfer, convey and assign the said land to the plaintiff in the manner done by the agreement. By clause-5 Defendant No. 1 covenants with the plaintiff that it has paid all assessment, taxes, cesses and development charges, ground rents etc, till the delivery of vacant possession. By clause-7 defendant covenants with the plaintiff that it shall do or cause to be done all lawful acts, deeds and things for better selling and perfectly assigning the said land unto the plaintiff free from all encumbrances and that the Defendant No. 1 shall execute an Irrevocable General Power of Attorney in favour of the plaintiff or his nominee containing all the powers and authorities for booking and selling of the said plots to individual sub-lessees, to handover sub leases, to get publication or advertisement for sale, recover sale proceeds, to get construct house on 950 plots, to deliver physical possession thereof to perspective purchaser, to sign, execute and admit execution of sublease deeds of the said plots in favour of individual allottees and sub-lessees. By clause-8 Defendant No. 1 has delivered full vacant possession of the land to the plaintiff with stipulation that now the plaintiff is fully and legally entitled to get the plots sold to the perspective purchase of its own choice either under old or new name of housing scheme and to recover sale proceeds there-from without any concern whatsoever of the Defendant No. 1. By clause (9) the Defendant No. 1 has covenanted with the plaintiff that it shall sign, execute and issue allotment letters and possession letters of 950 residential plots of the said land in favour of the newly established partnership firm namely Messrs G.M. Developers Karachi. In clause (10) the Defendant No. 1 covenanted that it will demolish the entire boundary wall at their own cost and expenses and by Clause-11, the agreement has been made irrevocable and binding upon the parties, their heirs, successors, executors, administrators and assignees.
The grievance of the plaintiff is that the obligation of obtaining approval of lay out plan of 685 units/bungalow, N.O.C. for sale of 218 units/bungalows was of the Defendant No. 1. It is also complained that the Defendant No. 1 failed to get demarcation of the boundary wall and internal development as per agreement that of laying carpeting of roads and separate approved plan of residential plots. On the perusal of the agreement as noted above, all the items on which grievance has been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the Defendant No. 1. This is clear from reading of second recital and moreso by its sub-para, (b) and clause (3) of the agreement. Although heading of the agreement mentions it to be an Agreement to Sell but its reading shows that it is not so but is a complete conveyance of the land by the Defendant No. 1 to the plaintiff with giving of Irrevocable General Power Attorney for selling of the plots and recovery of sale proceeds and making of sub leases in favour of the prospective purchaser. To the extent what is read from the agreement itself and complaints made in the plaint, there seems to be no cause of action for filing of the suit by the plaintiff.
The other very interesting feature of the case is that though the agreement shows selling of 950 residential plots but their exact location is mentioned to be partly on survey Nos.108, 109 and 110 in Deh Safooran, Taluka & District East,
. Where the
remaining part of the land is situated, the agreement is altogether silent.
Except for there being a covenant from the side of the Defendant No. 1 that it
has a subsisting lease of the land, no particulars or details are given about
purported lease as to from whom it is obtained, what is its date, its nature,
right given under it and to what specific land it relates. The agreement and
the plaint are altogether silent on this aspect of the matter. Where a document
which in the present case is Agreement to Sell
purports to have conveyed the
land of 950 plots by these Defendant No. 1 to the plaintiff, it has to mention
full particulars and details of the lease. Even copy of purported lease is not
attached with the plaint nor is available on record which will lead to only
inference that there is no existence of lease of the suit land. Karachi
Despite above failings patent on the record, the defendants Nos.3 & 5 who are respectively Mukhtiarkar, District Malir and Province of Sindh through Secretary Land Utilization have filed written statement, which is signed and verified by one Iqbal Ahmed son of Muhammad Umar without mentioning his designation and in para, (e) under the heading of preliminary objection it contains as follows:
"(e) That entries in favour of defendants Nos. 1 and 2 were kept on the basis of registered sale deed but so far no proof is filed to establish that the sellers and defendants Nos. 1 and 2 possessed any marketable title."
Now, what one can make out of what is purported to be pleaded in this paragraph of the written statement. In the first place it says that entries in favour of defendants Nos. 1 & 2 were kept on the basis of registered sale deed and in the second place it says that no proof is filed to establish that sellers and defendants Nos. 1 & 2 possessed any marketable title. These are totally destructive and inconsistent pleas, which are irreconcilable and seem to have been made only to facilitate wrong doing by defendants Nos.3 & 5. It has introduced facts which are altogether not pleaded in the plaint nor mentioned in the agreement itself. This appears to be totally dubious plea. The Secretary Land Utilization Department, Government of Sindh is directed to enquire into and file complaint against the said Iqbal Ahmed son of Muhammad Umar in the
Anti Corruption Court
and at the same time take disciplinary action and suspend him. A report of
action taken be transmitted to MIT of this Court within a period of two months.
A copy of this order be sent to Secretary Land Utilization Department,
Government of Sindh for making compliance. A copy of this order be also
transmitted to MIT for keeping track of the matter and in case its compliance
is not made, he is directed to put up his reference to Court for taking of
further action in there matter.
Resultantly, application under Order VII, Rule 11, C.P.C. is allowed. Plant is rejected and all other applications are disposed of.
(R.A.) Order accordingly.