Specific Performance time per baqaia Raqam Ada na na karne wala biana se hath dhu baitha.
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| Specific performance. Earnest money confiscated by Supreme Court |
Video on the topic at the end of this article
- Following latest Judgement of Supreme Court.
- Plaintiff ne case file kia for specific performance ka
- Ye ke mahda hoa tha 1997 main 5 lakh and something main
- Or 150'000 rupees earnest money biana jama karwa dia tha
- Or baqi raqam ke liye aik mah ka time maqarar hoa tha.
- Magar aik mah baad jab date aayi tu us ke pass raqam aada karne ko na thi.
- Jiss ke baad us ne dealer ke through 2 mah ka mazeed time lia.
- Phir bhi raqam ada na kar saka.
- Aik mah ka time mazeed dia gia.
- Jiss ke baad bechne wala paralyzed hu gia tha or part performance nahi kar sKta tha.
- Issi duran bechne wale ki moat hu jati hai.
- Jiss ke baad dawa hota hai specific performance ka legal heirs ke khalaf.
- Neeche se tamam courts se case decree hu jata hai.
- Magar Supreme Court ne qarar dia. Ke agreement main tahreer tha aik mah main raqam ada karna thi.
- Magar raqam ada na hoi.
- Or khareedar ne khud evidence main mana ke date per us ke pass raqam ada karne ko na thi.
- Or us ne baqya raqam case decree hone ke baad 2010 main jama karwai
- Supreme Court ne qarar dia ke mahada ke mutabaq raqam on time per ada na karne per kharidar ki advance raqam zabat hona thi as per agreement. Jiss baat ko neeche kisi court ne consider nahi kia
- Jiss ke baad Supreme Court ne Biana kharidar ka zabat karne ka hukam dia or sath main case ka kharcha bhi ada karne ka hukam dia.
- Or kharidar ku hukam dia ke ju raqam baqia iss ne decree hone ke baad court ke kehne per jama karwai thi wapis lene ka hukam dia.
Judgement of Supreme Court
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- Supreme court another new decision on same topic.
- Plaintiff made agreement to sell and total price of the property was 1 karor
- Buyer have to pay the remaining amount in two installment.
- In First installment paid by buyer was 45 lakh.
- 2nd installment had to pay 50 lakh whih did not paid by buyer.
- Plaintiff filed case before Trial court which was decreed
- But High Court setaside the decree and dismiss the suit of the plaintiff.
- Now plaintiff filed appeal before Supreme Court to setaside the order of the High Court
- But The Supreme Court held that it is plaintiff fault that he didn't pay 2nd installment.
- That plaintiff said in his plaints that he send notice to defendant to take permission from CDA but not submitted any recipt of Post.that he post the notice
- 2ndly plaintiff did not show any availability of funds if funds were available.
- Also didn't not submitted any evidence or source from where availability of the funds clear.
- The Relief of specific performance is discretionary
- The Appeal is dissmiss by Supreme Court
Supreme court Judgment
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SHAHID WAHEED
Civil Appeal No.431 of 2021
(On appeal against the judgment
dated 10.03.2021 passed by the
Islamabad High Court, Islamabad
in R.F.A.No.163 of 2018)
Liaquat Ali Khan
… Appellant
VERSUS
Muhammad Akram &
another
… Respondent(s)
For the Appellant
: Mr. Zulfiqar Ali Abbasi, ASC
Syed Rifaqat Hussain Shah, AOR
For Respondent No.1
: Mr. Tariq Mehmood, Sr.ASC
For Respondent No.2
Date of Hearing
:
:
Mrs. Bushra Qamar, ASC
Mr. Tariq Aziz, AOR
19.01.2023
JUDGMENT
Shahid Waheed, J. We are in complete agreement with the
reasoning and conclusion of the High Court, and as such, a
brief statement of the short point that arises for decision and
of the grounds for dismissing this appeal is all that is needed
here.
2.
This appeal is by the plaintiff and it is prayed to
restore the decree dated 2nd of July, 2018 of the original
Court by setting aside the decree dated 10th of March, 2021
passed by the High Court. So the short question before us is
which of these two decrees is correct. Here are some relevant
but brief facts to answer this question. The plaintiff’s claim is
based on two agreements. Both these agreements are relate
Civil Appeal No.431 of 2021
2
to defendant No.1’s property i.e. House No.192, Street No.7,
Rawal Town, Islamabad. The first agreement (Ex.P.1) is
dated 10th of February, 2016 while the second agreement
(Ex.P.2) is dated 11th of March, 2016. There is no dispute
between the parties to the execution of the agreements and
the terms contained therein. It was agreed between the
parties that defendant No.1 would sell his house to the
plaintiff for Rs.10,000,000/-. Of this amount, Rs.500,000/-
was paid as advance and the remaining amount was agreed
to be paid in two installments. The first installment of
Rs.4,500,000/- was to be paid by 10th of March, 2016 and
the second installment of Rs.5,000,000/- was to be paid by
10th of June, 2016. The first installment was paid as
promised, but the second installment was not paid on time,
leading to a dispute between the parties. The plaintiff then
instituted a suit and requested the Court to issue an order,
for specific performance of both agreements, to defendant
No.1 and grant him possession of the house.
3.
Given the above-mentioned facts, to succeed in
his suit for specific performance, the plaintiff had to prove:
(a) that defendant No.1 committed breach of the agreements;
and (b) that he was always ready and willing to perform his
part of the obligations in terms of the agreements.
4.
In paragraph 6 of his plaint, the plaintiff has
clearly written that he was and is ready to abide by the
terms of the agreements provided that defendant No.1 fulfills
all the relevant requirements of the Capital Development
Authority (CDA)/defendant No.2 for transfer of the house.
This alludes that the plaintiff did not pay the second
installment because defendant No.1 did not fulfill the
requirements of the CDA for transfer of the house before the
stipulated time. The same was also stated by the plaintiff
before the trial Court as PW.1. He stated in his statement
that he had been contacting defendant No.1 for payment of
second installment amount of Rs.5,000,000/- but he kept
delaying and he neither obtained the NOC from the CDA no
of 2021
3
got a date from the CDA for the transfer of the house. He
further stated that he had also issued a legal notice (Mark-C)
to defendant No.1 on 14th of June, 2016 stating the above
facts and asking him to obtain NOC from the CDA and
within ten days hand over the possession to him otherwise
legal action will be initiated.
5.
On the other hand, defendant No.1 maintains
that on 19th of April, 2016 he had obtained a No-Demand
Certificate (Ex.D.1) regarding property tax, water and allied
charges and was ready to transfer the house as per the
terms of the agreements, but the plaintiff did not pay the
amount of second installment and, due to which he informed
the plaintiff by a legal notice dated 18th of June, 2016 (Mark
D-A) that he had cancelled the agreements and forfeited the
advance. Defendant No.1 appeared before the Court as DW.1
and reiterating the above-mentioned stance stated in his
cross-examination that he had also applied for getting NOC
in the CDA office and to establish this fact produced receipt
(Ex.D.2). Defendant No.1 further stated in his crossexamination that he did not receive any notice from the
plaintiff. Here it is important to clarify that defendant No.1’s
notice (Mark D-A) was received by the plaintiff’s witness
Muhammad Ajaib Abbasi (PW.3) and he has also admitted
this fact in his cross-examination.
6.
Taking stock of the oral and documentary
evidence brought on record, the trial Court concluded that
obtaining the NOC/NDC was an essential condition for
transfer of the house and since the defendant No.1 failed to
obtain the same, the plaintiff could not be held to have
breached the agreements. Based on this conclusion, the trial
Court decreed the suit as prayed for, and directed defendant
No.1 to transfer the house to the plaintiff.
7.
On first appeal, the High Court re-examined the
evidence in exercise of powers under Section 96 CPC and
found that the plaintiff had not adduced anything in his
evidence to show that on the due date, he had the required
Civil Appeal No.431 of 2021
4
funds to pay the amount of the second installment. The High
Court thus took the view that the plaintiff was not ready to
perform his part of the agreement, however, keeping in view
the principle of equity and taking a cue from the case of
Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad
(2017 SCMR 1696) it was held that the suit of the plaintiff
ought not to have been decreed, and thus, subject to return
of Rs.5,000,000/- by defendant No.1 to the plaintiff, the
decree of the trial Court was set aside and the suit brought
by the plaintiff was dismissed.
8.
Now comes the stage of stating the grounds
which led us to affirm the findings of the High Court on
which it based its decree. We deem it appropriate to drap our
justifications in relative brevity. Firstly, the reason which
prevailed with the trial Court in decreeing the suit was that
defendant No.1 had not obtained a No Demand Certificate
from the CDA, which was held to be a condition for transfer
of the house, was not valid, because, there is no clause in
the agreements (Ex.P.1 & Ex.P.2) which obliges defendant
No.1 to obtain such a certificate before the transfer.
Regardless to this position, the evidence available on record
shows that defendant No.1 had on 12th of April, 2016
obtained a No Demand Certificate (Ex.D-1) from the
Directorate of Revenue, CDA, regarding property tax, water
and allied charges. Defendant No.1 also produced the receipt
dated 19th of April, 2016 for payment of property tax (Ex.D
1/1) and a copy of letter dated 19th of April, 2016 (Ex.D.2)
from the Directorate of One Window Operation of the CDA
regarding request for issuance NOC. Secondly, the plaintiff’s
claim that he had issued a legal notice to defendant No.1 on
14th of June, 2016 asking him to obtain an NOC from the
CDA and transfer the house to him, appears to be an
abortive attempt to cover up his default because he had not
produced any postal receipt showing its dispatch, which was
essential particularly when defendant No.1 had denied
receiving of such notice in his written statement. Thirdly, to
prove readiness and willingness to perform an obligation to
Civil Appeal No.431 of 2021
5
pay the second installment of Rs.5,000,000/- in terms of
agreements (Ex.P.1 & Ex.P.2), the plaintiff was under burden
to adduce evidence to show availability of funds to make
such payment in time, or if he did not have sufficient funds
to meet his obligation, he had to prove how the funds would
be available to him. No such evidence was brought on record
by the plaintiff. Therefore, even assuming that defendant
No.1 had committed breach, since the plaintiff had failed to
prove that he was always ready and willing to perform the
essential terms of the agreements which were required to be
performed by him, there was a bar to specific performance in
his favour. And lastly, the remedy by way of specific
performance is equitable and it is not obligatory on the Court
to grant such a relief merely because it is lawful to do so.
Section 22 of the Specific Relief Act, 1877 expressly
stipulates so. In the present case all equities are squarely in
favour of defendant No.1.
9.
So viewed, we do not find any flaw in the
judgment rendered by the High Court and thus hold that
decree issued by it is valid. This appeal must be dismissed
and we do so.
Judge
Judge
Judge
B-IV
Islamabad, the
19.05.2023
“Approved for reporting”.
Sarfraz Ahmad & Agha M. Furqan
L-C/
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