Ubject to What Conditions A Contract Can Be Enforced Against Susbequent Transferee Under Section 27(B) Of Specific Relief Act 1877

SUBJECT TO WHAT CONDITIONS A CONTRACT CAN BE ENFORCED AGAINST SUSBEQUENT TRANSFEREE UNDER SECTION 27(B) OF <!--[if gte mso 10]> SUBJECT TO WHAT CONDITIONS A CONTRACT CAN BE ENFORCED AGAINST SUSBEQUENT TRANSFEREE UNDER SECTION 27(B) OF SPECIFIC RELIEF ACT, 1877 By Ch. Muhammad Bashir, Advocate (Ex-Member Punjab Bar Council) Since the Article is confined to examining the conditions subject to which conditions a subsequent transferee can be arrayed as a co-defendant with the Vendor, in a suit for specific performance of contract, therefore I, think it sufficient to re-produce hereunder S.27 of Specific Relief Act up to clause (b). Section 27. Relief against parties and persons claiming under them by subsequent title.--Except, as provided by this chapter, specific performance of a Contract may be enforced against: (a) either party thereto (b) any other person claiming under him by a title arising subsequently to contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Clause (b) is composed of two parts. First part is universal in the sense that a Contract can be enforced against subsequent transferee without any condition. Second part is exclusionary in the sense that it cannot be enforced against a subsequent transferee who has purchased the property for value and without notice of the Contract. The second part, put conversely, will read that the subsequent sale is without value and with notice of the Contract. The combined reading of the said clause shall mean that a Contract can be enforced against a subsequent vendee only when the sale is without value and with notice of the Contract. Both the said requirements are to co-exist. In case these are missing then the subsequent sale shall not be immune from enforcement of the Contract. In order that a plaintiff in a suit for specific performance of contract may be able to seek enforcement of Contract against subsequent purchaser it is necessary for him to plead all facts constituting cause of action, as required by Order VII, Rule 1(e), and specify the liability of subsequent transferee to answer his claim to enforcement of Contract against him, as required by Rule 5 of the said Order and S.27(b) of Specific Relief Act. In doing so the plaintiff is required to assert in plaint that sale in favour of subsequent transferee is without payment of price and with notice of the contract. This is a condition precedent to sue subsequent transferee for enforcement of Contract against him. It is so for the reason that it is at the time of filing suit for enforcement of contract against subsequent transferee that the plaintiff is to spell out his cause of action and open out his relief against him. He cannot keep in waiting his pleas till after the defence to be taken up by the vendee in his written statement. The relief claimed in plaint within the conditionalities set out in section 27(b) serves as foundation for enforcement of Contract against subsequent transferee. It is in line with this requirement of pleading that it has been held in 1993 CLC 1496 (Ghulam Farid versus Shamsuddin) that: "Plaintiff who is enforcing agreement for sale is. to allege in the plaint that the defendant has purchased the property with notice and knowledge of agreement for sale. Unless and until it is alleged at least in the pleading, there will be nothing to be proved and rebutted". The said judgment has followed earlier judgment reported in 1987 MLD 403 (Muhammad Ramzan versus Muhammad Shafi) in which it has been held that: "the element of prior notice of the plaintiff's agreement was not asserted in the plaint, and without the same the subsequent registered sale could not be disregarded. This was so essential an ingredient that it finds mention in all relevant provision of law, namely, section 50 of the Registration Act, section 27(b) of the Specific Relief Act, and also section 53-A of the Transfer of Property Act. The plaintiff did not take care to meet it in his plaint and the mere assertion made in regard to the petitioner acting in `Collusion' with the Vendor did not necessarily mean notice of the prior transaction." In a recent judgment of Supreme Court, reported in 2003 SCMR 774 (Muhammad Bashir etc. versus Chiragh Din etc.) it has been held that: "Non-mention of such an allegation in plaint was sufficient to entail dismissal of suit." In passing it was observed that witnesses appearing on behalf of plaintiff' have also not proved the same, though with due respect, such an observation was not called for, when such evidence was beyond the pleading of plaintiff. No evidence beyond pleading can be allowed to be produced by any party to the suit. If a plaintiff in such a suit has not pleaded as to sale in favour of vendee being without value and his having notice of his contract, then no question of leading any evidence by the Vendee as to the sale in his favour being for value and without notice of the contract or by the plaintiff as to the sale being without value and the Vendee, having notice of his contract, does not arise. This principle is laid down in 2003 SCMR 74 (Abdul Haque versus Shaukat Ali) wherein it is held that: "evidence led beyond the scope of pleadings is not permissible." To the same effect is 2004 SCMR 578 (Basit Sibtain versus Muhammad Sharit) in which it has been held that: "material facts must be averred in plaint. Facts deposed in examination-in-chief by plaintiff's witnesses not narrated in plaint, were unbelievable." The aforesaid ratio has been followed in PLD 2006 Lah.87 (Aish Muhammad versus Mst. Iamila Khatoon) which reads as under:-‑ "No one can be allowed to prove his case beyond the scope of his pleading---party to litigation is precluded in law to adduce evidence which is inconsistent and contrary to its case, specifically set out in the plaint or written statement." The volume of evidence to be led in a suit, being circumscribed by pleadings it is imperative for plaintiff in a suit for enforcement of his Contract against subsequent transferee to assert all the essential facts requisite for bringing his suit within the ambit of section 27(b) of Specific Relief Act.