1993 PLP 1565 (CLC)

Now I may inform you that Appeal No.38/1962 filed by Mr. Noor Muhammad and others has been decided by the High Court of West Pakistan, Karachi Bench ...." In several letters written thereafter, reference has been made to the above letter dated 27‑2 1967. Reference may be made to letters dated 31‑3‑1967, 20‑12‑1967.6‑1‑1968, 1‑3‑1968 and 31‑1‑.1968, In these letters there is no reference whatsoever to letter dated 29‑12‑1964 or commitment made by Mr. D.S. Lail, who was the: Sales Manager at the relevant time. The appellant wrote lengthy letter dated 19‑2=1968 to General Manager of the respondent, in which again there is no reference to the said letter dated 29‑12‑1964 or commitment made by Mr. D:S. Lail, though it refers to commitments made by M/s: Hovery and Mumtaz, the then officers of the respondent‑company. The appellant also produced an acknowledgement as Exh.P/31, where under letter dated 27‑2‑1967, addressed to the Manager of the respondent was received. But no such acknowledgement has been produced with regard to return of letter dated 29‑12‑1964 or in respect of the letters dated 7‑11‑1967, 17‑9‑1968, 17‑12‑1968 and 4‑3‑1969. In letter dated 20‑12‑1967, on the one hand no reference is made to letter dated 29‑12‑1964 and on the other hand it refers to dispute with regard to quantum of rent. In this letter it is further pointed, out that the. respondent had promised to pay the rent of the additional land .from 1952 if the case was decided in favour of the appellant and then points out that the case was decided in his favour about a year back. This reference appears‑to be to the decision of Appeal No.38 of 1962. Similarly the appellant has referred to several letters written by him to the respondent, in his letter dated 6‑2-1968 but there is no reference made to Exh.P/23. Similarly no reference is made to letter dated 6‑1‑1968. The language of Exh.P/11, which is an undated letter but appears to have been written after decision of case by this Court in December; 1966, is of great importance. In this letter the appellant has specifically stated that he had delivered attested copies of lease agreement and sale‑deed executed in his favour to the Legal Department. Had original of Exh.P/21 been in existence and had he delivered the same as alleged. to the respondent, reference to the above, .also would have been made in the said letter; particularly so, when the respondent had not omitted to refer to the litigation pending with regard to the title of the land in dispute since 1947 and the offer of M. Mumtaz; the ineharge of the Legal Department of payment‑of rent for the additional land, at the rate of Rs.350 per month, which, according to the said ‑letter, he .had not accepted and further pinpoints that he was made to understand‑ that all the rent from 1952 will be paid to him after his title to the land was clear. It does narrate the offer and what he was given to understand, but not the written promise allegedly made by the respondent. The said letter clearly establishes that the respondent had never made any written commitment as pleaded by the appellant. It would thus be in consonance with logical deduction to hold that Exh:P/23, the photo copy, is a manipulated document. There is another strong circumstance which belies the above plea. It is the legal notice dated 6‑8‑1968 sent by the appellant to the respondent through his advocate, in which it is stated that the respondent had illegally occupied the additional land and raised construction on it without the knowledge and consent of the appellant who had objected to such action on the part of the respondent and the respondent agreed to pay its rent immediately after the decision of Appeal No.36 of 1962. In this letter the rent for the additional land is claimed from 1‑1‑1957 to July, 1968 at the rate of Rs.500 per month and not from January, 1952 to November, 1962. If the said letter is taken as a whole. it suggests that. the additional land was occupied by the respondent and construction, if any, was raised therein by the respondent in 1.957 or immediately before 1‑1‑1957. The above letter by itself is sufficient to conclude that there was no commitment whatsoever for payment of rent for the period claimed in the suit and there was no existence of letter dated 29‑12‑1964. The learned Advocate for the appellant also relied on the evidence of Anwarul Majeed Khan in proof of the fact that the original of the aforesaid letter dated 29‑12‑1964 was returned by the appellant to the respondent. It may be pointed out that the appellant had specifically stated in the plaint that the said letter was delivered by him to the respondent in June, 1967. The above version was improved in the amended plaint filed on 11‑5‑1971, by disclosing that the said letter was delivered to Anwarul Majeed Khan. It is pertinent to note that the said witness was retired from the service of the respondent the year 1968. The possibility that the said witness was won over by the appellant cannot be ruled out. However, in his deposition the witness stated that the aforesaid letter was delivered to him by the appellant in early March or April, 1966. The above statement is, therefore, directly in conflict with the averments in the plaint. It is also pertinent to note that the original of Exh. P/23 was delivered to the respondent, according to the appellant, as it was required by the Legal Department of the respondent and no receipt was obtained for delivery of the said letter. The explanation of the appellant for delivery of the original letter, instead of the Legal Department, to the aforesaid witness; who did not belong to the Legal Department, is that he was not on good terms with the incharge of the Legal Department of the respondent, who according to the appellant, had threatened to involve him in litigation. If the evidence in this regard is looked at in the background of the strained relations between the appellant and incharge of the Legal Department, it is highly improbable and hard .to believe that the appellant had delivered the original letter to the respondent as alleged by him, instead of forwarding the same under a covering letter and obtaining acknowledgement thereof, as was done in respect of letter dated 27‑2‑1967. The case set up in the plaint, if seen in the light of the intrinsic value of the aforesaid letters of the appellant, particularly, the‑legal notice dated 6‑8‑1968, stands denuded and divested of all veracity and truth and leads to, the only conclusion that the original of Exh.P/23, had never been in existence. In the above background the evidence of Anwarul Majced Khan, which is afflicted with inconsistency in. the context of time also when the original of Exh.P/23 was allegedly returned to the respondent, does not inspire any confidence and deserves to be denounced.

6. Assuming that the respondent had written letter dated 29‑12‑1964, the question arises whether it was a promise in terms of section 25 of the Contract Act as contended by the learned counsel for the appellant. Section 25 of the Contract Act reads as under:‑‑ "

25. An agreement made without consideration is void unless‑‑ (1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless (2) it is a promise to compensate, wholly or in part, a person who had already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless (3) it is a promise made in writing and .signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases such an agreement is a contract." As noted above, the claim of the appellant pertains to the arrears of rent for the period ending November, 1962. Under Article 110 of the First Schedule to the Limitation Act, 1908, the limitation prescribed is three years for recovery of arrears of rent from the date when the arrears become due. In the impugned judgment, on assumption that the letter dated 29‑12‑1964 was written by the respondent, was an acknowledgement of the debt under section 19 of the Limitation Act, the suit was found barred by law, having been filed after three years from the date of acknowledgment. We find that the learned Advocate for the appellant had based his argument also on the proposition that the aforesaid letter contained promise to pay. To take the benefit of the aforesaid section 25 of the Contract Act, the following facts are to be established:‑‑ (a) There must be a promise; (b) Signal by a person to be charged therewith or by an agent generally or specially authorised in that behalf; and (c) There is a debt which is barred by time. Learned counsel for the respondent contended that the said section will be applicable only if the promise is in respect of a certain amount. The first ingredient of the aforesaid section is promise. Promise is a word of art as used in the Contract Act. Therefore, in the first instance it is to be ascertained whether the said letter can be treated containing a promise as contemplated under the aforesaid section. The words "proposal" and "promise" are respectively defined in clauses (a) and (b) of section 2 of the said Act, which read as under:‑‑ "(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal; (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise" In the letter dated 29‑12‑1964, it was proposed that the rent would be paid to the appellant after the decision of the cases pending iii Courts The aforesaid proposal would have become a promise in terms of section 2 (b) of the Contract Act, if the appellant had signified his assent to the said proposal. Therefore, what is to be seen at this stage is whether the appellant has signified his assent to the aforesaid proposal or not. It has come on record that there was litigation with regard to title of the suit which was decided finally by this Court in Appeal No.38/1962 in the year 1966. Suit No. 237/1963, which was filed by the respondent as inter‑pleader suit, .was withdrawn in the year 1968. The appellant, as it appears from the correspondence, which has been referred to hereinabove, had not accepted the aforesaid proposal as contained in letter dated 29‑12‑1964, as he had continued to demand the rent before the disposal of the aforesaid litigation. Reference may be made to letters dated 27‑2‑1967, 31‑1‑1968, 9‑2‑1968 and 6‑2‑1968. In these letters the " rent was demanded before the above suit came to be decided. It, therefore, can reasonably be inferred that the appellant had not signified his assent to the said letter as when the aforesaid letters were written at least Suit No.237/1963 was then pending and he insisted on payment of rent after decision of Appeal No.38/1962. Under these circumstances the proposal as contained in letter dated 29‑12‑1964 did not mature in the promise and consequently there was no contract in existence and, therefore, the suit was barred by law and no benefit can be taken of section 25 of the Contract Act. ' Coming, to the second ingredient of section 25, the promise is to be made by the person to be charged or by his agent generally or specially authorised in that behalf. According to the appellant such promise was made by the Sales Manager Mr. D.S. Lall but there is no evidence on the record to establish that the said officer of the respondent was generally or specially authorised to make such a promise. The agreements of lease placed on the record were executed by the respondent through its duly constituted attorneys. The respondent is a limited company‑ incorporated under the Companies Act, 1913 and that such a promise could have been made only by such officer who was either an attorney or was so authorised by the company. The letter dated 29‑12‑1964 having been not written by any such person, cannot be used by the appellant to enforce his claim against the respondent‑Company. Before parting with this aspect of the case, it may be additionally pointed out that the appellant has nowhere in the plaint stated that the author of letter dated 29‑12‑1964 was specially .or generally authorised by the respondent to bind it for the charge made by him against the company. He did not say so even in his evidence. ' The learned Advocate for the respondent vehemently contended that it is one of the requirements of section 25 of the said Act that the promise should be in respect of a specific sum. As has been already pointed out above, the correspondence reflects that there was no agreement between the parties on the quantum of amount payable and for the use and occupation of the additional land as the appellant was claiming a sum of Rs.500 per month and the respondent was not willing to pay the said amount and had agreed to pay only Rs.350. There is no letter of the respondent offering any amount in respect of the additional land, however, there are letters written by the respondent wherein he has referred to the ,offer of the respondents for payment of rent at the rate of Rs.350 per month.. Thus there being no agreement with regard to the quantum payable by the respondent to the appellant, the letter dated 29‑12‑1964 was of no consequence. The learned counsel for the respondent relied on the case of Doraisami Padayachi and another v. Vailhilinga Padayachi and others (AIR 1918 Mad: 1145), where the Full Bench has laid down that a promise to pay any amount which may be found due by the Arbitrator on taking the accounts of partnership between the parties does not amount to a promise to pay a debt within the meaning of section 25 of the said Act. We are in respectful agreement with the aforesaid observation as there can be a proposal and acceptance in respect of a specific amount. We say so for the reason that section 25 creates an exception for enforcement of the void agreements and, therefore the said provision is to be strictly construed. Consequently it follows that unless there is specific sum, there cannot be said to be any contract for the sum to be charged with. Similarly in the case of Sheobachan and another (supra) relying on the aforesaid case of Doraisami Padayachi and another, it has been observed that a promise to pa3r an uncertain sum is not a promise to pay a debt within the meaning of the aforesaid section. , In the case of Sriram Arjundas (supra), it was held that before the writing is made and signed, there must be an agreement by the acceptance of proposal and that agreement is to be recorded in writing and signed in,, accordance with. the requirements of the section (ibid). Without accepting the proposition as has been propounded in the aforesaid reported case, it would be proper interpretation of section 25 (3) of the. Contract Act, read with the definition of the words proposal and acceptance, to lay down that unless the proposal conveyed, has been accepted as such it would' not, by itself create a if binding contract between the parties. In Maidens Hotel Delhi (supra), it was the specific sum which was acknowledged by the defendant with a promise to pay the debt by monthly instalments, till the whole amount was liquidated. The first installment was paid and accepted by the creditor and thus the acceptance of the first installment amounted to acceptance of the proposal which ere ed a binding contract. In the present case the correspondence re erred to above between the parties reveals that there was no agreement on the quantum of rent. On the one hand as per version disclosed in the letters written by the appellant, the respondent had offered to pay rent at the rate of Rs.350 per month, whereas the appellant was claiming rent at the rate of Rs.500 per month, all the time. In other words, it cannot be said that there was a specific sum which was promised by the appellant to be paid by the respondent. The learned Advocate for the appellant contended that the specific period for which the rent was payable being known to the parties, the' promise should be construed as a promise for payment of the rent for the said period. In so far as it goes and even if we were to accept it, the quantum of rent itself being uncertain, it is not possible to conclude that the promise was for a sum specific. On above reasoning also the said letter does not meet the requirements of section 25 (3) of the Contract Act.

7. The learned Advocate for the respondent contended that the appellant had purchased the property on 18‑12‑1962 and, therefore, he had no locus standi to claim the rent for the period preceding the aforesaid date. On the other hand, the learned Advocate for the appellant urged that on evidence it is established that although he became the owner of the land in the year 1962 but before that he had acquired the land rent, from the previous owner. The appellant in his evidence stated that the respondent had illegally encroached upon the additional land without his permission and so also had raised construction thereon. Because of the aforesaid encroachment he had to pay rent to Ghulam Muhammad, the original owner from 1952. It is thus not the case of the appellant that the respondent was inducted by him as a tenant in the aforesaid land. Even in the legal notice dated 6‑8‑1968, the stand of the appellant is the same. It, therefore, needs to be scanned whether the appellant had acquired any right in the said land, during the period for which rent is claimed in the suit. ‑ . The rent, agreement, Exh.10/2, was executed, between the parties on 28‑6‑1954 in respect of the land measuring 100`xx75`. It is 'a registered document. The second agreement for the same land was executed between the parties on 12‑4‑1957. The appellant had entered into an agreement (Exh.10/5) with the heirs of late Ghulam Muhammad on 11‑12‑1962. It is recited in the aforesaid document that the land measuring 100'x75' Survey No.240 is in possession of the appellant from 11‑2‑1953 under registered lease deed and under the said agreement the lessors had agreed to lease out another piece of land measuring 100`x35` for a period of eleven years commencing from 1‑1‑1952 at the rate of rent of Rs.25 per month. It further shows that the rent of the said eleven years was paid to the legal representative of late Ghulam Muhammad at the time of execution of the said document on 11‑12‑1962. This document further states that the said additional land is in possession of the appellant. Before proceeding further, it may be interjected that the appellant was confronted with the above recitation in the said agreement. As against the above, the appellant deposed that he used to pay rent to Gulam Muhammad for the said additional land occupied by the respondent and obtain receipts from him, though he produced none of them. It is, therefore, not possible to accept the said evidence, in face of the recital in the above document, which appears to have been inartistically manipulated to support the claim in the suit. Had the appellant acquired the aforesaid land on rent from the respondent at any time before the execution of Exh.10/5, the above fact would have been detailed in the aforesaid document as one finds mention of the fact that the appellant, was in possession of 100`x75` land from 11‑2‑1953. This document belies, the entire case of the appellant with regard to the additional land. It is the case of the appellant that the respondent had agreed to pay rent for the additional land. 1f it were so, the appellant would have at least called upon the respondent to execute agreement in respect of the additional land also, in line with the agreements executed in respect of the other land, but as admitted by him in his cross‑examination, he did not do so. The appellant while 'executing the aforesaid two agreements with the respondent on j 28‑6‑1954 and 17‑4‑1957, did not at all insist upon or demand rent or occupancy charges' in, respect of ' the additional land. The bulk of correspondence produced by the appellant does not contain any demand or dispute during the contemporaneous period, with regard to the payment of the rent‑ of the additional, land. The earliest document in this regard placed on record is 29‑12‑1964. which has been already discarded being fictitious one. The appellant having failed to establish that he had acquired any right in the said additional land, cannot maintain his right to realise rent thereof, for the period from 1‑1‑1952 to November, 1962. Even when the said land was purchased, it was in the name of the appellant's son. The appellant as such had no locus standi to file the suit. No other point was urged. We find no substance in the appeal, which is hereby dismissed with cost. A.A./A‑1369/K Appeal dismissed.