1983 PLP 1173 (CLC)

Mian Dilawar Mahmood for Respondent No.

1. Nemat Khan for A.‑C3. for Respondents Nos. 2 and

3. Dates of hearing : 2nd, 3rd and 8th June, 1977. As common questions of fact are involved in this appeal and R. S. A. No. 861/1971, they are being disposed of through this single judgment. The facts of the case giving rise to these appeals are that plot No. 40‑D was allotted to Dr. Faqir Muhammad, respondent No. 1, but the allot ment was cancelled for non‑construction of the house within 6 months from the date of allotment and it was allotted to Major Amir Muhammad Khan, appellant. Dr. Faqir Muhammad, respondent brought a suit for declaration to the effect that the plot in dispute belonged to him that he was in possession thereof as owner and that the order of respondent No. 2 dated 8th November, 1965 canceling the allotment was illegal, void and ineffective. As consequential relief perpetual injunction restraining the appellant from interfering in his possession was also sought. The learned trial Judge holding that respondent No. 1 ‑was not the owner in possession and that the order of the District Housing Officer, Lyallpur dated 8th November, 1965 was not illegal, dismissed the suit. However, the learned District Judge, Lyallpur accepted the appeal and decreed the suit.

2. The agreement entered into between the appellant and the department is P.

1. Its date is 4th August, 1960. According to clause (4) of the agreement, application for construction was to be made within 6 months of the date of execution of the agreement. On behalf of respon dent No. 1 reliance has been placed upon copy of application P.7 alleged to have been made to the District Housing Officer, in which it is mentioned that Plan was submitted in the office but it was returned on the ground that no instruction had been received till then in that connec tion. In (P. 7) it is requested that permission to file the plan be given. Reply to this letter is dated 7th April, 1961 (P. 8). In P. 8 respondent No. 1 was asked to file the plan and he accordingly in March, 1961 filed the same and made application for construction.

3. It has been argued by the learned counsel for the appellant that P. 7 is not admissible in evidence, because this is a carbon copy and it was not proved that its original was actually received by the office of the District Housing Officer. P. 7 is the carbon copy pre pared in the same process therefore in its nature, it is the original. Since it has been stated that this letter was sent to the office of the D. H. O. its despatch stands proved and it will be presumed that it reached its destination. No evidence has been produced by the appellant that actually the application was not received in the office. I, therefore, overrule the objection. This is true that according to clause (9) of the agreement, application for construction is to be accompanied by a plan and that no plan was sent with P. 7 but since respondent No. 1 submit ted plan earlier, which was not received, he was justified in seeking per mission by means of P. 7 to file the plan. If he had filed the plan again he would have been given the same reply. After he received reply P. 8 asking him to file the plan he complied with the order within 4 days. It therefore cannot be said that he did not comply with the provision of clause (9) of the agreement. P. 9 is the acknowledgment receipt of the letter with which the plan was sent to the office of the appellant. In the written statement no evidence was led to the' effect that no plan before the submission of application, copy of which is P. 7, was submitted to the office. The learned Additional District Judge was therefore, justified in accepting the plea of respondent No. 1 that plan was submitted earlier and since it was not received application P. 7 was made.

4. Learned counsel for the respondent has argued that respondent No. 1 is not responsible for the delivery of possession late and that the department was responsible. Late delivery of possession is not material. The only condition is that application for construction is to be given within 6 months of the execution of the agreement and it is nowhere provided that within a specified period possession is to be taken. Even no period is fixed for the completion of the building. Since respondent No. 1 made application P. 7 for construction in January, 1961 the same was within 6 months of the date of the execution of the agreement and this was enough. Needless to repeat that he did not file the plan alongwith the application (P. 7) because before that the office of the D. H. O. had refused to receive the plan. So the late submission of the plan in April was not fatal. If respondent No. I had made the application for construction after the expiry of 6 months, of course it could be said that he was at fault in not asking for the delivery of posses sion within six months.

5. Learned counsel for the appellant has further argued that by agreement P. 1 the respondent did riot become the full owner of the plot, therefore, he, could not ask for a declaration that he was the owner. Learned counsel for respondent No. 1 has not been able to meet this argument. I have carefully gone through agreement P.

1. It shows that it is only an agreement to sell and not a sale‑deed. Its clause (15) says that "nothing contained in it would be deemed to have transferred the' right to ownership; and that under the agreement the allottee can only enter upon the plot for the completion of the contract". Learned counsel has also argued that a suit for specific performance only could be brought. Here I cannot agree with him. If otherwise suit in decla ratory form is legally maintainable it would be competent.

6. The other argument of the learned counsel for the appellant is that agreement P. 1 was not executed under any law but only under a scheme which was not made under any law. He relies upon P L D 1968 Kar. 222 and P L D 1972 Kar.

103. Learned counsel for respon dent No. 1 has not been able to cite any authority to the contrary. Declaration under section 42 of the Specific Relief Act can be sought there is any legal character or right in or to the property. Learned counsel for the respondent has not been able to show that either the scheme had been made under any law or under any law the respondent No. 1 got a right to purchase the property in dispute. It has been observed in P L D 1968 Kar.222 :‑‑ "A further objection to the maintainability of the suit was that the declaration sought was neither with respect to the plaintiff's legal character, nor with regard to any right to property. Under sec tion 42 of the Specific Relief Act, 1877, it was only with regard to these matters that a person could come to the Court for declaratory relief." It has further been observed :‑‑ "A declaration that the plaintiff has not committed breach of the terms of a contract is a declaration neither with regard to any legal character, nor any right to or any property. The plaintiffs' remedy could have been either a suit for rescission of the contract, or for specific performance if so permitted, or for damages for its breach." In P L D 1972 Kar. 103, the observations made are :‑ If no specific performance of the contract is claimed and damages only are demanded then the question arises as to what would be the basis of such a claim. The only possible basis is an allegation of breach of contract. If that is the basis, then the frame of the suit is objectionable in the terms of section 42 of the Specific Relief Act, because in accordance with it a consequential relief must be asked for and the consequential relief in this case is the specific performance of the contract and not the recovery of damages". In this authority observations have been made even to this extent that relief of damages cannot‑be claimed as consequential relief in a suit for declaration. Respondent No. 1 should have brought a suit for per formance of the agreement, and he would have been entitled to the said decree if he had proved that he had made application for construc tion of property within 6 months of the agreement and that there was no justification for the cancellation of his allotment and the termination of the agreement. Needless to say that in a suit for declaration brought under section 42 of the Specific Relief Act all other reliefs which are open to a party must be sought otherwise the suit for declaration will be barred. If the respondent was desirous to bring a suit for declaration he should have asked for specific performance of the contract as conse quential relief, or should have brought a suit for specific performance of the contract.

7. Learned counsel has also argued that the stay order was issued by the first appellate Court at the time when the copy of the decree of the trial Court had not been produced, therefore, the said stay order was not effective and since the respondent was disposses3ed by the appellant, that suit in the declaratory‑form without prayer of possession was not p maintainable. I do not find any force in this argument. Ultimately copy of the decree of the trial Court was filed within the period of limi tation meant for bringing the appeal, therefore, the appeal was not liable to dismissal under Order XLI, rule 1 on account of any such defect. The mere fact that at the time the 1st appellate Court issued the stay order, the copy of the decree‑sheet had not been filed is not sufficient to show that the stay order was not effective. Since in violation of the stay order the appellant, to whom after cancellation of the allot ment from the name of the respondent it was allotted, had dispossessed the respondent, the latter was entitled to restoration of possession. It was not necessary for him to amend the plaint and to make a prayer for possession.

8. As a result of the observations made above I come to the con clusion that the declaration sought for could not be granted as P. 1 did not transfer the right of ownership. I accordingly accept the appeal and setting aside the decree of the learned 1st Appellate Court dismiss the suit. As the case has failed on a technical ground, the parties are left to bear their own costs. M. Y. M Appeal allowed.