2017 PLP 195 (YLRN)

RASHEED AHMED SOOMRO, J.

This 2nd appeal is directed against the judgment and decree dated 03-05-2012 and 16-07-2012 passed by learned V-Addl. District Judge, Karachi (East) in Civil Appeal No. 47/11, whereby the learned Judge has maintained the judgment and decree of learned trial Court passed in Suit No.686/06.

2. Briefly the Facts giving rise to this appeal are that the respondent No.1, filed suit against appellant and respondent No.2 for Specific Performance of Contract, Permanent Injunction and mesne profit. It was stated that in the plaint that the plaintiff/respondent No. 1 in the year 1987 had purchased residential plot No. L-45 admeasuring 80 square yards located in Block-A of appellant's Housing Project known as "Gulshan-e-Millat" against a total sale consideration of Rs.40,000/-, which was to be paid in installments as per schedule of payment shown in the advertisement. According to respondent No. 1, the appellant has specifically mentioned in schedule that the service charges such as water and sewerage are included in the sale consideration and that the appellant also assured that no further amount will be charged. It was the case of respondent No. 1 that he paid installments in time as per schedule and the appellant also issued allotment letter to him. It was stated in the plaint that the respondent No.1/plaintiff, paid the entire sale consideration in the month of January 1994 and had also paid a sum of Rs.100/- towards possession fee. The respondent No. 1 then asked the appellant to hand over physical possession of plot in question and to execute sub-lease in his favour. It was also case of respondent No. 1 that as per agreement the appellant / defendant No. 1 was liable to complete the transaction in the year 1994 but he avoided to deliver possession of suit plot on one pretext or other and had illegally started demanding Rs.8000/- toward service charges. It is stated that there was exchange of letters between appellant and respondent No. 1 and lastly the appellant served a notice dated 22-04-2006 upon the respondent No. 1, cancelling the allotment of respondent No.1. The respondent No. 1, on 17-05-2006 had replied said notice asking the appellant to withdraw their notice dated 22-04-2006, hand over physical possession of suit plot and to execute proper sub-lease in Favour of respondent No. 1 / plaintiff as per terms of advertisement. The respondent No. 1, therefore, filed suit before learned trial Court against appellant and respondent No.

2. The respondent No. .1 also claimed mesne profit @ Rs.100/- per day.

3. The appellant/defendant No. 1 in his written statement denied the allegations of respondent No.1/plaintiff and has stated that the respondent No.1 has failed to pay service charges of Rs.8000/- as per application/booking form, therefore, his allotment was cancelled and the suit plot was allotted to respondent No.

2. It was further stated that the suit is also time barred, therefore, liable to be dismissed.

4. Whereas, the respondent No. 2 in his written statement has supported the version of appellant and stated that he has no concern, with dispute between appellant and respondent No. 1 and that he is the lawful allottee of suit plot and that he is in possession of suit plot as its lawful owner, therefore, the suit is liable to be dismissed.

5. The appellant also filed application under Order VII, Rule 11, C.P.C., which was allowed and the plaint of suit was earlier rejected but in appeal, the said order was set aside and the matter heard and re-decided on merit after framing of issues and recording evidence of parties.

6. After recording evidence, the learned trial Court decreed the suit of respondent No. 1 and the appellant filed Civil Appeal No. 47/11 but it was dismissed and the decree of learned trial Court was maintained, hence this 2nd appeal.

7. I have heard both the learned counsel for the parties. It was argued by learned appellant's counsel that the learned Courts below have ignored the terms and conditions of allotment and provisional allotment letter, wherein it is stated that allotment can be cancelled, if allottee failed to pay installment other dues. It was next argued that since the respondent No 1 has failed to pay extra charges for connection of water etc, therefore, his allotment was rightly cancelled by the appellant. According to learned counsel, the respondent No.1 through his letter dated 21-12-2003 himself asked for outstanding dues if any. It is argued that respondent No. 1 has only paid occupancy value, which does not include service charges for water connection under clause 26 of terms and conditions. According to learned appellant's counsel, the allotment was provisional in nature, which can be cancelled at any time for non-payment of other dues, without any prior notice. It is argued that the appellant has given ample opportunities to the respondent No.1 to pay the dues but when he failed his allotment was rightly cancelled. The learned counsel refereed section 51 of Contract Act 1872 to support his contentions. He has relied on case law 2012 CLD 1225, AIR 1919 Madras 379.

8. On the other hand, learned counsel for the respondent No. 1 has supported the findings of Courts below and prayed for dismissal of appeal by arguing that the appellant has failed to point out any illegality in impugned judgment and/or any misreading or non-reading of evidence. He argued that there was no terms and condition of allotment that after making full payment any other extra amount will be charged. It is an afterthought plea of appellant, which was rightly turned down by Courts below. He next argued that the appellant during the course of his cross-examination has admitted this fact and failed to produce on record any such understanding. He asserted that the appellant only to defeat the ends of justice has wrongly and malafidely introduced respondent No. 2, who has no document in his possession to claim the ownership of suit plot. He argued that the appellant has illegally cancelled the allotment of respondent No. 1 and the learned trial Court has rightly decreed the suit in favour of respondent No. 1, which findings do not call for any interference by this Honourab1e Court. According to learned counsel, the learned trial Court after carefully discussing the evidence on record has passed the impugned judgment, which was later on also upheld by 1st appellate Court thus the same do not call for any interference by this Hon'ble Court except to maintain the same. According to respondent No. 2 as per his own admission that he did not pay sale consideration to the appellant nor he is in possession of suit plot and that the documents produced by appellant are all forged. The counsel for respondent No. 1 has relied on case law reported in 1996 SCMR 1729, 2005 MLD 364, 2010 MLD 486 and 2012 SCMR 983.

9. I have carefully considered the arguments advance by both the learned counsel for parties and have also perused the impugned judgments so also have gone through the entire material placed before me.

10. In this matter the main issue is whether there was any term of allotment that apart from sale consideration the other charges such as water and sewerage charges were also liable to be paid by the purchaser/allottee (respondent No.1)?

11. Perusal of record shows that admittedly the respondent No. 1 has paid the entire sale consideration to the appellant, therefore, the burden of payment of the charges shifts upon the appellant, who failed to bring on record any such evidence. Further the respondent No. 2 also failed to produce any document showing his ownership over suit plot. On the contrary he admitted the statement of respondent No. 1 during the course of his cross-examination, which fact has also been admitted by the appellant. The impugned judgment of learned trial Court is comprehensive and covered all aspects of the case and his findings are appreciable and do not call for any interference by this Court. According to respondent No.1/ plaintiff the services charges were mentioned in the total sale consideration and he proved this fact through evidence. The appellant in his evidence has admitted that nothing is mentioned about payment of service charges in their advertisement and schedule of payment produced by respondent No. 1 as Ex.P-1/A. Further the appellant also admitted that in their letters dated 13-01-1994 and 17-05-1994 it is not specifically mentioned about service charges of Rs,.8000/- The appellant also admitted that even in provisional allotment produced by respondent No.1/plaintiff as Exh.P-1/C nothing mentioned about service charges. It is important factor of the case that the appellant has also failed to produce any document on record showing that in past they received such services charges from any other allottee, which shows their mala fide. The appellant has also did not mentioned this fact in his written statement or in his examination-in-chief. The appellant's admission is on record that the respondent No. 1 never sign any terms and condition regarding payment of water and sewerage charges of Rs.8000/-. It is also a matter of record that the appellant never served any notice upon the respondent No. 1 to the effect that if he failed to pay such services charges, his allotment shall be cancelled. The evidence of appellant is not trust worthy they deposed that after cancelling the allotment of respondent No.1 suit plot was allotted to respondent No.2 and also handed over possession to him, whereas respondent No.1 himself has admitted that he was never handed over possession of suit plot by the appellant. The respondent No.2 also did not produce any receipt of payment of services charges of Rs.8000/-, therefore, question arises, when respondent No.2 did not pay those charges then as to why appellant handed over possession to him as they deposed.

12. The conclusion of this appeal is that the respondent No.1 booked the suit plot and according to terms, he paid the entire sale consideration of Rs.40,000/- to the appellant in time. The appellant's demand of service charges Rs.8000/- is not proved from the evidence on record, therefore, the impugned judgments dated 13.12.2010 and 03.05.2012 are on merit and are hereby maintained.

13. The upshot of above discussion is that the appeal merits no consideration and the same is hereby dismissed leaving the parties to bear their own costs. ZC/B-5/Sindh Appeal dismissed.