P L D 1967 Karachi 726 (PLP)

(3) Is the suit barred as res judicata by judgment and decree in Suit No. 47/60? (4) Is the suit champertuous and not entertainable? (5) Is the contract between the Plaintiff and the defendant No. 1 for lease with option to purchase not final and concluded? If so, can it be specifically enforced against all or any of the defendants? (6) Can the option for purchase be exercised by the plaintiff without first obtaining from the defendant No. 1 a duly executed lease‑deed for 25 years? (7) Is the suit for specific performance barred by time as alleged? (8) Is the plaintiff entitled to any damage from the defendant No.1 with reference to the said contract? If so, to what amount? (9) What matter, if any, are res judicuta between the plaintiff and the defendant No. 1 in view of the judgment of the Trial Judge in Suit No. 47/60 and that of the Division Bench in L. P. A. No. 15 of 1961 ? (10) Are the defendants 2 and 3 proper parties to the suit? If not, to what effect? (11) Are the defendants 2 and 3 entitled to any special cost under section 35‑A, C. P. C.? If so how much? (12) Did the Plaintiff fail to pay rent and to carry out the terms contained in the letter dated 30‑8‑56 and have they disentitled themselves to claim specific performance as alleged in paras 15, 18 and 26 of W. S. of defendant No.1 ? (13) Did the Plaintiff get plans prepared and passed by the K. D. A.? If so, did they have right or authority to do so as alleged in paras. 19, 20 and 22 of W. S. and what is the effect thereof? (14) Was the Plaintiff about to start construction on the Plot in April 1961 ? If so, did they have right or authority to do so (covers para 22 of W. S. of Defendant No. 7). (15) Is any agreement at the option of one party not valid and not enforceable as alleged in para. 27 of W. S. (16) To what other ralief, if any, is the Plaintiff entitled in the present suit?" My findings and reasons are as follows:

12. Issue No. 1.‑Admitted position is that defendant No. 1 is an enemy and further that the property in suit has now vested in defendant No.

7. I have already pointed out that he was joined after unprovoked war was declared by India on Pakistan. Mr. A. A. Fazeel, the learned counsel representing defendant No. 7, had argued that Plaintiffs were not entitled to relief in respect of specific performance of contract as it had become "avoided" after the declaration of emergency. Rule 161 (of Part XV of the Defence of Pakistan Rules with heading `control of trading with enemy') defines `enemy' for the purpose of this part. Its clause B lays down that enemy is "any individual resident in enemy territory". There is no doubt about the fact that defendant No. 1 is residing in India which is an enemy territory. Rule 162 deals with prohibition of trading with enemy. Its clause (1) lays down that a person shall be deemed to have traded with the enemy if he has had any commercial financial or other intercourse or dealing with, or for the benefit of any enemy, and, id particular, but without prejudice to the generality of the foregoing provisions, if he has; "(i) supplied any goods to or for the benefit of an enemy, or obtained any goods from an enemy, or traded in, or carried, any goods consigned to or, from any enemy or destined for or coming from enemy territory, (iii) performed any obligation to, or discharged any obligation of, an enemy, whether the obligation was undertaken before or after the commencement of the Ordinance." Its clause (3) punishes a, person who trades with the enemy with imprisonment for a term which may extend to 7 years or with fine, or with both. It was, therefore, argued on behalf of defen dant No. 7 that he cannot perform any obligation to or discharge any obligation of any agreement alleged to have been entered into between defendant No. 1 and the plaintiffs, and if he does so he would commit an offence, which is punishable under clause (3) of rule

162. At this stage I would refer to the order called Enemy Property (Custody and Registration) Order, 1965 issued on 9th September 1965 (Vide Page 974 of the Gazette of Pakistan Extra ordinary issue dated 9th September 1965). Rule 2 (i) defines 'Custodian' and its sub‑clause (iii) defines enemy as a person whose property is for the time being vested in the Custodian by an order made under sub‑rule (i) of rule

182. After such an order is made, the property of an enemy is vested in the Custodian under Rule 4 and under sub‑rule (2) (iv) he may "institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities". Under rule 5 all enemy property vested in the Custodian is "exempt from attachment, seizure or sale in execu tion of a civil court decree or orders of any other authority". Notification regarding the appointment of Custodian appears at page 5089 of the Gazette of West Pakistan, Extraordinary, issue dated 22‑9‑

65. Reference has also been made to the vesting of the property in suit in him. As this property under Rule 5 of this order is exempt from attachment and seizure it eras urged before me that even if plaintiffs succeed in obtaining a decree in their favour it could not be executed as laid down under Order XXI, rule 32, C. P. C. Reliance was placed by him in a case reported in 33 Ch. D. 493 where it was held that: "The delivery of land of a judgment debtor in execution by the Sheriff under a writ of elegit is a "seizure" of the land .o as to make the execution of the judgment creditor "complete" within section 45, subsection (2) of the Bankruptcy Act, 1883, and a receiving order in bankruptcy made against the debtor after the delivery in execution, but before the return of the writ, does not oust the right of the Judgment creditor." I was also referred to Note 30 at page 38 (Halsbury's Laws of England 3rd Edition Vol. 39). It refers to the contracts made before the outbreak of war and it is reproduced below: "The effect of the declaration of War upon a contract made before the outbreak of War with an alien enemy depends upon whether the contract is executory or executed. If it is executory when war is declared, it is normally, avoided and both parties are at once absolved from any performance of it. Even where the contract contains a term purporting to suspend its operation in the event of war, effect will not be given to the term unless this can be done without involving the continuance of contrac tual relations between the parties, but the contract will be altogether dissolved. Where, however, a contract has been executed before the outbreak of War, it is not thereby avoided. The remedy only is suspended and revives on the restoration of peace. A contract is executed for this purpose if it has been so far carried out that no further intercourse with the enemy is required for its completion and it has been completely performed on one side so that all that remains is payment of a liquidated sum by the other." On the basis of it and the legal aspect already explained it was argued by Mr. A. A. Fazeel that even if it is held that there is a concluded contract between the parties the Plaintiffs case for specific performance of contract remained suspended. It was further urged by him that in the other case, i.e. if the contract is executory, i.e. non‑complete it is avoided and both the parties are at once absolved from any performance of it. On the other hand Mr. Ashfaque Hussain, the learned counsel for the Plaintiffs, had argued that there was no official declaration of War, secondly hostilities have ceased and, lastly, that this suit is not barred. I find very little force in these arguments. The first argument, advanced by him, is dealt with in the Judgment of the Division Bench of this Court passed on a reference (No. 1 of 1965) made by the office in respect of cases in which enemies were whether plaintiffs or defendants, and it was held that this objection is groundless. Apparently if the Plaintiffs succeed in obtaining their relief in respect of specific performance of contract defendant No. 1 who is an enemy would benefit from it. He had referred me to cases reported in 1915 (2) Kings Bench

379. It deals with the question of contract which was executory till the outbreak of war and its effect on such contracts. It was held that: "The buyers were entitled to refuse the tender inasmuch as at the date of tender the documents had by considerations of public policy, become void and unenforceable as regards any obligations of performance after the outbreak of war; and to carry out their original obligations would involve entering into contractual relations with king's enemies." The second case is reported in 1918 A C

260. It also deals with the case of trading with enemy. There was a contract for the sale of goods to be delivered by instalments and war was declared during the currency of contract. It was held that: "Apart from the suspensory clause, the contracts were abrogated on the outbreak of war inasmuch as they involved trading with enemy (2) that the suspensory clause assuming that it applied to a war between the contracting parties, was void as against public policy as tending to tile detriment of this country and the advantage of the enemy country." It is apparent that both these cases do not improve the case of the Plaintiffs. As a result of this discussion I hold that the suit is not maintainable at this stage. Finding accordingly.

13. Issues 2 to 15.‑In view of my finding on Issue No. 1 I do not propose to give my findings on these issues.

14. Issue No. 16.‑Suit is dismissed. In view of the position stated above I make no order as to costs. K. B. A. Order accordingly.