2008 PLP 418 (CLC)

NADEEM AZHAR SIDDIQI, J.

The plaintiff has filed this suit for permanent injunction for restraining the defendants from transferring or selling Plots Nos.R-79 and 80, Sumair Bungalows, Near Sachal Thana Safoora Chowk, Main University Road, Karachi, and for direction to the defendants to hand over the said plots to the plaintiff, for damages and to direct the defendants to construct the mosque. The defendants have filed their counter-affidavit in which it has been stated that there is no agreement between the parties with regard to Plots Nos.R-79 and R-80 and third party rights were created in respect of these plots in 1998 and 2002. It was further stated in the counter-affidavit that the plaintiff has no interest or right in respect of these plots. Vide order, dated 7-5-2007 the plaintiff was directed to satisfy the Court with regard to the maintainability of the suit. The case was thereafter fixed on 14-1-2008 but none was present on behalf of the plaintiff and the case was adjourned for today. Today the learned counsel for the plaintiff and the plaintiff are not' present to satisfy the Court with regard to the maintainability of the suit. Learned counsel for the defendants submits that there is no agreement oral or in writing between the parties with regard to Plots Nos.R-79 and R-80 and neither the plaintiff has paid any amount towards these plots nor the defendants have received any amount from the plaintiff in respect of these plots. He referred to Annexure "CA/1" file along with the counter-affidavit and submits that the lease in respect of Plot No.R-79 in favour of Mrs. Aliya Sharif was executed on 14th May, 1998 and Plot No R-80 was booked by Inayat Ali Syed on 3-5-2000 even before booking of Plot Nos.R-76 to R-78 by the plaintiff. He further submits that neither the plaintiff has prayed for specific performance of the contract nor he seeks any declaration with regard to his right, title and interest in the said properties and the suit is barred by section 42 of the Specific Relief Act. Learned counsel for the defendants further submits that the plaintiff has no cause of action against the defendants and submits that the prayer of damages is not independent and flows from the right if established in Plots Nos.R-79 and R-80. The learned counsel has relied upon the reported case of Muhammad Aslam v. Karachi Development Authority 2004 CLC

308. Learned counsel further submits that from the plaint it is clear that no terms and conditions of the alleged verbal agreement has been settled and that specific performance of an alleged agreement, terms of which cannot be clearly ascertained by Court cannot be possible. He has relied upon the reported case of Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307. I have heard the learned counsel for the defendant and perused the contents of the plaint and Annexures annexed with the plaint. It is an admitted position that the plaintiff has booked Plots Nos.R-76, 77 and 78, Sumaira Bungalows. The plaintiff has failed to file any document to show that at any point of time he has entered into any agreement with the defendants with regard to Plots Nos.R-79 and R-80. The plaintiff has also failed to file any receipt to show that in consonance of oral agreement any amount was paid to the defendants with regard to Plots Nos.R-79 and R-80. The plaint is also silent with regard to the terms and conditions of the alleged oral agreement between the plaintiff and the defendants. The plaintiff has also not asked for any declaration with regard to his right, title and interest in Plots Nos.R-79 and R-80 and prayer of possession has been made without asking for the specific performance of the alleged oral agreement. The suit for permanent and mandatory injunction in the present form is not maintainable unless the plaintiff is able to show some, right, title and interest in the said plots. Even if for argument sake it is presumed that there is an oral agreement of sale between the parties the same cannot be enforced for want of essential terms and conditions of the said agreement. The plaint does not disclose the sale consideration as well as the amount paid by the plaintiff to the defendants and in absence of specific terms it cannot be said that a contract was concluded capable of specific performance. Clause (c) of section 21 of the Specific Relief Act provides that the Court will not enforce a contract the terms of which are uncertain. In the reported case of Shajar Ali Hoti v. Esmail Sobani 1987 CLC 2307 it has been held that:

"Neither the sale consideration for which the property is agreed to be sold is mentioned in it, nor any other terms of the sale namely time for payment of the balance of sale consideration by the plaintiff, time for performance of the contract, mode of payment, delivery of possession of property, can be ascertained from it." Regarding the prayer of damages the contention of learned counsel for the defendants has some force that unless the right in the subject-matter of the suit is established merely claiming the damages is not sufficient to maintain the suit. In the reported case of Muhammad Aslam v. Karachi Development Authority 2004 CLC 308 it has been held that:

".... Inclusion of a prayer for damages, in itself, is not sufficient to assume that it is a new cause of action. Relief in the form of damages is a consequential relief. Unless and until the plaintiff does not first establish his right over the disputed land, he cannot claim damages. Therefore, if it is held that the plaintiff has no claim over the disputed land, his claim for damages evaporates in thin air." The plaintiff has hopelessly failed to show that there is any agreement between him and the defendants and due to breach of contract he has suffered mental torture. For the above reasons I am satisfied that the suit in the present form is not maintainable. The plaint does not disclose a cause of action against the defendants and the suit is also barred by subsection (c) of section 21 of the Specific Relief Act. The plaint is, therefore, rejected under Order VII, rule 11, C.P.C. with no order as to costs along with the pending application. M.H./A-144/K Plaint rejected.