P L D 2006 Karachi 607 (PLP)

MUHAMMAD SADIQ LEGHARI, J.

Present second appeal assails the decision pronounced by the learned Vth Additional District Judge, Karachi Central (Muhammad Aziz Jamali) in Civil Appeal No.51of 2002 on 14-2-2004 by that decision he decreed the suit for specific performance of the contract filed by the respondent reversing the dismissal of that suit pronounced by IVth Senior Civil Judge, Karachi Central on 10-4-2002.

2. Facts are that respondent Zubeda Begum the owner of House No.67/5 admeasuring 133 sq. yards, Muslim League Quarters Nazimabad, Karachi (hereinafter referred to "as the house" or "the house in question") executed Agreement of Sale in respect of the house in favour of Mst. Nikhat Parveen on 11-5-1985 agreeing thereby to sell the house for total consideration of Rs.3,85,000 including a loan of Rs.1,00,000 out of the price Rs.50,000 were paid to the said vendor whereas remaining amount of Rs.2,35,000 was agreed to be paid by the vendee to the vendor within three months from the date of the agreement and then possession of the house was to be handed over to her on one month's notice.

3. The vendee could pay further amount of Rs.1,55,000 only on 22-1-1986 instead of three (3) months specified in the contract. Thereafter, she did not deposit a single instalment of the HBFC loan nor she paid the remaining{Rs.70,000.

4. On 19-4-1987 vendor Zubaida Begum died. In March, 1988 vendee Nikhat Parveen filed suit in High Court for specific performance of the contract against the owner/defendants (the legal heirs of the vendor) pleading that in January, 1986 she had paid further Rs.1,55,000 to the vendor through Pay order. After death of the vendor she/vendee offered the remaining amount to vendor's legal heir but they did not complete the contract. The legal heir of Zubaida Begum resisted the suit pleading mainly that the Vendee had not performed her part of the contract and failed to make payment of the balance amount including the loan as agreed, therefore, the contract was no more enforceable and suit was liable to dismissal.

5. When the suit was pending in High Court on its original side an order was passed on 7-4-1991 directing the plaintiff/vendee to deposit the balance amount of Rs.1,70,000 in Court within two weeks which she could not do. She sought extensions in time but failed to deposit within extended time also. Lastly there, was an order for depositing the amount with ten per cent interest from the date of the first order and she did deposit the amount of Rs.3,40,000 on 27-2-2002. Thus, she could deposit the amount i.e. balance of the price 11 years after the order of the Court.

6. Thereafter, consequent upon an amendment in the law the suit stood transferred to the District Judge, Central, Karachi, who assigned the same to the learned Senior Civil Judge, Karachi Central. Learned Senior Civil Judge, Karachi Central dismissed the suit holding that the vendee had not been able to establish that they were prepared to perform their part of contract. The appeal filed by the Vendee (Civil appeal No.51 of 2002) was, however, accepted by the VIth Additional District Judge, Karachi Central (Mr. Muhammad Aziz Jamali) on 14-2-2004 reversing the findings of the learned IVth Senior Civil Judge. He held that the vendees had established their willingness and readiness to perform their part of the contract.

7. One fact worth to be noted is that Muneer Ahmed one of the sons and legal heir of the vendor Zubeda Begum was not joined as respondent in the appeal despite the fact that he was party to the suit. It was only after the decision in the appeal that an application was made by respondent Nikhat Parveen to join him as party in the proceedings and the learned Additional District Judge added his name as respondent No.6 in the appeal on 24-7-2004.

8. After that an application for execution of decree was filed not only against the persons who were party to the appeal but Muneer Ahmed also. That execution application was allowed and the legal heirs of vendor were thrown out of the house on 14-12-2004.

9. After that they filed present IInd appeal. Arguments have been heard for deciding the appeal at Katcha Peshi stage.

10. The appellant's learned counsel Mr. Shabbir Hussain Shigri raised legal point that the appeal filed by the respondent i.e. vendee was not competent without joining Muneer Ahmed. He also attacked the joining of Muneer Ahmed as party to appeal arguing that it was absolutely illegal that a person was joined to the proceedings after decision thereof. And that also much beyond the period of limitation and after accrual of valuable legal rights in his favour. The learned counsel also contended that the Vlth Additional District Judge, Karachi Central -has wrongly and illegally set aside the finding of the learned trial Court that the vendee had failed to perform her part of the contract ignoring the established failure of the Vendee to pay the balance amount of Rs.70,000 and the loan of HBFC amounting to Rs.1,00,000.

11. Mr. Ghiasuddin Mirza, representing the respondent backed the impugned decision, He first raised the legal objection that IInd Appeal having been filed about one year after the impugned decision was hopelessly time barred and as such was not maintainable. In continuity he contended that the time will run against Muneer Ahmed from the date when he was served with the notice of the execution application through publication in .newspaper, dated(sic) therefore, his appeal is also time barred. He further contended that the payment of Rs.1,55,000 to Vendor through pay order, dated 22-1-1986 had been established and the acceptance of that amount was the waiver and acquiescence of the delay in payment. He further contended that non-deposit of the instalments of the loan stands covered after the order of the Court for deposit thereof in the Court.

12. In the last Mr. Mirza contended that the appeal has been filed after everything was completed as the sale-deed was executed through Nazir of the Court and possession of the property delivered to the respondent in execution of the decree therefore, the appellate decision was protected under the principle of locus poenitentiae.

13. First I want to deal with the question of limitation. The impugned decision was passed on 14-2-2004 whereas this appeal was filed on 12-2-2005. Obviously, it was much beyond the period of limitation except in the case of Muneer Ahmed. His case is on different footing, therefore, he cannot be non-suited on the ground of limitation. As he was not party to the appeal the decision to his extent was nullity. Therefore, limitation will not apply to his appeal. Even otherwise notice of the application for execution of the decree was published in newspaper `Nawa-e-Waqt' without any, evidence proving him to be its subscriber, therefore, it was not valid-Service. He got knowledge about the appeal and the proceedings at the time of his eviction on 14-12-2004 and as such the appeal filed by him on 12-2-2005 is within time of 90 days fixed under Article 156 of Limitation Act.

14. The order of joining Muneer Ahmed as respondent No.6 in the appeal after recording decision in it is unique example of transgression of the limits of the law. It is not known what prompted the learned Additional District Judge to go to that extent. By passing that order he even ignored the period of limitation which had passed in between and legal rights accrued to Muneer Ahmed.

15. After recording the above conclusion that the appellate decision is nullity to the extent of Muneer Ahmed, I also take up his plea on the factual aspect. The evidence produced by the respondent/plaintiff through her attorney Syed Junaid Khalid admits the non-payment of Rs.70,000 to be paid to the vendor and non-deposit of the instalments towards the loan of HBFC amounting to Rs.1,00,000 till the filing of suit. That by itself is clear non-fulfilment of the condition of the contract by the vendee/respondent. She has even not pleaded or proved that there was further agreement in respect of that payment. The learned Additional District Judge adopted strange method of appreciation of the evidence on this point by expressing that since the said amount had been deposited with the Court the controversy came to an end because HBFC may receive the amount of loan from the Court together with mark-up. It is not known how and why the Additional District Judge went to the extent of condoning the violation of the terms of the contract in this fashion when the payments were not made as required by the contract and the amount had been deposited eleven years after the directions by the Court. Legally the party having defaulted in fulfilling its part of the contract did not deserve the grant of its prayer for specific performance of the contract.

16. I have given thought to yet another aspect also. It is the question as to whether appellate decree can be operative/effective to the extent of the share of the other legal heirs of Zubeda Begum who were party to the appeal. The answer is in negative. Firstly, the appeal was incompetent as a whole and not partly, for non-joinder of one of the necessary parties. Secondly, the case relates to .the sale as one and not to any independent and separate part of such sale. On this point reference can be made to the decision of the Hon'ble Supreme Court in case of Mst. Maqbool Begum etc. reported in PLD 1982 SC 47.

17. Since the decision impugned through appeal is illegal and wrong the principle of locus poenitentiae does not protect it even if it has been acted upon. The case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others (2000 SCMR 907) is clear on the point. Moreover, the impugned decision was subject to appeal and the fact that it had been acted upon cannot take away the legal right of appeal from the party competent to file the same.

18. In view of the above the impugned decision is not sustainable, and deserves to be set aside even if the appeal to the extent of the appellants Nos. 1 to 5 is time barred. Consequently the appellate decision and the suit for specific performance filed by the respondent is dismissed. The sale-deed executed in her favour by the Court will have no legal effect. Sub-Registrar concerned may keep such entry. The appellants to deposit with Nazir of this Court the amount received by them, within two months. The respondent No.1 to collect the amount from the Nazir of this Court together with the amount deposited by her under the order of the Court and the profit earned by it. The possession of the house shall be handed over to the appellant within 30 days after the deposit of the amount by the appellants with Nazir. In case the respondent does not hand over the possession the trial Court shall issue writ of possession without notice to her and execute the order with the aid of police. With this order the appeal is disposed of. Respondent to suffer the costs throughout. Copy of this judgment be sent to MIT of this Court for placing it before the Hon'ble Chief Justice for perusal and action deemed proper. H.B.T./A-84/K Order accordingly.