1989 PLP 2309 (CLC)

This is a suit for specific performance of an agreement relating to the sale of a plot. The brief facts of the case are as under:‑‑

1. Mst. Surayya Khanum mother of defendants 2 to 8 and wife of defendant No.l owned plot of land bearing Survey No.440/2 in Garden West measuring 21, 418 sq. yds. Mst. Surayya Khanum died in July 1979 and her L.Rs. defendants 1 to 8 were brought on record. Mst. Surrayya Khanum had purchased the aforesaid plot on 31‑1‑1953, from Dinshaw Nadirshaw, Sohrab Homie Mehta, Mrs. Homie Mehta and Eddie Minoche Dinshaw. Later the aforesaid plot was sub‑divided into 3 parts and numbered as 440/2/1, 440/2/2 & 440/2/3. On 30‑4‑1956 the deceased Mst. Surayya Khanum transferred the Plot No.440/2/1 measuring 4,000 sq. yds. to=Imam and Imam, a registered firm of plaintiff and Mazhar Ali Imam by a document described as `lease' for a period of 40 years for construction of a cinema. The salient features of the deed are: (a) The period of lease was for 40 years. , (b) Rent was fixed @ Rs.12,000 per annum (Rs.1,000 p.m.). (c) The transfer of the land was for the purpose of construction of a cinema. (d) The plaintiff was entitled to purchase the said plot within 3 years from 13‑3‑1957 at a fixed price of Rs.50 per sq.yds. and in case the right was not exercised within 3 years, the defendants were entitled to the increase @ 2% per annum on the price already agreed upon i.e. upon the original price of Rs.50 per sq. The option to purchase however was exercisable at any time during the period of tenancy subject to the aforesaid increase. (e) The plaintiff will have the option to incur maximum delay of 3 months in paying the annual rent provided liquidated damages of 20% of the total amount due were paid to the lessor over and above the amount due. If the delay incurred was less than two months than the liquidated damages were to be 10 % and if the period of delay was less, than 30 days no liquidated damages were payable. (f) The lease was terminable at the option of the lessee alone. It may be mentioned that no right of forfeiture was reserved to the lessor. Mazhar Ali Imam retired from partnership and the plaintiff continued to be the lessee of the plot in question. In 1959 the plaintiff constructed a cinema over the plot known as "Novelty Cinema". In 1961 deceased Mst. Surayya Khanum filed Suit No.32‑61 in this Court for the recovery of possession of the property in dispute, arrears of rent, mesne profits and liquidated damages. That on 16‑5‑1963 the aforesaid Suit No12/1961 was compromised in terms of the application made under Order 23 Rule 3 C P C and decree was passed on 16‑5‑1963 in terms of the compromise. That under the aforesaid compromise the above agreement, was terminated and the deceased Mst. Surayya Khanum agreed to enter into a fresh agreement demising the plot in question in favour of the plaintiff @ Rs.1,000 per month. In the meantime the plaintiff got the cinema, fully constructed. Mst. Surayya Khanum executed afresh deed on 29‑3‑1968, by which following changes were made vis‑a‑vis the previous agreement: (a) The rent was increased to Rs.13,200 per annum (Rs.1,100 p.m.); (b) The period of lease was to be 25 years. (c) At the expiry of every 5 years the rent will be increased @ 10% over the existing rent. (d) Option was given to the plaintiff to purchase the plot within one year. (e) The price of land was fixed @ Rs.60 per sq.yd. (f) The price of the land was to increase @ 2% per annum after one year. (g) Option to purchase was to be exercised within 25 years.

2. On 10‑4‑1970. the deceased Mst. Surayya Khanum filed an ejectment application against the plaintiff on the ground of default in payment of rent from 1‑4‑1969 to 31‑3‑1970 amounting to Rs.13,

200. On 21‑9‑1970 Rent Controller passed an order directing the plaintiff to deposit the arrears of rent as also the future rent. On 17‑5‑1971 the Rent Controller held that the rent was not deposited as per his direction and struck off the defence of the plaintiff. The plaintiff being aggrieved of the order of the Rent Controller dated 17‑5‑1971 preferred Appeal No.168/1971 in the Court of District Judge Karachi, which was allowed by the Ist Addl. District Judge, Karachi (Mr. Ahmed Ali U. Qureshi) and remanded the case to the Rent Controller directing him to frame the issue relating to the maintainability of the Rent Application and to decide it before passing the order for deposit of rent. Mst. Surayya Khanum being dissatisfied with the order in the Ist Appeal referred to in this para preferred II Appeal No.124/1972 in this Court which is still pending. On 19‑1‑1977, the plaintiff preferred petition for Special Leave to Appeal against the order of this Court in II Appeal No.124/1972 striking off plaintiff's defence for non‑payment of rent which was granted and the Civil Appeal in the Supreme Court is also pending.

3. On 19‑4‑1972 the plaintiff gave a notice to deceased Mst. Surayya Khanum requiring her to specifically perform the agreement, regarding the sale of land in question in favour of the plaintiff. No reply was received from the deceased Mst. Surayya Khanum. On 26th August, 1972 the plaintiff sent yet another notice requiring her to` specifically perform the agreement. On 9‑9‑1972 Mst. Surraya Khanum replied the aforesaid notice refusing to specifically perform the agreement in question, inter alia, on the ground that the plaintiff has committed default in payment of rent and as such is not entitled to the specific performance and that the point whether the plaintiff can exercise the option to purchase the plot in question was to be decided in 11 Appeal No.124/1972. In September 1972 the plaintiff filed the above suit for specific performance of the agreement.

4. Mst. Surayya Khanum filed a Written Statement wherein she did not materially deny the facts pleaded by the plaintiff in the plaint. She however alleged that the agreement dated 29‑3‑1968 was a lease‑deed and not a hire purchase agreement as interpreted by the plaintiff, and, therefore, the provisions of Rent Laws were applicable to it. She did not deny that the plaintiff was given option to purchase the plot as per the above agreement which was to be exercised within one year and thereafter could be exercised only subject to an increase in the rate. She however submitted that the parties had to execute another agreement of sale and the plaintiff had to pay earnest money before the said clauses could have amounted to an specifically enforceable agreement. She has also pleaded that till such time that the Sale‑Deed was executed and registered the plaintiff was liable to pay rent. As the plaintiff had committed default in payment of rent before any such sale‑ deed could be executed therefore, she filed an ejectment application i.e. a rent case before the Rent Controller. She has denied that the plaintiff had offered to purchase or was genuinely willing to purchase the plot in question. It is alleged by the plaintiff that m fact, the defendant was indebted to a number of persons including the plaintiff and these debts were secured by decrees, hence the plaintiff had no means to purchase the property. She has, therefore, prayed for dismissal of the suit and has claimed compensatory costs under Sectiork 35‑A C.P.C.

5. On the pleadings of the parties following Issues were settled: (1) Whether the agreement dated 29‑3‑1968 is a lease‑deed simpliciter or hire‑purchase agreement? (2) Whether the defendant agreed to sell the plot measuring 4000 sq. yds. to the plaintiff who could exercise the option at any time or during the continuance of tenancy under the agreement dated 29‑3‑1968? (3) Whether the plaintiff has constructed Cinema known as 'Novelty Cinema' of the value of Rs.20,00,000, over the plot in dispute? If so,. to what effect ? (4) Whether any area out of 4,000 sq. yds has been reserved for road expansion scheme and the plaintiff has not been able to utilize the entire area? if so, to what effect? (5) Whether the plaintiff has exercised option to purchase within the terms of the deed dated 29‑3‑1968 and was/is ready and willing to perform his part of the contract. (6) Whether the plaintiff is not sincere in his offer and has filed this suit in order to escape ejectment proceedings? (7) Whether the defendant has failed to specifically perform the agreement dated 29‑3‑1968 and is liable to pay compensation for withholding and delaying the performance? My findings on these issues are as under: (1) Not pressed. (2) Yes. (3) Yes. As follows. (4) Not pressed. (5) Yes. (6) As follows. (7) Not pressed.

6. A preliminary objection was raised by the plaintiff to the effect that the written statement has been signed and verified by Bashir Ahmed the husband of the deceased defendant as her attorney. On 13‑3‑1985 the plaintiff gave a notice to the defendant under Order XII Rule 8 C.P.C. inter alia requiring her to produce and show to the Court various documents including the power of attorney. Bashir Ahmed was examined on commission as a witness on behalf of the defendants and in his cross‑examination to the Advocate of the plaintiff failed to produce the power of attorney and stated as under:‑‑ "I have original power of attorney executed in my name by my wife but at present I do not have in possession the original. I have to search out in my record. (In my presence. the witness went to search power of attorney in original but could not get it and came back) 1 do not remember that the power of attorney was registered with the Sub‑Registrar. (Note: The witness brought only the photostat copy of the power of attorney from his residential room). (Statement of DWl page 3 recorded on 28‑3 1985):" As D.W. 1, the husband of the deceased Mst. Surayya Khanum failed to produce the original power of attorney, inference may be drawn against him to the effect that no such Power of Attorney was executed. My attention was invited to section 114 illustration (g) of the Evidence Act, 1872 equivalent to illustration (g) Article 129 of the Oanuon‑e‑Shahadat, 1984 which reads as under:‑ "That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; In this connection reference was made to the `Principles and Disgest of Law of Evidence' by M. Monir Volume II, page 1192 1974‑Edition which inter alia reads as under: "Presumption where the document is not produced after notice:‑‑Where material document is not produced by a party after notice, the other party becomes entitled to give secondary evidence of its contents and the party refusing to produce renders himself‑to presumption that document produced would not have supported his case. When a party refuses to produce a document which he has notice to produce he cannot afterwards use the document as evidence without the consent of the other party and the order of the Court It was therefore, contended that Court may presume that no power of attorney was executed by the deceased Mst. Surayya Khanum in favour of Bashir Ahmed. Thus the written statement filed by the defendant in the above suit is without authority and in law it will be presumed that no written statement has been filed. Therefore, the allegations in the plaint will be deemed to be admitted by the deceased defendant.

7. Reliance was placed on the case reported in A I R 1938 Bombay, Page 470/471 where it has been held: "A party is not bound to put in written statement: if he does not do so he is taken to admit the allegations in the plaint but he is entitled to appear and submit any argument open to him on the plaint..."

8. It was further contended that in July 1979 Mst. Surayya Khanum expired and on 3‑4‑1980 plaintiff made an application for bringing the L.Rs. of the deceased defendant Mst. Surraya Khanum on record. On 1‑6‑1980 Mr. Khalilur Rehman, Advocate filed his Vakalatnama signed by defendant No.l Bashir Ahmed for himself and as attorney of all the legal heirs. On 2‑6‑1980 the Additional Registrar (OS) ordered that the power of attorney alleged to have been executed in favour of Bashir Ahmed by the other L. Rs be filed. On 20‑9‑1980 application under Order XXII Rule 4 C.P.C. came up before the Court and the same was allowed. On 7‑2‑1982 the plaintiff made an application for certified copy of the Vakalatnama filed by Advocate Mr. Khalilur Rehman on behalf of Bashir Ahmed and other L.Rs. On this application the Additional Registrar (OS) ordered that notice be issued to Mr. Khalilur Rehman to produce the power of attorney as ordered on 2‑6‑1980 and accordingly on 18‑2‑1982 a notice was issued. Instead of filing of power of attorney as required by the Additional Registrar, on behalf of Bashir Ahmed defendant No.l an application under Section 151 C.P.C. was made inter alia stating that the power of attorney cannot be produced as the same has been withdrawn by defendants Nos. 3 to 8 and defendants Nos.l and 2 had executed a fresh Vakalatnama in favour of Mr. Khalilur Rehman Advocate and it was also prayed that notice be issued to defendants Nos.3 to 8 to enable them to make arrangement of their representation in the above matter. The application referred to in the preceding para came up before this Court for hearing on 17‑3‑1982 when the same was disposed of with the observation: "If the defendants have withdrawn the power they should have made arrangement for appearance for today in the Court." It was therefore argued that in fact no power of attorney as alleged by Bashir Ahmed was executed in his favour by the .L.Rs. of the deceased Mst. Surayya Khanum as is apparent from his evidence reproduced as under: O. After the death of your wife, defendants Nos. 2 to 8 executed Power of Attorney in your favour? (Mr. Naseemuddin Shaikh Advocate for defendants Nos. 5, 6 and 8 objects on the ground that this question does not arise as it is out of pleading). A. I do not have any other Power of Attorney in my favour exec t that of my wife. I see Vakalatnama dated 1‑6‑1980 (as Ex. D.W. 1/pl) and say that this has been signed by me as attorney of L.Rs. of Surayya Khanum in good faith. O. Whether the statement made on the Vakalatnama that I am attorney of defendants Nos.2 to 8 is wrong? (Mr. Naseemuddin again objected as already noted). A. My children accepted and authorized me verbally as attorney but they subsequently backed out. There was no Power of Attorney in writing from L.Rs. of deceased wife. I do not have any paper regarding withdrawal of attorney of defendants Nos. 3 to 8". (Statement of D.W. 1 f'.4 recorded on 28‑3‑1985). It was therefore, argued that from the above statement it is clear that Bashir Ahmed defendant No.l committed fraud on the Court by making a false statement in the Vakalatnama of the Advocate. Mr. Khalilur Rehman that he was acting as attorney of the L.Rs. of the deceased Mst. Surayya Khanum.

9. It was further submitted by plaintiff's counsel on 2‑9‑1984, this Court allowed defendants Nos.5, 6 and 8 to adopt the written statement filed by deceased Mst. Surayya Khanum and debarred defendants Nos. 3, 4 and 7 from filing the written statement. It was, therefore, contended that defendants Nos.l and 2 neither filed any written statement in reply to the amended plaint nor adopted the written statement filed by Mst. Surayya Khanum at the initial stage and as such there was no written statement on record on behalf of defendants Nos.l and 2 and the allegations made in the plaint will be deemed to have been admitted. The adoption of the written statement filed by Mst. Surraya Khanum by defendants Nos.5, 6 and 8 as per statement of Mr. Naseemuddin Shaikh Advocate on 2‑9‑1984 was also illegal as the written statement filed by Mst. Surayya Khanum at the initial stage was without lawful authority and illegal and in law did not exist as the same was signed and verified by Bashir Ahmed who was not duly authorized for the purpose as stated hereinabove. Therefore the said defendants i.e. No. 6 and 8 will also be deemed to have admitted the allegations made in the plaint. There being no written statement on behalf of the defendants Nos. 1, 2, 5, 6 and 8 and defendants Nos.3, 4 and 7 having been debarred to file the written statement it was prayed that this Court may decree the suit on this basis alone.

10. The above contentions of plaintiff's counsel are well‑founded. However I do dot propose to dispose of the suit on these preliminary objections only and would also deal with the issues framed in this case.

11. The plaintiff has examined himself as Ex. 5 (P.W.1). He has produced certified copy of Baled‑deed dated 31‑1‑1953 executed by previous owners in favour of Mst. Surayya Khanum as‑Ex. 5/1, certified copy of the lease deed dated 30‑4‑1956 between the parties as Ex. 5/2, certified copy of lease decd dated 13 10‑1955 as Ex. 5/3, order of District Magistrate permitting construction of cinema dated 24‑4‑1956 as Ex. 5/4, certified copy of Solvency 'Certificates of plaintiff as Ex. 5/5 and Ex. 5/6, certified copy of compromise application as Ex. 5/7 certified copy of order thereon as Ex. 5/8 certified copy of lease deed dated 29‑3‑1968 as Ex. 5/9, certified copy of Judgment of Ist Addl. District Judge as Ex.5/10, certified copy of the Order of Supreme Court as Ex. 5/11, certified copy of the judgment of this Court as Ex.5/12, order of KDA as Ex. 5/13, notices of plaintiffs counsel to defendant dated 19‑4‑1972 as Ex. 5/14 and Ex.5/15 reply of defendant in the above notices Ex. 5/16, statement of payments as Ex. 5/17, solvency certificate of plaintiff as Ex. 5/18, certified copy of ejectment application as Ex. 5/19, certified copy of written statement in the rent case No.5/20, orders of Rent Controller. as Ex. 5/21 and Ex. 5/22. Order of this Court as Ex.5/23, statement of rent as Ex.5/24, counterfoils of cheques as Ex.5/25 to Ex. 5/29. Receipts of cashier as Ex. 5/30 to Ex. 5/36. The plaintiff has then examined Mohammad Sabir as Ex. 6, who has produced the approved plan as Ex. 6/1, photostat copy of application of plaintiff as Ex. 6/2. The Nazir has submitted the statement of account which is taken as Ex.7. Statement of defendant No.l Bashir Ahmed was recorded on Commission as Ex.

8. In his evidence the defendant has produced the original vakalatnama as Ex.8/1, Lease Deed dated 29th March 1968 as Ex. 8/2, two original receipts as Exs. 8/3 and 8/4 certified copy of execution application as Exs. 8/5, certified copy of application under Order XXI Rule 2 as Ex. 8/6, Application of sikni as Ex.8/7, another application as Ex.8/8, certified copy of extract from Registrar as Ex. 8/9, original receipts as Ex. 8/10 to Ex. 8/15, certified copy of claim filed by Surayya Khanum against the plaintiff as Ex. 8/16 and memo. as Ex. 8/17. ISSUES Issue No. 'This issue was not pressed. Hence is disposed of as such. Issue No.2: It was contended by the plaintiff's counsel that the agreement dated 29‑3‑1968 Ex. 5/9 is in substance a hire‑purchase agreement to sell the property in question, while the defendant's counsel's contention is that it was only a lease deed. In order to determine the nature of a document, the body and not only the title of the same is to be read and interpreted and there from the true, intent and purpose of the parties creating that document is to be ascertained. For this purpose the entire document must be taken into account. The document in question though provided for the payment of rent but whether such payment was rent or not is a matter of proper construction of the said document. Ascertainment of true intention of the parties is also to be gathered from their acts, conduct and surrounding circumstances. Though the agreement Ex. 5/9 is titled as Agreement of Lease, nature of relationship created by the deed is to be determined from the language of the entire deed and not merely from its description or terminology, because the parties have chosen to give a particular description to the agreement or have chosen to use certain legal terms therein. In support of the above contention reliance was placed on the following cases: (1) Saifuddin Kazi v. Moslem Ali Hawaldar & others reported in P L D 1960 Dacca p. 674/682. (2) Muhammad Hussain v. Habeeb Wali Mohammad reported in P L D 1977 Kar p. 1031 / 1034. (3) International Fisheries (Pakistan) Ltd., & others v. Standard Fisheries Corporation 1983 CLC p.3294/3300. The land in suit was demised for constructing a cinema. The plaintiff raised this cinema in the year 1959. In 1959 the value of this cinema was Rs.20 lacs. In 1975 the value was Rs.30 lacs. The present market value would be Rs.60 lacs. The cinema is known as "Novelty Cinema." Statement of P.W.1 Ex.5 at page 3 supports the above, which is not disputed even by the defendants. In support of the aforesaid statement the plaintiff produced Solvency Certificate issued by City Dy. Collector Karachi as Ex. 5/5 and Ex.5/18. The value of the cinema given by the plaintiff as aforesaid was at the time when his statement was recorded on 15‑11‑1983. It is submitted that since then the value has appreciated considerably. If the intention of the parties was to create a tenancy‑at‑will plaintiff would not have spent so much money on the construction of the cinema and equipped it with costly machinery and the defendant would not have permitted the plaintiff to raise such a huge pucca building of a cinema which is a permanent structure on his plot. Reference in this connection may be made to, the document as a comprehensive agreement. It makes provision for payment of increased amount by way of penalty (Para. 3 of Exh. 5/9) such penalty was imposed and payments were made, Exh. 5/17 page 5 shows the details of additional payment made on account of liquidated damages on monthly rent for delayed payments (Nov. 1968 to Nov. 1969). It shows that penalty for delayed payment of 2, 3, 7. and 9 months has been made by the plaintiff to the defendants. Further Exh. D.W. 1/ 4 shows the liquidated damages were recovered for 9 months i.e. for the period from March 1968 to November 1969. Para 3 of the Agreement dated 29‑3‑1988 Exh. 5/9 provides payment of penalty up to the maximum of 3 months but in certain cases damages have been paid by the plaintiff for 7 and 9 months. In this connection reference may be made to Exh. D.W.1/17 wherein Bashir Ahmed has demanded damages and penalty for one year rent and interest on all the outstanding amount. The agreement Exh. 5/9 does not make any provision for payment of interest but Bashir Ahmed had made the plaintiff to accede to his demand for interest. If the intention of the parties would halve been to rent out the premises and eject the plaintiff in the event of non‑payment of rent, such penal provisions as stated above would not have been made. It would have been a simple agreement of tenancy without making a provision for sale of the property. It may be noted that in Exh. DW.1/16 liquidated damages had been claimed for 41 months (last page of Ex. D.W. 16). At the relevant time the rent of the premises was Rs.1,000 per month and the claim is for Rs.41,

000. To this effect reference may also be made to Exhs. 5/7, the compromise application under which the plaintiff was made to agree to pay the said damages. Under the aforesaid Exh. the plaintiff claimed mesne profits and interest though Ex. 5/9 does not entitle him to make such a demand. 1t is pertinent to note that no provision has been made in Ex.5/9 giving right to the defendant to terminate the agreement whereas such right is given to the plaintiff (Ex. 5/9 para. 2 page 5). In the absence of forfeiture clause, it will be deemed that the defendant had given up right of re‑entry and intended to sell the plot ultimately. The main and dominant object of the parties was to create a permanent interest and enter into a sale agreement. In this connection attention was invited to S.111 (g) of the Transfer of Property Act which provides:‑‑ "A lease of immovable property determine‑‑ (a) . (b) . (c) . (d) . (e) . (t) .. (g) by forfeiture, that is to say (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re‑enter; The agreement Ex. 5/9 does not provide a right of re‑entry to the defendant‑ and as such in the absence of such right it will be deemed that parties intended to create rights of permanent nature and to enter into a Sale Agreement of the property and not merely a tenancy agreement. In this connection reliance was placed on the following cases: (1) Vishwanath v. Narayan A I R 1935 Oudh p.

217. In this ruling the document purported to be a Patta Istamrari or perpetual lease. The premium (NAZRANA) fixed therein was Rs.2,500 and the deed provided that the lessee was to pay a sum of Rs.7‑8‑0 per annum as rent together with Rs.1‑8‑0 as Malakana dues. The under‑proprietary rights transferred by the deed were heritable and transferable. The transferee had relinquished all rights to the property transferred and there was no right of re entry. It was held that the transaction was not merely a perpetual lease but a sale in respect of which right of pre‑emption could be claimed. (2) Bhagwandas & another v. M. Ghulam Mohammad A I R 1935 Lah. p.

863. The ratio decidendi of this ruling is that where there is no clause providing for re‑entry in the event of failure to pay rent, the lessor has no right to get the lessee or his assigns ejected when they fail to pay rent. In the absence of a clause providing for re‑entry, the only remedy to lessor is to sue for arrears of rent. (3) Bishnupuriya v. Panch Kari. A I R 1951 Cal p.

541. It was held in this ruling that the rule that there will be no ejectment of the transferee of the lessee in the absence of provision of right of re‑entry or equivalent provision applies to leases before the Transfer of Property Act as a rule of justice and good conscience. (4) Allahditta v. Mst. Farz Bibi and others AIR 1914 Lah. p.

472. In this ruling it was held that a breach of the condition of lease does not effect its forfeiture unless the lease expressly so provides. Under Ex.5/9 besides the right of re‑entry having not been reserved by the lessor the right under the said Exh. are also transferable and heritable. Therefore, no rights of re‑entry having been reserved and the rights under Ex. 5/9 being transferable and heritable, it will be deemed that the parties' real intention and dominant object was to sell the property if the plaintiff so elected and not merely to lease it out. The lease was in the nature of a machinery for the purpose of safeguarding the recovery of rent so long as the plaintiff has not purchased the same and to preserve the defendant's title in the property if the plaintiff chose not to purchase the same. It is contended by the defendant's counsel that the option of plaintiff to purchase the plot was to be exercised at any time but during the period of continuance of tenancy subject to the aforesaid increase in the price. The plaintiff had committed default in payment of rent, and, therefore, an ejectment application was filed by the defendant against him being Rent Case No.83/1970. The plaintiff did not deny the relationship of landlord and tenant nor did he deny that default in payment of rent was committed by him. Hence a tenative order for deposit of arrears of rent as well as current rent was passed by the Controller in the abovv4 case. On 21‑9‑1970, on the failure of defendant to comply with the above order the Controller struck off plaintiff's defence on 17‑5‑1979 and directed him to hand over the vacant possession of the premises in dispute to the defendants. The plaintiff had not exercised his option till 17‑5‑1971 when the defence of the plaintiff was struck off and the tenancy had come to an end. According to the plaintiff himself the option to purchase was conveyed vide Ex.5/15 which is dated 26‑8‑1972 on which date the lease was not subsisting under the law. The lease stood determined firstly on the date when ejectment application was filed and thereafter on 17‑5‑1971 when the defence of the plaintiff was struck off and order of ejectment was passed against him by the Controller. Defendant's counsel therefore, concluded that hence by not having exercised the option to purchase the property within the period of continuance of tenancy the plaintiff had lost his right to purchase the same or to ask for specific performance. The ‑contention of the plaintiffs counsel is not tenable. The transaction is not a tenancy simpliciter but it is transfer of a permanent interest in the land in favour of the plaintiff though in the form of a lease for 25 years with an option to purchase and without reserving the right of re‑entry in the event of default in payment of rent, and therefore, the learned Controller was not justified in coming to the conclusion that the plaintiffs defence could be struck off for non‑payment of rent or that he could have been ejected on that account. It is incorrect to assert that the plaintiff did not take plea of absence of relationship of landlord and tenant between the parties. Perusal of Ex.5/20 would show that such a plea was taken. The order of the learned Controller dated 17‑5‑1,971 has been impugned by the plaintiff in appeal to this Court as well as the Supreme Court and cannot be said to have attained finality till the disposal of the above appeals. In cases where the document was purported to be a `Mortage' and `lease', it has been held that the tenant could not be ejected because of the provisions of the lease as the same was adopted as a mechanism to extract interest on the principal amount. On the same analogy the provisions as to lease under Ex.5/9 were only for the purpose of recovering money on v4rious grounds mentioned in the said exhibit from the plaintiff. In this connection reference may be made to the following cases: (1) S. Jamaluddin v. S. Mobashir Hussain Shah PLD 1976 Lah. p. 187 (2) Samandar Khan v. Mst. Maqbool and others 1974 S C M R p.388. (3) Mohammad Abdullah v. Abdul Jabbar P L D 1977 Lahore. P 1000. Even otherwise under Section 53‑A of Transfer of Property Act a tenant can successfully resist ejectment proceedings if he has an agreement of sale in his favour. It may be mentioned here that at the time of execution of Ex.5/9 ‑ the plaintiff was in possession of the property in question and as such the contention of the defendant that the plaintiff having committed default in payment of rent is liable to be ejected is untenable and fallacious. Reliance was placed on the case reported in 1980 C L C page` 1442. (Hassan Abbass v. Shahid Bashir and 5 others). I, therefore, hold that from the intention of the parties as gathered from the language of the entire document and their acts, conduct and surrounding circumstances, particularly permission to raise pucca construction, absence of right of entry and the rights under Exh. 5/9 being transferable and heritable the documents cannot be said to be creating a mere tenancy‑at‑will but they had entered into a transaction under which sale of the plot was agreed to by the defendants in favour of the plaintiff, if he so elected during the continuance of lease. I am also satisfied that the option to purchase the land was rightly exercised during the period of tenancy i.e. within 25 years from the date of Exh. 5/9. Issue No.3: There does not seem to be any dispute on this issue. The defendant has not denied that the plaintiff has constructed the cinema on his plot and with his approval. The plaintiff, P.W.1 in his statement has stated: "I have raised this cinema in the year 1959. In 1959 the value of the cinema was Rs.20 lacs. In 1975 the value was Rs. 30 lacs. The present value would be more than Rs.60 lacs. The cinema is known as Novelty Cinema." (Statement of P.W. 1 p.3. recorded on 15‑11‑1983). The plaintiff, P.W.1 has also produced Exhs. 5/5 and 5/18, the solvency certificate issued by City Dy. Collector Karachi showing the value of the cinema as Rs.20 lacs and Rs.30 lacs in the years 1964 and 1975 respectively. The value of cinema at present is over a crore of rupees. The agreements Exs.5/2 and 5/9 clearly show defendant had agreed to sell the plot in question to the plaintiff and accordingly he constructed the cinema which was approved and as such it cannot be contended otherwise. The defendants had all along not only been acquiescing in the construction but had also allowed the plaintiff to raise construction and to invest huge amount of money in the construction of the cinema and as such the defendants are not entitled to contend that the plaintiff could not have constructed the cinema in question. The plaintiff has now developed permanent rights in the plot and defendants are not entitled to refuse the specific performance. Issue No. 4: The plaintiff did not press this issue. Issue No.5: Para. 1 (h) of the agreement Exh. 5/9 provides as under:‑ "That the lessee will be entitled to buy the demised premises in question within one year from 1st April, 1968 at a fixed price of Rs.60 (rupees sixty only) per sq. yd. The lessor shall be bound to sell the lessee demised plot at the above‑mentioned price and in case the lessee does not exercise the right to buy this plot within one year the lessor shall be entitled to increase @ 2% per annum on the price already agreed upon i.e. to say upon the original price of Rs.60 (Rupees sixty only) per sq. yd. The option to purchase may thus to be exercised at any time during the period of tenancy subject to the aforesaid increase." Para. 1 of the same exhibit inter alia reads as under: "To hold the said land on lease from Ist April 1968 for a term of 25 years and renewable for further period of 25 years at the option of the lessee on the same terms and conditions mentioned below:" From the aforesaid provisions of Ex.5/9 the plaintiff was entitled to exercise the option to purchase the said plot within the period of 25 years from Ist April 1968. The option to purchase was exercised on 19‑4‑1972 and 26‑8‑1972 when notices Exhs. 5/14 and 5/15 were given to the defendant to specifically perform the agreement to sell. The option thus exercised is within the period of tenancy i.e. 25 years and as such the option was rightly exercised. As the option to purchase was exercised after a period of one year, the defendant would only be entitled to the increased price as stipulated in the agreement and mentioned hereinabove. The plaintiff called upon the defendant to perform the agreement of sale specifically on 19‑4‑1972 (Exh. 5/14) and on 26‑8‑1972 (Exh. 5/15) which shows that the plaintiff was ready and willing to perform part of the contract. The plaintiff having prosecuted the case from 1972 onward clearly proves that he is still ready and willing to perform his part of the contract. Issue No.

6. As stated under the preceding issue the plaintiff had option to purchase the plot in question within 25 years from 1‑4‑1968 and the option having been rightly exercised within the period of tenancy the question of escaping from ejectment proceedings does not arise. As submitted under issue No.l the intention of the parties was to sell the plot at plaintiff's option and the provision as to lease was kept to ensure recovery of rent from the plaintiff so long as he did not elect to exercise option to purchase and as such proceedings taken for ejectment before expiry of 25 years were mala fide and as such the action was without jurisdiction. Issue No.

7. The plaintiff did not press the issue and gave up the relief of payment of compensation for withholding and delaying the performance. Hence no order for payment of compensation is passed. Issue No.

8. The plaintiff has prayed as under: (a) The defendant may be ordered to specifically perform agreement to sell dated 29‑3‑1968 convey, and transfer in favour of the plaintiff the said Plot No.440/2/1 Sheet Garden West measuring 4,000 sq. yds. Garden West Quarters, Karachi or 4000 sq. vds. minus 1,790 sq. yds. or area equivalent to the said 1790 sq. yds. out of defendant's adjoining plot sub divided Plot No.440/2/2. Within a time to be fixed by this Hon'ble Court after obtaining all necessary permission of transfer failing wherein some officer of this Hon'ble Court may be appointed to do so the needful at the costs and risk of the defendant absolutely conveying the aforementioned plot in favour of the plaintiff. (b) Such amount as this Hon'ble Court may deem fit and proper to award as compensation to the plaintiff against the defendant for withholding and delaying the performance. (c) Costs of the suit may also be awarded. (d) Any relief as this Hon'ble Court may deem fit and proper in the circumstances of the case may also be awarded against the defendant." In prayer (a) above the portion underlined and the prayer (b) were not pressed. The question which arises now, if the relief as prayed is granted, is as to what amount is payable by the plaintiff to the defendants. If the demised premises was purchased within one year from 1‑4‑1968 the price of land would have been Rs.60 per sq.yd. as per Exh. 5/9. The total amount @ Rs.60 per sq.yd. for 4,000 sq. yds comes to Rs.2,40,

000. As the option to purchase was not exercised within one year the cost or the land would be increased by 2% over Rs.60 per sq.yd. The right to purchase the land was exercised on 26‑8‑1972 vide Exh. 5/15 i.e. after 3 years and 5 months. Thus the amount would be: Extra for April 1969 to March 1970 Rs.4,800 Estra for April 1970 to March 1971. Rs.4,800 Extra for 1971 to March 1972 Rs4, 800 Extra for April 1972 to August 1972 Rs. 2.000 ________ Rs.16.400

Total amount payable @ Rs.60 per sq. yds. Rs.2,40,000 Extra as increase from April, 1969 to August, 1972 Rs. 16,400 Rs.2.56,

400. Exh. 7 is the statement produced by the Nazir of this Court showing the details of the amount deposited in Court, which covers the rent upto June 1985. Thereafter the plaintiff deposited further rent from July, 1985 to December, 1988 in the Court. As per Ex.5/23. The arrears of rent upto February, 1974, and rent from March 1974 onward was required to be deposited in Court which was done. The option to purchase the land was exercised on 26‑8‑1972. Thus the amount deposit from September, 1972, till December, 1988 is to be adjusted against the cost of land. The total amount of Rs.2,28,800 has been deposited in the Court which is liable to be adjusted against the costs of the land amounting to Rs. 2,56,400 thus leaving a balance of Rs.27,600 required to be paid by plaintiff to the defendant towards the balance of the cost of the land. Specific performance was an equitable relief and was not to be granted as a matter of course. It was to be granted in accordance with equitable principles. Reference in this connection may be made to P L D 1981 Karachi 170 (D.B.) (Ali Mohammad Khan v. Riazuddin Khera). It is also a principle of equity that a person who asks for equity must himself also do equity. Hence in this case also fairness, required the plaintiff to have deposited the amount of Rs.2,65,400 in Court at the time of filing of the suit. In that case by this time this amount would have earned profits for all these 17 years, as a 'Khan Deposit', which is the usual practice with this Court regarding such amounts deposited in Court. The plaintiff F having failed to do so has deprived the defendants of those profits and has himself enjoyed the benefits out of the defendants' plot for all these years. Moreover he has paid it in the form of rent in easy instalments which the defendants had received at long intervals and without any interest and therefore could not have received full benefit there from. It is also the settled law that the person who enjoys the possession of the property should not be given the interest which accrues on the price thereof and the interest should be given to the person who is out of possession. Reference in this connection may be made to 1983 C L C 1085 (D.B.) Mohammad Taqi v. Mohammad Anwar Ghouri which is a Karachi case and 1981 S C M R 684 Nazir Hassan v. Ejaz Ahmed Khan. I therefore direct that the plaintiff shall pay interest at the rate of Rs.20% per annum to the defendants on the entire sum of Rs.2,56,400 from the date of filing of the suit till the date of this decree. Consequently I pass preliminary decree to the effect that on the plaintiff's depositing the said 20% interest amounting to Rs.8,71,760 approximately plus balance of Rs.27,600 in all a lump sum of Rs.9,00,000 within three month from today, the defendants shall specifically perform the agreement relating to the sale of the property in question in favour of the plaintiff within one month of the deposit and in default thereof a person who will be appointed as commissioner will execute a registered sale‑deed on behalf of the defendants in favour of the plaintiff, at the cost of defendants. The commissioner's fee of Rs.5,000, shall be paid from the amount deposited by the plaintiff in Court. If the above amount of interest and balance is not deposited within three months the suit shall automatically stand dismissed. After the amount is deposited and the sale‑deed is executed the defendants shall be at liberty to withdraw the balance of amount of consideration and the interest so deposited according to their shares. AA./M‑866/K Order accordingly.