2011 PLP 1334 (YLR)

SYED HASAN AZHAR RIZVI, J.

C.M.A.No.8927 of 2008:

This is an application filed by defendant No.1 under Order VII Rule 11, C.P.C. for rejection of plaint on the ground that the suit filed by the plaintiff is time barred and barred by Article 113 of the Limitation Act, 1908. The plaintiff has filed counter-affidavit to the present application, wherein it has been stated that the defendant No.1 has filed the present application with mala fide intention by concealment of facts and without any cogent reasons. It is further denied that the plaintiff has filed time barred suit and prayed for dismissal of the present application. I have heard Syed Tariq Ali Ahmed learned counsel for plaintiff, Mr. Saalim Salam Ansari learned counsel for the defendant No.1 and Mr. Ijaz Ahmed, learned counsel for the defendant No.2. Mr. Saalim Salam Ansari, learned counsel for the defendant No.1 has contended that the plaintiff has filed this time barred suit, which is also barred by Article 113 of the Limitation Act, 1908 as the suit is based on agreement dated 28-3-2003. He has contended that the suit is based on part payment of Rs.4,00,000 and the total sale consideration of the shop No.8, situated on Ground Floor, "Hotel Regency" Dr. Dawood Pota Road, Karachi is Rs.19,00,000 and the sale will be completed within three months of the receipt of payment of the balance consideration from the execution of this agreement. He has further contended that the plaintiff has also concealed the fact that the legal notice dated 8-12-2007 was duly replied by the defendant No. 1 through his counsel and the date of expiry of 90 days time will be taken into account for starting of limitation i.e. 28-6-2003 whereas the instant suit filed on 19-12-2007. Therefore, he has prayed for rejection of plaint. Learned counsel for the defendant No.1 in support of his submissions has placed reliance on the cases of Ghulam Qadir v. Khandu (PLD 2004 SC 62), Abbas Ali Shah v. Ghulam Ali (2004 SCMR 1342) and Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2010 Kar. 17). On the other hand, Syed Tariq Ali Ahmed learned counsel for the plaintiff has contended that for deciding the application under Order VII Rule 11, C.P.C. averments of the plaint have to be looked in. He has submitted that the defendant No.1 admitted and acknowledged the execution of sale agreement between the plaintiff and defendant No.1 for the sale of shop in question and. as per agreement the defendant No.1 is under obligation to handover the title of the said shop to the plaintiff at the time of payment of balance sale consideration of Rs.15,00,000 and after signing of agreement plaintiff time and again approached the defendant No.1 with the request for disclosure of any material defect in their title, but the defendant No.1 has refused to handover the title documents on one pretext or the other. He has further submitted that the defendant No.1 has disclosed that property in question was already mortgaged with banks. He has also submitted that a legal notice dated 8-12-2007 was sent to the defendant No.1 for performance of his part of contract and showing his willingness to pay the balance amount of consideration. He has further urged that the defendant No.1 from time to time has assured the plaintiff for performance of his part of contract under the agreement of sale and due to price hike the defendant No.1 become dishonest, avoided and refused in performance of his obligation though physical possession of the shop in question is remained with the plaintiff. Learned counsel for the plaintiff in support of his submission has placed reliance upon the cases of Muhammad Hussain and others v. Dr. Zahoor Alain (2010 SCMR 286), Mst. Batul and others v. Mst. Razia Fazal and others (2005 SCMR 544), Muhammad Ayub v. Abbas Ali (2005 MLD 774), Rana Allah Baldish v. Ghulam Sakina (2005 MLD 1700) and Faheem Ahmed v. Ata-ur-Rehman (2007 CLC 1746). Mr. Ijaz Ahmed, learned counsel for the defendant No.2 supported the arguments advanced by the learned counsel for the defendant No.1 and has placed reliance upon the case of Industrial Development Bank of Pakistan v. Muhammad Ayub Stone Crushers and others (2009 SCMR 611). It is an admitted position that the plaintiff and defendant No.1 were entered into a sale transaction of shop in question and paid R,s.4,00,000 at the time of signing of sale agreement and as per clauses (5) and (6) of the said agreement the sale will be complete within three months of the receipt of payment of the balance consideration of Rs.15,00,000 and the title of the shop in question will be handed over to the party of the second party at the time of payment of balance amount. Further, the possession of the shop in question is already with the plaintiff. As per agreement the defendant No.1 is bound to perform his part of contract but he has suppressed the material facts that the shop in question has already been mortgaged with the defendant No.2. The defendant No.2 filed Suit No.1445 of 1999 against the defendant No.1 wherein leave to defend was dismissed against which Appeal No.181 of 2007 was filed. The defendant No.1 also filed Suit No.B-2/2004 for declaration, permanent injunction, release of guarantee/mortgage properties under section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against defendant No.2, which was dismissed on 27-3-2007 against which the defendant No.1 filed Appeal No.182 of 2007. In appeal the defendants Nos.1 and 2 have been compromised. The defendant No.2 filed written statement in the present suit wherein it has been stated that the shop in question is still mortgaged with the bank. Moreover, it is settled principle of law that for the purpose of considering the rejection of plaint,' averments made by the plaintiff in the memo. of plaint are to be accepted as correct. The present suit has been filed by the plaintiff seeking specific performance, declaration, perpetual and mandatory injunction and recovery of Rs.76,00,000 as compensation for damages and this Court in the recent case of Faheem Ahmed v. Ata-ur-Rehman (2007 CLC 1746) has held that defendant did not cancel the agreement to sell in contracts of immovable property, the seller fails to complete the documentation within stipulated time, the buyer has the option either to sue the seller for damages in lieu of the performance of the contract or may seek specific performance of the contract and also claim damages in addition to the relief of specific performance in case seller fails to perform within the stipulated time then the buyer has to first serve notice upon the seller calling upon him to perform the contract within a reasonable time--if the seller still fails to perform then the payer may either put an end to the contract, seek damages in lieu thereof or may seek the relief of specific performance of the contract as well as damages in addition to the relief of specific performance. For the foregoing reasons, this application being misconceived is hereby dismissed with no order as to cost.

3. C.M.A. No.8928 of 2008: This is an application filed by the defendant No.1 seeking recall the ex parte order dated 26-5-2008 and allow the defendant No.1 to file written statement. In support of the application affidavit of Yasir Zafar one of the directors of defendant No.1 has been filed wherein it has been stated that Messrs Naek and Co. Advocates and Mr. Adnan Ahmed Advocate filed power on 24-6-2008 during the summer vacation to file application under Order VII Rule 11, C.P.C. on the opening day and previous advocates are not available as Mr. Adnan Karim Memon has been appointed as Assistant Advocate General, Sindh and filed application under Order IX Rule 7, C.P.C. It has been further stated that delay may be condoned if any in filing of the present application and pray for recalling of the order dated 26-5-2008 and allowing them to file written statement. Counter-affidavit has been filed by the plaintiff wherein it has been stated that the affidavit in support of the present application has' been signed by an unauthorized person, as no resolution of board of directions of the company has been annexed as such application under reply is liable to be dismissed. I have heard the learned counsel for the parties and perused the record, which goes to show that the agreement was signed by Yasir Zafar attorney of the defendant company. Not only this but the plaintiff made the Pay-Order No.572608 dated 28-3-2003 in the name of Yasir Zafar for advance money of the sale agreement. The record further shows that no personal service has been held upon the defendant through bailiff, registered post A.D. and the defendant has been served only through courier service. Courier service on which service was held good is vague and baseless. The defendant No.1 is a private limited company but at the time of holding the service good the provisions of Orders V and XXIX of Civil Procedure Code were considered. It has been observed by the Apex Court as well as this Court in various cases that the matter should be decided on merits rather than on technicalities. In the present case direct service upon the defendant has not been effected, therefore, in order to avoid I multiplicity of litigation, the present application is allowed and the order dated 26-5-2008 is hereby recalled. The defendant No.1 is directed to file written statement within two weeks from today. H.B.T./A-39/K Order accordingly.