2017 PLP 23 (YLRN)

ABDUL RASOOL MEMON J.

The appellant has filed this Second Appeal against the judgment dated 24.04.2014 passed in First Civil Appeal No.18 of 2013 by learned Ist Additional District Judge, Malir dismissing the appeal of the appellant and maintaining the judgment dated 06.03.2013 and decree dated 13.03.2014 passed in Civil Suit No.99 of 2007 by IInd Sr. Civil Judge, Malir, Karachi whereby the suit of the respondent was decreed,

2. Facts of the case are that the respondent had filed Suit No.99 of 2007 for specific performance, possession and permanent injunction against the appellant pleading therein that he had got booked a plot of 120 square yards bearing No.333 Block M, Category Resident in Gulshan-e Falaknaz, Karachi with the appellant/ defendant and paid major portion of the sale consideration and when respondent, went at the office of the appellant for payment of the remaining amount of installments/ consideration he was informed about cancellation of booking for the reasons that he has failed to pay installments.

3. Appellant/defendant in his written statement denied the claim of the respondent and has pleaded that the respondent did not make payment as per terms and conditions therefore his allotment was cancelled with notice.

4. Appellant/defendant contested the suit denying the claim of the respondent/plaintiff on the ground that he(sic.)

5. Both the parties produced their evidence before the trial Court and vide judgment dated 06.03.2813 the IInd Senior Civil Judge, Malir Karachi decreed the suit.

6. The learned counsel for the appellant argued that the appellant has produced on record the copies of notices sent to the respondents/plaintiffs placed on pages Nos.143 to 188 but the same was not complied with, consequently the allotment/booking was cancelled through cancellation notice dated 1st August, 2006, which is placed on page 189; that as per terms and conditions of the allotment the allotment was liable to be cancelled in case monthly installment was not paid for three months continuously; that the respondent had failed to pay the monthly installments for more than three months, therefore, finding no alternate the allotment in favour of the respondent/plaintiff was cancelled; that the trial Court and the appellate Court did not consider the said aspect of the case; that the time was not essence of contract and timely the installments were not paid. He further submitted that the appellate Court did not frame the points for determination in compliance of Order XLI, Rule 31, C.P.C., therefore, its judgment on this score alone is contrary to law, can be questioned under section 100, C.P.C.

7. In rebuttal learned counsel for the respondent contended that the contract between the parties and respondent is admitted and it is also essence of the contract that the consideration amount was to be paid within five years which were likely to lapse in July 2008; that it is also admitted fact that amount of Rs.71,500/- was paid by the respondent/plaintiff out of total amount of consideration of Rs.125,000/- and still a long period of two years remained for clearance of the dues by the respondents/plaintiffs but without serving a notice the plot in question was cancelled on 1st August; 2006. He further urged that it is admitted by the attorney of the appellant/defendant in his cross-examination that no notice of any sort was served upon the respondent which is sufficient to prove that the respondent/plaintiff was condemned unheard. He further contended that the concurrent findings of the two Courts below are based on proper reading of the evidence and nothing has been shown on' record to prove that any provision of law has been flouted or the impugned judgments are contrary to law or any defect or substantial error in the procedure provided by the law has been violated by both the Courts below. Lastly, he submitted that all the material has been discussed by the trial Court as well as the appellate Court, therefore, there is no violation of Order XX, Rule 5 or Order XLI, Rule 31, C.P.C. has been committed, therefore, the judgment of both the Courts below do not require any interference by this Court in second appeal. In support of his contentions, he has placed reliance on the following case law:-

1. Syed Rafiul Qadre Naqvi v. Syeda Safia Sultana and others (2009 SCMR 254)

2. Amjad Sharif Qazi and others v. Salim Ullah Faridi and others (PLD 2006 SC 777)

3. Haji Sultan Ahmad through legal heirs v. Naeem Raza and 6 others (1996 SCMR 1729)

4. Muhammad Feroze and others v. Muhammad Jammat Ali (2006 SCMR 1304).

8. I have given careful consideration to the arguments advanced by the parties' counsel and the relevant papers on record.

9. It is well settled principle of law that concurrent finding recorded by the courts below cannot be interfered with by the High Court while exercising jurisdiction under section 100, C.P.C. how so erroneous that finding may be unless such finding has been arrived at by the Courts below either by misreading of evidence on record by ignoring a material piece of evidence on record or through perverse application of evidence. Reliance is placed on case of Haji Sultan Ahmed through L.Rs. (supra). The main contention of learned counsel for the appellant is that both the courts below ignored the piece of evidence regarding default committed by respondent/plaintiff in payment of monthly installments consecutively for three months which was clear violation of terms and conditions of allotment which was not denied and thus it was made the base of cancellation of allotment of plot in question. I have gone through the findings of both the courts below. The learned trial court under issues Nos.5, 6 and 7 has discussed the point of payment of installments with these observations: "Issues Nos. 5 and 6 are interconnected with each other and according to the documents and application of the plaintiff to the defendant, which is available in the record of case file as Ex-P/4 that suit plot was booked by the plaintiff on 12.07.2003 and at the time of booking plaintiff paid Rs.5000/- which is also clearly shown from application form and defendant issued such receipt to the plaintiff: In this light of documents the plaintiff was bound to pay entire amount within a period of 5 years from 12.07.2003 but unfortunately when on 04.09.2006 the plaintiff visited office of the defendant they informed him that his plot has been cancelled. According to the application form, which is available in the record of case file that suit plot was booked in July 2003 and plaintiff was bound to pay entire amount within a period of 5 years means upto July 2008 but defendant cancelled the suit plot of plaintiff before 5 years. In this connection the attorney of the defendant namely Irfan son of Muhammad Iqbal appeared before Court and during chief examination he deposed that plaintiff (Mehboob-ur-Rahman) appeared before the office of defendant and he undertakes that the plaintiff will pay entire amount within prescribed time and learned advocate for plaintiff raised objection that undertaking is not available in the record of case file and even that undertaking was not produced by the defendant during course of filing written statement and even at the time of recording evidence". Thus it shows that plaintiff never filed such undertaking before the defendant and defendant to produce such undertaking before Court during course of evidence and during course of final arguments. Admittedly the plaintiff has paid the major portion of sale consideration to the defendant and the defendant acknowledged receipts and plaintiff is ready to pay remaining minor portion of sale consideration. It has also come on record that over suit plot no development has been made by the defendant and defendant cancelled the plot of plaintiff without given any sufficient cause, subsequently issue No.5 is answered accordingly and in my humble view that plaintiff is entitled for the possession of suit plot and issue No.6 also answered as discussed accordingly. Issue No.7: In this connection during course of evidence and in the light of documents produced by the plaintiff that the suit plot was booked through application Form No.12488 dated 12.07.2003 and plaintiff paid more than 80,000/- rupees to the defendant's scheme. It is also come on record that plaintiff was bound to pay entire amount to the defendant in installments within a period of 5 years but before 5 years defendant cancelled the suit plot of plaintiff and even defendant failed to produce any acknowledgment regarding notice which was given by the defendant to the plaintiff before cancellation of suit plot, subsequently the defendant was not entitled for cancel the suit plot of plaintiff, hence present issue is also answered accordingly."

9. Not only trial court but the learned appellate Court also well discussed this aspect of the case with reference of evidence produced by the parties in paras 9 and 10 of the impugned judgment, which is also reproduced hereunder:- "

9. Another point on which this civil appeal is filed is that the respondent/plaintiff irregularly made payment and not as per schedule of the appellant, thus the part of the contact is not validly performed by the respondent/ plaintiff and the learned trial Court has wrongly decreed the suit of the respondent.

10. It has been seen that the respondent/plaintiff has paid maximum portion of the price of the subject property. The cancellation allegedly made by the appellant/defendant of the plot of the respondent/plaintiff has not been proved to be served on the respondent/plaintiff. There is admission that the appellant had been receiving payment it may be regular or irregular but such payments were duly received by the appellant and when few amount was left allegedly the booking of the respondent/plaintiff was cancelled by the appellant. When major portion of the sale consideration is admittedly paid by the plaintiff/respondent, the appellant/defendant could not on any ground unilaterally on flimsy reasons cancelled the allotment of plot. Evidence on record an surrounding circumstances did not justify cancellation of agreement by the appellant."

10. With above observations both the courts below have considered and appreciated the evidence produced by the parties relating to the controversy. So far non-framing of points for determination by the appellate court with reference to Order 41, rule 31, C.P.C. is concerned appellate Court was not always required to deal with each of the issues and resolve the same separately in the light of the evidence available on record unless the same had caused any serious violation of law or resulting in grave miscarriage of justice to any of the parties to the suit. In this respect reliance is placed on a case of Muhammad Iftikhar v. Nazakat Ali (2016 SCMR 1868). In the instant case the findings of facts recorded by the trial Court on the issue were maintained by the learned first appellate Court, therefore, unless findings are reversed by the First Appellate Court, which is not so in the present case, decision on each issue may not be distinctly and essentially recorded, provided in substance compliance of the provisions of the Order XLI, Rule 31, C.P.C. has been made. In the instant case too it appears that compliance of the provisions of Order XLI, Rule 31, C.P.C. in substance has been made, therefore, the objections of the counsel for the appellant is without substance.

11. From the record it does not appear that there is any misreading of evidence or omission on the part of the Courts below in respect of taking into consideration the material pieces of evidence. Reasons given and conclusion drawn by both the courts below is in accordance with law. Therefore, the Second Appeal merits no consideration and is dismissed accordingly. ZC/S-48/Sindh Appeal dismissed.