1989 PLP 3940 (MLD)

(7) No.????? (8) As follows. (9) As follows. (1) No. (2) No. (2-A) Yes. (3) No. (4) As follows. (5) As follows. (6) Yes jointly. (7) As follows. ????????? REASONS Issue 1 to 9 of Suit No. 1283/80 & Issues 1 to 7 of Suit No. 748/81:- Since all these issues in both these suits are interconnected hence I take up all of them together. The evidence in both these suits is also common. Shireen Siddiq did not examine herself nor she led any evidence whatsoever in these suits. Her Advocate Mr. Niazy A. Khaliq gave a statement admitting, all the documents of Ziaul Khaliq from gages 1 to

71. Zial Khaliq expired during the pendency of the suits. From amongst his L. Rs. his wife Mrs. Qamar Zia was examined as Exh.

8. She has produced duplicate of agreement of sale Exh. 9/1, the original supplementary agreement Exh. 9/2, letter of KDA to Muhammad_ Ziaul Khaliq dated 23rd July, 1979 Exh. 9/3, Challan dated 21-7-1979 Exh. 9/4, Envelop Exh. 9/5, Telegram No. 3998 Exh. 9/6, Letter of Burney & Dastgir Advocates dated 29th September 1979 Exh. 9/7, Letter of Nasir Shamir & Co. Advocates Exh. 9/8, Letter of Government of Pakistan Works Division dated 23rd October, 1979 Exh. 9/9, Letter of P.E.C.H.S. Limited dated 12-12-1979 Exh. 9/10, Clearance Certificate dated 3-10-1979 issued by Assistant Accounts Officer (HS) Exh. 9/11, Challan for payment of Rs. 5,125 in State Bank of Pakistan Exh. 9/12, Challan for water conservancy and-maintenance levey charged Exh. 9/13, Letter from Government Works Division dated 3rd March, 1990 sent by Athar Mehmood Khan Section Officer Exh. 9/14, Challan for Rs. 23,800 paid in National Bank of Pakistan Exh. 9/15, Capital Gain Clearance Certificate dated 26-6-1980 DR. No. 8059/L/19179-80 Exh. 9/16, certificate issued by Excise & Taxation Officer 'H' Division Karachi Exh. 9/17, Clearing Certificate of K.M.C. dated 20-7-1980 Exh. 9/18, extract of Publication appeared in Daily Dawn on 2-9?1980 Exh. 9/19, another extract of publication appeared in Daily Dawn on 3-9?1980 Exh. 9/20, Letter of Nasir Shahmir & Co. Advocates, dated 23-10-1980 Exh. 9/21, Notice of Nasir Shahmir & Co. Advocates dated 17-11-1980 Exh. 9/22. Notice of Nasir Shahmir & Co. Advocates dated 14-12-1990 Exh. 9/23, agreement of sale dated 30th June, 1978 Exh. 9/24, Letter of Muhammad Ziaul Khaliq dated 14-9-1980 Exh. 9/25, Supplementary Agreement dated 15th September, 1980 Exh. 9/26, Notice of Nasu Shahmir & Co. Advocate dated 23?10-1980 Ech. 9/27, reply of Mr. Niazi A. Khaliq Advocate dated 1-11-1980 Exh. 9/28, Notice of Mr. Niazi A. Khaliq Advocate dated 1-11-1980 Exhibti 9/29, reply of Mr. Zahid Hamid Advocate dated 4-11-1980 Exh. 9/30, reply of Mr. Niazi A. Khaliq Advocate dated 11-11-1980 Exh. 9/31, notice of Mr. Nasir Shahmir Advocate dated 17-i1-1980 Exh. 9/32, reply of Mr. Niazi A. Khaliq Advocate dated 25-11-1980 Exh. 9/33, reply of Mr. Zahid Hamid Advocate dated 30-11?1980 reply of Mr. Niazi A. Khaliq Advocate dated 1-12-1980 Exh. 9/35 and notice of M/s. Nasir Shahmir & Co. Advocate dated 14-12-1980 Exh. 9/36.

9. Tanveer Ismail examined his attorney and younger brother Zain Ismail as Exh. 10 as he himself is out of country. Zain Ismail produced photo copy of General Power of Attorney as Exh. 10/1, receipt as Exh. 10/2, certificates of M.C.B. as Exhs. 10/3 and 10/4, office copy of notice of his Advocate as Exh. 10/5, certified copy of telegram Exh. 10/6 and postal receipt Exh. 10/7.

10. The evidence of Mrs. Qamar Zia and Zain Ismail need not be repeated as Qamar Zia has reiterated whatever Ziaul Khaliq had stated in the plaint and Zain Ismail has reiterated whatever Tanveer Ismail had stated in his written statement. From the evidence led by the L.Rs. of Ziaul Khaliq and Tanveer Ismail it is quite clear that the sum of Rs. 27,500 which was paid as earnest money, was paid by Shireen Siddiq and Tanveer Ismail jointly to Ziaul Khaliq and it is not correct that Shireen Siddiq alone had paid this amount. Similarly it is also proved from the evidence of these persons that the amount of Rs. 12,500 which was paid towards the consideration and Rs. 12,000 which was paid towards the rent and was to be counted towards the consideration was also paid by both Shireen Siddiq and Tanveer Ismail jointly and not by Shireen Siddiq alone. It is also proved from the statements of these two persons that the possession was delivered to both Shireen Siddiq and Tanveer Ismail jointly and that Shireen Siddiq alone came to occupy the premises with the consent of Tanveer Ismail but subsequently she tried to push Tanveer Ismail from the joint possession by not allowing him to occupy the house.

11. Now comes the question of the legal stand taken by Ziaul Khaliq that he was not bound to specifically perform the contract as Shireen Siddiq and Tanveer Ismail had not approached him jointly for executing the sale-deed. It was contended by Mr. Ghulam Ghaus that Section 45 of the Contract Act required that the right to claim performance by joint promisees rests only when they jointly approached the promiser. The notice sent by Mr. Nasir Shahmir Advocate to Ziaul Khaliq sets out the factual and legal position as under:-- "

9. That, while our client informed both of you finally, to execute the sale-deed, as joint vendees, according to the agreement, you have failed to complete the transaction, in accordance with the agreement.

10. That, the sale agreement, being joint with the two vendees, of which one of the vendees, dropping out, it is not obligatory on the part of our client to complete the transaction in favour of one.

11. That, by our letter No. Misc/Sale/Leg/80 dated 17-11-1980 we had called upon you, as vendees to take steps to complete the transaction and execute the sale-deed, within 15 days of the receipt of our final notice, but despite service of the said notice you have failed to execute the sale-?deed. Under the circumstances, we wish to inform you, that our client has no alternative but to repudiate the transaction and resell the said house. The agreement in question therefore stands repudiated and the earnest money forfeited to our client." This legal stand taken by the Advocate of Ziaul Khaliq does not appear to be correct. Section 46 of Contract Act is reproduced as under :-- "

45. When a person has made a promise to two or more persons jointly, then unless a contrary intention appears from the contract the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representatives of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, wrath the representatives of all jointly." This section lays down two rules. The first rule is that in the case of a joint promise all joined promisees must join in suing the promisor. The second rule is that if any one of the promisees died his survivors shall step into his shoes. It is a settled position of law that if there are more than one promisees then all of them have to be joined in a suit filed against the promisor. It is also a settled position of law that if the promsiees do not agree among themselves, any one of the promisees can sue the promisor but he shall have to make other promisees defendants and cannot sue without making the other promisees party. In the case of Jaffar Khan v. Muhammad Achar reported in P L D 1961 (W.P) Karachi 335 it was held by a D.B. of this Court that one of the joint promisees cannot sue the promisor without making the other promisees a party. The prayer for specific performance was refused because the other promisee was not joined as a party and a decree for return of advance amount was granted. In the case of Munshi Shahu v. Bhupal Mahton reported in AIR 1936 Pat. 274 also the same view is taken by a Single Judge of that Court and it was held that where a pronote is executed in favour of two brothers forming a joint family, only one of them who is not the Karta of the family is not entitled to bring a suit on basis of the pronote without joining the other.

12. These rulings are distinguishable from the present case because in this case the other promisee has also been joined as a party and therefore neither of these two rulings would apply.

13. It may be pointed out that specific performance of contract is to obtain under the Specific Relief Act. Section 23 of Specific Relief Act provides as to who may obtain specific performance of a contract. It will be useful to reproduce the relevant part of this section:-- "Section

23. Who may obtain specific performance:-- Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by-- (a) any party thereto: .............?? "

14. A comparative perusal of Section 45 of the Contract Act and Section 23 of the Specific Relief Act would make it quite dear that whereas all the promisees have to be joined in a suit for specific performance of a contract, it is not necessary that all of them should be plaintiffs. The word "any" in clause (a) of Section 23 of Specific Relief Act indicates that where one or more co-promisees want to enforce specific performance of contract against the will of the others they can do so. The only restriction upon them is that they should join the other co-promisees as a party to their suit filed against the promisor. It is then up to those co-promisees either to contribute their part of consideration and have their share of the property or to give up the same in favour of the co-promisee if they do not want to contribute in the consideration. In the case of Jagden Singh v. Bisambbar reported in 1937 Nag. 186 Vivian Bose, J. observed as follows:-- "Their case is that defendant 1, Jegdeo, acting on behalf of himself and as a guardian of his minor sons Lachhan Singh and Bahal Singh, defendants 2 and 3, agreed to sell the property to the three plaintiffs, and defendant 4, Anantram, on 14th June 1932 under Ex. P.1. Anantram refused to join them and so he was added as defendant

4. The first question which arises is whether specific performance can be decreed in such cases. It was argued that it cannot unless all the vendors are arrayed as parties on the one side and all the vendees on the other. This was the decision in 24 Cal.

832. The ruling is a short one and reasons are given. All that the learned Judges say is that we think, on principle that they cannot. With all due respect I am unable to agree. S.23, Specific Relief Act, sets forth the persons who may obtain specific performance. It says "Except as otherwise provided by this Chapter the specific performance of a contract may be obtained by (a) any party thereto." That would certainly appear to cover a case where one or more co?-contractors want to enforce the contract against the will of the others. The wording is not `either side thereto' or even either party thereto, but any party hereto. The word ` any' indicates one out of number of persons more than two. If only two parties are contemplated the correct adjective would be `either' or at the most both. The argument advanced was that the contract cannot be enforced piecemeal and that the Courts cannot make a new contract for the parties. Of course not, but the plaintiffs are not doing that. They want the original contract enforced just as it was made. They want to buy the property and want the Court to compel their co-contractor Anantram to buy it along with them just as he had promised to do, and ask the Court to compel the defendants to sell it to all four in exact accordance with the agreement. That is not a variation of the contract. So long as the plaintiffs are willing to pay the vendors the full price bargained for and ask them to sell to the very persons with whom they had contracted I am unable to -seek how there is any variation. Any quarrel the purchasers may have among themselves is not be introduced into this suit. Each party is getting exactly what he bargain for and it is no concern of the vendors how these purchasers choose to arrange about the payment of the purchase price as between themselves. That is not a part of the agreement. All that the purchasers undertook to do was to pay the money to their vendors and that is being done. There is no section in the Act which prohibits this. Therefore I am clear that the plaintiffs have a right to sue for specific performance even though one of their co-contractors now refuses to join them. Of course it is essential in such a case that all the parties to the contract should be before the Court. If they are omitted then I can understand difficulties arising. But when as here they have all been joined on one side or the other I am of opinion the suit can proceed." In the case of Miranjan Das v. Sm. Charu Bala Das reported in 15 D L R 611 where certain property was sold by several persons who secured a condition of repurchase within a certain stipulated time on payment of a fixed sum, only one of the vendors applied, in terms of the agreement of purchase, for re-conveyance of the property but was met with the defence that in order to succeed in the suit for repurchase, all the vendors must be parties to the suit. It was held that the suit must be decreed for reconveyance. Though the reconveyance will be executed in favour of plaintiff No. 1, it will enure to the benefit of all the other co-contractors subject to the payment of their share of the money to the plaintiff and it is no concern of the vendee how they arrange this among themselves. In the case of Kabil Mirindha v. Amana Khatoon repoted in 90 D L R 1027, which is a Full Bench decision, the questions which were before the Full Bench for decision were "whether any one or some of the joint promisees under a contract of reconveyance can obtain specific performance of the contract in its entirely. . Whether specific performance of a part of a contract of reconveyance can be obtained in any case by anyone or some of the joint promisees or by all of them jointly. Whether the case of Miranjan Das v. Charu Bala Das reported in 15 D L R 611 has been correctly decided. It was held that both under the general law of contract and the Specific Relief Act, one or some of the joint promisees may obtain specific performance of a contract or reconveyance in its entirety on payment of the whole of the stipulated price, provided the co-promisees are joined as defendants.

15. I am therefore of the clear view that the stand taken by Ziaul Khaliq is not correct. The purchasers are entitled to specific performance of the contract.

16. During the course of arguments it was stated by the Advocate of Shireen Siddiq and Tanveer Ismail that they were no more at dispute and that they had agreed to jointly get the sale-deed executed in their favour from the L.Rs. of Ziaul Khaliq and were ready to jointly pay the balance of consideration and to remain in joint possession of the house.

17. I therefore decree the Suit No. 1283/80 and dismiss Suit No. 748/81 and direct that Shireen Sidaiq and Tanveer Ismail shall deposit the balance of the consideration in the Court on or before 31st May, 1988. On their depositing the balance of sale consideration Ziaul Khaliq shall execute a registered sale-deed in favour of Shireen Siddiq and Tanveer Ismail within one month thereof. If he fails to execute the registered sale-deed then Shireen Siddiq and Tanveer Ismail will be at liberty to get the sale-deed executed by the Nazir of this Court. After execution of registered sale-deed Ziaul Khaliq will be at liberty to take away the balance of consideration from the Court. The parties shall bear their own costs. H.B.T /Z-102/K Order accordingly.