1986 PLP 90 (MLD)

5‑12‑1984 Rs.5,000 Sd/ 12‑12‑1984 Rs.5,000 Sd/ It is the case of the plaintiff that permission for the sale of the land was taken up before the Deputy Commissioner (East), Karachi but he by his order, dated 13‑2‑1985 held that being in the limits of K . D . A . Scheme No. 33, no permission was required for the sale and that thereafter the defendant No.1 on 18‑2‑1985 applied to the District Registrar, Karachi, for permission to get the sale‑deed duly registered and enclosed the draft sale‑deed. According to the plaintiff the District Registrar on 18‑2‑1985 forwarded the application of the defendants alongwith the said draft of sale‑deed and village Form VII to the Sub‑Registrar. "T" Division XIII who examined the same and informed the defendant No.1 to submit original documents for execution of the sale‑deed on 27‑2‑1985 when the plaintiff appeared before the Sub‑Registrar alongwith, the full balance consideration amount, stamp duty charges and registration fee but the defendant No.1, who is the attorney for the other defendant as well, did not appear. The Sub‑Registrar according to the plaintiff, again adjourned the matter to 28‑3‑1985 when again the plaintiff appeared with the amount in cash but the defendant No.1 failed to appear this time as well. The plaintiff gave notice to the defendants to perform their part of the contract but the defendants through defendant.No.1 replied that they had made no tract to sell their land. In the circumstances on the pleas that the time fixed for the execution of the sale‑deed and completion of the contract being "as soon as practicable" and as there was no impediment in the execution of the sale‑deed on the aforementioned dates as the plaintiff was ready and willing to perform his part of the contract within the stipulated period, and that the defendants had wrongfully refused to perform their part of the contract, the present suit in which the following reliefs were claimed was filed. "(a) That the Court may be pleased to order the defendants to specifically perform the agreement with the plaintiff by executing the sale‑deed with regard to the suit land in favour of the plaintiff and to do ell acts and things necessary to put the plaintiff in full possession of the suit land within a fixed time or such reasonable time as prescribed by this Court, failing which the Registrar of this Court be directed to execute the sale-deed on behalf of the defendants and put the plaintiff into possession of the suit land. (b) Compensation and damages equivalent to the difference between the price of the land on 27‑2‑1985 and the date of execution of the sale‑deed or as assessed by this Honourable Court in such manner as the Court may direct. (c) In the alternative re‑payment of Rs.53,500 together with 20$ profits which would have accrued on this sum ............date of payment damages and compensation for non‑performance of contract as determined by this Honourable Court in such manner as the Court may direct. (d) Costs of this suit. (e) Any other suitable, adequate and/or better relief deemed fit and equitable in the circumstances of the case be granted."

2. Alongwith the suit, the plaintiff also filed an application being C.M.A. No.1740 of 198.5 under Order XXXIX', rules 1 and 2, C.P.C. for restraining the defendant inter alia from selling or otherwise in any manner dealing with ‑the, said property on the facts and grounds mentioned in the plaint and the affidavit filed in support of his application. Notice of the application was issued to the defendants who appeared in Court and filed their counter‑affidavit. Opportunity was offered to the plaintiff to file rejoinder but the learned counsel for the plaintiff insisted upon hearing of the application and accordingly. I proceeded to decide the same.

3. The defendants' attorney in the counter‑affidavit filed by him denied that the defendants agreed to sell the land in question to the plaintiff for Rs.27 lacs. According to the said deponent the sale consideration calculated at the rate of Rs.200 per sq. yd. the land in suit measuring 3,815 sq. yd. (7 Acres 35 Ghuntas) would come to Rs.76,23,

000. He further deposed that the rate shown by him is cheaper even when, compared with rates of lands in Scheme No.33 wherein the rate is Rs.250 per sq. yd. The said deponent /defendant No.1 also denied that any amount whatsoever was paid by the plaintiff towards sale consideration of the land in question. He stated that the amount whatsoever paid by the plaintiff to him was towards his professional legal fee .for the legal work done, as he is a lawyer and for the case conducted in the lower Court and that this fact he had earlier pointed out to the plaintiff in him on 18‑4‑1984 (Annexure "C" to the counter‑affidavit).

4. In the light of the controversy thus emerging for the purposes of deciding the application, it would be relevant first see if prima facie there is an agreement between the parties as to the consideration for which the land in suit could be said to have been agreed to be sold by the defendants to the plaintiff. The plaintiff alongwith the suit has produced a copy of the conveyance deed in which relevant fact to be noted is that the amount of sale consideration has not been shown and that the space where it is to be written has been left blank. The relevant para. from the draft produced by the plaintiff is reproduced below:‑

"Whereas Mr. Syed Wirasat Hussain Rizvi made a verbal agreement on his behalf and no behalf of other vendors abovenamed as their attorney or sale to the vendee abovenamed, their respective shares in the agricultural land bearing S.Nos.106 and 110 lying in Deh Songal. Tapo Songal, Taluka and District Karachi, East measuring about 7 Acres and 35 Ghuntas only on a lump sum sale consideration value of Rs (Rupees) .................................paid by the vendee in cash and received by Syed Wirasat Hussain Rizvi son of Syed Riasat Hussain Rizvi the vendor for self and as well as attorney for other vendors represented by him and the vendors admit and acknowledge receipt thereof." From the reading of the abovementioned para. one could see that the sale consideration is not mentioned and that there is no method whereby one could ascertain it. Moreover, as per this draft of sale‑deed the entire consideration is shown to have been paid by the plaintiff in cash to Mr. Wirasat Hussain Rizvi the defendant No.1, for self and as the attorney for other vendors which is not the case of the plaintiff in the suit. According to the said draft of the conveyance deed the entire consideration is shown to have been paid in lump sum, one and at the same time and no mention is made of payment of any amounts as advance as part payment towards the sale consideration whereas in para. 3 of the plaint payments of various sums totalling Rs.53,500 "towards part payment of the consideration amount" have been alleged significant to note here also is the plea taken in the plaint that:‑ " .the balance amount of the consideration money after deduction of all advance money paid was to be paid to the defendant No. 1 for himself and as attorney for the other co‑owners at the time of Registration of the sale‑deed." The plea taken in the plaint in respect of mode of payment of sale consideration is thus inconsistent with the so‑called draft sale‑deed. This aspect of the case is besides, what has been pointed out above. Presently there is nothing before the Court to show that there was an' agreement between the parties as to what is the amount of sale consideration. Thus, on the basis of the record the terms of the alleged agreement are vague which, therefore, is not specifically enforcible (section 21(c), Specific Relief Act). I am supported in the view thus taken by the case reported as Agha Sikandar Ali Khan v. Nawab Bibi and others PLD 1973 Lah. 71' wherein a learned Division Bench of the said High Court cited with approval the following principle from the treatise on Specific Performance p.341 (Sixth Edition) by Fry. "The necessary completeness of the contract may be considered in respect of (i) the subject‑matter, (ii) the parties to be contracted, (iii) the price and (iv) the other terms." The ingredient of price dealt with by the said learned author in paragraph 353 being relevant, is reproduced below for the sake of convenience:‑-- "In all sales it is evident that price is an essential ingredient, and that where this is neither ascertained nor rendered ascertainable. The contract is void for incompleteness, and incapable of enforcement." In the present case, prima facie, neither there is any material on the record to show that the parties agreed upon the amount of sale consideration nor there is anything whereby the same could be ascertained. What is the agreed sale consideration being an essential ingredient to the formation of an enforcible contract the same cannot be left to the imagination the parties being prima facie not ad idem. Reference may also be made here to para. 4 of the counter affidavit wherein the defendant No.1 has deposed:‑-- "That the suit land is the property of the widow and the orphans who have inherited the same through deceased husband and father which the deponent on his own self and on behalf of the defendants as their Attorney is not in a position to sell down before the plaintiff against a very very meagre sum of Rs.27,00,000 (Rupees twenty‑seven lac) only in comparison with the Market value which can easily fetch an amount of Rs.76,23,000 (Rupees seventy‑six lac twenty‑three thousand) only." It is important to remember here that out of the eleven defendants, there are eight ladies who have been described in the title of the plaint as "household" ladies. The defendant No.1 has denied expressly his authority to sell the land which is also owned by widow and orphans. No affidavit in rebuttal was filed by plaintiff though, opportunity was offered. The learned High Court in the aforementioned case of Agha Sikandar Ali P L D 1973 Lah. 71 observed that the Court will not undertake to supply the defects or remove ambiguousness according to its notions of what is reasonable for this would not be enforcing the contract made by the parties but to make a new contract for them.

5. For the aforementioned reasons, I am of the opinion that the plaintiff has failed to show that prima facie, an enforcible contract of sale exists in his favour. In the circumstances it is not necessary to discuss if the other two elements, in whose favour balance of convenience lies and if the plaintiff would suffer irreparable loss if the injunction is refused (Muhammad Umar Beg v. Sultan Mahmood Khan) exist.

6. The upshot of the above discussion is that this application for grant of temporary injunction fails. It is clarified, as it is also the settled law that the observations herein made above while disposing of the interlocutory application are, tentative in nature and shall not prejudice the case of any of the; parties at the trial of the suit on merits. A . A . Application rejected.