2007 SCMR 564 (PLP)

NASIR-UL-MULK, J.

This appeal, filed by the Fazal-ur-Rehman and 2 others, by leave of the Court, is directed against the judgment of the Lahore High Court of 20-12-2001, dismissing the appellants civil revision against the concurrent .findings of the two Courts in a suit for specific performance of contract decreed by the trial Court in favour of the plaintiff/respondent, Mst. Sughra Haq, on 19-3-1990 and upheld in appeal by the Additional District Judge, Lahore on 14-6-1994.

2. The material facts gathered from the record are that the plaintiff Mst. Sughra Haq had on 6-1-1983 entered into agreement with Sh. Abdur Rehman, predecessor-in-interest of the appellants Nos.1 and 2, through appellant No. 1, his General Attorney, for the purchase of the suit property for a sum of Rs.90,000, out of which Rs.10,000 was paid as earnest money and the balance payable up to 30-6-1983 upon execution of the sale-deed. The agreement stipulated that failure to pay the balance amount by due date would result in the forfeiture of the earnest money. By mutual agreement the date of payment and the execution of the sale-deed was extended to 31-8-1983, after the plaintiff had paid another sum of Rs.15,000 to the vendor. The vendor however, on 8-9-1983, by registered deed sold the suit property to appellant No.3, impelling the plaintiff to file a suit for specific performance of the agreement dated 6-1-1983. The vendor and the subsequent vendee by their separate written statements resisted the suit, the vendor pleading breach of contract by the plaintiff, alleging that whereas the vendor was ready and willing to per for his part of the contract the plaintiff was unwilling to execute her part of the bargain. After settling issues and recording evidence the suit of the plaintiff was decreed, the trial Court holding that the plaintiff was both ready and willing to pay the suit standing amount and execute the sale-deed on the due date. This finding was upheld by the appellate and the High Court. It may be noted that after tiling the suit the plaintiff had deposited the balance sale consideration with the trial Court.

3. At the hearing of the civil revision by the High Court and the petition for leave to appeal in this Court an argument was advanced for the appellants that since the parties had agreed to the substitution of the plaintiff by her son Fayaz-ul-Haq as vendee the sale contract was novated and thus, incapable of specific performance in view of section 62 of the Contract Act. Though the argument before this Court was refuted on behalf of the plaintiff, mainly on the ground that the plea of novation of contract was never raised before the trial Court, leave was granted to consider inter ilia:-- "(i) Whether there was novation of contract, by virtue of letters exchanged between the parties subsequent to the execution of the original contract? (ii) Whether the original contract stood altered and was no more capable of specific performance? and (iii) What is the legal impact of subsequent sale by vendors in favour of petitioner No.3, after novation of contract in favour of respondent's son Fayaz-ul-Haq?"

4. Mr. Hamid Khan, Advocate Supreme Court entered appearance for the appellants, Mr. Najamul Hassan Kazmi, Advocate Supreme Court appeared for the plaintiff respondent Mst. Sughra Haq, and Mr. Gul Zarin Kiyani, Advocate Supreme Court for the plaintiff's son Fayaz-ul-Haq.

5. The learned counsel for the appellants confined his submissions(Nasir-ul-Mulk, J) to the question formulated in the leave granting order and in that context referred to, besides other documents, the letters dated 23-8-1983 by the plaintiff to the vendor and the latter's response of 25-8-1983. The proposal made by the plaintiff to execute the sale-deed in favour of the plaintiff's son, Fayaz-ul-Haq instead of the plaintiff was accepted by the vendor. The learned counsel thus, contended that this substitution of the vendee agreed to by the parties amounted to novation of contract. Reading out the provision of section 62 of the Contract Act, it was argued that the original contract was no longer capable of being specifically performed on account of its novation. When confronted, the learned counsel conceded that the plea of novation of contract was neither taken up in the written statements by either of the defendants and consequently no issue was framed thereon. He however, contended that being a pure question of law the appellants were entitled to urge the same before the High Court and this Court, when from the facts on record novation of contract is determinable. In support of his submissions the learned counsel placed reliance on Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, Almas Ahmad Faiz v. Secretary, Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783, Gulzar Khan v. Mst. Shahzad Bibi and another PLD 1974 SC 204, Audi Abdullah Khan and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972, Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189, Tarinikamal v. Perfulla Kumar AIR 1979 SC 1165, Zulgarnain and 2 others v. Surbuland Khan and another 2004 SCMR 1084, Nooruddin and others v. Mst. Amiran Bibi and others PLD 1996 SC 825, Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272 and National Bank of Pakistan v. Shogan Int. (Pvt.) Ltd. and others 2005 CLC 1207.

6. The learned counsel for the plaintiff respondent seriously disputed the assertion on behalf of the appellant that there was novation of contract. It was contended that the replacement of the plaintiff's son in her place as vendee in the sale-deed to be executed was only variation of a term of contract and not novation as the other terms remains unchanged. In this context reliance was placed on Zulgamain and 2 others v. Surbuland Khan and another 2004 SCMR 1084, also cited on behalf of the appellants. Referring to the application made by the vendor dated 28-8-1983 to the Sub-Registrar, Lahore Cantt. alleging unwillingness of the plaintiff to execute the sale-deed, learned counsel pointed out that the vendor had mentioned the plaintiff and not her son as the vendee. The main stay of the argument of the learned counsel for the respondent however, was the appellant's failure to take the plea of novation of contract before the trial as well as Appellate Court. Referring to rules 1 and 5 of Order XIII of C.P.C., it was contended that a defendant is precluded from pressing a defence not specifically pleaded in the written statement. Mr. Gul Zarin Kiyani, Advocate Supreme Court endorsing the above arguments added that there was no novation of contract as the plaintiff's son never became privy to the arrangement of his replacement as a vendee.

7. Since the learned counsel for the appellants confined his argument to the question of novation of contract we would attend only to the questions formulated in the leave granting order. Admittedly the plea was not taken up in the written statement by the appellants and consequently no issue was framed thereon. Obviously neither any evidence was recorded on the question nor any finding given by the trial Court or the Appellate Court. The defence was taken up for the first time at the hearing of civil revision before the High Court and then before this Court at the time of hearing of the petition for leave to appeal. The first question formulated in the leave granting order calls for factual determination of' whether the exchange of letters between the parties subsequent to the execution of the original sale-deed amounted to novation of contract. True that by letter, dated 23-8-1983, which finds mentioned in the plaint, the plaintiff had proposed to the vendor that her son be recorded as vendee in the registered sale-deed. This proposal was accepted by the vendor by letter, dated 25-8-1983. It was in view of this agreement between the parties on change in the original sale-deed that it is being urged on behalf of the appellants that its novation had taken place. There are however, three other documents which show that both the parties had subsequent to the exchange of the said letters treated the plaintiff and not her son as vendee. Two of these are applications dated 28-8-1983 and 31-8-1983 addressed by the vendor to the Sub-Registrar, Lahore Cantt. recording his willingness to execute the register sale-deed in favour of the plaintiff. A similar application dated 31-8-1983 was made by the plaintiff to the Sub-Registrar, Lahore Cantt. showing her preparedness to conclude the sale and complaining that the vendor is backing out. In all the three documents the plaintiff and not her son was mentioned as a vendee. Additionally there is nothing on the record to show that Fayaz-ul-Haq had become privy to the arrangement of his being substituted as vendee7''The substitution in the original agreement of Fayaz-ul-Haq as vendee could not have been brought about without his being party to the new arrangement. Thus, the terms of the agreement dated 6-1-1983 even as regards the vendee remained unaltered. We, therefore, hold that no novation of contract had taken place. In view of this finding the other two question formulated in the leave granting order do not require determination.

8. Furthermore we also agree with the contention raised on behalf of the respondent that since the appellants had not explicitly or by necessary implication pleaded novation of contract in the written statement such defence is deemed to have been abandoned in view of rule 2 of Order XIII, C.P.C.

9. For the foregoing reasons we find no merit in this appeal and the same is dismissed with no order as to costs. M.H./F-29/SC Appeal dismissed.