2002 PLP 1969 (YLR)

Muhammad Younus for Appellant. F.M. Mukkaram, Ali Akbar and Anwar Hussain for Respondents. By this order I propose to dispose of C. M. A. No. 7025 of 1997 which has been filed by defendant No.1 under Order VII, rule 11, C.P.C. for rejection of plaint on the grounds contained therein and C.M.A. No. 3940 of 1998 which has been filed by the plaintiffs for recall of order, dated 24‑3‑1998 passed by this Court whereby C.M.A. No. 4187 of 1997 filed by the plaintiffs was dismissed for non‑prosecution.

2. The facts relevant for the purposes of disposal of these two applications are that by an oral agreement in presence of respectable citizens, of the vicinity, defendant No. 1 entered into an agreement of sale of House bearing No. III‑F‑18/1 measuring an area of 216 sq. yds, situated in Nazimabad No.3, Karachi (Central) hereinafter referred to as the, suit properly, with the plaintiffs for a total sale consideration to be determined just and proper by four persons of Mohallah., A sum of Rs.50,000 only was paid by the plaintiffs to defendant No. 1 as earnest money which was acknowledged by defendant No.1 by way of receipt, dated 7‑5‑1993. The case of the plaintiffs as set up in the plaint of this suit further is that in part performance of the agreement of sale possession of the suit property was delivered by the defendant No. 1 to the plaintiffs who are in continuous possession of the same" but defendant No. 1 who has now turned dishonest with mala fide intentions to dispossess the plaintiffs from the suit property deputed defendant No.2 to take over possession of the suit property and defendant No.2 has succeeded in taking over possession of some portion of the suit property on the ground floor by making additions and alterations for which acts of defendant No.2 the plaintiffs reserve their right to prosecute the defendant No.2 under section 448, P.P.C. in due course of time. It has further been averred by the plaintiffs that besides the instant suit, the plaintiffs filed Suit No.437 of 1993 in the Court of Vth Civil Judge, Karachi (Central) and on 31‑5‑1993 status quo order was obtained by the plaintiffs in the said suit., However, the plaint in the said suit was returned to the plaintiffs under Order VII, , rule 10, C.P.C. for presentation to proper Court having jurisdiction in the matter. On return of the plaint of the said suit another Suit No.21 of 1995 was filed by the plaintiffs on 21-1‑1995 in the Court of Civil Judge, Karachi (Central) and in the said suit also an order of status quo was passed against the defendants on 26‑3‑1995. The plaint in this suit was also returned for presentation to proper Court vide order, dated 7‑4-1997 passed by the Court of IInd Senior Civil Jud Karachi, (Central). The plaintiffs, however did riot present the plaint in the said suits before a proper Court having jurisdiction in the, Matter and has filed the present suit for specific performance containing the following prayers; (1) That by a decree of the Court it may be ordered that the defendant No. 1 must execute the proper sale‑deed in respect of the suit property being House No. III‑F 18/1, Nazimabad, Karachi, admeasuring 216 sq. yds. in favour of the plaintiffs and get it registered in the office of the Sub Registrar at the cost of the plaintiffs. In case defendants fail to do so, the sale‑deed may be got executed and registered through the Nazir of the Court. (2) That the General Power of Attorney in respect of the said property alleged to have been given to defendant No.2 by the defendant No. 1 may be got cancelled. (3) To award costs of the suit to the plaintiffs. (4) To award any other consequential relief which the Hon'ble Court deems fit and proper under the circumstances of the case. "

3. The defendants were served and have tiled their written statement wherein the alleged sale agreement has been altogether denied by defendant No.

1. The defence as set up in the written statement filed by defendants Nos.1 and 2 is that the plaintiffs are tenants in the suit property and have been inducted in the suit property in such capacity by defendant No.1. The defendant No.1 has vide agreement of sale, dated 13‑10‑1992 sold the suit property to defendant No.2 and after sale notice of attornment has also been served on the plaintiffs vide letter, dated 18‑5‑1993.

4. C.M.A. No.7025 of 1997 for rejection of plaint has been filed by defendant No. 1 on two‑fold grounds. The first ground which has been taken by defendant No. 1 for rejection of plaint is that from the contents of the plaint, it is apparent that the suit is barred by limitation having been filed after more than three years of the alleged sale agreement. Secondly, it has been urged in the said application by defendant No. 1 that in the two earlier suits, no prayer/claim was made by the plaintiffs for specific performance and as such the present suit is hit by Order 11, rule 2, C. P. C.

5. I have heard Mr. Muhammad Younus, learned counsel for the plaintiff and Mr. Anwar Hussain, learned counsel appearing for the defendants No.1. Article 113 of the Limitation Act, 1908 provides a period of three (3) years for a suit for specific performance of contract and the limitation is provided to be run from the date fixed for the performance of the contract or if no such date is fixed when the plaintiff has notice that performance is refused. Although the defendant No.1 has categorically denied having entered into the agreement of sale with the plaintiffs yet even if it is assumed for the sake of arguments that there did exist an agreement of sale of the suit property between the plaintiffs and defendant No. 1, it may be noted that the alleged receipt for payment of earnest money for Rs.50,000 which for all intents and purposes is an agreement of sale between the parties provides that the balance of sale consideration shall be paid by the plaintiffs within one month on execution of sale‑deed. Such being the position date for performance of the alleged agreement of sale has been fixed therein and the period of limitation shall start to run one month after the date of execution of the alleged sale agreement, dated 7‑5‑1993. The suit having been filed in the year 1997 is hopelessly time barred particularly in view of the fact that there is nothing on record to suggest that at any later point of time any admission in respect of execution of sale‑deed was made by the defendant No.

1. It may further be stated that the receipt for alleged payment of earnest money, of Rs.50,000 if treated as an agreement of sale between the plaintiffs and defendant No. 1, suffered from uncertainty. It has been stated in the said receipt that defendant No. 1 has agreed to sell the suit property to Muhammad Hannan, the plaintiff No. 1 and two other tenants whose names are not mentioned, in the said receipt. Furthermore, the alleged sale consideration in respect of sale of the suit property is not mentioned in the same and it has been stated in respect thereof that the same shall be determined after ascertainment from market. It will also be of some interest to state here that in the said receipt sale consideration has been agreed to be determined after ascertainment of market price but in para. 3 of the plaint it has been stated by the plaintiffs that the total sale consideration in respect of sale of the suit property would be as is deemed and determined just and proper by four persons of the Mohallah. This contradictory stand has not been explained by the learned counsel for the plaintiffs. In any event agreement meaning of which is not certain, or capable of being made certain is void under section 29 of the Contract Act. 1872 and as such on, the count of agreement being uncertain, the alleged sale agreement is void.

6. It has further been contended by the learned counsel for defendant No. 1 that plaints in two earlier suits filed by the plaintiffs were returned by the respective Courts for presentation to proper Court having jurisdiction in the matter and the plaintiffs instead of filing the plaint in the said earlier suits before the Court having jurisdiction in the matter have filed this suit and as such the same is not maintainable.

7. After an order for return of a plaint is passed by a Court for presentation of the same before the Court of competent jurisdiction, more than one options are available to the plaintiffs. i.e. (i) they may file an appeal against the order of return of plaint; (ii) they may present it before a Court of competent jurisdiction; (iii) they may amend the plaint so as to bring it within the jurisdiction of the Court which passed an order for return of plaint; and (iv) they may file a fresh suit before a Court of competent jurisdiction. In case a plaintiff opts for option of filing a fresh suit‑such suit, for all intents and purposes, shall be treated as a first suit and not merely a continuation of the earlier one. Such being the position, a plaintiff cannot be precluded from filing of fresh suit where earlier plaint with same cause of action has been ordered to be returned for presentation to a Court of competent jurisdiction. I am fortified in my view by a judgment of this Court in the case Mst. Hawabai and 6 others v. Abdul Shakoor and 8 others reported in PLD 1981 Kar. 277.

8. It has next been urged by the learned counsel for defendant No. 1 that the suit is barred under Order II, rule 2, C.P.C. and as such the plaint is liable to be rejected on this count alone. It is an admitted position that earlier Suit No. 437 of 1993 and Suit No.21 of 1995 were filed by the plaintiffs for declaration and injunction only and relief of specific performance was omitted by the plaintiffs in the said two suits. Order II, rule 2(1)(2)(3), C.P.C. was introduced in the Code of Civil Procedure to discourage splitting up of claim and to avoid multiplicity of suits. The plaintiffs have omitted claim or specific performance in the two earlier suits on the basis of same cause of action are debarred from filing the present suit under Order II. rule 2, C.P.C. Reliance in this connection may be placed on the case of Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others reported in 1996 SCMR 1047.

9. In view of the above discussion, I am of considered view that this suit is barred under Article 113 of the Limitation Act, 1908 and Order 11, rule 2, C.P.C. The plaint in the, suit is, therefore, rejected. In view of my above findings, no orders on C.M.A. No.3940 of 1998 fixed today for orders are required to be passed and the same is dismissed as infructuous. Q.M.H./M.A.K./M‑384/K Plaint rejected.