1988 PLP 1665 (CLC)

The dispute between the parties relates to bungalow bearing No.44‑G, Block No.6, PECHS, Karachi. By an agreement dated 30‑6‑1978 Ziaul Khaliq, the owner of this bungalow had agreed to sell it to Shireen Siddiq and Tanvir Ismail jointly. He received a sum of Rs.46,OG0 from the purchasers and delivered the possession to them and Shireen Siddiq alone came to occupy it. It was also agreed that purchasers shall pay Rs.1,000 per month as rent if the registered sale‑deed is not executed before 30‑6‑1979. Or. 15‑9‑1980 by another agreement Ziaul Khaliq took another amount‑of Rs..12,500 and got the time for completion of formalities extended declared that possession would be treated as delivered in part performance of the contract. A dispute appears to have arisen between Shireen Siddiq and Tanvir Ismail and therefore they did not jointly approach Ziaul Khnliq for execution of the registered sale‑deed, although Ziaul Khaliq by a notice called upon both of them to contact him. Shireen Siddiq alone sent notices to Ziaul Khaliq and called upon him to specifically perform the contract and offered to make payment of the balance of the consideration. She also sent notice to Tanveer Ismail, who also sent notices and insisted on joint possession, protesting on his being excluded from the possession of the bungalow. Out of this dispute two suits have arisen.

2. The first suit is Suit No. 1283 of 1980. It is filed by Shireen Siddiq. Case of the plaintiff (Shireen Siddiq) in this suit is that Ziaul Khaliq the defendant No.l was owner of plot bearing No.44‑G. Block 6, P.E.C.H.S.,. Karachi measuring 1,000 sq. yds. with construction thereon. By an agreement dated 30‑6‑1978 Ziaul Khaliq offered to sell half of the said plot with construction thereon on the Western side to Shireen Siddiq and Tanveer Ismail (defendant No.2) for a lumpsum consideration of Rs.2,75,

000. Shireen Siddiq alone paid earnest money of Rs.27,500 and balance was to be paid, at the time of registration of sale‑deed. Ziaul Khaliq had to get the plot bifurcated and procure all permissions and sanctions so as to lawfully transfer half of the plot to the above buyers. Ziaul Khaliq put Shireen Siddiq in possession of the said property which comprises of two bedrooms with attached baths, D/D room, corridor, kitchen, pantry, store, servant quarter and a garage with open courtyard. Shireen Siddiq alone paid a further sum of Rs.12,000 being the rent at Rs., 1,000 per month from 1‑7‑1978 to 30‑6‑1979 and it was agreed that if the sale was registered earlier than 30‑6‑1979 the balance of rent shall be adjusted towards balance of sale consideration and if the sale was not completed before 30‑6‑1979, the plaintiff (Shireen Siddiq) shall continue to occupy the premises in part performance of sale agreement. Defendant No.2 is nephew of the plaintiff. He had no money of his own and therefore the earnest money of Rs.27,500 was paid by the plaintiff alone which the defendant No.2 had agreed to reimburse the plaintiff at the time of registration. The plaintiff also paid a sum of Rs.9,000 to Mr. G.M. Dastagir Advocate towards her half contribution for stamp duty, registration fee and professional charges and the same is still lying with the said Advocate. In September, 1980 the plaintiff paid Rs.12,500 to defendant No.l to meet expenses of bifurcation by an agreement dated 15‑9‑1980. Defendant No.l by a letter of his Advocate dated 23‑10‑1980 informed the plaintiff and .the defendant No.2 that he had procured all the documents and called upon them for registration of sale‑deed within 15 days or such time as may be suggested by the plaintiff and defendant No.2 and offered to send the draft sale‑deed on hearing from them. The plaintiff replied to defendant No.l and asked him to send the draft sale‑deed and copies of two documents mentioned in his letter. The plaintiff by another letter called upon defendant No.2 to make available payments of his half share so that the transaction could be completed. She also informed both the defendants that she had procured all balance amount of sale consideration and if defendant No.2 attempted to defeat the transaction she would go ahead with the completion of the same on her own. Defendant No.2 raised a number of disputes in respect of payments and expenditure and insisted that the house should be vacated by the plaintiff and put under joint lock and key of both of them. Defendant No.1 by a notice offered to execute the sale‑deed only in the names of both the buyers and not in the name of plaintiff alone and, finally cancelled the agreement of sale by his notice dated 14‑12‑1980 and forfeited the earnest money which he had no right to do. Hence the prayer for specific performance of the contract and in the alternate for refund of the money and damages and interest.

3. The second suit is Suit No.748 of 1981. It has been filed by Ziaul Khaliq. He has repeated the same facts as given by Shireen Siddiq in the suit filed by her. Additionally he has stated that after execution of the agreement Ziaul Khaliq obtained necessary sanction from K.D.A., P.E.C.H.S., Karachi and Ministry of Works Government of Pakistan, Islamabad at an expense of about Rs.40,

000. He further stated that Tanveer Ismail by a notice informed him that the earnest money was not paid by Shireen Siddiq alone but was paid .jointly by, both of them and therefore insisted that the possession of the bungalow should be got vacated from Shireen and delivered to both of them jointly. He maintained that according to Section 45 of the Contract Act both the vendees had together performance of the contract jointly and it could not have been performed in favour of only one of them. Contraclietory replies were sent to him by both the vendees in reply to his notices and when he found that the vendees had failed to resolve their differences and complete the transaction he repudiated the contract by his notice dated 14‑12‑1980 and forfeited the earnest money and called upon the vendees to pay the expenses incurred by him. He also called upon Shireen Siddiq to return the possession and pay mesne profits. On the defendants' having failed to comply with the notice he filed the suit with the prayer for declaration that agreement dated 30‑6‑1978 stands repudiated. He also prayed for possession of the western portion of his boungalow. He also prayed for a decree for Rs.43,000 being the expenses, Rs.20,000 being damages for harassment and Rs.24,000 as mesne profits.

4. The written statement of Ziaul Khaliq in Suit No.1283/80 filed by Shireen Siddiq is on the same lines on which he has filed his Suit No.748/81 while the written statement of Shireen Siddiq in Suit No.748/81 filed by Ziaul Khaliq is on the same lines on which she has filed Suit No.1283/80.

5. The written statement of Tanveer Ismail in Suit No.1283/80 filed by Shireen Siddiq and Suit No.748/81 filed by Ziaul Khaliq is similar. He has admitted the facts narrated by both Shireen Siddiq as well as Ziaul Khaliq. He has, however, alleged that the earnest money was jointly paid by him as well as Shireen Siddiq and was not paid i4 Shireen Siddiq alone. He has maintained that the possession of the Western portion of the bungalow was to be taken by both himself and Shireen Siddiq jointly and Shireen Siddiq was allowed to reside in the house temporarily by Tanveer Ismail as she was in dire need of a house. The amount of Rs.12,000 was also paid by both of them jointly. He denies that Shireen Siddiq paid Rs.9,000 to Mr. G.M. Dastagir Advocate. He has also denied that payment of Rs.12,5000 was made by Shireen Siddiq alone and has insisted that it was made by both of them jointly to Ziaul Khaliq. He has alleged that Shireen Siddiq had turned dishonest and wanted to drop him out from the transaction as well as wanted to oust him from the joint possession of the house. It was planned by the vendees that they would, after purchasing the house, demolish it and reconstruct it so as to suit the needs of Tanveer Ismail who alone had to occupy this house. It was due to this attitude of Shireen Siddiq that Ziaul Khaliq had to cancel the agreement. Tanveer Ismail, however, reserved his right to file appropriate case against Ziaul Khaliq for damages. He has alleged that it is Shireen Siddiq alone who is liable to pay mesne profits and damages, if any, to Ziaul Khaliq. He has prayed that both the Suits No.1283/80 filed by Shireen Siddiq as well as 748/81 filed by Ziaul Khaliq be dismissed.

6. On the pleadings of the parties following issues were framed in Suit No.1283/80:‑‑ (1) Is the suit as framed maintainable since defendant No.2 has not joined for specific performance? (2) Whether consideration under the suit agreement was tendered, if so, its effect? (3) Whether the defendant No.l had performed his obligation to the joint purchasers in terms of the suit agreement, if so, its effect? (4) Whether the plaintiff's possession of the property is iri terms of the suit agreement? If not, its effect? (5) Whether the vendees had purchased the property for reconstruction of residential flats for disposal to others? (6) Whether the plaintiff is wrongfully excluding the defendant No.2 from the sale transaction? (7) Whether the defendant No.2 has backed out from his obligations from the sale transaction as alleged by the plaintiff? (8) Whether the defendant No.l is bound to convey the property to the plaintiff to the exclusion of defendant No.2? (9) What should the decree be?

7. In Suit No. 748 of 1981 the following issues were framed:‑ (1) Whether the claim is barred under section 53‑A of Transfer of Property Act? (2) Whether the Agreement dt. 30‑6‑1978 between the plaintiff and defendant/ vendee stands repudiated in accordance with Section 45 of Contract Act? (2‑A) Whether there is a supplementary agreement dated 15‑9‑1980? If so, ..... (3) Whether there is any collusion between plaintiff and defendant No. l as alleged in para 12 of defendant No. 2's written statement? (4) What is the effect of Suit No.1283/80 filed by defendant No.2 against plaintiff and defendant No.l for specific performance of the contract and in the alternative damages of Rs.3,00,000. (5) Whether the plaintiff is entitled for the reliefs as prayed in para 24 (i) to (vii) of the plaint? (6) Whether defendants paid sale consideration jointly or any amount was paid by the defendant No.l alone? (7) What should the decree be?

8. My findings on these issues are as follows:‑ Suit No.1283/80 (1) Yes. (2) Yes. (3) No. (4) Yes. (5) As follows. (6) As follows. (7) No. (8) As follows. (9) As follows. Suit No.748 of 1981 (1) No. (2) No. (2‑A) Yes. (3) No. (4) As follows. (5) As follows. (6) Yes. Jointly, (7) As follows: REASONS Issues 1 to 9 of Suit No.1283/80 and 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 pages 1 to

71. Ziaul Khaliq expired during the pendency of the suits. From amongst his L.Rs. his wife Mrs. Qamer Zia was examined as Exhibit

9. She has produced duplicate of agreement of sale Exhibit 9/1, the original supplementary agreement Exhibit 9/2, letter of KDA to Mohammad Ziaul Khaliq dated 23rd July, 1979 Exhibit 9/3, Challan dated 21‑7‑1979 Exhibit 9/4, Envelope Exhibit 915, Telegram No.3998 Exhibit 9/6, Letter of Burney & Dastgir Advocates dated 29th Sept. 1979 Exhibit 9/7, Letter of Nasir Shahmir and Co. Advocates Exhibit 9/8, Letter of Government of Pakistan Works Division dated 23rd October, 1979 Exhibit 9 / 9, Letter of P . E. C . H . C . Limited dated 12‑12‑1979 Exhibit 9/10, Clearance Certificate dated 3‑10‑1979 issued by Assistant Accounts Officer (HS) Exhibit 9/11, Challan for payment of Rs.5,125 in State Bank of Pakistan Exhibit 9/12, Challan for water conservancy and maintenance levy charges Exhibit 9/13, Letter from Government of Pakistan Works Division dated 3rd March, 1980 sent by Athar Mehmood Khan Section Officer Exhibit 9/14, Challan for Rs.23,800 paid in National Bank of Pakistan Exhibit 9/15, Capital Gain Clearance Certificate dated 26‑6‑1980 DR. No. 8059/1,119179‑80 Exhibit 9/16, Certificate issued by Excise and Taxation Officer 'H' Division. Karachi Exhibit 9/17, Clearing Certificate of K.M.C. dated 20‑7‑1980 Exhibit 9/18, extract of publication appeared in Daily Dawn on 2‑9‑1980 Exhibit 9/19, another extract of publication appeared in Daily Dawn on 3‑9‑1980 Exhibit 9/20, Letter of Nasir Shahmir and Co. Advocates dated 23‑10‑1980 Exhibit 9/21, Notice of Nasir Shahmir and Co. Advocates dated 17‑11‑1980 Exhibit 9/22, Notice of Nasir Shahmir and Co. Advocates dated 14‑12‑1980 Exhibit 9/23, agreement of sale dated 30th June, 1978 Exbibit 9/24, Letter of Mohammad Ziaul Khaliq dated 14‑9‑1980 Exhibit 9/25, Supplementary Agreement dated 15th September, 1980 Exhibit 9/26, Notice of Nasir Shahmir and Co. Advocates dated 23‑10‑1980 Exhibit 9/27, reply of Mr. Niazi A. Khaliq Advocate dated 1‑11‑1980 Exhibit 9/28, Notice of 'vlr. Niazi A. Khaliq Advocate dated 1‑11‑1980 Exhibit 9/29, reply of Mr. Zahid Hamid Advocate dated 4‑11‑1980 Exhibit 9/30, reply of 'vlr. Niazi A. Khaliq Advocate dated 11‑11‑1980 Exhibit 9/31, notice of Mr. Nasir Shahmir, Advocate dated 17‑11‑1980 Exhibit 9/32, reply of Mr. Niazi A. Khaliq Advocate dated 25‑11‑1980 Exhibit 9/33, reply of Mr. Zahid Hamid Advocate dated 30‑11‑1980 Exhibit 9/34, reply of Mr. Niazi A. Khaliq Advocate dated 1‑12‑1980 Exhibit 9/35, and . notice of M/s. Nasir Shahmir and Co. Advocates dated 14‑12‑1980 Exhibit 9/36.

9. Tanveer Ismail examined his attorney and younger brother Zain Ismail as Exhibit 10 as he himself is out of country. Zain Ismail produced photo copy of General Power of Attorney as Exhibit 10/1, receipt as Exhibit 10/2, certificates of M.C.B. as Exhibit 10/3 and 10/4, office copy of notice of his advocate as Exhibit 10/5, certified copy of telegram Exhibit 10/6 and postal receipt exhibit 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 Zisul 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 oust 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 contact 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 promisor. The notice sent by Mr. Nasir Shahmir Advocate to Ziaul Khaliq sets out the facutal 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 45 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 representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly." This section lays down two rules. The first rule is that in the case of a joint promise all joint promisees must join in suing the promisor. The second rule is that if any one of the promisees dies 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 A that if the promisees 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 promisee 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 Sahu v. Bhupal Mahton reported in A.I.R. 1936 Pat. 274 also the same view is taken by a Single Judge of the 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 be obtained 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 clear 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 B 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 Jagdeo Singh v. Bisambhar reported in 1937 ;fag. 186 Vivian Bose, J. observed as follows:‑ "Their case is that defendant 1, Jagdeo, 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 no 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' of even either party thereto, but any party thereto. The word 'any' indicates one out of a 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 at it, was made. They want to buy the property and want the Court to compel their co‑contractors Anantram to buy it along with them just as he had promised to do, and ask the Court to compel the defendants to sell to 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 see how there is any variation. Any quarrel the purchasers may have among themselves is not being introduced into this suit. Each party is getting exactly what he bargained 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 8 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 any are omitted then t 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 Niranjan 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 reconveyance 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.l, 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 Mrindha v. Amena Khatoon reported in 20 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 entirety. 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 Niranjan Das v. Charu Bala Das reported in 15 DLR 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 of 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 Advocates 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 of 1980 and dismiss Suit D No.748/81 and direct that Shireen Siddiq 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. A A. /S‑212/ K Order accordingly.