2004 PLP 1889 (CLC)

My findings to the above issues with reasons are as under:-- Learned counsel for the plaintiff while arguing on this issue has referred to Exh.P.4 which is an application by the plaintiff To the defendant for allotment of suit plot followed by letter dated 19-5-1973 (Exh.P.5) of the defendant offering the suit plots to the plaintiff and finally Exh.P.6 which is a paid challan of Rs.17,000 being the occupancy value of the suit plot deposited by the plaintiff with defendant No.2. Thus, according to the learned counsel, in view of these documents, all ingredients of a valid contract via. proposal, offer, acceptance and consideration as provided under section 2(a) to (h) of the Contract Act had been there and the same constitute a contract between the parties. To further support the case of the plaintiff, learned counsel has also relied upon Allotment Letter, dated 14-6-1973 (Exh.P.8) Possession Letter dated 3-8-1973 (Exh.P.9) Challan dated 25-7-1973 (Exh.P.10). Paid Challan (Exh.P 11), Payment Certificate dated 7-8-1973 (Exh.P.12), Letter dated 15-8-1973 by the plaintiff to the then Land Manager of defendant No.2 (Exh.13). In support of his contentions, learned counsel has placed reliance on the cases of Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170, Sindh Industrial Estate v. Kemia Industries Ltd. 1999 CLC 1076, Khanzada Inamullah Khan v. Mst. Zakia Qutab PLD 1998 Pesh. 52, Ramjoo Mahomed v. Haridas Mullick and others AIR 1925 Calcutta 1087 and Habib Bank Limited v. Hussain Corporation Ltd. 1994 MLD 2276. On the other hand learned counsel for defendant No.2 while refuting the contention of learned counsel for the plaintiff has argued that defendant No.2 has not given any undertaking for the allotment of suit plots in favour of the plaintiff. According to learned counsel Exh.P.5 is only an offer which on acceptance of the plaintiff became a promise and not a contract. Learned counsel has relied on AIR 1939 Rang.

86. In support of his arguments, learned counsel has relied on the cases of Mehran Sugar Mills Limited v. Sindh Sugar Corporation Limited 1995 CLC

707. It has been held in the case of Sindh Industrial Estate (supra) as under:-- "In our view an agreement, which could be a binding contract and, thus, capable of being specifically performed consists of an offer, consideration and acceptance." In this case the plaintiff has successfully proved that there exist three ingredients of the contract as held in the aforesaid case, and on the other hand the defendant has not been able to show any law in rebuttal to C that the offer, acceptance and part payment of consideration are not disputed. Accordingly, this issue is answered in negative in favour of the plaintiff. While arguing on this issue learned counsel for the plaintiff has relied upon C.P. No.542 of 1994 filed by the plaintiff and various letters addressed to the plaintiff by defendant No.2 assuring to allot 20 plots of 400 sq. yards in Gulshan-e-Iqbal. He has also referred to Exh.P.26 which is a note by the Minister of Housing arid Town, Planning which is reproduced as under:-- "The applicant's undertaking in writing be obtained to withdraw the petition if his claim is satisfied. P1. put up summary for Honourable C.M." According to learned counsel for the plaintiff vide Exh.P.28 plaintiff made an undertaking to withdraw C.P. No.542 of 1994 and thereafter continued to pursue the mater for allotment of suit plots and consequently the Secretary Housing and Town Planning Sindh of defendant No. 1 wrote a note which is reproduced as under:-- "All sorts of allotments have been totally banned by C.M. Sindh as well as decided by the Federal Cabinet. Can be accommodated after lifting of ban in future by the Government." According to learned counsel in view of the above note, a new contract came into existence and defendant No.2 is obliged to allot the suit plots to the plaintiff after lifting of ban which was not done even after issuance of notification lifting the ban Exh.P.35 and thus, violated the new contract. On the other hand learned counsel for the defendant has not been able to deny this actual aspect of the case. Accordingly, this issue is-decided in favour of the plaintiff. It is an admitted position that the plaintiff was offered 20 plots which were accepted and 10% occupancy value of the plots was also deposited and the defendants have not produced a single letter showing their refusal to perform their part of obligation or any letter asking the plaintiff to take the amount deposit by it and the amount is admittedly still lying with defendant No.2. In this regard learned counsel has referred to the deposition of D.W. as follows:-- "I see Exh.P.16, it is correct to suggest the point-for decision before the Governing Body was in respect of allotment of flat sites to the companies mentioned in Exh.P.16. It is correct that the similar is the position in Exh.P.17. It is correct to suggest that the name of plaintiff's firm is not appearing in Exh.P.16 and P.17, I do not know whether any limitation regarding Exh. P.16 and P.17 was conveyed to the plaintiff. It is correct that no such document has-been filed by us in the present suit. It is correct to suggest that Exh.P.5 half of the offer has been fulfilled by defendant K.D.A. It is correct to suggest that in Exh. P.5 and P.6 it is not mentioned that the payment 10 would be ad hoc." Learned counsel further contended that as there was no refusal on part of defendant No.2, plaintiff continued to pursue its case, as stated in the foregoing paras. Learned counsel while denying the claim of non-availability of plots by defendant No.2 referred to site plan Exh.P.15 and Item No.189 of Exh.P.20 Para.2 of Exh P 21 also indicates that plaintiff's request for allotment of plots was also approved by the Governing Body of K.D.A. Further letter dates: 28-2-1993 (Exh.P.24) addressed by defendant No.2 to the plaintiff also indicate, that the plaintiff's case was pending consideration. Deriving the contention of defendant No.2 that the Governing Body had decided to refund the amount of occupancy value, the P.W. has produced Resolution No. 146 dated 1-3-1981 and Resolution No.338 dated 7-6-1988. (Exh.P.16 and P.17) which reveal that the names of specific builders to whom the resolution is to effect are mentioned in the body of the resolution. The name of the plaintiff does not appear in it and the point for decision, as mentioned at Sr. No.

10. The said documents, was in respect of allotment of flat sites and not in respect of Bungalow sites but flat sites which is admitted by D.W. in his cross-examination. In view of the above this issue is answered in negative. While arguing on this issue learned counsel for the plaintiff has referred to a note dated 1-7-1997 Exh.P.34 through which Secretary, Housing and Town Planning, defendant No. 1, has given indication that the plaintiff may be accommodates on lifting of ban Therefore, according to learned counsel for the plaintiff, the effect of Notification (Exh.P.35) lifting the ban should have been to comply with the said aforesaid order/note Exh.P.34 by allotting suit plots in favour of the plaintiff. Keeping in view' the above position as well as a perusal of said Notification in which it appears that an emphasized is given to old claims of allotment of plots, this issue is decided in favour of the plaintiff. It is an admitted position that no allotment for suit plots was issued in favour of the plaintiff rather plaintiff has come for specific performance of contract in shape of issuance of allotment order, therefore, this issue need no discussion or finding. Plaintiff has produced various documents discussed above and there is ample evidence that the defendants took specific steps for allotment of the suit plots on the basis of which a man of ordinary prudence would be persuaded to believe that the plots are being allotted to him. Estoppel attracts section 114 of Qanun-e-Shahadat Order and is reproduced as follows:-- "Estoppel.

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing In view of the payment followed by the preparation of site plan and intimation of plot numbers and subsequent developments, case in favour of the plaintiff is made out to the extent of determination of this issue for which reliance as placed on the cases of Messrs Excell Builders v. K.M.C. 1999 YLR 2657, M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan 1998 SCMR 1652, Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652 and Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore v. Wasif Zamir Ahmed and another 1997 SCMR

15. This issue is answered accordingly. Based on my findings on above issues Nos. 1 to 6, there is a valid and subsisting contract and the defendant No.2 has failed to give any plausible reason to for not complying with its commitment. Therefore, this issue is answered in affirmative and the plaintiff is entitled to a decree of specific performance of the contract. The P.W. though has stated in his affidavit-in-evidence with regard to losses the plaintiff has suffered due to non-allotment of the suit plots in favour of the plaintiff however, neither his deposition is corroborated by any other independent witness nor any document has been placed on record which ratify the claim of the plaintiff with regard to damages Accordingly, the plaintiff is not entitled to the relief of damages In view of the above findings on issues Nos. 1 to 6, the plaintiff has cause of action to file the suit against defendant No.2. Taking into consideration the various aspects of this case, as pleaded, the plaintiff is a builder. The plots were to be allotted for sale of built up units and in the ordinary course of his business he would have raised construction and sold out the property. The plots to question are a constituent to such property on which the plaintiff would have earned his profit. To ascertain the question of damages it is also required to take into consideration the position as it existed at the time of allotment. They plaintiff could have approached the Court when the cause of action accrued initially. In view of my findings to the above issues I hereby decree the suit as follows:-- (i) That the plaintiff be allotted residential plots to the extent of an aggregate area of 8000 sq. yards in the scheme 24 of Gulshan-e-Iqbal, out of the builders quota, if available, on the terms and conditions as stated in Exh.P.5. (ii) In case no area is available in Scheme 24 Gulshan-e-Iqbal, an aggregate area of 8000 sq. yards be allotted to the plaintiff in any of the forthcoming schemes of Karachi Development Authority or its successor Authority, as the case may be. at the prevailing price fixed by the authority. (iii) The sum of Rs. 17,000 along with interest at the rate of 10% per annum will be adjusted towards payment of the cost of such plots that plaintiff will be allotted as stated at (i) and (ii) above. (iv) In the alternative the plaintiff is entitled to damages to the extent of 10% of the price of the 20 plots in addition to refund of the sum of Rs.17,000 together with interest thereon at the rate of 10% from the date of payment till the date of refund. (v) Cost of the suit in favour of the plaintiff against the defendant. B.T./A-96/K Suit decreed accordingly.