2013 PLP 1629 (YLR)

FAROOQ ALI CHANNA, J.

This judgment will dispose of two IInd Civil Appeals filed against the concurrent findings of two courts below, whereby learned IIIrd Senior Civil Judge, Karachi-East dismissed two Suits bearing Nos. 29 and 30 of 2005 filed by the appellant against the respondents for specific performance of contract in respect of Flat No. B-101, Dawood Terrace, constructed on Plot No. ZC-1, Block 6, Gulshan-e-Iqbal, Karachi (subject property of Civil Suit No. 29 of 2005) and Shop No. 4 measuring 110 Sq. Feet Dawood Terrace, constructed on Plot No. ZC-1, Block 6, Gulshan-e-Iqbal, Karachi (subject property of Civil Suit No. 30 of 2005) vide two separate judgments & decrees dated 29-5-2009 and 20-6-2009 respectively, upheld by learned 1st Additional District Judge, Karachi-East in Civil Appeals Nos.131 and 132 of 2009 vide two separate judgments and decrees dated 16-2-2010 and 23-2-2010, respectively.

2. I have heard the learned counsel for the parties and perused the record.

3. During arguments it has been observed that there was no dispute between the parties regarding the sale of subject properties of both the suits and payment of advance money paid by the appellant to the respondent No. 1 the representative of respondent No.

2. The respondent No 1 has also not disputed his signatures on both the sale agreements and receipts of payment; however the sole controversy between the parties was in respect of time frame for payment of balance amount.

4. As per learned counsel for the appellant six months time was fixed for payment of balance amount as mentioned in the sale agreements, execution of which is admitted by the respondent No.1. The appellant before expiry of six months' time approached the respondent No. 1 to clear the dues so that the sale deed be executed, the appellant also offered to pay the balance sale consideration subject to approximate adjustment of outstanding dues.

5. Conversely, learned counsel for the respondent No. 1 has contended that three months' time was agreed verbally, however, the appellant got the sale agreements prepared in absence of the respondent No. 1 mentioning six months time for payment of balance amount, the respondent No. 1 having old cordial relations with the appellant signed the agreements in good faith without going through the contents of agreements. The respondent No.1 in response to approach of appellant, informed him in writing that since he has failed to pay the remaining sale consideration within three months as agreed verbally, therefore the sale agreements stand cancelled and token money forfeited.

6. The trial Court on appraisal of above controversy found it crucial for a just and proper decision therefore, besides other issues also framed Issue No. 3 on this point which reads as under:-- "

3. Whether the balance sale consideration was to be paid within 6 months or 3 months of the sale agreement."

7. The trial Court, however, in its findings/reasons on issue No. 3 along with issue Nos. 1 and 2 has not decided the said issue No. 3 properly without determining the time frame for payment of balance amount either six months or three months leaving the actual controversy between the parties unresolved. The court of Ist appeal also did not care to record findings on the above controversy, which in fact was crux of the matter.

8. Besides above, learned counsel for the respondent during arguments invited the attention of this court towards a legal question regarding status, authority and competency of respondent No. 1 to execute the sale agreements on behalf of principal owner of the properties. I have also perused both sale agreements which are silent about the respondent No.1's authorizaton by principal to sell the suit properties as his general attorney or sub-attorney. Trial Court has also not discussed the above legal aspect of the case nor framed such issue hence the appeal falls in purview of ingredients/grounds of section 100 C.P.C., invoking the jurisdiction of this court as the court of second appeal. In the circumstances, the cases require to be remanded for specific findings on said issue No. 3 and framing of additional issue mentioned below: ADDITIONAL ISSUE: Whether the respondent No.1 was legally competent authorized person of the principal owner of properties to execute sale agreements on his behalf as his general attorney or sub-attorney? If not, whether subject sale agreements are binding upon principal owner for specific performance of contract?

9. In the above terms, the impugned judgments and decrees, passed in suits and appeals by both the courts below, are set aside and cases are remanded, directing the trial Court to record proper findings on issue No. 3 specifying the time for payment of balance amount and to frame the above additional issue, provide an opportunity to both the parties to lead their evidence on the additional issue if they desire so otherwise after hearing decide the cases afresh within three months on the basis of evidence already led by the parties.

10. Both the appeals are disposed of accordingly with no order as to cost. AG/N-8/K Cases remanded.