1997 PLP 979 (CLC)

(1 ) Whether the agreement in suit is illegal and is incapable of specific performance? (2) Whether the plaintiffs have no locus standi to bring the suit? (3) Whether the plaintiffs have committed default/breach of agreement as alleged? If so, its effect. (4) Whether the plaintiffs were ready and willing to discharge obligations? (5) Whether the time for performance was extended by plaintiffs as defendant's request? If not, its effect? (6) Whether the defendant committed breach of agreement as alleged? (7) To what relief, if any, are the plaintiffs entitled?" I have heard Mr. Zafar Hadi Shah, learned counsel appearing for the plaintiffs and Mr. Abdul Aziz Khan, learned counsel appearing for the defendant, and have gone through the entire record/proceedings of the case. Issues Nos. l and 2: Admittedly the Jamat of which the plaintiffs were/are the members is not a registered body and because of its incapacity to sue, the suit was filed by the members. An application under Order I, Rule 8, C.P.C.; (CMA 832/1978) was filed on behalf of the plaintiff but the same was dismissed for non- prosecution. An agreement as defined under section 2(e) of the Contract Act is "Every promise and every set of promises, forming the consideration for each other, is an agreement". The agreement dated 2‑4‑1975 complied the conditions given in the definition so also the subject property. The defendant admitted the execution of the said Agreement and as a consequence to the same received part payment of Rs.35,000 from the plaintiffs. The agreement as well as the receipts shows that the plaintiffs were acting/executing and paying on behalf of the Jamaat which was at the relevant time also unregistered. The suit has been filed by the four members of the Jamaat who had signed the agreement and have also signed the plaint. The only question remains is whether this suit can be regarded as a representative suit or not. Admittedly an application was filed under Order 1, Rule 8, C.P.C. which was dismissed for non‑prosecution. Since then no efforts were made to seek permission of the Court and to follow the procedure prescribed under the law. As such the suit cannot be treated as a representative suit. However, since the four individuals (plaintiffs) had signed subject Agreement and the same persons have filed the present suit I hold that the plaintiffs had the authority/power to prosecute. Issues Nos.3 to 6 are inter‑related and as such I will deal with them together. The plaintiffs have examined Haji Abdul Sattar, one of the plaintiffs and signatory to the agreement, while the defendant examined Haji Ahmad Sayeed, the defendant himself. At the very outset I may mention that the execution of agreement of sale dated 2‑4‑1975 as well as the receipt of Rs.35,000 which is of the same date has not been denied by the defendant. The witness for the plaintiff in his examination‑in‑chief reiterated the facts as already mentioned in the plaint. In cross‑examination he denied that in the year 1975 and 1978 the Jamaat did not have sufficient funds to pay the balance sale price of the plot. He admitted though that no sale‑deed was prepared but the same could have been made ready if the defendant was ready and willing to execute the sale deed. He further deposed that the time was not essence of the contract and that the defendant himself had been seeking extension of time to finalise the sale deed. The defendant in his examination‑in‑chief admitted the execution of the agreement of sale as well as the receipt. According to him, in the year 1975 he needed money for the marriages of his children and as such through Muhammad Bhai, who was Estate Broker, he approached the plaintiff No.4 for the sale of his property. He denied that he had ever requested for enlargement of time or that at any given time he did not have all or any of the necessary documents for finalising the sale‑deed of the property. In his cross‑examination he deposed that it was he, who was after the plaintiffs to finalise the sale‑deed but every time he approached them, the plaintiffs asked him to wait as they were arranging for payment of the balance amount. He also denied the suggestion that the police complaint filed by the plaintiffs was to direct him to execute the sale‑deed. On the contrary, when he threatened the plaintiffs that he will forfeit the earnest money of Rs.35,000 as the period of three months had passed as stipulated in the agreement and he is no more bound for the execution of the sale‑deed, that the plaintiffs filed the complaint in the police to pre‑empt the said forfeiture and pressurise the defendant not to take action as stated above. He also deposed that the plaintiffs had asked him ' to pay Rs.70,000 to revoke the sale agreement which though not stated in the written statement but is a fact. The bone of contention in the present suit could be solved if the plaintiffs had produced the statement of account of the Jamaat showing that at the relevant time the Jamaat did have enough funds to finalise the sale‑deed. Furthermore, no evidence has been produced by the plaintiff showing that after expiry of three months, they had written to the defendant for the execution of the sale‑deed. The notices which are Exhs.5/3 and 5/7 were returned unserved and the defendant denied the knowledge of the same. The defendant's address remained unchanged. It was after three years that in the year 1978 they sent their first notice (Exh.5/3) to the defendant. Having failed to prove the existence of enough funds for the payment of the balance amount to finalise the sale‑deed and failure to take any steps after the expiry of three months' period, agreed upon by the parties, the plaintiffs now cannot shift the burden on the defendant. The plaintiffs have also failed to specify which of the documents were not in the possession of the defendant due to which the defendant could not complete the sale. Mr. Zafar Hadi Shah, the learned counsel for the plaintiffs has relied on the case of Muhammad Ayub Khan v. Ch. Muhammad Aslam (1984 CLC 2259 (Lahore), wherein it was observed that mere mention of period for completion of sale does not make time, as essence of contract and if payment is not made within the time mentioned the agreement cannot be revoked unilaterally. The learned counsel for the defendant has relied on sections 51 and 54 of the Contract Act, section 51 of the Act reads as under:‑‑ "

51. Promissor not bound to perform unless reciprocal promisee is ready‑and willing to perform.‑‑When a contract consists of reciprocal promises to be simultaneously performed, no promissor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. " The learned counsel has further argued that the suit was incompetent as the Jamaat was unregistered body. He has relied on the case of Abbas Khaleel and others v. Saifuddin Valika (PLD 1969 Kar. 692). Agreeing fully with the observations in regard to Order 1, Rule 8, C.P.C. in my opinion, the said case is not applicable as in the said referred case the suit was filed in the name of "The Karachi Hockey Association having its office at 579/JM‑3, Walker Road, Catholic Colony No.2, Karachi through its Chairman Professor Anwar Chaudhry". In the present case the plaintiffs have filed the suit in their individual capacity. This suit was filed for specific performance and damages. Specific performance is a discretionary relief and not a right of any party. In view of the evidence led by the parties and the agreements, I hold that the plaintiffs failed to discharge their obligation and as such the defendant is not liable for the breach of contract and the plaintiff is not entitled to any relief claimed. However, considering the circumstances of the case that the defendant could not cancel the agreement without any notice, I also hold that the plaintiffs are entitled to the refund of the amount of Rs.35,000 with 6% interest from the date of the suit till payment which was paid to the defendant as earnest money. A decree will be drawn in, terms of the above order. There will, however, be no order as to costs. A.A/S‑33‑K Suit decreed.