RASHID NASEEM through Attorney vs Mrs. AMNIA FAHIM and another
This is an intra-court appeal arising from an order of a learned Single Judge who dismissed a suit for specific performance of an agreement of sale. The core legal question was whether the dismissal of a suit for specific performance solely on the ground of failure to deposit the balance sale consideration warrants the complete dismissal of the entire suit without adjudicating alternative claims for damages and compensation. The Sindh High Court held that even if the equitable relief of specific performance is refused due to non-payment of the balance consideration, the plaintiff is not entirely non-suited regarding alternative claims for damages, particularly in view of statutory provisions governing compensation. The court established the principle that under Sections 19 and 29 of the Specific Relief Act, when specific performance is refused, the court retains the power to consider and award compensation for breach of contract, and a suit cannot be summarily dismissed without adjudicating upon such alternative reliefs on merits. Consequently, the impugned order was set aside and the matter remanded back.
- Does the dismissal of a suit for specific performance automatically bar a plaintiff's claim for damages and compensation for breach of contract?
- Can a court award compensation under the Specific Relief Act if it decides that specific performance ought not to be granted?
- Does failure to deposit the balance sale consideration at the initial stage completely dis-entitle a plaintiff from seeking damages in a suit for specific performance?
- Section 19, Specific Relief Act 1877
- Section 29, Specific Relief Act 1877
ORDER
1. ' Repeatedly notices were issued to the respondents, but returned unserved. Learned counsel for the appellant stated that the respondents were declared ex parte before the learned Single Judge and the matter was proceeded in their absence. In view of the above, we heard Mr. Haq Nawaz Talpur, learned counsel for the appellant.
2. ' Brief facts for the purpose of deciding the appeal are that the appellant filed suit for specific performance of an agreement of sale, dated 18-3-2003 in respect of Property, bearing No,117, measuring 2000 square yards, situated at Popular Avenue, Phase-VI, Pakistan Defence Officers'
3. Housing Authority, Karachi. The appellant agreed to purchase the property in question for the total sale consideration of Rs,27,000,000, out of which a sum of Rs,500,000 was paid at the time of execution of agreement of sale, a further sum of Rs,2,000 was paid on 20-4-2004 and thereafter a new agreement was executed between the parties on 20-4-2004. The respondents then failed to transfer the property in question in favour of the appellant despite his request and as such the appellant filed suit for specific performance, praying for a decree of special damages against respondent No,1 in the sum of Rs,50,000,000 and damages on the amount paid by the appellant with 30% compensation thereon. The learned Single Judge, when the matter was listed for further orders, dismissed the suit by holding that the relief of specific performance is an equitable relief and since the appellant has failed to deposit balance sale consideration, the same dis-entitled the appellant for the relief of specific performance of the contract.
4. ' We have gone through the documents on record as well as memo of plaint, from the perusal whereof it appears that apart from claiming relief for specific performance, the appellant has claimed damages and compensation in respect of the amount paid by the appellant as advance part payment. Even if for any reason if it is accepted that failure to pay balance sale consideration at the initial stage tantamount to dis-entitle equitable relief of specific performance, the appellant at least was entitled for damages, if any, proved by him. Section 29 of the Specific Relief Act, bars the plaintiff's right to sue for compensation for breach of contract or part thereof, on dismissal of a suit for specific performance of a contract or part thereof. Under section 19 of the Specific Relief Act if Court decides that specific performance ought not be granted, and contract has been broken by the defendant, the Court can award compensation, if the plaintiff is entitled to it.
5. ' For the foregoing reason the impugned order is set aside. The matter is remanded to decide the suit on merits.
6. ' The appeal in the above terms stands disposed of.
Cited by 4 cases
- Ansar Ali vs Altaf Ahmed and others 2018 SHC 860
- Mirza SHAKIR BAIG vs Miss IFFAT CHUGHTAI and others 2017 YLR 58
- Mst. ZOHRA BIBI and 3 others vs ASHIQ HUSSAIN and 2 others 2017 YLR 925
- ANSAR ALI Versus ALTAF AHMED MEMON 2019 YLR 979