SUBHANALLAH Versus MARYAM

This IInd appeal is directed against the concurrent finding of Mr. Mujibullah Siddiqui learned Vth Additional District Judge, Hyderabad dismissing the appeal of the appellant against the judgment and decree passed by the learned VIth Extra Joint Civil Judge, Hyderabad directing specific performance of contract of sale against the appellant.

2. The facts of the case are that the respondent had filed a suit alleging that house bearing C.S. No. E/1099 Hafiz Lane Shahi Bazar, Hyderabad was purchased by Hafiz Salamatullah from the Settlement Department in 1962. Hafiz Salamatullah entered into an agreement of sale with Abdullah the predecessor of the respondents on 9‑12‑1964 for a consideration of Rs.1,300 and received the entire consideration and delivered the possession of the house to Abdullah and also handed over the P.T.D. to him. The agreement stipulated that the registered sale‑deed was to be executed by Hafiz Salamatullah when such notice was given to him by the purchaser. Abdullah rented out the ground floor of the house to one Abdul Rehman and was receiving rent from him. Abdullah was unaware of the whereabouts of Hafiz Salamatullah and after his death of his legal heirs and, therefore, could not give him the notice for execution of registered sale‑deed earlier. On 28‑5‑1973 Abdul Rehman tenant of Abdullah informed him that the legal heirs of Salamatullah had claimed the ownership of the suit property and had called upon him to pay the rent. Thereupon, Abdullah came to know of the address of the legal heirs of Salamatullah and served a notice upon them to execute the registered sale‑deed. On their refusal to do so this suit was filed.

3. The appellants contested the suit and filed written statement. They denied the execution of sale agreement by Hafiz Salamatullah and the receipt of consideration from Abdullah. They alleged that the suit property was rented out by Hafiz Salamatullah to Abdul Razzak then to Abdullah. Abdullah sublet the same to Abdul Rehman without consent of Hafiz Salamatullah and recovered rent from him by misrepresentation. Hence they served a notice on Abdul Rehman. They pleaded that they had sold the property to Noor Muhammad by registered sale‑deed.

4. The learned trial Court, framed issues on, inter alia, the execution of agreement, receipt of consideration, delivery of possession and limitation and decided all these issues in favour of the respondents and decreed the suit. The learned 1st appellate Court agreed with the findings of the trial Court on all factual as well as legal issues.

5. I have heard Mr. Mirza Ghayasuddin Baig for the appellant and Mr. Hassan Mehmood Baig for the respondents.

6. It is contended by Mr. Ghayasuddin that the agreement of sale was executed in 1964 and the suit was filed in 1974. A period of as many as 10 years has elapsed between the agreement of sale and filing of suit. Referring to Article 113 of the Limitation Act he has submitted that the period of limitation for filing the suit is three years. Hence the Court should not have entertained this suit after such a long period and should not have overlooked this statutory provisions.

Article 113 of the Limitation Act reads as under:‑

For specific Three The date fixed for the performance, performance of years. or, if no such date is fixed, when a contract. the plaintiff has notice that performance is refused.

It provides that the period of 3 years is to start from the date of performance fixed in the agreement or where no such date is fixed from the date when the plaintiff has notice of the refusal of performance. In the agreement there is no date fixed for specific performance. Hence it will have to be seen as to when the vendor refused to perform the contract. It is established from the evidence that the respondents and before them their predecessor Abdullah was unaware of the address and whereabouts of Hafiz Salamatullah and after his death of his L.Rs. and, therefore, the notice mentioned in the agreement calling upon the vendor to execute the registered sale‑deed could not be served. On 28‑5‑1973 the respondents, successors of Abdullah for the first time came to know of the whereabouts of the legal heirs of deceased Hafiz Salamatullah and, therefore, served the notice upon them requiring them to specifically perform the contract. No doubt a period of 10 years between the agreement and filing of the suit has expired but that cannot be made a ground by the vendor to refuse to perform the agreement specially when good cause is shown by the vendee for not insisting upon the execution of the registered sale‑deed during that time. Reliance in this behalf is placed in Habibullah Khan v. Mohammad Ishaq P L D 1966 SC 505:‑ "where it was held that equity has never treated delay simpliciter as a bar, unless the delay has caused some prejudice to the other party. Equity has not intervened to excuse performance of contract. So long as matters remain in status quo and there is nothing to show that the party called upon to perform has been misled by the inaction of the other party to alter his position in such a manner as to make it inequitable to force him to perform his part of the contract. Lapse of time short of the period prescribed by the Limitation Act should not be allowed to operate as a bar to the claim of the relief.

If the person seeking performance has not committed such delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking performance, laches by itself would not be a sufficient ground. Thus, until it can be shown that the plaintiff in the suit had actively done something to lead the defendant to suppose that he had abandoned his claim against the latter, the doctrine of laches would have no application in cases where the statute of limitation has fixed a date for suing for performance.

6. It was next contended by Mr. Mirza Ghayasuddin the respondents should have filed a suit for cancellation of the registered sale‑deed and the decree of specific performance executed in favour of Noor Mohammad by the legal heirs of Salamatullah. In this behalf he has relied upon the case of Mithal Shah v . Rafiullah reported in P L D 1975 Kar. 930 wherein a D.B. comprising Dorab Patel and Jamaluddin Ahmed, JJ. held that a decree for specific performance for contract and injunction cannot be granted as long as registered sale‑deed completely and legally transferring right in land to defendant remains in field. Cancellation of such decree and sale‑deed was necessary before plaintiff could obtain relief prayed, for. This ruling is distinguishable from the present case, in that the decree in favour of Noor Mohammad in Suit No. 38/76 was obtained by Noor Muhammad after filing of the suit by legal heirs of Abdullah and registered sale‑deed was executed even after passing of that decree, whereas in the case under ruling the agreement of sale in favour of the purchaser who had filed the suit was of a date subsequent to the agreement of the person in whose favour the decree for specific performance was passed. Moreover, this ruling was disapproved by the Honourable Judges of the Supreme Court in the case of Muhammad Sharif v. Sughra Bano reported in 1984 S C M R 1139 and it was observed as follows:‑

"The first ground pressed before us in support of this appeal by Mr. Ahmed Saeed Kirmani, learned counsel for the appellant, is that the suit of Mst. Sughra Bano was not maintainable and that it was illegally decreed because she had failed to sue for cancellation of the registered sale‑deed executed in favour of the appellant, dated 9‑5‑1969 while asking for specific performance of her earlier sale agreement, dated 30‑4‑1968. In support of this contention he relied upon judgment of the Sind and Baluchistan High Court reported in Syed Mithal Shah v. Khawaja Rafiullah and another wherein it was held that a decree for specific performance of contract and injunction cannot be granted as long as a registered sale‑deed is still in the field whereby some right in the property has been transferred in favour of another and it is necessary that the sale‑deed in his favour is cancelled before granting a decree for specific performance.

We have perused the above‑cited judgment but we observe that the weight of the rule laid down therein has been shaken by the observations made by this Court in two judgments which have since been delivered viz. Mst. Hamida Begum v. Mst. Murad Begum and others and Mst. Izzat v. Allahditta. Hence we cannot accept Mr. Kirmani's first submission."

7. Mr. Ghayasuddin next contend that there was a stipulation in the agreement of sale that Rs.1,300 shall be paid as penalty besides surrendering the above price of Rs.1,300 in case of breach of contract hence the decree for specific performance could not have been granted. Clause (5) of the agreement may be read in this behalf.

A plain reading of this clause would show that the penalty was provided only for failure to comply with the above requirements of the purchaser. These requirements are that the purchaser will sign the document, in connection with the sale and will present him self before Registration Officer in connection with the admission of execution of the said sale. It does not speak of the breach of the contract in entirety. Apart from that by now it is a settled law that a decree for specific performance of contract cannot be refused merely because certain damages for breach of contract are agreed to be paid in the agreement of sale. Reference in this connection may be made to the case of Arif Shah v. A. Hakim reported in P L D 1986 Kar. 189 wherein it was held by Naimuddin, J. (Now Chief Justice) as follows:‑

"The rule laid down by the Supreme Court is that a decree for specific performance of the contract cannot be refused merely because certain amount has been named in the contract to be paid as damages on breach of the contract."

8. Finally it has been argued by Mr. Mirza Ghayasuddin that the decree for specific performance was a discretionary relief. The Court was not bound to grant such relief merely because it was lawful to do so. He has relied upon the case of Arif Shah v. Abdul Hakim supra in this behalf. There can be no cavil with proposition mentioned above. But in the present case the trial Court has exercise discretion in favour of the respondent and it did so keeping in view the various) pleas raised by them. The learned 1st appellate Court also agreed' with the findings of the learned trial Court and approved of the discretion exercised by it. I also do not find any reason to disagree with the findings of the two lower Courts and the discretion exercised by them. It may not be out of place to mention here that the L.Rs. of deceased Hafiz Salamatullah do not appear .to be contesting this case but it appears that Abdul Rehman the tenant of Abdullah having turned dishonest, on one hand stopped paying the rent to Abdullah and on the other hand misguided the legal heirs of deceased Hafiz Salamatullah and obtained their support and got subsequent sale‑deed executed in favour of his own brother Noor Muhammad. These proceedings are also being contested by Abdul Rehman and Noor Muhammad and not by the L.Rs. of Hafiz Salamatullah.

Under the circumstances I do not find any merit whatsoever in this appeal and dismiss the same in limine.

M. Y. H./S‑158/K Appeal dismissed.