PLJ 2001 SCI 194

PLJ 2001 SCI 194

[Appellate Jurisdiction]

Present: ABDUR rehman khan and hamid Ail mirza, JJ. SAMI-UL-HAQ-Petitioner

versus

Dr. MAQBOOL HUSSAIN BUTT etc.--Respondents Civil Petition Nos. 436, 437 & 438 of 1999, decided on 26.2.2001.

(On appeal from the judgment dated 16.2.1998 of Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.A. Nos. 29 of 1995, 32 and 33 of 1996).

(i) By-Laws--

—Society or Statutory Body-By-laws of-Prohibition contained in-Effect
of~Prohibition contained in by-laws of a society or statutory body cannot
have force of law. [Pp. 1201 & 1201] I

PLD 1971 Karachi 763 foil, (ii) Civil Procedure Code, 1908 (V of 1908)--

—O. XLJ, Rr. 30 & 31-Contention that judgment was written after about 11 months from date of hearing being violative of rule laid down by Court in 1996 SCMR 669, 1989 SCMR 1473 and provisions of Order, 41, Rules 30 & 31, Held, had not merit-Admittedly, impugned judgment was pronounced on same day after conclusion of arguments, and it stated all the contentions, decision thereof giving reasons for the
same, therefore, it could not be termed to be in violation of law laid down
by Supreme Court and said provisions of CPC--Held Further : DB had
dealt with all contentions of petitioner's counsel in judgment, therefore,
no prejudice was caused to petitioner-It is always proper and advisable
that after pronouncement of judgment, High Court would write
judgment without unnecessary delay, [P. 1199] A & C

1996 SCMR 669; 1989 SCMR 1473 re.f. (iii) Civil Procedure Code, 1908 (V of 1908)--

—O.XLI, Rr. 30 & 31-Scope of-Order XLJ, Rule 30 CPC requires that
Appellate Court after hearing parties or their pleaders shall pronounce
judgment in open Court either at once or on some future day of which
notice shall be given to parties or their pleaders—Rule 31 of Order 41,
CPC requires that judgment shall be in writing, which shall state (a)
points for determination, (b) decision thereon, (c) reasons for decision
and when it is pronounced, it shall be signed and dated by the Judge or
Judges. [P. 1199] B

(iv) Constitution of Pakistan, 1973-

—Art. 185(3)-High Court had given valid and cogent reason for arriving at
findings, which were legal and based on proper appreciation of evidence
and law, therefore, no interference was called for by Supreme Court-
Leave to appeal was refused. [P. 1203] M

(v) Contract Act, 1872 (IX of 1872)--

—S. 65—Agreement to sell-Suit for specific performance-Contention that there was restriction on transfer of plot in terms of allotment, thus, agreement of its sale could not be specifically enforced-Held : Agreement of allotment was executed between petitioner and CDA, to which respondent was not party, whereunder allottee could not transfer his rights by sale untill payment of all amount due to the Authority-As said bar was subject to said restriction could be vacated/waived by CDA on completion of required conditions, therefore, agreement for sale of plot could not be termed to be void from its inception, but voidable at the option of CDA-Said restriction was therein agreement of allotment and it was. never subsequently found or became subsequently void, therefore, provisions of Section 65 of Contract Act would not be attracted-Held Further : Provisions of Section 65 of Contract Act could be availed of only by respondent and not by petitioner, whereas respondent had not approached Court for restoration of benefits or compensation received from him under agreement of sale-Held Further : Petitioner had admitted execution of agreement to sell the plot and received

consideration thereof, could not be allowed to back out on consideration
of equitable doctrine of estoppel. [Pp. 1200 & 1201] E, F & G

PLD 1981 Lahore 553; 1992 SCMR 19; 1994 SCMR 782 (B); PLD 1965 Dacca

56; DLR 1991 Civil Cases 371 (C); 1995 CLC 1906; 1996 CLC 678; AIR 1940

Allahabad 453 (454); 1983 SCMR 1199; PLD 1972 Lahore 855; 1993 MLD

1207 ref.

(vi) Contract Act, 1872 (IX of 1872)--

—S. 23~Bar contained in allotment agreement on transfer of plot-
Agreement to sell-Suit for specific performance-Passing of decree in—
. Whether by-laws of a society will have force of law-Question of—
Contention that there was restriction on transfer of plot in terms of
allotment, thus, agreement of its sale being against public policy was
void-Held : Section 23 of Contract Act imposes restrictions in respect of
contracts, which are considered to be against public policy or which are
illegal and void-These provisions would not be attracted to instant case,
because lawful agreement was entered into for lawful consideration and
purpose between parties and terms of which could be enforced after
removal of bar by CDA by ex post facto permission-Held Further : Bar
contained in agreement of allotment could not be termed to be law,
consequently could not be said to be forbidden by law considering that
prohibition in bye-laws of a society or other statutory body cannot have
force of law. [P. 1201 & 1202] H & I

PLD 1971 Karachi 763 foil (vii) Transfer of Property Act, 1882 (IV of 1882)--

—-S. I~Islamabad Federal Territory-Transfer of Property Act-Application of--In absence of any notification, it was Held that Transfer of Property Act, (IV of 1882) was not applicable to Islamabad Territory.

[Pp. 1202 & 1203] K & L

PLD 1982 SC 100 rel on. (viii) Transfer of Property Act, 1882 (IV of 1882)--

—S. 38-Transfer of property-Legal necessity for~Phrase "circumstances in their nature variable" in Section 38 of Transfer of Property Act is generally referred to a case when facts constitute a legal necessity for transfer of immovable property by a person having limited and qualified power of disposal of such property like under Hindu Law. [P. 1202] J

(ix) Witness-Marginal-

—-Partner of a firm having signed sale agreement as marginal witness
would be a consenting party to agreement, if he does not come forward to
deny the same. [P. 1199] D

*. .. sami-ul-haq v. dr. maqbool hussain butt SC 1197

(Hamid All Mirza, J.)

Mr. Khurshid Ahmed, ASC and Hafiz S.A Rehman, Sr. ASC with Mr. M. A. Zaidi, AOR, for Petitioner.

Raja Abdul Ghafoor, AOR for Capital Development Authority. Date of hearing : 26.2.2001.

judgment

Hamid All Mirza, J.-These three civil petitions for leave to appeal are directed against the common judgment dated 16.2.1998 passed in R.F.A. Nos. 29 of 1995, 32 and 33 of 1996 by a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby all the three appeals were dismissed, hence these petitions which are being disposed of by this common judgment as same facts and law points are involved.

2.   The brief facts of the case are that Plot No. NYA, admeasuring
2400 sq. yards, situated in Zone-D, Sports Complex, National Park Area,
Islamabad, was allotted to an unregistered firm, namely Silk Road Tours
Service Company, established by petitioner Sami-ul-Haq and two others,
namely, Laila Tandoko Tokonaga and Naib Khan, for constructing a hotel as
per allotment letter dated 24.4.1985. The construction of the hotel was to be
completed   with   four years.   Petitioner   Sami-ul-Haq entered   into   an
agreement of sale of the said plot on 13.6.1990 with respondent Maqbool
Hussain Butt for sale consideration of Rs. 52,000,00/- (Rupees fifty-two lac),
out of which a sum of Rs. 11,000,00/- (Rupees eleven lac) was paid in
advance with delivery of the possession of the said plot at the time of
execution of the said agreement. It is stated that as per subsequent
agreement dated 16.7.1990, the time for performance of the agreement was
extended till 16.12.1990 on receipt of another sum of Rs. 23,000,00/- (Rupees
twenty tree lac) from respondent Dr. Maqbool Hussain Butt and only a sum
of Rs. 1S,000,00/- (Rupees eighteen lac) remained to be paid at the time of
the transfer of the said properly. It is stated that the petitioner did not fulfil
his part of the contract as per terms of the agreement, inconsequence thereof
respondent Dr. Maqbool Hussain Butt filed. Suit No. 74/145 of 1991/1994
for specific performance of the agreement dated 13.6.1990 amended by
agreement    dated    16.7.1990   against   petitioner   Sami-ul-Haq,   Capital
Development Authority and Mrs. Laila Tandoko Tokanaga. Petitioner Sami-
ul-Haq while defending the suit admitted the original agreement dated
13,6,1990 but denied the execution of the subsequent agreement dated
16,7.1990. M/s Silk Road Tours Service Company Limited filed Suit No.
185/143 of 1990/1994 against petitioner Sami-ul-Haq and another seeking
declaration and permanent injunction. Petitioner Sami-ul-Haq also filed Suit
No. 218/144 of 1990/1994 against respondent Dr. Maqbool Hussain Butt for
possession, declaration with permanent and mandatory injunction.

3. The trial Court consolidated all the three suits, framed
consolidated issues, recorded the evidence and after hearing the counsel for
the parties, decreed Suit No. 74/145 of 1991/1994 filed by respondent Dr.
Maqbool Hussain Butt to the extent of specific performance of agreements

dated 13.6.1990 and 16.7.1990 subject to deposit of the sum of rupees 18 lac in Court till 23.5.1995 in the credit of Mrs. Laila Tadoko Tokonaga with directions to petitioner Sami-ul-Haq to transfer his rights and that of two other partners of M/s Silk Road Tours Service Company in favour of respondent Maqbool Hussain Butt subject to fulfillment of requirements of respondent CDA by respondent Maqbool Hussain Butt granting permanent injunction to the effect of alienation and possession of respondent Dr. Maqbool Hussain Butt but dismissed for other reliefs prayed for so also Suit No. 218 of 1990 (Sami-ul-Haq v. Dr. Maqbool Hussain Butt) was dismissed, whereas connected Suit No. 185 of 1990 was disposed of in the terms that Mrs. Laila Tandoko Tokanago was entitled to draw the sum of rupees 18 lacs deposited in Suit No. 174 of 1991 subject to deduction of Court fee on said amount. Against the said judgment and decree dated 20.4.1995, three F.R.A. Nos. 29 of 1995, 32 and 33 of 1996 were preferred by the petitioner Sami-ul-Haq before Lahore High Court, Rawalpindi Bench, Rawalpindi, which were heard and dismissed by the impugned judgment.

4. We have heard the learned counsel for the petitioner and the
caveator, and perused the record.

5. Learned counsel for the petitioner has contended that the
impugned judgment was written after about 11 months from the date of
hearing by the learned Division Bench of Lahore High Court, therefore, it
was in violation of the rule laid down by this Court in (i) Iftikhar-ud-Din
Haider Gardezi v. Central Bank of India Ltd. (1996 SCMR 669), (ii)
Muhammad Bakhsh and others v. The State (1989 SCMR 1473) and under
Rules 30 and 31 of Order 41, C.P.C. He further submitted that the
agreement to sell was not liable to be specifically enforced under Section 23
of the'Contract Act and Section 19(2)(g) of the Partnership Act, considering
also that the subsequent agreement dated 16.7.1990 was a forged and
fictitious document. He also submitted that at the most respondent Maqbool
Hussain Butt would have been entitled to compensation or advantages
which were received by the petitioner from him under such agreement or
contract which was discovered to be void under Section 65 of the Contract
Act. He further submitted that there was restriction on the transfer of the
plot in dispute in terms of allotment, therefore, the agreement of sale could
not be specifically enforced. He, in the end, submitted that Sections 38 and
41 of the Transfer of Property Act were not applicable to the facts of the case.
Besides the two above cited cases, the learned counsel has placed reliance
upon (i) H.B.F.C v. Shahinshah Humayun Coop. H.B.S. (1992 SCMR 19),
(ii) Government of Sindh v. Khalil Ahmed (1994 SCMR 782 (B)), (iii) Mir
Hasmat All v. Birendra Kumur Ghosh (PLD 1965 Dacca 56), M.K
Muhammad and others v. Muhammad Aboobaker (K.L.R. 1991 Civil Cases
371 (C)), (iv) Inayat Ali Shah v. Anwar Hussain (1995 CLC 1906), Riaz
Ahmed v. Amtul Hameed Koser (1996 CLC 678), Peyare Lai v. Mt. Misri (AIR
1940 Allahabad 453 at 454), Bashir Ahmad v. Additional Commissioner

(1983 SCMR 1199), Manzoor Hussain v. Ghulam Hussain (PLD 1972 Lahore 855) andAmina Bi v. Bivi (1993 MLD 1207).

6. Learned counsel for the caveator has submitted that the
impugned judgment is legal and proper appreciation of evidence is made by
the High Court, therefore, no exception could pe taken to the findings
arrived at by the learned Division Bench of the High Court.

7. So far the contention of the learned counsel that the impugned
judgment was written after about 11 months, therefore, it was in violation of
the rule laid down by this Court in the above cited cases and in view of
Orders 41, Rules 30 and 31 CPC, the said contention has no merit. It was
conceded by the learned counsel for the petitioner that the judgment was
pronounced by the Division Bench as soon as the arguments were concluded
by the learned counsel for the parties, consequently there could not be said
to by any violation of the rule laid down by this Court in the above cited
cases. Rule 30 of Order 41 CPC requires that Appellate Court, after hearing
the parties or their pleaders, shall pronounce judgment in open Court either
at once or on some future day of which notice shall be given to the parties or
their pleaders, Rule 31 of Order 41, CPC, requires that judgment shall be in
writing, which shall state (a) the points for determination, (b) the decision
thereon, (c) reasons for the decision and when it is pronounced, it shall be
signed and dated by the Judge or Judges. Admittedly, the judgment was
pronounced immediately after the conclusion of the arguments by the
respective learned counsel for the parties and the impugned judgment stated
all the contentions, the decision thereof giving reasons for the same therefore
the impugned judgment could not be termed to be in violation of the law laid
down by this Court and the said provisions of CPC. In Syed Iftikharuddin's
case, the judgment was pronounced after eight months of hearing of appeal
and there was non compliance of Rule 31 of Order XLI CPC but the
impugned judgment was pronounced on the same day after conclusion of
arguments it was in conformity with the requirement of Rule 31 of Order
XLI CPC. It may also be observed that the learned Division Bench has dealt
with all the contentions of the petitioner's counsel in the judgment therefore
no prejudice was caused by to the petitioner. But it is always proper and
advisable that after pronouncement of judgment, the High Court would
write the judgment without unnecessary delay.

8. The next contention of the learned counsel for the petitioner is that the said agreements of sale were un-enforceable in law on the ground that the allotment contained a bar to the transfer of the rights in plot, and further the said agreement being against the public policy, was void and also that all the partners had not signed the agreements. The petitioner has not denied the execution of agreement to sell the plot to respondent Dr. Maqbool Hussain Butt. So far the execution of the subsequent agreement dated 16.7.1990, the receipt of a sum of Rs. 23,00,000/- (Rupees twenty three lac) for extension of time for the performance of the agreement has been proved by the respondent and the petitioner failed to bring satisfactory and reliable

evidence to rebut the evidence of the respondent on record. It may also be noted that Naib Khan, the other partner of the firm, having signed the sale « agreement as a marginal witness would be a consenting party to the agreement who did not come forward to deny the same. So far the third partner, Mrs. Laila Tadako Tokonaga, she made a statement before the Court acknowledging the contents of the agreement and the offer made by her was accepted by the respondent on payment of sum of Rs. 18,00,000/-(Rupees eighteen lac) as balance amount of the total consideration in respect of plot in question. The learned Division Bench at pages 11 and 12 of the judgment has observed:

"We are, therefore, of the view that the agreement pertaining to the partnership of the property having (been) executed by and on behalf of the Firm, validly created rights in favour of the respondent and was as such enforceable in law. The agreement creating valuable rights in favour of respondent namely Dr. Maqbool Hussain Butt describes certain liabilities of the parties cannot be declared void for the reasons that the plot subject matter of the agreement in question as per terms of the allotment was not transferable. The restriction on the transfer of the property placed by the CDA being a different matter does not render the agreement invalid or affect the validity of such agreement and the rights of the parties thereto. The main effect could be the non-implementation of sale by the CDA pending removal bar of transfer. The original allottee after payment of the full sale price to the CDA executed the agreement for the transfer of the plot in favour of the respondent and the condition of completion of construction attached therewith by the CDA for the transfer of the property would not make the transaction invalid and restrict the passing of title to the respondents. It is noticeable that the CDA despite having the knowledge of the transfer in question and non-completion of the construction beyond the prescribed period did not proceed against the original allottee and had taken no step for the cancellation of the plot. The CDA even did not proceed in the matter at any stage pending disposal of the suit. This would show that the CDA had no intention to cancel the plot despite the violation of the terms and conditions of the allotment by the allottee and therefore the condition of the completion of the construction for transfer of the plot stood waived."

It may be observed that agreement of allotment for the use of said plot was executed between the petitioner and CDA to which respondent Dr. Maqbool Hussain Butt was not a party which contained amongst others Clause 11 whereunder allottee was not to transfer his rights under the agreement of allotment by sale until after the payment of all the amounts due to the Authority etc. and therefore the said bar was subject to certain conditions to be complied with by the allottee consequently the said restriction could be vacated/waived by CDA on completion of the required conditions. The said

agreement for the sale of the plot could not be termed to be void in its inception but voidable at the option of CDA, In the instant case CDA was in the know of the said transaction and failed to take any action against, the petitioner for having contravened Clause 11 of the agreement. The Clause 11 of allotment agreement does not forbid the making of said agreement for sale but merely states that the allottee was not to transfer his right given to him under the agreement of allotment unless conditions mentioned in Clause II are complied with consequently the said bar would not make the agreement for sale invalid or illegal. It may further be observed that the petitioner having admitted the execution of agreement to sell the plot in dispute and also having received the consideration thereof cannot be allowed to back out from his promise on the equitable doctrine of estoppel. There is also no appeal from the side of CDA against the impugned judgment. The contract could neither be said to be void from its inception nor could it be said to have become void or found to be void, considering that the said restriction was there in the agreement of allotment and it was never subsequently found or it became subsequently void therefore provisions of Section 65 of the Contract Act would not be attracted. It may further be observed that the provisions of Section 65 of the Contract Act could be availed of only by the respondent and not by the petitioner if the agreement of sale is shown to be void or is discovered to be void or if the contract became void but the instant agreement to sell cannot be said to have been discovered to be void or the contract could be said to have become void and the respondent has not approached the Court for restoration of the benefits or compensation, which the petitioner had received from the respondent under such agreement of sale. In all circumstances, provision of Section 85 of the Contract is not available so far as the petitioner is concerned. Section 23 of the Contract Act imposes restrictions in respect of contracts which are considered to be against the public policy or which are illegal and void. The agreement entered into between the parties cannot be termed to be against the public policy or could be termed to be void or illegal considering that lawful contract was entered into for lawful consideration and purpose between the parties except that the bar with regard to transfer of rights in the property, it was for the CDA to exercise or enforce barring clause and the CDA, on completion of formalities by the allottee, could waive/vacate the said bar.

The allottee in the instant case had transferred what he possessed the rights under the terms of the agreement and CDA being the authority could have taken action against the allottee in case any of the terms of the agreement in respect of allotment was infringed but the said agreement between the parties with regard to sell of the property cannot be said to be illegal or against the public policy as terms of which could be enforced after removal of j bar by C.D.A. by ex post facto permission. Reference may be made to Mst. \ Bhaghan u. Muhammad Latif (PLJ 1981 Lahore 553). In the circumstances,. the provisions of Section 23 of the Contract Act would not be attracted in the j instant case. Besides, it be observed that bar contained in Clause 11 of the j allotment cannot be termed to be law consequently cannot be said to be i

forbidden by law, considering that prohibition in the bye-laws of a society or other statutory body cannot have force of law. Reference may be made to 'Akram Moquim Ansari v. Asghari Begum (P.L.D. 1971 Karachi 763).

9. The contention of the learned counsel for the petitioner that the provisions of Sections 38 of the Transfer of Property Act are not applicable to the facts of the instant case, has merit and force. The phrase "circumstances in their nature variable" in Section 38 of the Transfer of Property Act is j generally referred to a case when facts constitute a legal necessity for the transfer of the immovable property by a person having limited and qualified power of disposal of such property like under Hindu Law. As such Section 38 of Transfer of Property Act would not be applicable in the instant case. Besides it may be stated that Transfer of Property Act (IV of 1882) is not applicable to the Islamabad Territory. Reference may be made to Barkat Ullah Khan vs. Abdul Hamid (PLJ 1982 SC 98) at page 100. Para 6 and 7 reads :--

"6. Now the argument of the learned counsel that by the constitution of "Islamabad Capital Territory" as the "Centrally Administered Area" by virtue of the provision of Section 4 of the Province of West Pakistan (Dissolution) Order, 1970 (President's Order No, 1 of 1970) the Transfer of Property Act, 1882, got automatically extended to Islamabad Capital Territory assumes that the Legislature had itself extended the provisions of the Transfer of Property Act 1882, to the Centrally Administered Areas as existed when the Act was passed and also to those areas which were even afterwards to be constituted as the Centrally Administered Areas. With due respect to the learned counsel, this assumption is neither borne out by the provisions of Section 1 nor the provisions of the section can possibly permit an interpretation to the above effect. In this behalf, learned Single Judge in the High Court has rightly observed that "the Legislature did not itself make it (Act) applicable to any part of the country, and it was left to the Provincial Governments to extend its application to the areas to which they were concerned by issuing notification in this behalf. Learned Single Judge also rightly observed that "the Act does not become applicable to Islamabad merely for the reason that it is a Federal Area".

7, Mr. Bashir Ahmed Ansari admits that up to the date of the filing of the suit no notification had been issued by the Provincial Government extending the Act to Islamabad Federal Territory. In the absence of such a notification learned Single Judge in the High Court rightly held that the provisions of Section 106 of the Act were not applicable but these are to be followed as principles of justice, equity and good conscience. Learned Single Judge also rightly held for the reasons stated by him that these principles were duly complied with and the suit could not be dismissed for non-service of