2021 S C M R 483
[Supreme Court of Pakistan]
Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar
Naqvi, JJ
CAPITAL DEVELOPMENT AUTHORITY through Chairman---Appellant
Versus
Rana MUNAWAR KHAN---Respondent
Civil Appeal No. 1120 of 2009, decided on 7th
December, 2020.
(On
appeal against the judgment dated 05.06.2008 passed by the Islamabad High
Court, Islamabad in R.F.A. No. 72 of 1998)
Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Suit for declaration and
permanent injunction---Allotment letter, interpretation of---Allotment of plot
on installments---Installments delayed by purchaser due to non-removal of
high-tension wires from the plot by Capital Development Authority
(CDA)---Installments were re-scheduled on orders of the Federal
Ombudsperson---Delayed payment charges were imposed on purchaser by CDA once
all installments were paid---Plea of purchaser/respondent that he did not pay
the installments within time as according to clause 6 of the lease agreement
the possession of the plot free from all encumbrances and ready for
construction was to be delivered to him within a period of one month i.e. on or
before 14-01-1988 but the same was delivered on 27-02-1988 without removing
high tension wires and electric poles, which were passing through all the plots
of that area---Validity---Clause 6 of the lease agreement/allotment letter did
not state that the CDA was bound to deliver the possession after removing of
high tension wires etc.---However, it appears from the noting portion of the
CDA that Town Planner-1 vide a memo had informed that an overhead electric line
was encroaching the plots in the area but the same was removed and the
possession was handed over to the respondent without any further encroachment---Such
claim found force from the possession letter, wherein the respondent had
himself admitted that there was no encroachment on his plot---Respondent has
himself signed the possession letter and certified that he had seen his plot
and all its corners, there was no encroachment on his plot, and no service line
was passing within his plot---Although possession was delivered to him late but
the delay was only of 40 to 45 days---Respondent had to pay the first
installment by 01-03-1988 but despite the fact that possession was handed over
to him on 27-02-1988, he did not pay the same---Appellant/CDA issued him a
letter dated 08-04-1989 to make the payment but instead of complying, he filed
a suit for permanent injunction, which prima facie shows that he wanted to
avoid payment accrued towards him---Purpose of the respondent was to evade
payment while buying time---Proceedings before the civil court continued for a
period of five years and when the respondent saw that he would not be able to
get a favourable order, he withdrew the suit and approached the Federal
Ombudsman---Respondent was bound to pay the delayed payment charges---Appeal
was allowed.
Malik
Javed Iqbal Wains, Advocate Supreme Court for Appellant.
Abdur
Rashid Awan, Advocate Supreme Court for Respondent.
Date
of hearing: 7th December, 2020.
JUDGMENT
SAYYED
MAZAHAR ALI AKBAR NAQVI, J.---This
appeal with leave of the Court has been directed against the judgment dated
05.06.2008 passed by the learned Islamabad High Court, Islamabad whereby the
Regular First Appeal filed by the appellant Capital Development Authority was
dismissed and the judgment and decree dated 06.09.1998 passed by the learned
Civil Judge 1st Class, Islamabad, was maintained.
2. Briefly
stated the facts of the matter are that on 21.01.1996 respondent filed a suit
for declaration and permanent injunction before the Senior Civil Judge,
Islamabad alleging that he is allottee of plot No. 3-G, I/10 Markaz, Islamabad
measuring 487.55 square yards through open auction being highest bidder of
Rs.34,61,605/-, which was accepted vide letter dated 15.12.1987; that
thereafter respondent immediately deposited 25% of the total amount i.e.
Rs.8,65,401/- and the balance amount was to be paid in four installments; that
according to clause (6) of the allotment letter, the possession of the plot
free from all encumbrances and ready for construction was to be delivered to
the respondent within a period of one month i.e. on or before 14.01.1988 but
the same was delivered on 27.02.1988 without removing high tension wires,
electric poles, which were passing through all the commercial plots of that
area; that the respondent could not start construction well within time due to
the reason that possession of the plot was given late, therefore, could not
deposit the first installment, which was due on 01.03.1988; that respondent
made numerous representations to the appellant CDA for removing of high tension
wires etc but no heed was paid to his request; that on 25.04.1989, the
appellant issued notice to the respondent to deposit the installments or in
failure the plot would stand cancelled. This led to filing of a suit by the
respondent for declaration with the prayer that appellant CDA may be directed
to remove the high tension wires from the plot and in the meanwhile the
appellant may be restrained to cancel the plot. However, the respondent
withdrew the said suit and submitted a complaint before the Wafaqi Mohatasib
(Federal Ombudsman) for rescheduling of payment and waiving of the interest and
delayed payment charges, which was accepted by the Ombudsman and pursuant to
the letter issued by the Wafaqi Mohtasib Secretariate dated 26.09.1994, the
appellant CDA rescheduled the installment plan on 27.10.1994. It was the claim
of the respondent that after rescheduling, he had paid all the installments
within time but despite that the appellant CDA has demanded an amount of
Rs.26,01,099.46/- on account of delayed payment charges vide letters dated
07.03.1995 and 03.01.1996. The learned Trial Court vide its judgment dated
06.06.1998 decreed the suit. Being aggrieved, the appellant CDA filed Regular
First Appeal before the Islamabad High Court, but the same has been dismissed
vide impugned judgment. Hence, this appeal with leave of the Court.
3. Learned
counsel for the appellant inter alia contended that the impugned judgment
passed by the learned High Court is non-speaking, suffers from misreading and
non-reading of the evidence and is based on misinterpretation of allotment
letter, which is not sustainable in law; that the evidence led by the appellant
has not been considered in its true perspective, which has resulted into
miscarriage of justice; that the learned courts below misinterpreted clause (6)
of the allotment letter, which does not cast a duty on appellant to deliver
possession, free from all encumbrances, within one month of the issuance of
letter rather it was the duty of the respondent to take possession within one
month; that the second suit filed by the appellant was barred by res judicata
and the same was not proceedable; that the delayed payment charges to the tune
of Rs.26,01,099.46/- were due from the respondent and the contention of the
respondent that the same have been waived off by Wafaqi Mohtasib is incorrect
and. that if the delayed payment charges are waived off, the appellant would
suffer a great financial loss. He lastly contended that keeping in view the
facts and circumstances of this case, the suit of the respondent is liable to
be dismissed and the judgment of the learned High Court may be set aside.
4. Learned
counsel for the respondent, on the other hand, opposed the contentions of the
learned counsel for the appellant. He contended that both the suits filed by
the respondent were filed on different cause of action, therefore, the principle
of res judicata would not apply; that the rescheduling was made on the
direction of Federal Ombudsman and the respondent accordingly paid the entire
amount; that after payment of the dues after rescheduling, the matter became
past and closed transaction and the respondent could not have been again asked
to pay the late payment charges. He lastly contended that the learned courts
below after considering the evidence led by him have rightly decreed the suit,
to which no exception can be taken.
5. We
have heard learned counsel for the parties and have perused the case file.
6. The
main emphasis of the respondent as to why he did not pay the installments well
within time after allotment of plot is that according to clause (6) of the
lease agreement dated 15.12.1987, the possession of the plot free from all
encumbrances and ready for construction was to be delivered to him within a
period of one month i.e. on or before 14.01.1988 but the same was delivered on
27.02.1988 without removing high tension wires and electric poles, which were
passing through all the commercial plots of that area. It would be advantageous
to reproduce the said clause for ready reference. The same reads as under:-
"6.
The lessee shall take over possession of the land within one month from the
date of issue of this letter, failing which possession shall be deemed to have
been taken over and execute an agreement within one month from the date of
possession and get the same registered at his/her own cost. The lessee shall
submit building plans/ drawings duly prepared by any of the approved/
registered/ licensed Architect of the CDA. However, in case of lessee desires
to get the building designed from CDA, same would be arranged by the Deputy
Director General (Design) CDA on payment of designing fee @, 3% or designing
and top supervision fee @ Rs. 6% of the estimated cost of the building."
There
is nowhere mentioned in this clause that the appellant Authority was bound to
deliver the possession after removing of high tension wires etc. However, it
appears from the noting portion of the CDA that Town Planner-1 vide his memo
dated 23.01.1988 had informed that a overhead electric line is encroaching the
commercial plots in the south of 1-10 Markaz but the same was removed and the
possession was handed over to the respondent without any further encroachment.
This finds force from the possession letter dated 27.02.1988, wherein the respondent
has himself admitted that "there is no encroachment on my plot". The
respondent has himself signed the possession letter and certified that he has
seen his plot and all its corners, there is no encroachment on his plot, and no
service line is passing within his plot. Although possession was delivered to
him late but the delay was only of 40 to 45 days. The respondent had to pay the
first installment by 01.03.1988 but despite the fact that possession was handed
over to him on 27.02.1988, he did not pay the same. The appellant CDA issued
him a letter dated 08.04.1989 to make the payment but instead of complying, he
filed a suit for permanent injunction on 17.04.1989, which prima facie shows
that he wanted to avoid payment accrued towards him. In the written reply, it
was the claim of the CDA that the respondent has already made construction and
removal of electric poles was just a lame excuse with malicious intent. This
stance of the appellant CDA could not be denied by the respondent. The
respondent had also filed stay application in the earlier suit but the same was
dismissed on 11.07.1990. This suit was ultimately dismissed as withdrawn vide
order dated 22.02.1994. It appears that the only purpose of the respondent was
to evade payment while buying time. Even after dismissal of his stay
application on 11.07.1990, he did not pay any installment. The proceedings
before the Civil Court in the earlier suit continued for a period of five years
and when the respondent saw that he would not be able to get a favourable
order, he withdrew the suit and approached the Federal Ombudsman. The only
basis on which the Federal Ombudsman in its letter dated 26.09.1994 had
directed rescheduling was that the Vice-Chairman CDA had already agreed vide
para 89/ante of noting portion dated 01.01.1994 that the case of the respondent
deserves re-scheduling. However, we have noted that although the Vice-Chairman
CDA was of the view that the case of the respondent' deserves rescheduling but
the same was without any approval of the CDA Board. From the noting portion, it
is clearly apparent that the proposal of the Vice-Chairman was resisted by the
other members rather the same was not approved. However, so far as the payment
of delayed charges amounting to Rs.26,01,099/- is concerned, the CDA Board duly
gave its permission, which is available at page 162 of C.M.A. No. 503 of 2020.
So far as the plea of the appellant's counsel that the subsequent suit filed by
the respondent was hit by res judicata, we are reluctant to make any observation
regarding this aspect because we have been informed that the lease period is
going to expire on 15.12.2020, hence, any finding at this stage would be a
futile exercise whereas the case of the respondent is squarely a case of high
handedness against a statutory authority. This Court cannot lose sight of the
fact. that both the courts below have misread and misinterpreted evidence as
well as clause (6) of the agreement and came to the wrong conclusion.
8. For
what has been discussed above, we are of the considered view that the judgments
of the two courts below suffer from misreading and non-reading of the evidence.
Consequently, we allow this appeal and set aside the impugned judgments.
9. The
above are the detailed reasons of our short order dated 07.12.2020.
MWA/C-1/SC Appeal
allowed.