Khawaja Muhammad Masood VS Muhammad Akram Bhatti etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.1032 of 2020 Khawaja Muhammad Masood Versus Muhammad Akram Bhatti and others Date of Hearing: 18.05.2021 Petitioner by: Mr. Shakir Javaid, Advocate along with the petitioner in-person Respondents by: Mr. Khurram Ibrahim Baig, Advocate along with respondent No.1 Mr. Iqbal Hassan, Advocate for respondent No.2/C.D.A.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Khawaja Muhammad Masood, impugns the judgment and decree dated 05.03.2020 passed by the Court of the learned District Judge, Islamabad, whereby his appeal against the judgment and decree dated 12.12.2019 passed by the Court of the learned Civil Judge, Islamabad, was dismissed. Vide the said judgment and decree dated 12.12.2019, the learned Civil Court had decreed respondent No.1’s suit for specific performance of an agreement to sell dated 06.02.2011, possession, permanent and mandatory injunction.

2.The record shows that on 06.02.2011, the petitioner and respondent No.1 entered into an agreement to sell, whereby the former agreed to sell to the latter Plot No.1353, Sector I-11/2, Islamabad, measuring 200 square yards (“the suit plot”) for a total sale consideration of Rs.20,00,000/-, out of which Rs.7,00,000/- was paid as earnest money and the remaining sale consideration of Rs.13,00,000/- was to be paid on or before 30.04.2011 at the time of the transfer of the suit plot in the office of the Capital Development Authority (“C.D.A.”). The obligation of respondent No.1 to pay the remaining sale consideration was made “subject to the issuance of NOC by NAB Court/NAB.” It is an admitted position that an amount of Rs.5,00,000/- was paid by respondent No.1 to the petitioner on 17.05.2011. Consequently, the remaining sale consideration came to Rs.8,00,000/-.

3.On account of the pendency of Reference No.34/2007 before the Accountability Court, the suit plot could not be transferred. The said reference was decided on 02.12.2013, and an N.O.C. from the National Accountability Bureau (“N.A.B.”) with respect to the transfer of the suit plot was obtained on 12.12.2013.

4.On 18.04.2014, the petitioner sold the suit plot to respondent No.3 (Khurram Shahzad).

5.Respondent No.1 had filed a suit against the petitioner for specific performance of the said agreement. The plaint in the said suit was rejected due to non-deposit of Court fee vide order dated 15.07.2014. On 19.07.2014, respondent No.1 filed another suit against the petitioner for specific performance of the said agreement before the Court of the learned Civil Judge, Islamabad. In essence, respondent No.1’s assertion was that despite the issuance of N.O.C. by N.A.B., the petitioner did not transfer the suit plot to respondent No.1.

6.The petitioner contested the said suit by filing a written statement. The petitioner’s stance was that since respondent No.1 did not fulfill his obligation of paying the remaining sale consideration in time, the agreement to sell stood cancelled with effect from 31.01.2014 and the advance payment amounting to Rs.12,00,000/- stood forfeited in terms of the provisions of the said agreement.

7.After the framing of issues and recording of evidence, the learned Trial Court, vide judgment and decree dated 12.12.2019, decreed respondent No.1’s suit. The petitioner's appeal against the said judgment and decree was dismissed by the learned Appellate Court vide judgment and decree dated 05.03.2020. The said concurrent judgments and decrees have been assailed by the petitioner in the instant writ petition.

8.Learned counsel for the petitioner drew the attention of the Court to the agreement to sell dated 06.02.2011, and submitted that the parties had agreed for the finalization of the deed by 30.04.2011; that respondent No.1 did not pay the remaining sale consideration within the time stipulated in the agreement; that although an N.O.C. with respect to the transfer of the suit plot was

issued on 12.12.2013, respondent No.1 did not pay the remaining sale consideration of Rs.8,00,000/- at any stage; that respondent No.1 did not issue any notice to the petitioner expressing his willingness and ability to pay the remaining sale consideration or requiring the petitioner to transfer the suit plot; that there is an unexplained delay of more than seven months between the date of the issuance of N.O.C. by N.A.B. (i.e., 12.12.2013) and the date of the institution of the suit for specific performance (i.e., 19.07.2014); that since respondent No.1 did not fulfill his obligations under the said agreement to sell, the petitioner was left with no option but to forfeit the advance payment of Rs.12,00,000/- and to treat the said agreement to sell as cancelled; and that the concurrent judgments and decrees passed by the learned Courts below are liable to be set-aside on account of being contrary to the law and facts of the case. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

9.On the other hand, learned counsel for respondent No.1 submitted that out of the total sale consideration of Rs.20,00,000/, respondent No.1 had paid Rs.12,00,000/- to the petitioner; that the payment of the remaining sale consideration was to be made on the issuance of an N.O.C. by N.A.B.; that admittedly an N.O.C. was issued by N.A.B. on 12.12.2013; that after the issuance of N.O.C., respondent No.1 called upon the petitioner to fulfill his obligations under the said agreement to sell by accepting the remaining sale consideration and transferring the suit plot to respondent No.1; that instead of transferring the suit plot to respondent No.1, the petitioner, on 18.04.2014, sold the suit plot to respondent No.3; that since the agreement to sell between the petitioner and respondent No.1 was prior in time to the sale of the suit plot to respondent No.3, the learned Courts below committed no illegality by decreeing respondent No.1’s suit for specific performance; that the petitioner had not issued any notice to respondent No.1 requiring the latter to pay the remaining sale consideration; that the petitioner never applied to the C.D.A. for the issuance of an N.O.C. for the transfer of the suit plot; and that

the concurrent judgments and decrees of the learned Courts below are strictly in accordance with the law and facts of the case. Learned counsel for respondent No.1 prayed for the writ petition to be dismissed.

10.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.

11.The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 7 above, and need not be recapitulated.

12.In the agreement to sell dated 06.02.2011, it is explicitly mentioned that the payment of the remaining sale consideration would be subject to the issuance of an N.O.C. by N.A.B. The penalty clause in the said agreement requiring the petitioner to pay double the amount of the advance payment in the event he fails to transfer the suit plot to respondent No.1 has also been made subject to the issuance of an N.O.C. by N.A.B.

13.Learned counsel for the petitioner did not deny the fact that the suit plot could not be transferred to respondent No.1 due to an inquiry with respect to the suit plot pending before N.A.B. It is also an admitted position that the required N.O.C. was issued by N.A.B. on 12.12.2013 and the same was brought on record as Mark-D/1. There is nothing on the record to show that after the issuance of the said N.O.C., the petitioner had required respondent No.1 to complete the transaction by paying the remaining sale consideration of Rs.8,00,000/-. There is also nothing on the record to show that the petitioner had issued a notice to respondent No.1 informing the latter that the agreement to sell dated 06.02.2011 had been cancelled and the advance payment of Rs.12,00,000/- had been forfeited.

14.The petitioner had appeared as DW.1 and had admitted receipt of Rs.7,00,000/- as earnest money and a further amount of Rs.5,00,000/- on 17.05.2011. He had deposed that he had been pursuing the case (Reference No.34/2007), and that the transfer of the suit plot was to take place on the issuance of an N.O.C. by N.A.B. Furthermore, he deposed that the said reference was

decided on 02.12.2013 and an N.O.C. with respect to the suit plot was issued by N.A.B. on 12.12.2013. It was the petitioner who had brought on record a copy of the N.O.C. as Mark-D/1.

15.The petitioner also deposed that after the issuance of the N.O.C., the petitioner, on 17.12.2013 informed respondent No.1 about the same and required him to have the suit plot transferred in his name, but to no avail. He also deposed that the time for the payment of the remaining sale consideration was extended up to 31.12.2013 and later up to 31.01.2014; and that the petitioner transferred the suit plot to respondent No.3 on 23.04.2014 due to non-payment of the remaining sale consideration by respondent No.1. In his cross-examination, the petitioner admitted that there was no documentary evidence to the effect that he had required respondent No.1 to pay the remaining sale consideration or that the time for the payment of the remaining sale consideration had been extended by him on two occasions. Without having issued a notice to respondent No.1 as to the cancellation of the said agreement to sell and the forfeiture of the advance payment, the petitioner could not have sold the suit plot to respondent No.3.

16.Learned counsel for the petitioner could not point out any evidence on the record which had been misread or not taken into consideration by the learned Courts below while concurrently decreeing respondent No.1’s suit for specific performance. Time and again this Court reminded the learned counsel for the petitioner that this Court was hearing a petition for the issuance of a writ of certiorari and was not hearing an appeal. Certiorari is not a writ of right, but one of discretion. Its object is to curb excess of jurisdiction, and to keep inferior Courts and Tribunals within their bounds. The High Court while judicially reviewing the proceedings and judgments of the inferior Courts and Tribunals, cannot substitute its own decision with that of such inferior Courts or Tribunals. The grounds on which certiorari may be invoked is where there is an error of law apparent on the face of the record, and not every error either of law or fact which can be corrected by the appellate authority. It lies where the inferior Court or Tribunal has exceeded its jurisdiction or has not proceeded in

accordance with the essential requirements of law which they were meant to administer. It is also issued when the inferior Court or Tribunal acts illegally in exercise of its jurisdiction. For instance, when it decides the case without giving any opportunity to the parties to be heard or violates the principles of natural justice. The High Court while issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. The High Court will not judicially review findings of fact reached by an inferior Court or a Tribunal unless there is manifest error apparent on the face of the proceedings, or where such findings are based on disregard of the provisions of law. The Superior Courts have also interfered with the findings of the inferior Courts and Tribunals where such findings have been found to be perverse or patently erroneous i.e., contrary to the evidence on the record. These essential prerequisites for issuing a writ of certiorari do not appear to be satisfied in this case.

17.Learned counsel for respondent No.1, while stressing that respondent No.1 had not breached any of his obligations under the agreement to sell dated 06.02.2011, submitted, after taking instructions, that as a gesture of goodwill respondent No.1 was ready to pay an additional amount of Rs.10,00,000/- to the petitioner. This gesture on respondent No.1’s part is appreciated. Let this amount be paid by respondent No.1 in the Court's account within two weeks. The petitioner shall also be at liberty to withdraw this amount as well as the remaining sale consideration of Rs.8,00,000/- already deposited by respondent No.1 in the Court's account.

18.In view of the above, the instant petition is dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 21/05/2021

(JUDGE)

Qamar Khan*