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Suit No. 245 of 1965, decided on 22nd September 1967.

, S. 11‑Award of an arbitrator appointed under Bombay Co‑operative Societies Act, 1925, not decision of a Curt‑Held not to be res judicata Award not binding on party who was neither party to arbitration nor member of Co‑operative Society.

, S. 54 Party not a member of Society cannot be compelled to proceed to statutory arbitration raider Act with regard to a dispute with party who is member.

S. 92‑Oral evidence that documents signed by party made out a transaction of mortgage and not of sale not admissible unless case is brought within provisions of S. 92‑(Circumstances suggested which might have made oral evidence admissible)‑‑Surrounding circumstances not enough to prove a sale a mortgage.

The transaction between the parties had been reduced to writing in two documents, both of which made out the tran saction one of sale and not of mortgage. Section 92 of the Evidence Act would debar the defendant from leading evidence of an oral agreement to contradict, vary, add to, or subtract from, the terms of these two documents, unless the defendant brings her case within any of the provisions to this section, or the defendant shows that there was no agreement at all for sale of the suit‑land to the plaintiff. The defendant could possibly have invalidated these two documents if she had made out a case of fraud on the plaintiff's part, or that she signed these documents without knowing that these documents purported to be the agreement of sale of the plot to the plaintiff, or if she had shown that the documents were signed with the express intention that they should not operate as an agreement for sale of the suit‑land, or that these documents were not a record of the terms of the agreement.

The Court did not, therefore, treat the surrounding circums tances of the transaction, relied upon by the defendant, as sufficient to prove that the transaction was not of sale but of mortgage.

(Transaction of sale of plot of land)‑Not rendered void or unenforceable by subsequent addition of words, without knowledge or consent of other party, where such additions are not "material"‑Addition of words "to the name of your nominee" or "to his nominee" by vendee held to be not material additions vendee competent to transfer benefits under agreement of sale to any other person.

The addition of the words "or to the name of your nominee" and the words "or his nominee" in deed of sale of plot of land, are not material. Any party to a contract for sale, of land is at liberty, unless there is anything contrary in the contract itself, to transfer the benefits under the contract. The agreement contained no prohibition to prevent the vendee from transferring the benefits therein to a third party. The vendee was competent to transfer the benefits under this agreement to any other person. The addition of the aforesaid words, there fore, could not be treated as material additions to the documents in question. This being so, these additions would not render the agreement of sale void in any way.

, S. 21(b) read with S. 18(b)‑Contract of sale of plot of land W which ve4dor had an interest of a bare licensee‑Specific performance of contract refused‑License as to land by its very nature revocable‑[Contract related to a building plot obtained by vendor as a sub‑licensee] ‑ Court would not grant specific performance of contract enforcement of which depended on violation of third parties.

A license of land is, by its very nature, revocable at the will of the licensor. The licensee or the sub‑licensee, as the case may be, does not have any right or interest in the land. His possession of the land is dependent on the continued permission of the licensor. In the present case, there were three licensors, on whose continued consent depended the possession of the suit- land by the sub‑licensee. Would the Court, therefore, specifically enforce a contract for sale of land in a case where a vendor was only a bare licensee, and the license was liable to be revoked, thereby rendering‑the decree of the Court valueless and ineffective

Held that refusal to decree specific performance of such a contract would be a sound and reasonable exercise of the discretion which vested in the Court under sections 12 and 22 of the Specific Relief Act, 1877.

The performance of the contract was dependent on the acts and volition of third parties who could not be compelled either to give their concurrence to the transfer of the sub‑license, fir to accept the vendee as member of the Housing Society. On the principle laid down in section 18(b), the vendor could not be compelled to obtain this concurrence, because neither of the three licensors were bound or obliged to give this concurrence, nor was the Housing Society under compulsion to accept the vendee as its member.

The Court should not decree specific enforcement of a contract the performance of which depended on the volition of a third party.

Mansingh v. Rampiare 8 I C 1184 ; Punjraj v. Kalus4 A I R 1927 Nag. 233 and Ramsingh Kwadan Singh & Sons v. Ramchand Issardas A I R 1925 Sind 342 ref.

The Court should be reluctant to give a decree which may become inoperative.

O. I, r.10--‑Suit for specific performance of contract of, sale to third person of building plot obtained by vendor from a Co‑operative House‑building Society‑Vendor's interest in plot being that of a "bare licensee" for the time being and transfer by vendor being dependent on consent of Society‑Held : Society war a proper if not a necessary party to suit.

, S. 7.7‑I ailure to perform contract of sale of building plot‑Suit for specific performance by vendee and alternatively for refund of price paid‑Doubtful whether interest can be decreed by way of damages for wrongful detention of money‑Claim of interest by way of damages for breach of contract should be brought within S. 73‑Plaintiff to prove by evidence that he is entitled to compensation for loss or damage caused by breach of contract‑[Bengal Nagpur Railway Co. v. Buttunjit (1937) 65 I A 66 ref.

Fakhruddin for Plaintiff.

Z. U. Ahmad for Defendant.

Dates of hearing: 9th, 10th March, 14th and 15th September 1967.

This is a suit fur specific performance of a contract for sale of land. The case set up by the plaintiff in his plaint is that the defendant, as member of the Bahadur Yar Jang Co‑operative Housing Society Ltd., Karachi, holds a plot of land bearing Survey No. 431/16, Survey Sheet No. 35‑P/1, within the area of the Society, under a sub‑license, dated 5th January 1956, by which the defendant was empowered to enter upon this plot and to construct thereon a residential house, whereafter, the sub license provided, a lease would be granted to the defendant for a term of 99 years. The plaint proceeds to state that on 7th December 1963, the defendant executed an agreement (Exh. 6/7), by which she agreed to sell and transfer to the plaintiff her shares in the Society as well as the said plot for Rs. 27,468, and that, in this agreement, the defendant undertook to apply to the Society to transfer the said plot in the plaintiff's name, and to surrender the sub‑license issued to her, upon which the plaintiff would be entitled to obtain a fresh license from the Society It is further stated that according to this agreement (Exh. 6/7), the defendant further undertook to cause her shares in the Society to be transferred to the plaintiff's name, so as to enable the plaintiff to become a member of the Society, which member ship would give the plaintiff right' to hold land in the Society area. The plaintiff further alleges that he paid Rs. 27,468 to the defendant and obtained receipt from her therefore, which is Exh. 6/6, and that vie defendant executed application forms for transfer of her shares in the, Society as well as the said plot to the plaintiff and delivered these documents to him. A power of attorney (Exh. 6/13) was also executed by the plaintiff in favour of one Mansoor Ali Shakoor Ahmed who, it wall admitted by the plaintiff's learned Advocate, Mr. Fakhruddin, is, in fact, the employee of the plaintiff's company, namely, Riaz Kandawalla Ltd. The plaintiff alleges that he paid to the Society Rs. 2,817 on account of arrears of development charges, and. then entered into an agreement to sell this plot to one Asmatullah Khan, but when the transfer documents were deposited with the Society, the defendant objected to the transfer of her shares and plot to Asmatullah Khan on various grounds, and also made an application to this effect to the Registrar of Co‑operative Societies who referred the dispute for arbitration to his nominee, namely, K. S. Israrun Nabi. According to the plaint, the nominee by his award dated 8‑10‑1965, held that the transfer of the shares and plot No. 431 to Kassamali Ali Bhai or Asmatullah Khan would have been perfectly legal and operative and the defendant Society would have been perfectly justified in approving the transfer, if the interpolations and corrections in the agreement and the power of attorney had been duly signed by the plaintiff (that is, the defendant in this suit) and that these "unauthorized changes and interpolations have rendered the document invalid and inopera tive". Upon this award being given, the plaintiff brought the present suit, in which he has claimed specific performance of the aforesaid contract for sale of land and in addition thereto, dates in the sum of Rs. 2,333, and further damages at the rats of Rs. 250 per month and, alternatively; refund of the price of the plot, that is, Rs. 27,468, and the sum of Rs. 2,817 paid by the plaintiff to the Society, and damages in the amount of Rs. 10,0'0 for breach of contract.

2. The defendant, in her written statement, contended that the plaintiff is a professional money‑lender and denied the plaintiff's contentions as contained in the plaint and pleaded that the transaction for sale of the plot was in fact a mortgage to secure repayment to the plaintiff of a loan of Rs. 30,000 which the defendant's husband Karimuddin obtained from the plaintiff for the purpose of paying off a loan due from him to one Ibrahim Saleh Muhammad, and, further, that the words "or his nominee", have been added without the defendant's consent or knowledge to the agreement Exh.‑6/7, and the power of attorney, Exh. 6/13, which being in the nature of fraud on the defendant, rendered these documents ineffective. A further plea was taken subsequently at the Bar that the defendant, being only a sub- licensee of the plot, which not being transferable without the consent of the Society, relief of specific performance of the contract could not be granted. Objection was also taken in the written statement to the plaintiff's failure to join Asmatullah Khan and the Bahadur Yar Jang Co‑operative Housing Society Ltd., who, defendant maintained, were necessary parties, and to the maintainability of the suit on the ground of an alleged bar contained in the Bombay Co‑operative Societies Act, 1925, as in force in Karachi. Lastly, the defendant expressed willingness to re‑pay the lean due from her husband to the plaintiff, provided all documents relating to the plot in question were returned to the defendant. Upon these pleadings the following issues were filed by the parties and accepted by the Court on 23rd May 1966 :‑‑---

"(1) Whether the suit should fail for non joinder of Astnatullah Khan and/or Bahadur Yar. Jang Co‑operative Housing Society Ltd.

(2) Whether the matters in suit are res judicala between the parties by virtue of award of Registrar's nominee made in ABN No.91 of 1965

(3) Whether the suit is liable to be dismissed under the Bombay Co‑operative Societies Act

(4) Whether the agreement, the power of attorney and the transfer deed in suit were executed by the defendant only by way of security and were not intended to be acted upon

(5) Whether the plaintiff paid Rs. 2,817 to the Bahadur Yar Jung Society Ltd., through Mansoorali Shakoor on account of arrears of development charges in respect of the plot of lead in suit. If so, whether the plaintiff is entitled to refund of the said amount

(6) Whether plaintiff has paid full consideration

(7). Whether plaintiff is a money‑lender and is carrying on business without a license, if so, to what effect

(8) Whether the plaintiff made any, interpolations in the power of attorney in suit. If so, to what effect

(9) To what relief or reliefs if any is the plaintiff entitled."

3. At the trial of the suit, Mr. Z. U. Ahmed, the learned Advocate for the defendant, made a statement at the Bar to the effect that the transaction in suit was in the nature of a mortgage and not sale of the plot in question by the defendant to the plaintiff, and, further, that the plot in question is not transferable as the ownership thereof vests in the Bahadur Yar Jang Co-operative Housing Society Ltd. ; that Asmatullah Khan, the transferee of the plot from the plaintiff, was a necessary party to the suit, and that the suit is barred under section 54 of the Bombay Co‑operative Societies Act, 1925. The plaintiff and the defendant, both tendered documentary as well as oral evidence. The defendant examined her husband, Karimuddin, who stated that he had obtained a loan of Rs. 50,000 against the security of the disputed plot from Ibrahim Saleh Muhammad through Mr. Ghulam Ali Solicitor. The witness produced documents relating to this loan, including promissory note, agreement, powers of attorney and correspondence, as Exhs. 7/l, 7/2, 7/3, 714 and 7/4. The witness, according to his deposition, was negotiating a loan of Rs. 5,00,000 (Rupees five lakhs) through Mr. Ghulam Ali from the plaintiff for his company, Kanza Food Industries Ltd. It was stated that pending negotiations for this loan, the plaintiff advanced to him Rs. 30,000 (Rupees thirty thousand), which enabled this witness to pay off Ibrahim Saleh Muhammad's loan in the presence of Mr. Ghulam Ali, which payment is evidenced by receipt Exh. 7/6. To secure repayment of the moneys advanced by the plaintiff, the defendant, who is the wife of this witness, executed Exh. 6/5, which is the Society's form for transfer of shares in the Bahadur Yar Jang Co‑operative Housing Society, Ltd. Exh. 6/6, which is a receipt for Rs. 27,468 advanced by the Plaintiff, Exh. 6/7, which is an agreement by which the defendant 'agreed to transfer and sell to the plaintiff her shares in the society and also the plot in question for Rs. 27,468 at the rate of Rs. 28 per square yard, and the power of attorney; Exh. 6/13, by which the defendant nominated Mansoor Alt ' Shakoor to take all necessary steps to effect the transfer Co-shares and the plot in question to the plaintiff. The witness stated that the agreement Exh. 6/7 and the power of attorney Exh. 6/13 provided for transfer of shares and the plot only to the plaintiff himself, and not to his nominee and that the words "or to the name of your nominee" and the words "or' his nominee" were added subsequently, , without the defendant's consent and knowledge, to clause 4(e), and clause (2), respectively, of the agreement Exh. 6/7 and the power of attorney Exh. 6/13. The plaintiff examined himself in support, of the contentions in the plaint. He denied that the transaction in suit was in the nature of mortgage, but admitted that the defendant's husband, Karimuddin, did 4pproach him for a loan for his company, Kanza Food Industries Ltd., which transaction, according to the witness, was a separate and independent transac tion. The plaintiff then stated that he paid to the Bahadur Yar Jang Co‑operative Housing Society Ltd. Rs. 2,817 towards arrears of development charges and also entered into an agreement to sell the plot to one Asmatullah Khan. But this transaction could not materialise due to the defendant's intervention, as stated above, whereupon the plaintiff and Asmatullah Khan entered into the agreement Exh. 8/1, by which the agreement for sale of the plot to Asmatullah Khan was rescinded. The plaintiff admitted that the transaction in suit was effected in the office of Mr. Ghulam Ali, Solicitor, and that the plaintiff was informed that the money being advanced by him "would be used for repayment of some loan".

4. The arguments in this case were heard by me partly sometime in March 1967 when Mr. Z. U. Ahmed expressed the desire that the sub‑license executed by the Society in. the defendant's favour and deposited with the plaintiff, should be filed in Court. A Misc. Application No. 621 of 1967 to this effect was made by the defendant on 29th March 1967, which was granted by my learned brother, Kadir Nawaz Awan, J., on 10‑4‑1967, and in pursuance of this order, the plaintiff duly produced this license which is on record, as Exh. 9, having been admitted with the consent of the parties.

5. The arguments were re‑heard by me on 14th and 15th September 1967. After considering the evidence on the record and the submissions of counsel in the case, my decision on the issues is as under.

6. Issue No. l.‑Asmatullah Khan is no longer interested in the suit‑land, as evidenced by the agreement Exh. 8/1, by which the agreement for sale of this land between the plaintiff and this Asmatullah Khan was r9scinded on 29th October 1965, whereas the plaint in suit was presented in Court on 4‑11‑1965. I, therefore, hold that Asmatullah Khan is not a necessary party to the suit. But the Bahadur Yar Jang Co‑operative Housing Society Ltd. was a necessary or at least a proper party for the reasons which will be discussed by me under issue No. 9. The issue is decided accordingly.

7. Issue No. 2.‑This issue was not pressed by Mr. Z. U., Ahmed, the learned Advocate for the defendant. Even otherwise, the plaintiff, not being a member of the Bahadur Yar Jang Co-operative Housing Society Ltd., and not being party to the A arbitration proceedings referred to above and the award of the Registrar's nominee dated 8‑10‑1965 being not a decision of a Court, it is not binding on him and cannot operate as res judicata so as to bar the present suit.

8. Issue No. 3‑The contention of Mr. Z. U. Ahmed, the defendant's learned Advocate, was that the dispute between the parties was referable for adjudication only to arbitration under the Bombay Co‑operative Societies Act, 1925, as in force in Karachi. I am unable to accept this view. The plaintiff is not a member of the Bahadur Yar Jang Co‑operative Housing Society Ltd. and, accordingly, cannot be compelled to proceed to statutory arbitration under this Act. This issue is accordingly decided against the defendant.

9. Issue No. 4.‑The defendant's case is that the transaction fn suit is in the nature of mortgage, and the amount advanced by the plaintiff was received by her husband to pay off the loan due from him to one Ibrahim Saleh. Muhammad. I am afraid that on the evidence on record the defendant has not succeeded in giving substance to this plea. The transaction has been reduced to writing in two documents, Exhs. 6/6 and 6/7, both of which clearly make out the transaction ode of sale and not of mortgage. Section 92 of the Evidence Act would debar the defendant from leading evidence of an oral agreement to contradict, vary, add to, or subtract from, the terms of these two documents, unless the defendant brings her case within any of the provisions to this section, or the defendant shows that there was no agreement at all for sale of the suit‑land to the plaintiff. The defendant could possibly have invalidated these two documents if she had made out a case of fraud on the plaintiff's, part, or that she signed these documents without knowing that these documents purported to be the agreement of sale of th plot to the plaintiff, or if she had shown that the documents were signed with the express intention that they should not operate as an agreement for sale of the suit‑land, or that these document were not a record of the terms of the agreement. But to show this, the defendant should have examined herself as witness in the suit, which she has not done. The defendant did attempt to establish that the transaction was one of mortgage and not of sale by proving the surrounding circumstances, in which connection reliance was placed on the loan due from the defendant's husband, Karimuddin, to Ibrahim Saleh Mohammad, as shown by documents Exhs. 7/1 to 7/5, which, according to D. W. Karimuddin, were prepared and witnessed in the office of Mr. Ghulam Ali, solicitor, and Exh. 6/8, which is the notice from M/s. Fakhruddin & Co., Advocates, of which Mr. Ghulam Ali is a partner, in which a demand was made for the payment of the loan due to Ibrahim Saleh Muhammad, and the admission of the plaintiff himself that the transaction in suit was settled and effected in the office of Mr. Ghulam Ali, and that the plaintiff had information that the money advanced by him would be used for payment of sore loan. These circumstances could have gone some way, but only some way and not the whole way, to show that the transaction was in the nature of mortgage: The defendant should have led evidence on the inadequacy of the consideration, that is, she should have shown that the rate of Rs. 28 per square yard given by the plaintiff for the suit‑land was grossly below the market rate. The defendant, however, failed to bring any evidence or any material on record on this point. I cannot, therefore, treat the surrounding circumstance of the transaction, relied upon by the defendant, as sufficient to prove that the transaction was not of sale but of mortgage. Ian my view, the defendant has failed under this issue, which is accordingly decided against her.

10. Issue No. 5‑Mr. Z. U. Ahmed, the learned Advocate for the defendant, is view of the receipts of payment issued by the Bahadur Yar Jang, Co‑operative Housing Society Ltd., Exhs. 8/2 sad E/3, admitted that the plaintiff did nay Rs. 2,817 (Rupees two thousand eight hundred and seventeen) to this Society towards the arrears of development charges. The issue is decided accordingly.

11. Issue No. 6.‑Both the parties agreed that the evidence on record shows that Rs. 27,468 (Rupees twenty‑seven thousand four hundred and sixty‑eight) were paid by the plaintiff and received by the defendant. The receipt, Exh. 6/6, and the agree ment, Exh. 6/7, state that this amount is the full consideration for the sale of the suit‑land by the defendant to the plaintiff. I, there fore, hold that the defendant received full consideration for sale of the disputed plot from the plaintiff.

12. Issue No. 7.‑This issue was not pressed by Mr. Z. U. Ahmed and is, accordingly, dropped.

13. Issue No. 8,7‑Clause 4(e) of document ‑ Exh. 6/7, which is the agreement between the parties, clearly shows that the words "or to the name of your nominee" have been added to the document subsequent to its execution. Clause 4(e) has a full stop after the letter "name". The words to which objection is taken have been added between the first two lines of this clause. Likewise, the word "or his nominee" in the power' of attorney, Exh. 6/13, are in ink, whereas the rest of the contents of the document are in type script. The plaintiff was unable to explain these additions and I have, therefore, to believe the defence witness, Karimuddin, that these additions were made subsequent to the execution of the documents, and without the defendant's consent or knowledge. The question then is; what‑‑is the effect of these additions. Mr. Z. U. Ahmed referred me to a decision of the High Court of Calcutta in Bahadurmull Chowdhury and others v. Nagarmull‑Madangopal and others (A I R 1941 Cal. 534), in which it was held that alteration in a material part of a contract in writing, without the consent of the party affected thereby, makes the whole document void, so that the party responsible for such alterations cannot enforce the instrument. It was, therefore, contended by Mr. Z. U. Ahmed that the interpolations in Exhs. 6/7 and Exh. 6/13, made by the plaintiff without the defendant's consent or knowledge, rendered void the agreement to sell the suit‑land to the plaintiff. But the proposition being relied upon by Mr. Z. U. Ahmed would apply only if there is an alteration in a material part of the contract. The addition of the words "or to the name of your nominee" in Exh. 6/7, and the Words "or his nominee" in Exh. 6/13, are not material. Any party to a contract for sale of land is at liberty, unless there is anything contrary in the contract itself, to transfer the benefits under the contract. The agreement, Exh. 6/7, contains' no prohibition to prevent the plaintiff from transferring the benefits therein to a third party. The plaintiff was competed to transfer the benefits under this agreement to any other person. The addition of the aforesaid words, therefore, cannot be treated as material additions to the document in question. This being so, these addition would not render the agreement of sale void in any way. I would, therefore, decide this issue against the defendant.

14. Issue No. 9.‑This issue raises a material question in the suit, which is, whether the suit should be decreed for specific performance, or for refund of the sale‑price by the‑defendant to the plaintiff, with such damages as the plaintiff may have proved. Before, however, discussing this point, it will be useful to note the nature of the defendant's interest in the suit‑land. The relevant document in this connection is the sub‑license, Exh. 9, which was produced on Court's order by the plaintiff himself. The President of Pakistan is described in the document as landlord of the land allotted to the .Karachi Co‑operative Housing Societies Union Ltd., for the purpose of developing housing schemes. The Union is described as the licensee, which in turn granted a further license to the Bahadur Yar Lang Cooperative Housing Society Ltd., which is described as sub- licensee No. 1, who, on its part, granted a further license, described as sub‑licensee No. 2, to the present defendant. The operative part of this sub‑license No. 2 authorises the defendant to enter upon the suit‑land for the purpose of constructing a building thereon. Clause 11(2) of the document provides that on completion of the building on the plot in accordance with the terms and conditions prescribed in this sub‑license and on the sub‑licensee No. 2 complying with the relevant rules, she shall be entitled to a‑lease of the said plot for 99 years, but, till then, the sub‑licensee No. 2 shall have no right or interest in the plot except that of a bare licensee, and shall not, without the previous permission in writing of the sub‑licensee No. 1 (that is, the Society), the licensee (that is, the Karachi Co‑operative Housing Societies Union Ltd.), and the landlord (that is, the President of Pakistan) transfer her interest in the said land either in part or in whole, except for the purpose of raising loan from the House Building Finance Corporation for constructing building thereon. Thus, the position is‑(i) the defendant is a bare licensee of the suit‑land‑(ii) the defendant cannot transfer her interest as a sub‑licensee without the written consent of the Bahadur Yar Jang Co‑operative Housing Society Ltd., the Karachi Co‑opera tive Housing Societies Union Ltd., and the President of Pakistan; (iii) the defendant is, however, permitted to transfer her interest to the House Building Finance Corporation for raising loan for construction of a building on her plot.

15. Such a sub‑licensee does not have any right or interest in the land held by him under the sub license. This is the view which I took in my decision in Mahboob Hassan v. Abdul Karim Peracha (Suit No. 113 of 1964), in which the present plaintiff's learned Advocate had appeared for the defendant, and had then advanced the argument that licensee or a sub‑licensee has no right or interest in the land itself, other than authority to construct a building thereon:

16. The defendant is thus only a bare licensee of the suit: land and the contract for sale in suit, Exh. 6/7, operates only as an agreement, for transfer of the sub‑license held by the defen dant, which transfer is dependent on the consent of three parties, namely, the Bahadur Yar Jang Co‑operative Housing Society Ltd., the Karachi Co‑operative Housing Societies Union Ltd., and the President of Pakistan, and on the further condition that the plaintiff becomes a member of the Bahadur Yar Lang Co‑operative Housing Society Ltd. The point which falls for determination is whether the contract for transfer of such license or sub‑license can be specifically enforced. It will here be useful to refer to the relevant provisions contained in Chapter II of the Specific Relief Act, 1877, which deals with the specific performance of contracts. Section 12 provides that specific per formance of any contract may be enforced in the discretion of the Court. Section 22 states that‑

"the jurisdiction to decree specific performance is dis cretionary, and the Court is not bound to grant such relief merely because it is lawful to do so ; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal."

The other relevant sections are sections 18 and 21. Under section 18(b), where a person contracts to sell or let certain property, having only an imperfect title thereto, and the concurrence of some other persons is necessary to validate the title and he is bound to convey at the vendor's or lessor's request, the purchaser or lessee may compel him to procure such concurrence. Under section 21(b), the Court will not specifically enforce a contract which runs, into minute or numerous details, or which is dependent on he personal qualifications or volition of the parties, or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms.

17. The legal position, therefore, is this‑----

(i) that specific performance of the contract is in the Court's discretion which, of course, is to be exercised on sound, reasonable, and judicial principles ; .

(ii) that a contract cannot be specifically enforced if its nature is such that the Court cannot enforce specific perfor mance of its material terms;

(iii) where the vendor has an imperfect title, which can be validated by the concurrence of other persons, the vendor will be compelled to obtain this concurrence if these other persons "are bound to convey at the vendor's or lessor's request."

A license of land is, by its very nature, revocable at the will of the licensor. The licensee or the sub‑licensee, as the case may be, does not have any right or interest in the land. His possession of the land is dependent on the continued permission of the licensor. In the present case, there are three licensors, on whose continued consent depends the possession of the suit‑land by the defendant. Would the Court, therefore, specifically enforce a contract for sale of land in a case where a vendor is only a bare licensee, and the license is liable to be revoked, thereby rendering the decree of the Court valueless and ineffective In my opinion, refusal to decree specific performance of such a contract would be a sound and reasonable exercise of the discretion which vests in the Court under sections 1,2 and 22 of the Specific Relief Act, 1877.

18. Another pertinent point is that the transfer by the defendant of the sub‑license for the land is dependent on‑ (i) plaintiff's becoming a member of the Bahadur Yar Jang Co‑operative Housing Society Ltd; and, (ii) the permission for transfer of the President of Pakistan, the Karachi Co‑operative Housing Societies Union Ltd., and the Bahadur Yar Jang Co‑operative Housing Society Ltd. Are these parties bound or under obligation to give this permission Is Bahadur Yar Jang Cc‑operative Housing Society Ltd. bound to accept the plaintiff as its member Mr. Fakhruddin, the learned Advocate for the plaintiff, was unable to satisfy me that the licensors, who are not parties to the suit, can be compelled to give permission for transfer of the sub‑license, or that the Bahadur Yar Jang Co‑operative Housing Society Ltd., is under obligation to extends its membership to the plaintiff. Thus, the performance of the contract would be dependent on the acts and volition of third parties who, in my opinion, cannot be compelled either to give their concurrence to the transfer of the sub‑license, or to accept the plaintiff as member of the Bahadur Yar Jang Co‑operative Housing Society Ltd. On the principle laid down in section 18(b), the defendant cannot be compelled to obtain this concurrence, because neither of the three licensors are bound or obliged to give this concurrence, nor is the Bahadur Yar Jan, Co‑operative Housing S3ciety Ltd. under compulsion to accept the plaintiff as its member.

19. I am of the view that the Court should not decree specific enforcement of a contract the performance of which depends on the volition of a third party. . I am strengthened in1 this view by three decisions, that, is Mansingh v. Rampiare (8 IC 1184), Psuejraj v. Kalasa (A I R 1927 Nag. 233) and Rarnsingh Kurulan Singh & Sons, v. Ramchand Issardas (A I R 1925 Sind 342). In Mansingh v. Rampiare, the contract was for the purchase of a share in a village and cultivating rights in the Sir land and required the sanction of the Collector under the Central Provinces Tenancy Act. It was held that since this permission was necessary and the Collector was not bound to give it on the vendor's request, the contract could not be specifically enforced. Punjraj v. Kalusa was a case for sale of Abadi site, to which the landlord's consent was necessary. It was held that the contract was dependent upon the volition and concurrence of a third person, who could not be compelled to give his assent thereto, however willing the parties to the contract may, be to perform their respective parts, and, accordingly, the suit could not be decreed for specific perfor mance. Is Ramsingh Kuxdansingh & Sons v. Ramchand Issardas, Raymond, J. held that a contract for sale of lease‑hold agricultural land situate within a Municipality, but dependent on the sanction of the Municipality, could not be ordered to be specifically performed.

20. In the present case, the contract is for transfer of a sub‑license, dependent on the sanction of the licensors, who are not bound to give this sanction. It has not been shown that the three licensors, have given their sanctions to the transfer of the sub‑license. Nor has it been shown that the Society has agreed or is bound to accept the plaintiff as its member. I may be that the plaintiff may succeed in obtaining the necessary sanctions and the membership of the Society. But it cannot be taken for granted that he will, in any event, succeed in obtaining the sanction or the membership of the Society. He may meet total failure in this respect, in which case the decree for specific performance would be rendered valueless and ineffective. The Court should be reluctant to give a decree which may become inoperative. In my opinion, the plaintiff should have joined the licensors as parties to the suit because, in that event, it would have been possible to ascertain as to whether the requisite I sanctions would be forthcoming or not. The licensors, including the Bahadur Yar Jang Co‑operative Housing Society Ltd., if not necessary parties, were at least proper parties to the suit, but the plaintiff failed to bring them on record.

21. In view of the foregoing discussion, I am of the view that it would be a reasonable exercise of the Court's discretion to refuse the prayer for specific performance of the contract in suit. I would, therefore, decline to accede to this prayer, but the plaintiff is entitled to the grant of the alternative relief, that is, refund of the consideration paid by him to the defendant which is Rs. 27,468 (Rupees twenty‑seven thousand four hundred and sixty‑eight) and also the amount of Rs. 2,817.00 (Rupee two thousand eight hundred and 'seventeen) paid by the plaintiff to the Bahadur Yar Lang Cc‑operative Housing Society towards the arrears of the development charges. The plaintiffs claimed damages in the sum of Rs. 10,000.00 (Rupees ten thousand) with the alternative relief for refund of the sale price and the development charges paid by him to the Society, but no evidence was led do prove these damages. The plaintiff, in his deposition, remained silent on this subject. Nor were any arguments addressed to me on this point. In my opinion, the plaintiff had a good case for a decree for compensation for breach of contract, but due to total absence of evidence, I am unable to grant any relief in this respect. The plaintiff also failed to take advantage of my order for re‑hearing of arguments to canvass the question of damages. It is doubtful if I can grant interest by way of damages for wrongful detention of the consideration money, because of the decision of the Judicial Committee of the Privy Council in Bengal Nagpur Railway Co. v. Buatunji ((1937) 651 A 66). Interest by way of damages may possibly granted, not for wrongful detention of moneys, but as compensation for breach of contract. But the plaintiff on this point addressed no arguments to me, and I would not like to make any definite pronouncement in this respect in the present case. Moreover, even to claim interest as damages th case should be brought within section 73 of the Contract Act, that is, the plaintiff should show on evidence that he is entitle to such compensation for any loss or damage caused to him in the natural course of things from breach of contract on the defendant's part. As I have stated, there is no evidence on the point at all. I do think that the defendant committed breach of the contract to sell the suit‑land to the plaintiff, and the latter should have received compensation for this breach. But in the absence of any evidence, I am helpless to grant the plaintiff any relief in this respect.

22. In the result, therefore, I would dismiss the suit for specific performance of the contract in suit, but would decree the suit for refund of As. 27,468 (Rupees twenty‑seven thousand four hundred and sixty‑eight) together with further amount of Rs. 2,817(Rupees two thousand eight hundred and seventeen) paid by the plaintiff to the Bahadur Yar Jang Co‑operative Housing Society Ltd., the total amount being Rs. 30,285.00 (Rupees thirty thousand two hundred and eighty‑five). The plaintiff will also have interest on this amount at six per cent. per annum from the date of the suit until payment and proportionate costs of the suit.

A. H. Order accordingly.

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