Find a Lawyer

MESSRS TEE JAYS EXCLUSIVE (PVT.) LTD. versus MUHAMMAD NAVEED

ection Section 12 - Contract AC * (IX of 1872), Section 5S - Civil Procedure Code (V8 of 1908), O. VIIi, RR 3, 5 and O XL1, R 22 (4) - Specific performance of the sales contract Time is not the essence of the deal - whisper refusal - Cross objection - Plaintiff contracted with defendant to purchase suit property but the defendants were jailed for business certificate and approval of dues, so the deadline for the sale agreement Can't complete sale in. For the specific performance of the sale agreement by the plaintiff, the trial court instructed the defendants to retain the balance of Rs 500,000 / - and return the Rs 95,00,000 / - to the plaintiff - the defendant's defendants partially The case was tried and the judgment was passed by the trial court in which the plaintiff also filed a notice of objection and submitted the required court fee, but the defendants later withdrew their appeal, which was deemed to have been admitted by them. Delivering the property as a commercial property and all such legal obligations before finalizing the sale Were obliged to meet the obligations - the respectful promises of the two parties under the agreement were related to each other in nature and depended on each other's performance - the defendant was not obliged to pay the balance sale to the defendants. Unless the suit property business was completed and he was not ready to take it on as a commercial property. No infringement was committed and the defendants committed infringement of the property not to the plaintiff as a business property, because of their mutual promise to them.

P L D 2017 Sindh 88 

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Messrs TEE JAYS EXCLUSIVE (PVT.) LTD. through Managing Director and another—Appellants

versus

MUHAMMAD NAVEED—Respondent

No. 147 of 2009, decided on 4th August, 2016.

(a) Civil Procedure Code (V of 1908)—

—O. XLI, R. 22 (4)—Appeal—Maintainability—Cross objections— Withdrawal of main appeal—Cross objections were filed by respondent within time and he had also paid requisite Court fee thereon—Effect— Respondent's cross-objections were maintainable in circumstances, [p. 100] A

Suba and others v. Abdul Aziz and others 2008 SCMR 332 rel.

(b) Specific Relief Act (1 of 1877)--•

—S.12—Contract Ac* (IX of 1872), S.5S— Civil Procedure Code (V of 1908), O.VIIi, Rr. 3, 5 & O.XL1, R.22 (4)—Suit for specific perfÓrm;ance of agreement to sell—-Time not essence of contract— Evasive denial—Cross objection—-Plaintiff entered into agreement with defendants to purchase suit property but defendants jailed to provide commercialization certificate and clearance of dues therefore, sale could not be completed within the time stipulated in agreement to sell— Suit filed by plaintiff for specific perfÓrm;ance of agreement to sell was dismissed by Trial Court with direction to defendants to retain Rs. 500,000/- from earnest money and return remaining Rs. 95,00,000/-to plaintiff—Defendants partially assailed judgment and decree passed by Trial Court wherein plaintiff also filed memorandum of objection and deposited requisite court fee but later on defendants withdrew their appeal—Validity—Defendants did not deny specific averments and allegation made by plaintiff, the same were deemed to have been admitted by them—Defendants were obliged to convey suit property to plaintiff as a commercial property and to complete all requisite statutory obligations in such behalf before finalization of sale— Respective promises of both the parties under the agreement were reciprocal in nature and were dependent on perfÓrm;ance of each other—Plaintiff was not obliged to pay balance sale consideration to defendants unless entire process of commercialization of suit property was completed and it was ready to be conveyed to him as a commercial property—Plaintiff had not committed any breach and defendants committed breach by not conveying suit property to plaintiff as a commercial property, as it had never become impossible for them to perfÓrm; their reciprocal promise—Time stipulated in agreement was of no consequence in view of reciprocal promises of parties—Time was not deemed to be essence of contract in cases of immovable properties—High Court set aside judgment and decree passed by Trial Court and decreed the suit filed by plaintiff—Cross objection was allowed in circumstances, [p. 104] B

Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993

SCMR 374; Mst. Baswar Sultan v. Mst. Adeeba Alvi 2002 SCMR 326; Karam Din through L.Rs and others v. Muhammad Idrees 2010 CLC 246; Bolan Beverages (Pvt.) Limitedv. PEPSICO Inc. and others PLD 2004 SC 860; Mst. Safia v. Mst. Bibi and 14 others 2005 MLD 646; Anwar Sajid v. Abdul Rashid Khan and another 2011 SCMR 958, Sirbaland v. Allah Loke and others 1996 SCMR 575; Muzaffar Javed v. Haji Noor Bakhsh and others 2002 MLD 1474; Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others 2012 SCMR 954; Asmatullah v. Allah Nawaz and others 2007 MLD 1329; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Fazal-ur-Rehman v. Ahmed Saeed Mughal and others 2004 SCMR 436; and Abdul Aziz and another v. Abdul Rehman and others 1994 SCMR 111 distinguished.

Mushtaq Ahmed and others v. Muhammad Saeed and others 2004 SCMR 530; Muhammad Islam and 5 others v. Messrs Real Builders through Shaikh Muhammad Sadiq and others PLD 2011 Kar. 204. Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCMR 584; Sajid Muhammad v. Abdur Rehman 1996 MLD 60; Muhammad Hussain and another v. Federation of Pakistan through Secretary, Law Justice and another 2003 YLR 2793; Sargodha Central Co-operative Bank Ltd. and another v. New Hampshire Insurance Co., PLD 1982 Kar. 627 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365; Muhammad Nawaz v. Mst. Ahmad Bibi and 3 others 1995 SCMR 266 and Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 ref.

Mirza Sarfaraz Ahmed for Appellants.

H.A. Rahmani for Respondent.

Dates of hearing: 20th October, 6th, 20th and 6th November,

Pakistan, top advocate family court from Rawala Kot lawyer