IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Umar Ata Bandial
Mr. Justice MazharAlam Khan Miankhel
Mr. Justice MunibAkhtar

Civil Appeal No.1355/2006 and Civil Appeal No.1495/2006

(On appeal from the judgment dated 1.8.2006 passed by the High Court of Sindh at
Karachi in HCA No.91/2006 & HCA.No.108/2006).

1. Mrs. ZakiaHussain and another ..(In CA.1355/2006)

2. Mrs. ZakiaHussain ..(In CA.1495/2006)

…Appellants
VERSUS

1. Syed FarooqHussain ..(In CA.1355/2006)

2. Syed FarooqHussain ..(In CA.1495/2006)

…Respondent(s)

For the appellants: Malik MuhammadQayyum, Sr. ASC

(In both cases) alongwith Syed Akbar Hussain

For the respondent(s): Mr. ShahabSarki, ASC

(In both cases) alongwith Syed FarooqHussain

Date of hearing: 12.2.2020&13.2.2020

JUDGMENT

MazharAlam Khan Miankhel, J-.

A sale agreement dated 31.01.2001 regarding

Apartment No.4, third floor, Kashmir Court, Plot No.162/F/3,

P.E.C.H.S., Karachi (Suit Property) is the matter of concern

CA.1355/2006 etc 2

between the parties to the present lis, i.e. the appellants as

vendor/Defendants (Appellants) and the Respondent being the

vendee/Plaintiff (Respondent). As per allegations in the plaint,

when the appellants failed to perform their part of contract,

respondent filed a suit for declaration alongwithsix other prayers

fully described in the plaint. The appellants by contesting the

same filed their written statement. After a regular trial, learned

trial Court (High Court of Sindh) granted a decree in favour of

respondent vide its judgment and decree dated 13.3.2006 but

only withregard to prayers A, B and C and the said judgment &

decree was silent with regard to other prayers. Both the parties

feeling themselves aggrieved of the same, filed their respective

appeals (HCA No. 91/2006 and HCA No.108/2006). After hearing

the parties, the learned division Bench of the High Court allowed

the appeal of respondent (H.C.A.108/2006) by defining the terms

and conditions of the judgment & decree by way of a short order

dated 18.05.2006 whereas the appeal of the present appellants,

(HCA.91/2006) was dismissed by way of a common judgment

and decree dated 01.08.2006.

2. The appellants still feeling aggrieved have questioned

the above noted common judgment & decree dated 01.08.2006

through two separate appeals before this court.

3. These appeals are pending adjudication since 2006.

Once on 13.10.2016, this Court during the course of hearing had

CA.1355/2006 etc 3

noted that the respondent, during the course of trial, had not

appeared as his witness and his attorney, who was not fully

conversant with the facts and circumstances of the case

personally, had deposed in the Court which is nothingless than a

hearsay and the attorney does not fall within the purview of

Order III Rule 1 & 2 of Civil Procedure Code 1908 (CPC). Besides

the above, the oral evidence in the case was not recorded by the

court itself as provided in Order XVIIIof CPC rather the same was

recorded through a local commissionwhich does not qualify the

test of exceptions for the purposes of recording of evidence by the

commission. To resolve the above questions of law, Syed Najmal-

ul-Hassan Kazmi and Mr. Makhdoom Ali Khan learned Senior

Advocates Supreme Court were appointed as amicus curiae.

4. Both the learned Senior Advocates Supreme Court

submitted their valuable written submissions through

C.M.As.No.9968 and 9969 of 2017 respectively. We must

appreciate that these submissions are really very helpful and

beneficial to decide the above issues.

5. We, before considering the merits of the case, would

like to dilate upon the above said legal questions. To consider the

said issues, we may observe that there is no hard and fast rule

available in law to answer the above questions. Facts and

circumstances of each case are the determiningfactors in

considering such like questions.

CA.1355/2006 etc 4

6. There is no cavilto the proposition that a question of

law can be raised at any stage of the case but again that has to

be considered in the light of facts and circumstances of each

case. It is for the court to decide whether such party can be

allowed to raise such objection for the first time before this court

or facts and circumstances of a case do not permit to allow a

party to raise such question for the first time.

7. The courts of civil judicature for their procedure are

regulated by the Code of Civil Procedure (Act V 1908) (Code) but

at the same time it does not affect any special or local law or any

special jurisdiction or power conferred or any special forum of

procedure prescribed by any other law. It provides the general

procedure for trial and proceedings of the civil cases besides the

inherent jurisdiction of the civil courts. Appearance of parties

during the trial/proceedings in person or through recognized

agent/attorney is provided in Order III of the Code. So,

appearance of attorney on behalf of a party is not alien to the

civil judicature. An attorney is competent to act on behalf of the

party in the light of specific authority given to him. The question

beforeus requiring determination is whether a witness not fully

conversant with the facts and circumstances of the case would

be a competent witness within the meaning of Rule 1 & 2 of

Order III CPC. The case law of the country so far developed

regarding this question is based on the facts and circumstances

CA.1355/2006 etc 5

of each case. Initially, it is the party itself to depose about the

first hand and direct evidence of material facts of the transaction

or the dispute and its attorney having no such information

cannot be termed as a competent witness within the meaning of

Order III Rule 1 & 2 of CPC. Yes! The attorney can step-in as a

witness if he possesses the first hand and direct information of

the material facts of the case or the party had acted through the

attorney from the very inception till the accrual of cause of

action. Deposition of such an attorney under the law would be as

good as that of the principal itself. Non-appearance of the party

as a witness in such a situation would not be fatal. If facts and

circumstances of the case reflect that a party intentionally did

not appear before the court to depose in person just to avoid the

test of cross examination or with an intention to suppress some

material facts from the court, then it will be open for the court to

presume adversely against said party as provided in Article 129

(g) of Qanun-e-Shahadat, Order 1984 (QSO, 1984).

8. Similarly while coming to the second question we may

observe that recording of evidence is the job of the court. A

witness while deposing before a court, his veracity, conduct and

demeanor is adjudged by the court. A witness can be a party to

the suit itself or attorney or witness of other facts and record.

Rule 4 of Order XVIII (CPC) requires that evidence of a witness be

recorded in open court. During such exercise court has to decide

CA.1355/2006 etc 6

about the admissibility of documents/evidence. Also the question

of re-examination of a witness and allowing a party to cross-

examine its own witness is also to be determined by the court

but subject to the facts and circumstances of the case.

Sometimes a woman as a witness is exempted from personal

appearance as provided in Section 132 of CPC. A kind of sickness

or infirmity of a witness may compel the court to issue

commission for recording of evidence of such witness. Sometimes

a witness is within the jurisdiction of the Court but cannot

appear for any compelling reasons or a person outside the

jurisdiction of the courtor is going to leave the jurisdiction or a

person in the service of state can be examined through a

commission. Even a commission can be issued to a court to

record the evidence of a person residing within its jurisdiction.

This entire procedure is provided in Section 75 to 78 read with

Order XXVI of CPC.Even a local commission can be issued with

consent of the parties. The provision of Rule 8 of the Order ibid

would make it clear that an evidence taken under a commission

cannot be read as evidence in the suit but with the consent of the

party against whom the same is offered. It is for the court to

satisfy itself regarding the conditions necessary for issuance of

commission and on return of commission with deposition of

witnesses,court can order it to be made part of the record of the

suit. Even a High Court may issue a commission for recording of

evidence of a witness under Rule 19 of Order ibid. So, in view of

CA.1355/2006 etc 7

the above discussion, we can say that it is the court seized of the

matter to take a decision for issuance of commission by keeping

in mind the facts and circumstances of the case.

9. After considering the above legal position, we would

like to dilate upon the merits of the case by keeping in mind the

above discussion on the questions of law.

10. The main stress of the learned counsel for the

appellantsthrough his oral as well as written submissions

remained the same as pointed out in question No.1 above.

Besides this technical though legal argument, other submissions

of the learned counsel for the appellants were that respondent

did not make final payment of Rs.6,50,000/- inspite of reminders

which as per sale agreement dated 31.01.2001 was to be paid on

or before 31.07.2001 and thereby failed to perform his part of

contract which prompted the appellants to cancel the sale

agreement on 02.08.2001 as the date fixed for payment was the

essence of contract. He further argued that appellants in order to

perform their part of agreement were always ready to deliver the

possession of the suit property “as is where is basis” but due to

financial restraints respondent did not make the balance

payment and failed to get possession of the suit property and

prayed for dismissal of suit by accepting instant appeals.

11. As against that the learned counsel for the

respondent submitted that the appellants had approved plan and

CA.1355/2006 etc 8

permission to raise construction of ground plus two floors and

they had no such legal permission to raise construction of 3rd

floor. The appellants by practicing fraud and concealment of this

material fact, did not disclose the legal defect in their capacity to

enter into an agreement for sale of an apartment on the third

floor for which they had no valid and legal approval/sanction by

the authority concerned. The cancellation of sale agreement

unilaterally,he argued, is unlawful andhaveno adverse effect on

his rights.He argued that the respondent was ready throughout

to fulfill his part of agreement by making final payment but

appellants were not in a position to deliver the possession of the

apartment as the same was incomplete and not ready besides

there was no legal approval/sanction for raising such

construction. With these submissions the learned counsel for

respondent supported the impugned judgment and decree and

prayed for dismissal of both the appeals.

12. Learned counsel for the parties were heard and record

of the case was perused. The perusal of the record would reveal

that only non-payment of balance amount of Rs.6,50,000/- and

the factum of legal and valid authority of appellants to enter into

an agreement of sale in absence of approval/sanction from KBCA

to raise construction of 3rd floor and the two law points discussed

above would require consideration. Besides the above, we would

also like to consider as to whether the facts and circumstances of

CA.1355/2006 etc 9

the case attract the commission of fraud, concealment of true

facts and malice on the part of appellants. The execution of sale

agreement dated 31.01.2001, payment of part of sale

consideration amounting to Rs.1.5 million and the outstanding

amount of sale consideration i.e. Rs.6,50.000/- on or before

31.07.2001 never remained disputed between the parties.

Besides the above admissions, it has also been established on

the record that initially the appellants, had lawful approval of

Karachi Building Control Authority (KBCA) to raise construction

of ground plus two floors and they had no such approval for

raising construction of 3rd floor. Though their case in this regard,

as per record and even admissions made by the appellants,

remained pending since 1995 with KBCA and they also filed two

civil suitsbefore the High court and then before the lower court

but both the suits were dismissed. Again an established fact is

that the appellants got lawful approval of occupying of entire

building including 3rd floor on 25.02.2003 by the KBCA much

after the filing of instant suit on 10.10.2001.

13. We, in the circumstance, first would like to discuss

the effect of two legal questions mentioned above. The legal

position in general of the issues has already been discussed

above. Mainstress of arguments of the learned counsel for the

appellants was also with regard to first question. No doubt,

respondent, being a vendee to the sale agreement in question,

CA.1355/2006 etc 10

did not appear as his witness to depose about the material facts

but when we go through the record of the case, it appears that

this never remained a question of defence of the appellants

throughout the trial and even during the course of hearing of

their appeal by the High Court. They even did not bother to raise

a specific ground in this regard.No doubt certain questions

regarding some facts were put to attorney and he was not aware

of the same. But in our view all the material facts requiring

determination are either admitted or to be considered in

accordance with law by the court. So, unawareness of the

attorney regarding some immaterial facts would not make any

dent muchless serious and material in the case of

respondent.Since respondent, as an admitted fact, was abroad

for his job, had appointed an attorney to pursue his case and his

mere presence alongwith the original record on the day statement

of attorney was recorded would again not be fatal to the merits of

the case. Points in issue and disputed facts requiring

consideration by the court are well before the court. Appointment

of attorney in any special circumstance is within the sphere of

law. That special circumstance of respondents living abroad is

also not a disputed fact. His statement in the circumstances

cannot be held to be against the provisions of Rule 1 & 2 of Order

III (CPC). A look at the entire statement of GhulamHyderAbbasi,

the attorney, would alsomake it clear that the same is a good

CA.1355/2006 etc 11

piece of evidence and he was fully aware of the material facts of

the case.

14. Learned counsel for the appellants has relied upon

the case law which in the circumstances cannot be made

applicable to the facts and circumstance of the present case

Dilshad Begum v. NisarAkhtar (2012 SCMR 1106) and Abdul

Qayyum v. Muhammad Sadiq (2007 SCMR 957). Both the above

noted cases were given under pre-emption laws and a question of

performance of talabs by the agent was involved and there was

no reason available on the record as to why the principal did not

appear before the court to establish the factum of talabbut in the

case in hand reasons of absence of respondent were admitted as

discussed above and there was not a single material fact which

required its establishment by the plaintiffhimself. Again case of

Abdullah Khan v. Nisar Muhammad Khan (PLD 1959 (W.P.)

Peshawar 81) would also not be applicable. We fully agree with

the finding that party knowing the facts should appear to face

the test of cross-examination and this is the settled law. But here

in this case reasons for appointment of attorney were not denied.

Yes! on the day of recording of evidence his attorney had called

him from abroad to bring the original record which he did. So, we

in the circumstances, hold that non-appearance of respondent as

his witness will have no adverse effect on his case.

CA.1355/2006 etc 12

As far as 2ndquestion is concerned, issuance

of commission for recording of evidence is also within

the jurisdiction of court and domain of law. The

conditions and situations for issuance of commission

have been discussed above. Record of the case reveals

that the commission for recording of evidence was

issued with consent ofboth the parties vide order dated

22.4.2002. Since trial of civil cases is conducted by the

High Court and it is the general practice of the High

Courtof Sindh that because of rush of work

commissions are normally issued with the consent of

the parties. If any party has got any objection regarding

issuance of commission then, as per practice of the

court, that objection is noted and properly considered

by the court. We can lay hands on some of the cases

wherein similar conditions have been dealt

with.KhawajaFeroz v. Muhammad Dawood) (PLD 2008

Karachi 239), Badar Rahim v.

HammadAsifDosslani(2009 CLC 459), IqbalM. Hamza v.

Gillette Pakistan Ltd (2011 YLR 277), Hafeez Begum v.

Zainab Muhammad Ali(2014 MLD 1000).Even

Islamabad High Court in a case reported as BBC

Pakistan (Pvt) Ltd v. MasudAlam(2018 YLR 363)adopted

the same view. Besides the above, we may refer to a new

provision of Rule 1A of Order X CPC where-under court

CA.1355/2006 etc 13

can adopt any lawful procedure, not inconsistent with

the provisions of CPC, including issuance of commission

with the consent of parties amongst others. The same is

reproduced for ready reference:-

“ORDER X
EXAMINATION OF PARTIES BY THE COURT

1. Ascertainment whether allegations in

pleadings are admitted or denied._____

………………………………………………………

[1A.The Court may adopt any lawful

procedure not inconsistent with the provisions
of this Code to:-

(i) Conduct preliminary proceedings and

issue orders for expediting processing
of the case;

(ii) Issue, with the consent of the parties,

commission to examine witnesses,
admit documents and take other steps
for purposes of trial;

(iii) Adopt, with the consent of the parties,

any alternative method of the dispute
resolution including mediation,
conciliation or any such other means.].

However, provincial assembly of Sindh introduced certain

amendments to the Code of Civil Procedure Act (Act V of 1908) vide its

Sindh Act IV of 2019 dated 25.02.2019 whereby Order X Rule 1A was

substituted through Section 5 of the Act ibid which reads as under:-

CA.1355/2006 etc 14

“1A.- The Court may adopt any lawful procedure

not inconsistent with the provisions of this Code and adopt
any method of Alternative Dispute Resolution (hereinafter
referred to as “ADR”) under Section 89A of this Code”.

15. This court in the case Muhammad Sharif v.

NabiBakhsh (2012 SCMR 900) has also appreciated this rule.

While coming backto the facts of the case, we see that even no

one raised any objection in this regard. During recording of

evidence not a single objection of law was raised before the

commission which could have hampered the proceedings before

the commission. So, we without any hesitation can hold that

there was no illegality in issuance of commission who only

recorded the version of the parties and accepted the documents

in evidence. The veracity of the evidence and authenticity and

admissibility of documents was considered by the court itself

which makes it lawful. Besides, no objection was raised by any of

the parties during hearing either before the trial court or before

the High Court in appeal. So, this does not lie in their mouth to

raise such objection before this Court for the first time.

16. As far as next argument of the learned counsel for the

appellants regarding non fulfillment of part of contract by the

respondent by failing to make final payment on due date is

concerned, that,in the peculiar circumstances of the case in

hand, appears to be absurd and illogical. There is no denial of

the fact that the date on which final payment was to be made i.e.
CA.1355/2006 etc 15

31.7.2001 the apartment in question was incomplete. The

appellants being fully aware of its non-completion and having full

knowledge of lack of approval/sanction of construction of third

floor (where the suit property is situated) by KBCA, the

concerned authority, unilaterally cancelled the sale agreement

dated 31.01.2001 through a notice dated 02.08.2001 (sent

through fax). The only reason for cancellation of sale agreement

was non-payment of the balance amount of Rs.6,50,000/- by

invoking and taking advantage of Clause 6 of the sale agreement

but on the same side they just ignoredother Clauses of the sale

agreement which speak of delivery of vacant and peaceful

possession of the premises after informing vendee in writing and

execution and registration of sale/sub-lease deed. There is

nothing in black and white from the side of appellants asking the

respondent to take possession. The agreement is silent regarding

a specification of date and time of delivery of vacant possession

and also the date of execution and registration of sale/sub-lease

deed and it only mentions the date of final payment agreed

between the parties. It is worth to mention that the sale price of

the suit property included water, electricity and gas charges. The

unilateral act of cancellation of sale agreement by the appellants

was based on their misconception and mistaken belief of a term

used in the sale agreement, “as is where is basis”. During the

trial of the case appellants tried to develop a case that the

respondent had agreed to accept delivery of possession of

CA.1355/2006 etc 16

incomplete apartment as he was short of finances and for that

matter this clause was added in the agreement. Had this been

the situation, it must have been written in the agreement in clear

and unambiguous words. The respondent while observing the

same incomplete condition of the apartment, finally served the

appellants with a notice dated 7.9.2001 that he is ready to make

payment subject to delivery of possession of apartment, complete

in all respects and execution/registration of sale/sub-lease deed.

On their failure to comply with their part of agreement,

respondent filed instant suit wherein he also questioned the

cancellation of sale agreement besides other reliefs and

expressed his willingness to make payment subject to delivery of

possession of the apartment and execution of sale deed. Record

of the case would further reflect that the appellants don’t have

any defence much less plausible except non-payment of balance

amount by the respondent within the due date and reiterated the

stance of delivery of possession of the apartment on “as is where

is basis”. This defence on the very face of it appears to be

baseless and unjustifiable. Unless specifically agreed upon

between the parties due to some compelling reasons, a person of

sound mind can in no way on the basis of the sub clauseaccept

an incomplete structure without utilities, although same are

undertaken in the agreement. In the given circumstances, we

cannot agree with stance of the appellants regarding the date

fixed for performance of contract to be a date essence of contract.

CA.1355/2006 etc 17

Mere mention of date in an agreement per se cannot be

considered to be a date essence of contact. It is a settled principle

of law that facts and circumstance of each and every case would

be determinative factor to hold as to whether time is essence of

contract or not. We in the given circumstances cannot agree with

appellants. Here in this case conduct of the appellants is the

most important factor to determine the fate of the case. It is an

admitted fact on the record that the appellants initially had

approval/permission from KBCA to raise construction of ground

plus two floors which as per record was completed somewhere in

1995. Thereafter appellants started efforts to get permission to

raise construction of 3rd floor. Again an admitted fact that prior

to said approval/permission they had started construction of 3rd

floor. They in this regard even filed a civil suit against KBCA in

High Court and thereafter in the lower courts but both were

dismissed. The respondent, in thecircumstances, having no other

option, filed instant suit wherein he, after issuance of his legal

notice dated 07.09.2001, once again expressed his willingness to

pay/deposit the balance amount and asked for delivery of

possession incomplete form alongwith execution of sale/sub-

lease deed. It is worth to mention here that the suit apartment is

still in that incomplete condition and the respondent on the

directions of the court had deposited the balance amount in the

court in 2006 which is still lying there.

CA.1355/2006 etc 18

17. It is time and again held by this court that specific

performance of a contract is essentially an equitable and

discretionary relief and the court seized of the matter is in a

better position to decide and resolve not simply according to the

spirit of the law but also in accordance with the principles of

substantial justice by keeping in mind peculiar facts and

circumstance of each case. It cannot be claimed as a matter of

right. The discretion to be exercised by the court requires that it

should not be arbitrary but should be sound and reasonable

guided by judicial principles and capable of correction by a court

of appeal. Such an exercise of grant or refusal of relief would

depend on the facts and circumstances of each case and also the

conduct of the parties. This is the mandate of Section 22 of The

Specific Relief Act, 1877. The same is reproduced for ready

reference:-

“22. Discretion as to decreeing specific

performance:The jurisdiction to decree specific
performance is discretionary, 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.”

18. The perusal of the above quoted provision of law

clearly speaks the mandate of law. Learned counsel for the

appellants placed reliance on the cases of Gulshan Hamid v.

Abdul Rehman (2010 SCRM 334), Muhammad Ibqal v.

CA.1355/2006 etc 19

MehboobAlam (2015 SCMR 21), Muhammad

AbdurRehmanQureshi v. Sagheer Ahmad (2017 SCMR 1696). A

perusal of these judgments would reveal that the same cannot be

made applicable to the peculiar facts and circumstances of the

case in hand. Similarly the case ofArshadHussain v. ZenatunNisa

(2017 SCMR 608) is also not applicable being altogether a case of

different facts and law.

19. A look at the entire record of the case would make it

abundantly clear that here in this case the vendee/respondent

was cheated and defrauded by concealing the factum of non-

approval/sanction from KBCA for illegal construction of 3rd floor

where the suit apartment is situated. Though the appellants have

tried to make out a case that the said non-approval/sanction

from KBCA was brought into the knowledge/notice of the

respondent and thereafter the respondent entered into an

agreement of sale. This stance of the appellants does not get

support from record of the case. Even the sale agreement is silent

in this regard. Respondent might have seen, as alleged, the

construction being carried out on 3rd floor but that does not

mean that he had knowledge of the above deficiency. Even at the

time of sale agreement, both the suits of appellants against

KBCA for seeking approval were dismissed. This was a fact so

important that this should have been brought into the notice of

respondent in clear and unequivocal terms. Because grey

CA.1355/2006 etc 20

structure was there but permission/sanction of the concerned

authority was not there. So, in such a risky state of affairs,

knowledge and notice of respondent in something black and

white was must. Thereafter it would have been his open choice to

go for agreement to sell or not. At least there should have been a

clause in the sale agreement that sale deed or possession would

be delivered after getting proper approval of the entire 3rd floor or

anything like that. But there is nothing of the sort. To the good

luck of the respondent that the said approval of 3rd floor by the

KBCA was accorded on 25.02.2003, much after the institution of

present suit otherwise his already deposited amount of Rs.1.5

million would have been at risk. Had the appellants have bona

fide intention, aftergetting approval, they could have asked the

respondent that remaining work of the apartment would be

completed by them and by the time he should make payment of

balance amount but they continued with the contest and have

dragged him for almost two decades when Rs.1.5 million were

already paid in 2001 and remaining balance Rs.6,50,000/- was

deposited on the orders of the court in the year 2006. The

respondent in his plaint has asked for damages and costs of suit

etc but the record would reveal that there was no such evidence

brought by the respondent. In such like situations actual loss

and damages cannot be calculated rather principle of rule of

thumb is applied. We think this aspect should have been

considered by the High Court (in trial and then in appeal).We, in

CA.1355/2006 etc 21

the circumstances,would not like to grant such relief to

respondent at this stage but would dismiss both the appeals with

costs of Rs.3,00,000/- (three lac) for false and vexatious defense

and wasting the time of courts. This amount of costs be

recovered/paid to the respondent from the balance amount of

Rs.6,50,000/-lying with the court and the remaining i.e.

Rs.3,50,000/- can be withdrawn by the appellants.

Judge

Judge

Judge

Announced at Islamabad on _______________

Judge

“APPROVED FOR REPORTING”

‘Sarfraz/’-