PLD 2011 SC 540
(a) Contract Act (IX of 1872)---
----S.55---Time as essence of contract---Extension in time---Effect---If time is extended for performance of a contract pertaining to immovable property, then time can never be enforced as of the contract.
(b) Specific Relief Act (I of 1877)---
----S.42---Contract Act (IX of 1872), S. 55---Cancellation of plot---Limitation---Pending proceedings---Extension in building period---Condemned unheard---Plot in question was allotted to plaintiff in year, 1963 and building period was extended up to 13-11-1968, however actual construction was started in year, 1971, when allotment was cancelled---Lower Appellate Court and High Court dismissed the suit filed by plaintiff on the ground that the same was barred by limitation---Validity---Limitation would run from the date of final order but if proceedings were pending before competent forum, then plaintiff could not be non-suited on the ground of limitation---Cancellation order itself was without notice and was tainted with malice, besides discriminatory---Suit filed by plaintiff during pendency of revision before revenue authorities was justified when plaintiff realized that his revision had remained undecided for several years---Lower Appellate Court and High Court on the issue. of limitation had wrongly decided that the suit was time-barred---Since no final order was passed by revenue authorities and the matter was pending before revisional authority; therefore, suit was within time---Cancellation order was without lawful authority and did not attract bar of limitation---Even the excess. land allotted to plaintiff was not cancelled, which had been encroached upon by defendant and other neighbours---Judgments and decrees passed by Lower Appellate Court and High Court were set aside and suit was decreed with cost in favour of plaintiff---Appeal was allowed.
Collector Sahiwal v. Muhammad Akhter 1971 SCMR 681; Rehmat Bibi v. Punnu Khan 1986 SCMR 962; Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR 856; Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39 and Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 ref.
Syed Shahanshah Hussain, Advocate Supreme Court and A.Aziz Khan, Advocate-on-Record for Appellants.
M. Shafi Muhammad, Advocate Supreme Court and M.A.S.K.Ghouri, Advocate-on-Record for Respondent No.1.
M. Aqil Awan, Senior Advocate Supreme Court, Ghualm Qadir Jatoi, Advocate-on-Record and Azhar Memon, Administrator, Latifabad for Respondent No.2.
M. Sarwar Khan, Addl. A.G.Sindh (On Court Notice).
Date of hearing: 1st March, 2011.
JUDGMENT
AMIR HANI MUSLIM, J.---Through this appeal, the L.Rs of Hafiz Sheikh Anwar-ul-Haq, have challenged the judgment dated 14-5-2009, passed in IInd Appeal by the learned Sindh High Court which has affirmed the judgment, of IInd Additional District Judge, Hyderabad, in Civil Appeal No.125 of 2009 filed by the respondent No. 1.
2. This case has chequered history. The available record reveals that on 12-2-1963, Plot measuring 600 square yards bearing No.B-180, Unit No.II-C, Shah Latifabad Town, Hyderabad, was allotted to Hafiz Sheikh Anwar-ul-Haq (hereinafter referred to as the 'appellant') possession of which was handed over to him on 13-2-1963. Adjacent to the said plot, there was an excess area of land measuring 160 square yards for which appellant had also applied for allotment and said excess area of 160 square yards of land was also allotted to him possession of which however was delivered after several years. The record reflects that the entire dues were paid by the appellant who died during pendency of the proceedings and his L.Rs joined proceedings. On 19-2-1966, the building plan of the plot in question was approved for its construction but owing to the fact that possession of the excess area of land was not delivered, the appellant sought extension of time for construction which was extended up to 13-11-1968. However, the actual construction was started in the year 1971.
3. It is claimed by the appellant that when the plot was under construction, the respondent No.1 took forcible possession of the plot. The record shows that on 24-3-1971 plot measuring 600 square yards was cancelled by the respondent No.2. However, the excess area, allotted in favour of the appellant, has not been cancelled till date. It further reflects that prior to cancellation of the plot, a notice dated 28-1-1970 was issued to the appellant by the respondent No.2, calling upon him to show cause as to why his plot should not be cancelled for violating the terms of allotment and for not raising construction within the stipulated period. This show-cause notice of cancellation of the plot was admittedly returned undelivered with the endorsement of the postal authorities that the appellant was out of station. The appellant claims that when construction on plot was in progress, the respondent No.1 took forcible possession of the plot in question. The appellant then approached the office of the respondent No.2 from where he learnt that his plot has been cancelled.
4. The appellant preferred appeal before the Deputy Commissioner, who was ex-officio Vice-Chairman of the Administration Committee of Latifabad Town, the respondent No.2. The appeal was heard and the same was dismissed affirming the order of cancellation by the Secretary, Administration Committee, Latifabad Town, inter alia, on the ground that the appellant was rightly found guilty of violating the terms and conditions of allotment by failing to raise construction within the stipulated time as provided in the allotment. Against this order, in appeal, the appellant approached the Revenue Commissioner, Sindh, who also dismissed the appeal with the observation that another plot of the similar area, as far as possible, be allotted to the appellant and amount already paid by him towards the dues of his cancelled plot be adjusted against fresh allotment and the respondent No.1 should compensate the appellant to the extent of expenditure incurred by him on the plot in question. It appears that respondent No.2 did not comply with the order of the Revenue Commissioner, Sindh nor the respondent No.1 compensated the appellant. The appellant preferred revision before the Secretary, Local Government Department, Sindh, which remained undecided till 20-12-1979 on which date the appellant filed Civil Suit bearing No.633 of 1977 against the respondents before the Senior Civil Judge, Hyderabad. The suit was titled for declaration, possession and mesne profit in which the following prayers were made by the appellant:
(a)Declaration that the order dated 25-3-1971, 21-7-1971 and 14-3-1973 passed by defendants 2, 3 and 4 are illegal, void, mala fide and without jurisdiction and the plaintiff continues to be allottee of the suit property.
(b)That defendant-1 do hand-over the vacant possession of the suit property consisting of 2 Plots No.186/II/C, Unit No.II, Shah Latifabad, Hyderabad, admeasuring 600 Sqr Yds, along with adjoining admeasuring 160 Sqr. Yds. on South-side of the suit property.
(c)That in the alternative the defendants 2,3 and 4 do transfer plot in Latifabad Town of same area and amenities and the defendant-1 do pay the compensation of Rs.20,000 to the plaintiff.
(d)Another relief this Hon'ble Court deems fit.
(e)Costs of the suit be borne by the defendants.
5. After notices, only respondent No.1 filed his written statement. The other respondents had chosen not to contest the proceedings and the trial Court had ordered the suit to proceeded ex parte against them. After filing of written statement, following issues were framed:--
(1)Whether the suit is under valued and the plaint insufficiently stamped?
(2)Whether the suit is barred by law of Limitation?
(3)Whether the suit is not maintainable in law?
(4)Whether no cause of action has accrued to the plaintiff to file the suit?
(5)Whether the allotment of Plot No.186 Unit No.2 Shah Latifabad, was cancelled illegally by the defendant No.2?
(6)Whether the defendant No.1 occupied the plot in suit illegally?
(7)Whether the plaintiff is entitled to the relief claimed?
(8)What should the decree be?
6. By its judgment dated 31-10-1988, the trial Court decreed the suit of the appellant against which the respondent No.1 preferred appeal, which too was dismissed by the learned IVth ADJ, Hyderabad, affirming the judgment of the trial Court. The respondent No. 1 filed IInd appeal before the learned Sindh High Court and by its judgment dated 12-4-2004, the matter was remanded to the first appellate Court with the direction to decide the appeal with a speaking judgment on each issue. On remand, the first appellate court, by its judgment dated 29-7-2004, allowed the appeal of the respondent No.1 by setting aside the judgment and decree of the trial Court. The appellant preferred IInd appeal before the learned Sindh High Court, which by the impugned judgment dated 14-5-2009, affirmed judgment of the learned IInd ADJ, Hyderabad, passed in favour of the Respondent No. 1.
7. It is contended by Mr. Shahanshah Hussain the learned Counsel for the appellant that the learned High Court was in error, in holding that the opportunity of hearing having been afforded to the appellant, in appeal and revision before the Deputy Commissioner and Revenue Commissioner, he cannot claim that cancellation of the plot in question was violative of the principle of natural justice. He has next contended that the orders passed by the Deputy Commissioner and the Revenue Commissioner in appeals upholding the cancellation order were perverse in as much as that the order was passed without serving show-cause notice to the appellant. He submitted' that there were many other plots on which construction was not raised within the stipulated period after their allotment but these plots were not cancelled. In this respect, this Court by its order dated 1-11-2010, had directed the respondent No.2 to place on record the list of the plots which were allotted to different allottees in the scheme at the relevant period but were not cancelled on the ground of non-raising of the construction within the stipulated time. The list of such plots was placed which shows number of plots in the scheme which remained unconstructed for several years but were not cancelled. He next contended that the learned High Court has erroneously relied upon the judgment of this Court reported as the Collector, Sahiwal v. Muhammad Akhter 1971 SCMR 681, where this Court has held that where notice is provided for by the statute itself, then the failure to give such a notice is fatal and cannot be cured. But where there is no specific statutory provision and reliance is only placed on the principles of natural justice and audi alteram partem, there if at some stage or the other, the person aggrieved has been given a fair opportunity of representing his point of view, then the defect, if any, in the initial order would be deemed to have been cured.
8. Learned counsel submitted that the case in hand is distinct on facts and the judgment relied upon by the learned High Court does not cover the present proceedings. In support of his contention he has contended that if the initial order of cancellation was without notice and without jurisdiction, subsequent hearing in appeal or revision by the authority would not cure the defect. He contended that the cancellation order of plot of the appellant was discriminative and tainted with malice, the order itself was without jurisdiction and, therefore, the judgment of this case in the case of Collector Sahiwal (supra) would not apply.
9. It was next contended that the issue of bar of limitation would not be extended to the present proceedings as the suit was filed within time pleading that the cause of action was recurring one besides the fact that the appeal/revision before the Secretary Sindh Local Government Department remained undecided till the filing of suit which compelled the appellant to approach the Civil Court. In support of his contention, he has relied upon the case of Rehmat Bibi v. Punnu Khan reported in1986 SCMR 962 and the case of Muhammad Shafi v. Mushtaque Ahmed 1996 SCMR 856. He next contended that although the plot of the Appellant was cancelled by the respondent No.2 but the excess area of 160 square yards allotted to the appellant was never cancelled till date.
10. It was further contended by the learned Advocate Supreme Court that there is no denial of the fact that show-cause notice for cancellation was never served upon the appellant and the endorsement of the postal authorities reflected that the appellant was out of station. In spite of such endorsement, the respondent No.2 has proceeded to pass the order dated 24-3-1971 of cancellation of the plot of the appellant. He contended that on the following date i.e. 25-3-1971, the plot in dispute was taken possession by the respondent No.1 unauthorizedly when on such date he was neither the allottee of the plot nor was put in possession of the plot by the respondent No.2. He submitted that the factum of possession by the respondent No.1 was taken note of in both the orders in appeal passed by the Deputy Commissioner and the Revenue Commissioner.
11. He further submitted that time is never essence of contract in immovable properties. According to him, the appellant has started raising construction on the plot and when the construction was in progress, he was dispossessed by the respondent No, 1. He next contended that condition No.2 of the terms and conditions of the allotment was extendable. In support of his contention, he has relied upon the case of Seth Essabhoy v. Saboor Ahmad reported in (PLD 1973 SC 39). His further contention was that delay in raising construction on the plot by the appellant was not wilful as the appellant was not put in possession of the excess area of 160 square yards, which was allotted to him subsequent to the allotment of the original plot. The Revenue Commissioner in his order, was in agreement on the issue that the delay in raising construction on the part of the appellant was not wilful. It was contended that the cancellation order was mala fide and discriminatory. He submitted that clause-II of the conditions of the allotment provided construction on the plot within the stipulated period and it was invoked to favour the respondent No.1 and not owing to the failure on the part of the appellant to raise construction. He submitted that the respondent No.2 being public authority was to act bona fide and in the case in hand, the action, ex facie, was mala fide which has rendered it nullity.
12. He next contended that the official respondents including respondent No.2 wilfully avoided to contest the proceedings with the sole object to justify their unlawful action of cancellation before any court. It is contended that during hearing of the appeal before the Revenue Commissioner, a restraining order was passed against the respondent No.1 from raising construction on the plot but the respondent No.1 in defiance of the order continued construction to defeat the outcome of the proceedings in appeal before the appellate forum. According to him, the learned High Court erroneously proceeded on the premises that the cancellation order though passed without notice could not be nullified as sufficient opportunity of hearing was provided to the appellant in appeal before the Deputy Commissioner and the Revenue Commissioner. Mr. Shahanshah Hussain contended that now the view of this Court has changed and earlier judgment of Collector Sahiwal (supra) relied upon by the learned High Court on distinct facts was wrongly relied upon. In support of his contentions, he has relied upon the case of Mrs. Anisa Rehman v. P.I.A.C. 1994 SCMR 2232, in which this Court has held that violation of statutory rule would not cure the inherent defect in appeal and the case of the appellant is governed by the aforesaid judgment of this Court. He submitted that the conditions of allotment requires the Collector/Secretary of the respondent No.2 to satisfy that allottee has violated the terms and conditions of the allotment and has made himself liable to the cancellation of plot. He submitted that once the authority itself has acted mala fide, the cancelling of the plot with the object to accommodate the respondent No.1, the penalty under the conditions of allotment would not be attracted.
13. Mr. Shafi Muhammadi; learned Advocate Supreme Court for the respondent No.1, has contended that the suit was prematurely filed by the appellant when the proceedings before the Secretary Local Government were pending in which the appellant has impugned the order of cancellation, order of Deputy Commissioner and order of Revenue Commissioner. He submitted that the respondent No.1 was allotted the plot in question on 10-8-1971, after the plot was cancelled and respondent No.2 has issued possession certificate on 10-8-1971. He submitted that the suit was barred by limitation as the cancellation order was passed on 24-3-1971 whereas the suit was filed on 20-12-1979 and, therefore, it was hit by limitation.
14. We have inquired from the respondent No.1 to show us as to how and when he acquired possession. He submitted that he was put in possession by respondent No.2 but he never placed before us any document reflecting possession order in his favour. He conceded that his right had accrued on the date when he was allotted plot on 10-8-1971.
15. The learned Additional Advocate-General, Sindh, appearing for the official respondents has attempted to take us through the documents which he had filed in the additional paper-book of this Court and were not part of the record of the trial Court. We inquired from him as to the provision of law under which this Court can consider such documents. He conceded that it cannot be looked into at this stage. He submitted that the plot was lawfully cancelled as the appellant had failed to raise construction within the stipulated period and had violated clause-II of the terms and conditions of allotment. He contended that the show-cause notice was issued whereafter the cancellation order was passed by the competent authority against which appellant preferred two appeals, therefore, there was no justification for the appellant to file a suit and subsequent proceedings. He conceded that the respondent No.1 during pendency of the appeals before the Deputy Commissioner and Revenue Commissioner was not entitled either to raise construction nor to take possession of the plot in question as he was neither allotted the plot nor made any payment nor he was put in possession by the respondent No.2. According to him, the right of respondent No.1 accrued on the date of allotment which was 10-8-1971. He has failed to point out possession order issued in favour of the respondent No.1. On the question as to why other plots in the scheme, list of which was placed before this Court by the respondent No.2, on which construction was not raised for several years, were not cancelled. The learned Additional Advocate-General could not offer any explanation.
16. We have heard Mr. Shashanshah Hussain, learned counsel for the appellant and Mr. Shafi Muhammadi learned counsel for respondent No.1 as well as the Additional Advocate General, Sindh and have perused the record. The entire case revolves around the order of cancellation of the plot of the appellant passed by respondent No.2. We have examined the cancellation order which was passed on 24-3-1971. It is claimed by the appellant that on the date when the cancellation order was passed, the construction on the plot was in progress. This fact of construction on the plot is substantiated by orders dated 21-7-1971 of the Deputy Commissioner and order dated 14-3-1973 of the Revenue Commissioner passed on appeals of the appellant. The cancellation order passed by the District Officer Housing conceals the fact that construction on the plot was in progress, ex facie, reflects mala fide. No inspection report of any nature was called by the authority to ascertain as to whether any construction on the plot was made or not prior to passing the order of cancellation of plot. Show-cause notice dated 28-1-1971 to the appellant was never served upon him, which fact is also not in dispute. It appears that the plot in question was chosen by the authority to accommodate respondent No.1 who was recommended allotment of plot by the SSP. The respondent No.1 was a serving police officer and had exercised his influence in obtaining the cancellation order against the appellant to get the plot in question allotted in his favour. If .a public authority exercises its power in the aforesaid manner, which is tainted with malice, then such inherent defect would be incurable. The respondent No.1 has taken possession of the plot in dispute after passing of the cancellation order and started raising construction ultimately. The record shows that the plot was allotted to the respondent No.1 on 10-8-1971 i.e. 5 months after his forcible possession. We have perused the record of the trial Court and have noticed that Exh.95 a bill of Messrs Waheed and Company Marble Contractors, addressed to the respondent No.1 in which a sum of Rs.2,902.50 was shown to have been received by the said contractor from respondent No.1 towards construction material, which was supplied to the respondent No.1 for raising construction on the plot in dispute. This bill is dated 15-5-1971, much prior to the date on which the plot was allotted to the respondent No.1. This document was produced by the respondent No.1 with an attempt to substantiate that he has raised the construction and has invested money on the plot in question. We have inquired from the learned Additional Advocate-General as to how the respondent No.1 can get possession of the plot which was, under construction and was not allotted to him nor a single penny was paid by him when the issue of cancellation itself was pending before the competent forum. He could not offer any explanation to us. This very bill Exh.95 coupled with the two orders referred to hereinabove clearly established unauthorized possession of the respondent No.1. The respondent No.1 was never issued possession order by the respondent No.2. Instead Respondent No.1 himself obtained a certificate on which he has obtained signature of the Secretary of respondent No.2 which maintains that the respondent No.1 has taken possession of the plot in dispute on 11-8-1971. This certificate has not been issued by the respondent No.2 or any of his officers which belies Exhibit 95 and two orders of the authorities i.e. Deputy Commissioner and Revenue Commissioner passed in appeals. We have also noticed that the respondent No.1 earlier was allotted Plot No.83 in Unit No.2 by the respondent No.2. This fact was admitted by the respondent No.1 in his cross-examination. He however has stated that the plot given to him earlier was gifted by him to his nephew. In any event, it has come on record that Plot No.83 was allotted to the respondent No.1 and a second plot cannot be allotted to him by the respondent No.2.
17. The cancellation order itself shows that the authority did extend time for construction on the plot at times. In law, if time is extended for performance of a contract pertaining to immovable property, then time can never be enforced as of the contract. Cancellation order even on this score was nullity. A list of 11 plots has been placed before us which shows that these were allotted to different allottees somewhere in the year 1961 to 1965 and no construction was raised on them till 1976, but the plots were not cancelled by the authority as has been done by the respondent No.2 in the case of the appellant.' We declare that the cancellation order in the aforesaid circumstances was discriminatory and tainted with malice with the sole object to accommodate and allot the plot to the respondent No. '1. The next contention of the learned counsel for the appellant that the appellant filed suit on 20-12-1979 would not attract the bar of limitation. It is not in dispute that on the date when the said suit was filed, revision of the appellant was pending before the Secretary, Local Government Department, Sindh. The objection in regard to filing of the suit as premature was raised by the respondent No.1 in his written statement on the ground of pendency of Revision. Limitation would run from the date of final order but if the proceedings are pending before the competent forum, then the appellant cannot be non-suited on the ground of limitation. In the case in hand, we are of the considered view that the cancellation order itself was without notice and was tainted with malice besides discriminatory, therefore, the suit filed by the appellant during pendency of the revision was justified when the appellant realized that his revision has remained undecided for several years. In the suit, he has challenged the cancellation order, of the Deputy Commissioner and the Revenue Commissioner and it has been pleaded that cause of action accrued to the appellant was recurring. The trial Court has decreed the suit on the basis of evidence whereas the High Court on remand has allowed the appeal of the respondent No.1 on the ground of limitation. Neither the first appellate Court nor the High Court have perused the evidence on record to reach such a finding. The official respondents have not come forward to place before the trial Court the material to justify the cancellation of the plot. They avoided to appear before the Court with the sole object to extend favour to the -respondent No.1. If the entire record would have been brought before the Courts, it would have changed the complexion of the case. The first appellate Court and the High Court on the issue of limitation have wrongly decided that the suit was time-barred. Since no final order was passed by the revenue authorities and the matter was pending before the revisional authority, we, therefore, hold that the suit was within time. Even otherwise the cancellation order was without lawful authority and would not attract the bar of limitation. Even the excess land allotted to the appellant has not been cancelled till date. On query from the representative of the respondent No.2, we were informed that the excess land was encroached upon by the respondent No.1 and other neighbours.
18. No other point was urged before us by the parties. Looking at the peculiar circumstances of the case, we allow the appeal with cost throughout setting aside the impugned judgment of the High Court, judgment of the first appellate Court and decree the suit of the appellant in the following terms:
(i)The District Judge, Hyderabad, shall evaluate the market value of the plot in question and the excess area of 160 square yards allotted to him after notice to the parties and respondents Nos.2 to 4 shall jointly pay to the appellant the proposed market value so determined by the District Judge, Hyderabad, within two months from the communication of this judgment.
(ii) The respondent No.1 shall pay to the appellant a sum of Rs.20,000 with mark-up at bank rate from the date of decree of the trial Court as compensation for the construction raised by him on the date when respondent No.1 took possession after cancellation of the plot in March, 1971.
(iii) The respondents Nos. 2 to 4 shall however be at liberty to recover the proposed market value as determined by the District Judge, Hyderabad, from the respondent No.1 or any other person whoever has encroached upon the excess land of 160 square yard with costs.
M.H./A-10/SCAppeal allowed.
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