IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE SAJJAD ALI SHAH 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CIVIL APPEAL NO. 1120 OF 2009 
(On appeal against the judgment dated 
05.06.2008 passed by the Islamabad High 
Court, Islamabad in RFA No. 72/1998) 
 
Capital Development Authority through its Chairman 
… Appellant 
VERSUS 
Rana Munawar Khan 
… Respondent 
 
For the Appellant:  
Malik Javed Iqbal Wains, ASC 
 
For the Respondent: 
Mr. Abdur Rashid Awan, ASC 
 
Date of Hearing:  
07.12.2020 
 
JUDGMENT 
 
 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- This 
appeal with leave of the Court has been directed against the 
judgment dated 05.06.2008 passed by the learned Islamabad High 
Court, Islamabad whereby the Regular First Appeal filed by the 
appellant Capital Development Authority was dismissed and the 
judgment and decree dated 06.09.1998 passed by the learned Civil 
Judge 1st Class, Islamabad, was maintained.  
2. 
 
Briefly stated the facts of the matter are that on 
21.01.1996 respondent filed a suit for declaration and permanent 
injunction before the Senior Civil Judge, Islamabad, alleging that 
he is allottee of plot No. 3-G, I/10 Markaz, Islamabad measuring 
487.55 square yards through open auction being highest bidder of 
Rs.34,61,605/-, which was accepted vide letter dated 15.12.1987; 
that thereafter respondent immediately deposited 25% of the total 
amount i.e. Rs.8,65,401/- and the balance amount was to be paid 
Civil Appeal No. 1120/2009 
2
in four installments; that according to clause (6) of the allotment 
letter, the possession of the plot free from all encumbrances and 
ready for construction was to be delivered to the respondent within 
a period of one month i.e. on or before 14.01.1988 but the same 
was delivered on 27.02.1988 without removing high tension wires, 
electric poles, which were passing through all the commercial plots 
of that area; that the respondent could not start construction well 
within time due to the reason that possession of the plot was given 
late, therefore, could not deposit the first installment, which was 
due 
on 
01.03.1988; 
that 
respondent 
made 
numerous 
representations to the appellant CDA for removing of high tension 
wires etc but no heed was paid to his request; that on 25.04.1989, 
the appellant issued notice to the respondent to deposit the 
installments or in failure the plot would stand cancelled. This led 
to filing of a suit by the respondent for declaration with the prayer 
that appellant CDA may be directed to remove the high tension 
wires from the plot and in the meanwhile the appellant may be 
restrained to cancel the plot. However, the respondent withdrew 
the said suit and submitted a complaint before the Wafaqi 
Mohtasib (Federal Ombudsman) for rescheduling of payment and 
waiving of the interest and delayed payment charges, which was 
accepted by the Ombudsman and pursuant to the letter issued by 
the Wafaqi Mohtasib Secretariate dated 26.09.1994, the appellant 
CDA rescheduled the installment plan on 27.10.1994. It was the 
claim of the respondent that after rescheduling, he had paid all the 
installments within time but despite that the appellant CDA has 
demanded an amount of Rs.26,01,099.46/- on account of delayed 
payment charges vide letters dated 07.03.1995 and 03.01.1996. 
Civil Appeal No. 1120/2009 
3
The learned Trial Court vide its judgment dated 06.06.1998 
decreed the suit. Being aggrieved, the appellant CDA filed Regular 
First Appeal before the Islamabad High Court, but the same has 
been dismissed vide impugned judgment. Hence, this appeal with 
leave of the Court.   
3. 
 
Learned counsel for the appellant inter alia contended 
that the impugned judgment passed by the learned High Court is 
non-speaking, suffers from misreading and non-reading of the 
evidence and is based on misinterpretation of allotment letter, 
which is not sustainable in law; that the evidence led by the 
appellant has not been considered in its true perspective, which 
has resulted into miscarriage of justice; that the learned courts 
below misinterpreted clause (6) of the allotment letter, which does 
not cast a duty on appellant to deliver possession, free from all 
encumbrances, within one month of the issuance of letter rather it 
was the duty of the respondent to take possession within one 
month; that the second suit filed by the appellant was barred by 
res judicata and the same was not proceedable; that the delayed 
payment charges to the tune of Rs.26,01,099.46/- were due from 
the respondent and the contention of the respondent that the same 
have been waived off by Wafaqi Mohtasib is incorrect and that if 
the delayed payment charges are waived off, the appellant would 
suffer a great financial loss. He lastly contended that keeping in 
view the facts and circumstances of this case, the suit of the 
respondent is liable to be dismissed and the judgment of the 
learned High Court may be set aside.  
4. 
 
Learned counsel for the respondent, on the other 
hand, opposed the contentions of the learned counsel for the 
Civil Appeal No. 1120/2009 
4
appellant. He contended that both the suits filed by the respondent 
were filed on different cause of action, therefore, the principle of 
res judicata would not apply; that the rescheduling was made on 
the direction of Federal Ombudsman and the respondent 
accordingly paid the entire amount; that after payment of the dues 
after rescheduling, the mater became past and closed transaction 
and the respondent could not have been again asked to pay the 
late payment charges. He lastly contended that the learned courts 
below after considering the evidence led by him have rightly 
decreed the suit, to which no exception can be taken.  
5. 
 
We have heard learned counsel for the parties and 
have perused the case file.  
6. 
 
The main emphasis of the respondent as to why he did 
not pay the installments well within time after allotment of plot is 
that according to clause (6) of the lease agreement dated 
15.12.1987, the possession of the plot free from all encumbrances 
and ready for construction was to be delivered to him within a 
period of one month i.e. on or before 14.01.1988 but the same was 
delivered on 27.02.1988 without removing high tension wires and 
electric poles, which were passing through all the commercial plots 
of that area. It would be advantageous to reproduce the said clause 
for ready reference. The same reads as under:- 
“6. 
The lessee shall take over possession of the 
land within one month from the date of issue of this 
letter, failing which possession shall be deemed to 
have been taken over and execute an agreement 
within one month from the date of possession and get 
the same registered at his/her own cost. The lessee 
shall submit building plans/drawings duly prepared 
by any of the approved/registered/licensed Architect 
of the CDA. However, in case of lessee desires to get 
Civil Appeal No. 1120/2009 
5
the building designed from CDA, same would be 
arranged by the Deputy Director General (Design) 
CDA on payment of designing fee @ 3% or designing 
and top supervision fee @ Rs.6% of the estimated cost 
of the building. 
 
7. 
 
There is nowhere mentioned in this clause that the 
appellant Authority was bound to deliver the possession after 
removing of high tension wires etc. However, it appears from the 
noting portion of the CDA that Town Planner-I vide his memo 
dated 23.01.1988 had informed that a overhead electric line is 
encroaching the commercial plots in the south of I-10 Markaz but 
the same was removed and the possession was handed over to the 
respondent without any further encroachment. This finds force 
from the possession letter dated 27.02.1988, wherein the 
respondent has himself admitted that “there is no encroachment on 
my plot”. The respondent has himself signed the possession letter 
and certified that he has seen his plot and all its corners, there is 
no encroachment on his plot, and no service line is passing within 
his plot. Although possession was delivered to him late but the 
delay was only of 40 to 45 days. The respondent had to pay the 
first installment by 01.03.1988 but despite the fact that possession 
was handed over to him on 27.02.1988, he did not pay the same. 
The appellant CDA issued him a letter dated 08.04.1989 to make 
the payment but instead of complying, he filed a suit for 
permanent injunction on 17.04.1989, which prima facie shows 
that he wanted to avoid payment accrued towards him. In the 
written reply, it was the claim of the CDA that the respondent has 
already made construction and removal of electric poles was just a 
lame excuse with malicious intent. This stance of the appellant 
Civil Appeal No. 1120/2009 
6
CDA could not be denied by the respondent. The respondent had 
also filed stay application in the earlier suit but the same was 
dismissed on 11.07.1990. This suit was ultimately dismissed as 
withdrawn vide order dated 22.02.1994. It appears that the only 
purpose of the respondent was to evade payment while buying 
time. Even after dismissal of his stay application on 11.07.1990, 
he did not pay any installment. The proceedings before the Civil 
Court in the earlier suit continued for a period of five years and 
when the respondent saw that he would not be able to get a 
favourable order, he withdrew the suit and approached the Federal 
Ombudsman. The only basis on which the Federal Ombudsman in 
its letter dated 26.09.1994 had directed rescheduling was that the 
Vice Chairman CDA had already agreed vide para 89/ante of 
noting portion dated 01.01.1994 that the case of the respondent 
deserves re-scheduling. However, we have noted that although the 
Vice Chairman CDA was of the view that the case of the 
respondent deserves rescheduling but the same was without any 
approval of the CDA Board. From the noting portion, it is clearly 
apparent that the proposal of the Vice Chairman was resisted by 
the other members rather the same was not approved. However, so 
far 
as 
the 
payment 
of 
delayed 
charges 
amounting 
to 
Rs.26,01,099/- is concerned, the CDA Board duly gave its 
permission, which is available at page 162 of CMA No. 503 of 
2020. So far as the plea of the appellant’s counsel that the 
subsequent suit filed by the respondent was hit by res judicata, we 
are reluctant to make any observation regarding this aspect 
because we have been informed that the lease period is going to 
expire on 15.12.2020, hence, any finding at this stage would be a 
Civil Appeal No. 1120/2009 
7
futile exercise whereas the case of the respondent is squarely a 
case of high handedness against a statutory authority. This Court 
cannot lose sight of the fact that both the courts below have 
misread and misinterpreted evidence as well as clause (6) of the 
agreement and came to the wrong conclusion.  
8. 
 
For what has been discussed above, we are of the 
considered view that the judgments of the two courts below suffer 
from misreading and non-reading of the evidence. Consequently, 
we allow this appeal and set aside the impugned judgments.  
9. 
 
The above are the detailed reasons of our short order 
dated 07.12.2020. 
 
 
 
 
 
 
JUDGE 
 
JUDGE 
 
JUDGE 
Islamabad, the  
7th of December, 2020 
Approved For Reporting 
Khurram 
