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/’-  
