specific performance of the contract was dismissed due to procedural errors, and there was no valid claim on the deposited amount.
دعوی تعمیل مختص 7/11 میں خارج۔کروڑوں کی رقم واپسی سے انکار
⚖️ مقدمے کا تعارف
فریقین:
سائمہ بتول — درخواست گزار
بنام
ایڈیشنل ڈسٹرکٹ جج وغیرہ / M/s Defence Raya Golf & Country Club — فریقِ مخالف
نوعیتِ مقدمہ:
کمرشل پلازہ کے لیے معاہدۂ فروخت کی تکمیل (Specific Performance) سے متعلق تنازع، اور بعد ازاں جمع شدہ رقم کی واپسی کا معاملہ۔
🧾 بنیادی حقائق
معاہدہ و الاٹمنٹ: 21.06.2016
کل قیمت: 15 کروڑ 60 لاکھ روپے
ابتدائی ادائیگیاں (بکنگ): 78 لاکھ روپے
بعد ازاں ٹرائل کورٹ کی ہدایت پر 22,910,000 روپے ٹریژری میں جمع کرائے گئے؛
بعد میں Order VII Rule 11 CPC کے تحت دعویٰ خارج ہو گیا؛
دعویٰ خارج ہونے کے بعد جمع شدہ رقم کی واپسی کی درخواست دائر کی گئی۔
❌ ٹرائل کورٹ کی غلطیاں
یہ کہہ کر رقم واپس کرنے سے انکار کیا کہ:
جمع کرانے کا کوئی باقاعدہ عدالتی حکم ریکارڈ پر موجود نہیں؛
دعویٰ خارج ہونے کا حکم حتمی ہو چکا ہے، اس لیے کچھ باقی نہیں۔
حالانکہ:
درخواست کے حاشیے پر "Allowed" کی واضح تحریر اور دستخط موجود تھے؛
ٹریژری ریکارڈ میں رقم کی وصولی باقاعدہ درج تھی؛
نہ ریاست اور نہ ہی فریقِ مخالف اس رقم پر دعویٰ کر رہے تھے۔
🔍 لاہور ہائیکورٹ کی فیصلہ کن قانونی آبزرویشنز
1️⃣ Doctrine of Unjust Enrichment (غیر منصفانہ فائدہ)
عدالت نے قرار دیا کہ:
اگر کسی شخص یا ریاست کو کسی دوسرے کی رقم بلاجواز حاصل رہے تو یہ غیر منصفانہ افزودگی ہے؛
اس کا واحد علاج Restitution (واپسی) ہے؛
یہ اصول پاکستان میں کنٹریکٹ ایکٹ 1872 (دفعات 68 تا 72) میں تسلیم شدہ ہے۔
📌 نتیجہ:
ریاست یا کسی ادارے کو ایسی رقم رکھنے کا کوئی حق نہیں جس پر اس کا دعویٰ نہ ہو۔
2️⃣ Principle of Restitution (اصلاحِ ناانصافی)
درخواست گزار نے رقم عدالتی ہدایت کے تحت جمع کرائی؛
دعویٰ خارج ہونے کے بعد بھی رقم روکنا انصاف کے منافی ہے؛
عدالتِ عالیہ نے قرار دیا کہ:
“جہاں کوئی مدعی یا فریق اس رقم کا حقدار نہ ہو، وہاں رقم واپس کرنا لازم ہے۔”
3️⃣ Actus Curiae Neminem Gravabit
عدالت نے یہ اصول دہرایا کہ:
عدالت کے فعل یا کوتاہی سے کوئی شخص نقصان نہیں اٹھا سکتا۔
اگر ٹرائل کورٹ نے اجازت دے کر اسے آرڈر شیٹ میں درج نہ کیا تو:
اس کا نقصان درخواست گزار کو نہیں پہنچایا جا سکتا۔
4️⃣ عدالتوں کا مکینیکل رویہ قابلِ مذمت
ہائی کورٹ نے سخت الفاظ میں کہا کہ:
ٹرائل کورٹ نے:
اپنے ہی ریکارڈ کو نظرانداز کیا؛
اور تکنیکی نکات کی بنیاد پر انصاف کو دفن کیا؛
عدالتیں مکینیکل نہیں بلکہ منصفانہ انداز سے فیصلہ کرنے کی پابند ہیں۔
🏛️ حتمی حکم
ٹرائل کورٹ کا حکم کالعدم قرار دیا گیا؛
درخواست گزار کی 22,910,000 روپے کی واپسی کی درخواست منظور؛
ٹرائل کورٹ کو ہدایت:
قواعدی تقاضے پورے کروا کر رقم کی واپسی ممکن بنائے۔
📌 قانونی اصول (Key Legal Takeaways)
اگر کوئی رقم عدالتی اجازت سے جمع ہو تو:
دعویٰ خارج ہونے پر بھی واپسی سے انکار نہیں کیا جا سکتا؛
ریاست کو بلاجواز فائدہ پہنچانا Unjust Enrichment ہے؛
Restitution انصاف کا لازمی تقاضا ہے؛
عدالتی کوتاہی کا بوجھ فریق پر نہیں ڈالا جا سکتا؛
عدالتیں انصاف کو تکنیکی رکاوٹوں کی نذر نہیں کر سکتیں۔
🔖 حوالہ جاتی قدر
یہ فیصلہ درج ذیل معاملات میں اہم نظیر ہے:
Specific Performance کے مقدمات؛
ٹریژری میں جمع رقوم کی واپسی؛
Order VII Rule 11 CPC کے بعد مالی حقوق؛
Unjust Enrichment & Restitution کے اصول؛
Actus Curiae کے اطلاق۔
The main order of the Lahore High Court directed the trial court to refund the deposited amount of Rs. 22,910,000/- to Saima Batool, as her suit for specific performance of the contract was dismissed due to procedural errors, and there was no valid claim on the deposited amount.
The Lahore High Court discussed several key points, but one unique and crucial aspect was the application of the **doctrine of unjust enrichment** and the **principle of restitution**. The court emphasized that no party should unjustly benefit at the expense of another and that restitution is required to correct any such imbalance.
Specifically, the court highlighted:
1. **Unjust Enrichment and Restitution**:
The court underscored that keeping Saima's deposited amount without any valid claim from the respondent or the state would result in unjust enrichment. The principle dictates that the money should be returned to prevent one party from benefiting unfairly at the expense of another.
2. **Court’s Responsibility to Prevent Injustice**:
The court stated that the judiciary, as a repository of justice, must ensure that its actions do not perpetuate injustice. Any act by the court that results in injustice undermines its sacrosanct role.
3. **Actus Curiae Neminem Gravabit**
: This legal maxim, meaning "the act of the court harms no one," was applied to explain that procedural errors by the court should not cause harm to the litigants. In Saima's case, the court's failure to properly record the deposit of the partial payment should not prejudice her rights.
4. **Equitable Jurisdiction**:
The court exercised its equitable jurisdiction to rectify the injustice caused by the procedural errors, ensuring that Saima's funds were returned to her.
These points collectively emphasized the court's role in ensuring fairness and justice, correcting procedural errors, and preventing any party from being unjustly enriched.
Must read Judgement
Stereo. H C J D A 38.
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.57749 of 2023
Saima Batool
Versus
Additional District Judge, etc.
J U D G M E N T
Dates of Hearing:
30.04.2024
Petitioner by:
Barrister Hassan Anwaar Pannun, Advocate.
Amir Riaz Bhullar, Advocate.
Barrister Hasnain Younas, Advocate.
Mian Aqeel, Advocate.
Mr. Jawad Gul, Advocate.
Mr. Zahid Randhawa, Advocate.
Province of Punjab
by:
Mr. Muhammad Saad Bin Ghazi, Assistant
Advocate General along with Sabahat
Ashfaq and Asad Rasheed, Treasury
Officers.
Respondent No.3
by:
Ms. Hina Bandealy, Advocate.
Anwaar Hussain, J. The petitioner before this Court filed a suit for
specific performance of contract against respondent No.3, M/s. Defence
Raya Golf and Country Club Fairways Commercial (“the respondent”) on
the basis of an agreement-cum-allotment dated 21.06.2016 (“the
agreement”) in respect of commercial plaza, which was to be constructed
by the respondent. The agreement was executed/issued pursuance to a
balloting. Total sale consideration was agreed by the parties as
Rs.156,000,000/-. An amount of Rs.500,000/- was paid to participate in the
ballot and 5% of total amount as the booking price i.e., Rs.7,800,000/-, was
to be paid within 14-days of the ballot result announced on DRGCC Website
of the respondent. The petitioner made payments through Pay Order Nos.
CHQ/995914/16006 and CHQ/995913/16005, Bank Islami Pakistan Limited
Writ Petition No. 57749/2023 2
Johar Town Branch, Lahore dated 29.06.2016 amounting to Rs.3,200,000/-
and Rs.4,600,000/-, respectively. It was one of the agreed terms between the
parties that another 15% of remaining down payment was to be paid within
next 14-days, failing which the allotment was to be cancelled.
2.
The petitioner in her suit averred that after lapse of 2 ½ months from
the stipulated period of time, the petitioner was advised to deposit an amount
of Rs.22,910,000/- out of total outstanding sale consideration, which was
unwarranted and against the terms of the agreement and the petitioner, being
a widow of Shaheed raising her minor daughter, is being coerced to pay the
amount beyond and in violation of the terms of the agreement, therefore, she
was constrained to institute the suit for specific performance so that the
respondent be directed to strictly adhere to the payment schedule envisaged
under the agreement. When the suit was filed, vide order dated 28.07.2021,
notices were issued by the learned Trial Court to the respondent and the
petitioner was directed to submit Court fee of Rs.15,000/- and also the
remaining consideration amount till the next date. On 04.11.2021, the
petitioner was again directed to pay the remaining consideration as also the
Court fee. Through order dated 24.03.2022, the plaint of the suit instituted
by petitioner was rejected, under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (“CPC”) due to non-submission of the Court Fee as also
the remaining consideration amount and reliance was placed upon the case
reported as “Irfan Rasheed v. Muhammad Muazim and others” (PLD 2022
Lahore 372). This order was not challenged. Thereafter, an application was
filed by the petitioner for refund of Rs.22,910,000/- deposited in the
Treasury, vide order dated 03.09.2021 through Challan Form No.32-A as
partial payment out of total outstanding sale consideration. The said
application was dismissed by the learned Trial Court on the ground that no
such order whereby the petitioner was allowed to deposit the amount of
balance consideration exists on the case file. The matter ended up before this
Court in W.P. No.80627/2022 titled “Saima Batool v. Defense Raya Golf
and Country Fairways Commercials, etc.”, and the matter was remanded to
the learned Trial Court with the observation that if the said amount is found
Writ Petition No. 57749/2023 3
to be deposited in compliance/furtherance of order of the Court and not
required in any other matter, the learned Trial Court shall refund the said
amount to the petitioner after due process. On remand, the learned Trial
Court again rejected the application, vide order dated 29.04.2023 impugned
in the present petition, inter alia, on the ground that since the petitioner did
not lay challenge to order dated 24.03.2022, the same had attained finality,
therefore nothing is left for the Trial Court to adjudicate. A revision petition
was filed against order dated 29.04.2023, however, the same was also
dismissed on the ground that the appeal is not maintainable for want of
pecuniary jurisdiction, hence, the present constitutional petition.
3.
Learned counsel for the petitioner submits that the petitioner instituted
a suit for specific performance of contract based on the agreement in which,
by the order of the Court, an amount of Rs.22,910,000/-, was deposited after
the Challan was issued by the learned Trial Court, attested copy whereof is
available on record, which clearly depicts that the said amount was
deposited in relation to the suit instituted by the petitioner against the
respondent titled “Saima Batool v. Public at Large etc.”, however, later on,
the suit was dismissed on account of non-deposit of the Court fee and nondeposit of balance price consideration and when the petitioner’s application
for return of said amount was filed, the same has been merely dismissed on
the ground that the factum of deposit of said amount, pursuant to the order of
the learned Trial Court, is not recorded in the order sheet, which fault cannot
be attributed to the petitioner.
4.
Learned counsel for the respondent while acknowledging the factual
matrix of the case, clarifies that the learned Trial directed to deposit
complete balance sale consideration but the petitioner deposited lesser
amount and therefore, the suit was dismissed. She further submits that since
the suit instituted against the respondent has been dismissed, therefore, the
respondent has no objection if the said amount is disbursed in favour of the
petitioner, in accordance with law, as the respondent has no claim over the
same. Fair stance taken by learned Counsel for the respondent is appreciated.
Writ Petition No. 57749/2023 4
5.
Learned Law Officer was directed to seek report from the Treasury
Officer, Lahore. The needful was done and it was verified that the disputed
amount had been deposited through Challan Form No.32-A, duly verified by
the Court of Mubashar Hussain Awan, Civil Judge 1st Class, Lahore, under
case titled “Saima Batool v. Public at Large, etc.” and the payment voucher
can only be issued by the said Court, for release of the payment.
6.
Arguments heard. Record perused.
7.
At the outset, it would be essential to state that the Courts, as a
repository of justice and in exercise of judicial power of the State, are
obligated to dispense and administer justice and in the performance of this
sacrosanct obligation, can neither cause nor become instrumental to
perpetuate the injustice. Any act of Court perpetuating injustice would
amount to undermining the sacrosanct existence of the Courts of law.
8.
Having observed so, this Court proceeds to determine whether the
Trial Court was justified in declining the request of the petitioner and
dismissing the application of the petitioner for return of the amount
deposited in the Treasury, on the ground that the suit of the petitioner was
dismissed for non-compliance of the order of the Trial Court to deposit the
balance sale consideration and that the factum of deposit is not reflected in
the order of the Trial Court even though deposit of the partial amount of sale
consideration is duly depicted by the record such as the Challan Form. Even
the Treasury Office, Lahore admitted in the report submitted before this
Court that the said amount was deposited. Therefore, if the factum of
allowing the application of the petitioner to deposit balance sale
consideration has not been recorded in the order sheet of the Trial Court,
said mistake cannot be attributed to the petitioner. It is settled principle of
law that a litigant is not to be affected by mistake of the Court and if the
petitioner’s application is not allowed, it will certainly be a case where the
act and/or omission of the court would result in grave injustice to the
petitioner who is being made to suffer for no mistake of her as is evident
from the fact that her suit was dismissed on 24.03.2022 and ever since then
Writ Petition No. 57749/2023 5
her valuable money is being retained and not being returned to her and in the
process, not only her money has depreciated over the period coupled with
her deprivation form being able to invest the same and/or use the same as
per her fundamental right. What added to her agony is that she was
constrained twice to reach this Court by filing the present as well as earlier
petition which in itself involves a financial as well as psychological ordeal
that must have had accentuated effect considering the fact that she is widow
of shaheed and raising her minor daughter as single parent.
9.
There is no denial that the Trial Court directed the petitioner to
deposit the balance sale consideration. An application was filed by the
petitioner to deposit an amount of Rs. 22,910,000/- and it was “allowed”
through an endorsement at the side margins of the said application, scanned
copy whereof is pasted as under:
Writ Petition No. 57749/2023 6
10. As noted above, learned Law Officer was directed to produce the
original record from Treasury Office, Lahore, which is available that has
been seen and returned. Attested copy of the Challan as also of the relevant
register are annexed with the report. It is admitted feature of the case that the
Challan was issued against which the payment was made and said payment
is available in the Treasury and not needed for any other purpose. Attested
copy of Challan Form indicates that a unique number i.e., 1518 was allotted
in case of the petitioner and against which entry is duly recorded in the
relevant register. Scanned copies of the Challan Form (with the unique
number) and the extract from the relevant register are pasted hereunder:
Writ Petition No. 57749/2023 7
The above referred two documents clearly indicated that the payment was
deposited by the petitioner in relation to the suit instituted by her against the
respondent. There is also consensus between learned Law Officer along with
learned counsel for respondent that neither the State nor the respondent has
any right over this amount.
11. The panacea to the present controversy lies in the doctrine of unjust
enrichment1
coupled with the principle of restitution. The remedy for unjust
enrichment is restitution: the restoration of what was conferred to the
claimant-the petitioner in the present case. The doctrine of unjust enrichment
aims at correction of the injustice that occurred when the claimant suffered a
subtraction of wealth and some other individual, generally a defendant in a
case, received a corresponding benefit. The doctrine of unjust enrichment
has been well-developed in all systems of civil jurisprudence including
France,2 Canada3
, English4
and American5
. In Pakistan and India, this
doctrine is embodied in the Contract Act, 1872.6
The basis of the doctrine is
that if a person has received any property or benefit from another, it is just
that he should make restitution as otherwise he would be unjustly enriched at
the expense of the other.
12. Keeping these principles in mind, if the facts of this case are
examined, it reveals that the petitioner did apply for permission to deposit
the balance amount of consideration as per direction of the Trial Court albeit
lesser amount and on side margins of the said application, it has been
recorded that the application is “allowed” and duly signed by the then
Presiding Officer of the Court. This Court is of the opinion that the Courts
1 “Nul ne doit s'enrichir aux depens des autres”, which means “No one ought to enrich himself at the
expense of others”.
2
Law Quarterly Review, No. CCXVII, volume LV, 1939, at page 50p.
3 Canadian Bar Review, volume 16 (1938) at page 254; Winfield The Law of Torts
(1931) Ch. 7).
4 Cheshire and Fifoot Law of Contracts, Fourth edition (1956 at page 548); Chitty on
Contracts, Twenty-first edition (1955), volume I, at pages 78-79; Anson's Law of
Contract, Twentieth edition (1952), Chapter XXI, page 422
5
“Moses v. Macferlan (1760) 2 Burr. 1005; “Towers v. Barrett 1 T.R. 133”; “Sinclair
v. Brougham L.R. (1914) A.C. 398”
6
See Sections 68-72 of the Act
Writ Petition No. 57749/2023 8
are not to act mechanically. It is surprising that the Trial Court has simply
ignored that there is no adverse claimant of the amount. The Trial Court
repeatedly fell in error in not appreciating its own record to become
instrumental in perpetuating injustice. If the Trial Court after allowing the
application of the petitioner to deposit the amount did not record the same in
the order sheet, the same is inaction on part of the Court, which cannot be
made basis of harm to the petitioner. This is trite and established law and
forms the philosophical and jurisprudential basis of the established principle
that no one can be prejudiced by the act of the Court based on maxim “actus
curiae neminem gravabit” (the act of the Court harms no one).
13. In view of the fact that the record of the Trial Court as also Treasury
Office, Lahore clearly substantiate the contention of the petitioner that she
deposited the amount of Rs.22,910,000/-in suit instituted by her for specific
performance of contract, against the respondent and even if the suit has been
dismissed, the respondent is not laying any claim on the same, therefore, it is
unjust not to allow the refund on the basis of technicalities resulting into
unjust enrichment of the State, which cannot be approved by this Court in
exercise of its equitable jurisdiction.
14. Sequel to the above discussion, the impugned order is set aside and
the application of the petitioner to seek refund of the amount of
Rs.22,910,000/- is accepted and the Trial Court is directed to procced in the
matter enabling the petitioner to seek refund, after meeting codal formalities.
15. Allowed in above terms.
(ANWAAR HUSSAIN)