Hoshang v Eddie P Bharucha

• Date: 17 August 1966
• Court: Obsolete Court (Pakistan)

Pakistan, High Court of West Pakistan.

(Wahiduddin Ahmed and Sajjad Ahmed JJ.)

Hoshang and Others

and

Eddie P. Bharucha and Others

WAR AND NEUTRALITY

War and neutrality War in general Effect of outbreak of war On private contracts Difference between executed and executory contracts Performance completed by one party Whether contract enforceable at his instance Whether action maintainable where defendant alien enemy The law of Pakistan

Summary: The facts:The plaintiffs sued the defendants for the specific performance of a contract of lease and sale of immovable property, with an alternative claim for damages. The plaintiffs had already entered into possession of the property and were only interested in the execution of a deed. While proceedings were pending, war broke out between India and Pakistan and the main defendant became an alien enemy.

Held:The plaintiffs could proceed with the suit.

The following is the text of the judgment of the Court:

Sajjad Ahmad, J.This Letters Patent Appeal arises out of Suit No. 191 of 1963, which was tried on the original side by a learned Single Judge of this Court (our brother Mr. Justice Kadir Nawaz Awan) and dismissed by him on the ground that it was not maintainable.

2. The suit was for specific performance of a contract by execution of a sale-deed, with an option to purchase, a plot of land bearing Survey No. 29, Sheet S. B. 5, measuring 2724 sq. yards, situated in Saddar Bazar, Karachi. An additional claim made in the suit was for a sum of Rs. 6,20,000.00 as damages. The contract, according to the plaintiffs' case, was made with them on the 30 of August 1956, by respondent No. 1, namely, Dr. Eddie P. Bharucha, who is the owner of the plot in question, through his attorney, one Julian Hoshang Dinshaw. This plot was already on lease with Khan Ghulam Mohyuddin Khan and his wife Begum Nur Bakht for a period of ten years, commencing from 16 August 1948, who were impleaded as defendants Nos. 2 and 3 respectively, but were subsequently dropped. These defendants had put up an open air cinema in that plot known as Mayfair Cinema and had constructed certain structures on it for that purpose. The contract with Dr. Eddie Bharucha, referred to above, had been negotiated by the plaintiffs' father, the late Manekji Dastur who, in pursuance of the same, along with his son Hoshang, appellant No. 1, entered into a contract with the previous lessees on the 10th of May 1956, for the purchase of their lessee rights and other interests in the land in suit and all their buildings, fixtures, appurtenances on a fairly high price. Defendants Nos. 2 and 3 executed a deed of conveyance in favour of Manekji Dastur and his son, plaintiff No. 1, conveying to them their lessee rights, buildings, materials and all other interests in respect of the land in suit. It was alleged that possession had been delivered to the plaintiffs by the aforesaid defendant in September 1956. Thereafter, the plaintiffs had a plan made for a covered Cinema by their architect which was submitted to the K. D. A. for regular approval which was received in December 1960. According to their case, the...