FARJAN KHAN vs KAMRAN KHAN Ss — 2021 PLD 29 PESHAWAR-HIGH-COURT

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FARJAN KHAN VS KAMRAN KHAN Ss. 8, 12, 39 & 42---Civil Procedure Code (V of 1908), S.35-a & O.XV-a--- Suit for recovery of possession of immovable property, specific performance of agreement to sell, cancellation of document, declaration and recovery of damages---Summary judgment---Unjust enrichment, concept of---applicability---Special damages---Quantum--- Parties entered into agreement to sell of immovable properties for which plaintiff/appellant had paid more than 50% of the entire consideration amount---Plaintiff/appellant filed suit which was disposed with vide summary judgment wherein amount paid in advance was allowed to be retained by defendants/respondents as confiscation of earnest money---Validity---amount more than 50% of entire sale consideration could not be considered as earnest money only and was not liable to confiscation, in case of non-performance of contract---Holding such amount not returnable entirely would amount to unjust enrichment of defendants/respondents at the cost of plaintiff/appellant---Concept of unjust enrichment was a common law concept based on equity, justice and good conscience---Courts had always been taking restitutionary measures whether or not there had been privity of contract or requisite clauses of contract to such effect, when they found phenomena of unjust enrichment---Trial Court had rightly found plaintiff/appellant at some fault but the fault was not of a nature which could have burdened him with such a heavy penalty of confiscation of entire amount rendered in part performance of agreement---Specific damages caused as a result of frustration of agreement could not be measured with precision---High Court declined to remand the matter for recording of evidence as the same would neither serve interest of parties to the lis nor would it serve interest of justice---Both parties would remain deprived of their substantial investment and remained stuck in litigation and would not be able to utilize their respective properties, resulting into material loss to both of them---High Court reduced confiscated amount to 10% of the total amount paid as the same was enough compensation for general damages that could have been caused to defendants/respondents because of cancellation of contract---High Court remolded relief granted by Trial Court by reducing amount of compensation---appeal was allowed accordingly.

FARJAN KHAN vs KAMRAN KHAN Ss — 2021 PLD 29 PESHAWAR-HIGH-COURT

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