2002 M L D 1546

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[Karachi]
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Before Anwar Mansoor Khan, J
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Mst. RUBINA MAKHDOOM---Plaintiff
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versus
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Mst. SAJIDA AHMED ---Defendant
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Suit No. 965 of 2001, decided on 21st August,. 2001.
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Contract Act (IX of 1872)--[if !supportEmptyParas] [endif]
----S.29---Void agreement---Enforcement of---Any agreement,
meaning of which was not certain or was incapable of being
certain or was vague, could not be enforced being void---Court
declined to allow implementation of a term in an agreement
which was neither certain nor capable of being made certain.
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Syed Samiuddin Sami for Plaintiff.
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Muhammad Amin Lakhani for Defendant.
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Date of hearing: 21st August, 2001.
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ORDER
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By order dated 20-8-2001, the parties were required to be
present in Court for examination under Order X of the Code of
Civil Procedure. The parties are present. A specific question was
put to Mrs. Rubina Makhdoom, the plaintiff, as' to where the
original of the agreement dated I1-6-1999 was. An attested copy
of the said agreement has been produced alongwith the original
of TCS receipt. Mrs. Rubina Makhdoom stated that the original

was with Mrs. Sajida Ahmed. the defendant and that the same
was not given to her. On the other hand, Mrs. Sajida has stated
that she has never seen this agreement before and that she was
ready to take special oath also. On this, Mrs. Rubina also stated
that she was also ready to take special oath. These are questions
of fact. which need to be determined. These questions can only
be determined after evidence is led. Both the plaintiff and the
defendant are willing to take Special Oath, which in itself shows
that one of the parties to the proceedings is incorrect.
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2. However, the case has been argued at length on the question
of law on the presumption that the agreement has been executed.
The question could, however, arise, as to why I presume the
existence of the agreement. I have seen the attested copy and
had asked Mrs. Sajida Ahmad to sign on the reverse of the
photocopy of the agreement filed with the plaint. I have
compared the signatures and find that they are similar. My
assessment is, however, only for the purpose of deciding this
application, but shall not have any effect on the eventual
outcome of the case- There is on record the said agreement,
which takes away the right of Mrs. Sajida Ahmed to open any
school in P.E.C.H.S. or its adjoining vicinity and/or to use the
name and style of the word 'Accel in any such school which she
may open or run outside the area mentioned and also by any
means not to use the above name in Pakistan. Earlier I had
passed an order on 27-7-2001 on the basis of the fact that, it was
reported by the bailiff that the notice had been refused. Ex parte
order having been passed, that she was restrained from opening
a school at 142/C, Block-2, P.E.C.H.S., Karachi or anywhere
else in P.E.C.H.S. or its adjoining vicinity and would not use the
name 'Accel' in any other school outside P.E.C.H.S. area. The
order was passed on the basis of aforesaid agreement. The
application being C.M.A. 5889 of 2001 has been made for
modification of the said order, in para. 5 of the supporting
affidavit, the said Mrs. Sajida Ahmad had stated that she had no
intention whatsoever to open a school at 142, P.E.C.H.S. or
anywhere else in P. E. C. H. S., Karachi or its adjoining vicinity

or use the name Accel in any other school outside P.E.C.H.S.

area. The explanation of this, given by Mr. Lakhani is, that as
there was an order of this Court, therefore, such has been stated
but according to para. 7 also she is not debarred from practising
her right and profession. According to him no contract can be
made which is violation of Article 18 of the Constitution of
Islamic Republic of Pakistan, 1973 and that section 21 of the
Contract Act, 1872 would also be available that this being read
as restriction on her right to profession and trade. He states that
otherwise also the said agreement is forged. He states that
otherwise also, in law if there is available anything contrary to
the Constitution, such cannot be enforced.
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3. Mr. Syed Samiuddin Sami, on the other hand, states and
interprets clause 7 of the agreement, that the said Mrs. Sajida
Ahmad had agreed to perform her part of the contract with full
dedication and honesty and in case the mutual contract breaks,
for any reason or terminates and the First Party (the defendant)
departs from the school, she was bound not to open a school in
P.E.C.H.S. and the adjoining vicinity.
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4. I have heard the arguments of both the sides and examined the
parties also. At this stage, it will not be appropriate to see
whether the agreement is or is not a valid contract or that it is
forged or otherwise. However, only clause 7 of the agreement
needs to be interpreted. There are two assertions of clause 7. The
first being that the said Mrs. Sajida Ahmed would be bound not
to open a school in P.E.C.H.S. and the adjoining vicinity
whereas the second portion of the agreement is that she is bound
not to use the name and style of the word 'Accel' in any school
which she may open or run outside the area mentioned and also
by all means not to use the name 'Accel' in Pakistan. The only
position would be what this words "adjoining vicinity" mean. If
these terms have to be given a meaning, it could mean a very big
area of Karachi, P.E.C.H.S. is almost at the heart of the city
Defence Authority, Gulshan-e-Iqbal, or other surrounding areas
are all adjoining areas. This is not specific. I am not inclined to

allow the implementation of a term of an agreement which is not

certain nor capable of being made certain. Whilst interpreting
the clause of an agreement, it has to be borne in mind that
anything which is vague is not enforceable, and is void. Such is
provided in section 29 of the Contract Act, 1872 which clearly
stipulates that any agreement, the meaning of which is not
certain or is incapable of being certain or is vague, cannot be
enforced being void. The word "adjoining vicinity" is vague, the
meaning cannot be ascertained. Thus this part of the agreement
is prima facie void. For this reason, though the injunction may
be maintained as regards P.E.C.H.S., the order, dated 27th July,
2001 is to be modified, that the defendant may not proceed to
open any school within P. E. C. H. S. only and shall not use the
name and style Accel anywhere outside P.E.C.H.S. in any
manner whatsoever. However, she may continue her lawful
profession or business outside of P. E. C. H. S.
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H.B.T./R-68/K
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Order accordingly
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