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Suit No. 99 of 1982, decided on 24th March, 1983.

‑‑‑ S. 42‑Specific performance‑Defendant agreeing to sell shop and plaintiff paying full price of shop‑Defendant acknowledging receipt of sale amount towards full and final payment of sale price‑Defendant issuing allotment order in favour of plaintiff and delivering possession of shop ‑ Plaintiff supporting claim through documentary evidence‑Plaintiff, held, made out a case for specific performance in circumstances of case‑Expenses, if any, incurred on behalf of defendant to be recovered from defendant.

R. H. Farooquifor Plaintiff.

Defendant : Ex parte.

Date of hearing : 24th March, 1983.

This is a suit filed for specific performance wherein plaintiff has claimed the ,following relief

"(a) The defendants be ordered to execute proper conveyance, transfer/sale‑deed in favour of the plaintiff in respect of the shop No. 52, on ground floor situated to the building in Dastagir Centre, on Plots Nos. 75, 75/1, Garden Road, Karachi, complete in all respects and free from all charges, encumbrances and burdens of whatsoever nature and to do all acts, necessary for its registration.

The defendants be ordered to pay the plaintiff a sum equivalent to the present market value of the said shop comprising of the said total sum of Rs. 1,11,000 already paid to the defendants by the plaintiffs as agreed consideration of the shop plus damages for non‑performance of the contract. The plaintiff hereby under takes to pay the additional court‑fee, if any, which becomes due on account of the money decree which may be passed in favour of the plaintiff.

(b) Costs of the suit be allowed.

(c) Any other and further relief's which this Honourable Court may deem fit and proper in the circumstances of the case be granted."

The defendants though served remained absent and suit is directed to proceed ex parse against them.

1. The facts disclosed in the plaint verified on solemn affirmation by the plaintiff show that the defendants advertised in the newspapers of Karachi and invited offers for the sale of show rooms, shops, offices, on ownership basis in the building known as 'Dastagir Centre' to be constructed on plots bearing Nos. 75, 75/1, Garden Road, Karachi. Copy of the advertisement appearing in the issue of daily Jang (Urdu) Karachi, dated 29th December, 1978 has been produced as Annexure A to the plaint. Pursuant to the said invitation, the plaintiff approached the defendants and agreed to purchase and defendants agreed to sell to him shop No. 52 on the ground floor in the said Dastagir Centre' building, for Rs. 1,11,000. The plaintiff accordingly paid to the defendants the full price of the shop in the following manner:‑

(i) Rs. 67,000 paid by pay order No. B‑890310, dated 8th March, 1979.

(ii) Rs. 44,000 paid by pay order No. DA‑587590, dated 10th March, 1979.

The defendants issued their receipt No. 157, dated 10th March, 1979 acknowledging the receipt of Rs. 1, 11,000 towards the full and final payment of the sale price of the above‑mentioned shop in favour of the plaintiff. The plaintiff has produced alongwith the plaint the photo copies of the counterfoils of the pay orders as Annexures 'B' & ‑C' and receipt dated 10th March, 1979 issued by the defendants as Annexure 'D' to the plaint.

The defendants on 10th March, 1979 issued an allotment order in favour of the plaintiff and possession of the said shop No. 2 was delivered vide the possession order, dated 25th March, 1980. Photo copies of these documents are annexed to the plaint and marked Annexures 'E' and 'F'. The plaintiff subsequently approached the defendants on 20th October, 1980 and thereafter several times for executing proper conveyance, transfer/sale‑deed and for its registration in respect of the shop in question and to make out marketable title for which the plaintiff was and has always been willing to bear all the expenses for stamps and registration charges etc, but the defendants put of the matter on one pretext or the other. Finally, the plaintiff served notice, dated 25th February, 1982 (Annexure G' to the plaint) upon the defendants. Since, the defendants failed to execute and register the necessary transfer/sale deed and to make out a marketable title in respect of the said Shop No. 52, the plaintiff filed the present suit in which he claimed the reliefs mentioned above.

2. The plaintiff has also filed today in Court an affidavit in ex parte proof alongwith which he has produced original documents of which photo copies have been filed alongwith the plaint and have been referred to above.

3. In the circumstances stated above, I am satisfied that the plaintiff has made out a case for the specific performance of the agreement and for the grant of relief claimed in clause (a) of the plaint. Accordingly the suit is decreed for specific performance as claimed in clause (a). The defendants shall also bear the costs of this suit.

In view of the relief granted for the performance of the agreement of sale as mentioned above, the relief claimed in the alternative is dis allowed as not pressed.

In case defendant fails to perform the agreement of sale and execute and register the transfer/sale‑deed in favour of the plaintiff as decreed above the Nazir shall execute the same in favour of the plaintiff and the expenses if any incurred on behalf of the defendant shall be liable to be recovered from the defendants.

M.A.K. Suit decreed.

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