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Civil Petition No. 94‑R of 1986, decided on 1st July, 1986.

(From the order of the Peshawar High Court, dated 1‑2‑1986, passed in Civil Revision No. 691 of 1985).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.VIII, Rr. 3 & 5‑‑Suit for specific performance‑‑Defendants' failure to specifically deny facts stated in plaint‑‑Effect of‑‑Defendants failing to rebut definite averments made in plaint by petitioner‑‑Dismissal of suit impugned‑‑Leave granted to consider plea that defendant must be specific with allegation of facts and if he failed to do so, such facts should be taken to be admitted.

Bashir Ahmad Ansari, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Ismail Qureshi, Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record for Respondents.

Date of hearing: 1st July, 1986.

Wasil Khan (plaintiff‑petitioner) seeks leave to appeal against the order of a learned Single Judge of the Peshawar High Court, dated 1‑2‑1986, whereby his Civil Revision No. 691 of 1985 was dismissed in limine.

2. The brief facts are that Shuja‑ud‑Din respondent No. 4 is the general attorney of respondents Nos.1 to 3 and husband of respondent No.2. He agreed to sell quarter No.1l, the boundaries of which have been given in the heading of the plaint, situate in Zaryab Colony, Peshawar City, for a sum of Rs.20,000 and had received a sum of Rs.1,000 as earnest money on 29‑8‑1978 against which he had executed a receipt which is EXh.P.W.l/1. It was stipulated that the remaining sale price would be paid to the vendors‑respondents by the 30th of December, 1978.

It was on 9‑12‑1978 when the petitioner received a notice from the vendors demanding payment of the remaining sum before 15‑12‑1978. On the receipt of this notice the petitioner approached respondent No.2 and her husband respondent No.4 who demanded the payment of the entire amount, viz. Rs.19,000 and advised the petitioner to file a suit in the Court of Senior Civil Judge and get a consent decree. The petitioner did not agree with this proposition, some hot words were exchanged as a result of which the respondents refused to honour the sale agreement. This led the petitioner to file a suit for specific performance of contract. The suit was resisted which gave rise to as many as five issues. The learned trial Court after recording the evidence led by the parties dismissed the suit of the petitioner vide judgment dated 6‑11‑1984. His appal before the learned District Judge and the revision in the High Court met the same fate vide judgments dated 16‑9‑1985 and 1‑2‑1986, respectively.

3. We have heard the learned counsel for the petitioner and gone through the judgments of the Courts below. It is submitted that in para. 2 of the plaint, the petitioner had made a definite averment to the effect that the respondents had offered to sell the quarter in question to the petitioner for a sum of Rs.20,000 which the petitioner accepted and a sum of Rs.1,000 was paid against a receipt executed on 29‑‑8‑1978 (Exh.P.W.1/1) by respondent No.4 who was the general attorney of respondents Nos. 1 to 3 but none of the respondents appeared to rebut the above averments. It is further submitted that as provided for under Order VIII, rules 3 and 5, C.P.C. a defendant must be specific with the allegation of facts and if he fails to do so the facts shall be taken to be admitted.

4. We think the argument advanced by the learned counsel for the petitioner has some force. Leave to appeal is, therefore, granted. Security Rs.2,500. Status quo shall be maintained in the meanwhile.

M.I. Leave granted.

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