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Civil Suit No. 292 of 1981, decided on 10th March, 1987.

---S.12--Suit for specific performance of contract---Material on record showing that an agreement of sale of house was executed by defendant, that defendant had received certain amount as advance and that plaintiff was ready and willing to pay balance amount--Suit decreed- Plaintiff directed to deposit entire amount of balance Defendant directed to execute sale-deed in terms of the agreement and deliver vacant possession of house to plaintiff.

Amir Ahmed Khan for Plaintiff.

Date of hearing: 26th February, 1987.

This suit for specific performance was filed against the defendants on the allegations that by an agreement of sale dated 8-5-1979 defendant No.1, who is the wife of defendant No.2, had agreed to sell the plot No. 2526 with construction thereon situated at picture Road, Kalakot, Karachi for a consideration of Rs.1,00,000. Out of the consideration of Rs. 1,00,000 a sum of Rs. 40,000 was paid in advance and the remaining sum of Rs. 60,000 was to be paid by December, 1979 when the possession of the plot was to be delivered to the plaintiff.

2. It is stated in the plaint that in December, 1979 the plaintiff requested the defendant No.1 and her husband defendant No.2 to receive the balance amount of Rs. 60,000 and execute the conveyance in their favour, but due to some internal disputes between the two defendants the matter was put off and the sale-deed could not be executed. On 7-12-1980 the defendant No. 1 executed a declaration admitting that she had sold the plot to the plaintiff for a sum of Rs. 1,00,000 and had received Rs. 40,000 as part payment, that she had herself avoided to execute the sale-deed and receive the balance amount, as the sum of Rs. 40,000 which was paid to her by the purchaser earlier, had been spent away by her husband and she was apprehending that if she realises the balance of Rs. 60,000 this would also be squandered away by him. Photostat copy of this declaration on a Stamp paper has been filed. This declaration was attested by an Oath Commissioner and bears his seal. It was also signed by the witnesses namely, Haji Muhammad Ramzan and Ghulam Akbar. The plaint further proceeds to state that in spite of several requests and reminders the defendants avoided to execute the sale-deed under one protext or the other. She, however, handed over to the plaintiff the original Lease Deed of the property which was executed in her favour by the K.M.C.

3. Finally the plaintiff issued a legal notice dated 24-4-1981 calling upon the defendants to execute the sale-deed in his favour and accept the balance of the consideration. Photostat copy of this notice has been produced as Exh. 5/6. As the defendants failed to execute sale-deed, the plaintiff filed this suit on 27-4-1981.

4. Defendant No.1 is contesting the suit and has filed the written statement. In this written statement in para. 1 she has denied the execution of agreement on 8-6-1979 but has admitted "it was agreed that the defendant No.1 to sell the premises in question and has signed on Stamp paper brought by the plaintiff written in English on 10-1-1979 and the contents of the same have not been read over to the defendant No.1 but she was told to sign only. The plaintiff has not signed the said agreement although he was a party and the terms and conditions were never executed and settled between the parties. But it was settled that the plaintiff shall make the payment of Rs. 60,000 by December, 1979, neither he was in Karachi, nor he had made any payment by December, 1979 and he has violated the agreement, and automatically the agreement dated 10-1-1979 stood cancelled by December, 1979". In the next para. the defendant has substantially admitted the allegations in the plaintiff in the following words:-

"The contents of para 2 are not admitted except the payment of Rs.40,000. The plaintiff has not made the payment of Rs.60,000 in December, 1979 nor he ever contacted the defendants for the payment till 1981, and has violated the agreement of sale-dated 10-1-1979, hence the agreement in question has no legal effect after December, 1979."

In the following paras. of the written statement the defendant has denied that any approach was made to her or any offer for payment of Rs.60,000 was ever made. She has also denied execution of the declaration Exh. 5/5 dated 7-12-1980.

5. On these pleadings the following issues were framed:-

"1. Whether the defendant No.1 agreed to sell plot No.25-16 Picture Road, Kalakot Lyari Quarters, Karachi to the plaintiff with construction thereon for a total consideration of Rs.1,00,000 and received Rs 40,000 from the plaintiff as per agreement of sale dated 9th June, 1979. If so, what is its effect.

2. Whether the defendant No.1 on account of dispute with her husband defendant No.2 refused to accept from the plaintiff the balance of Rs.60,000 in December, 1979 and thereafter deferred the matter till 7th December, 1980 when she executed another Agreement /declaration

3. Whether the defendants Nos.l and 2 ultimately refused and avoided to register the sale-deed before the Sub-Registrar concerned in favour of the plaintiff in respect of the aforesaid property

4 .What should the decree bell.

6. The case came up for evidence and Pir Bux Attorney and son-in-law of the plaintiff was examined. He produced the power of attorney executed by the plaintiff in his favour Exh. 5/1. He has supported the allegations in the plaint. He has explained how the original documents have been lost. According to him, the documents were stolen from the Car of the Advocate of the plaintiff and a F.I.R, was lodged in the police station reporting the loss. The report is Exh. 5/3. He has produced the photo copy of the original agreement dated 8-6-1979 Exh. 5/2 and also the Lease Deed executed in favour of the defendant No.1 by the K.M.C. on 13-12-1977 which, according to the plaint, was handed over to the plaintiff by the defendant. It is Exh. 5/4. He has produced a photostat copy of the declaration dated 7-12-1980 in which the defendant No.1 has accepted the receipt of Rs.40,000. He has also produced the copy of the telegram which was sent to the defendant calling upon her to execute the sale-deed. This witness was cross-examined by the Advocate of the defendant. The trend of the cross-examination shows that the agreement substantially admitted. Receipt of Rs. 40,000 is also admitted.

7. It appears that according to the defendant the execution was not avoided by the defendant, but it was the plaintiff who was not forthcoming with the offer .to pay the balance of Rs. 60,000 by December, 1979.

8. The other witness produced by t a plaintiff is Haji Muhammad Ramzan, who is the attesting witness of the Declaration Exh. 5/5. He has supported the story of the plaintiff and I would quote a passage from his statement which runs as follows:

"Long time ago Ghulam Akbar, who is a friend of Muhammad Ismail brought a typed agreement 'and asked me to accompany him to defendant No.1. On reaching there he read out the agreement and in my presence that the defendant No.1 pointing to the Holy Qur'an promised to deliver the possession of the plot to the plaintiff and acknowledged the receipt of money which was paid to her earlier. She felt out assurances that she never misappropriates the money which she had received. Thereafter she signed the agreement and I also signed at the same time the photostat copy shown to me Exh. 5/5 bears .the signatures of Rabia as well as my signature. I had put these signatures on the Original after Rabia had signed."

It appears that this gentleman who was 70 years of age when his statement was recorded, due to his old age and loss of memory, has confused in re-construction the events that happened. But in my opinion he has said what was necessary to be said by an attesting witness. But even if we eliminate Exh. 5/5 which is a Declaration by the defendant No.1, the original agreement of sale remains unaffected. The only defence which is taken up by the defendant No.1 in her written statement is that because the plaintiff had not paid the balance of Rs. 60,000 to the defendant by December, 1979, the agreement was cancelled. The contents of the written statement are not substantive evidence and the defendant should have produced evidence in support of this defence which she has failed to do.

9. No evidence has been offered on behalf of the defendant, in spite of several opportunities. The statements of Pir Bux and Haji Muhammad Ramzan were recorded on 1-4-1986 and the side of the plaintiff was closed. The case was fixed for the evidence of the defendant. But on 20-8-1986, the defendant and her counsel remained absent and the side of the defendant was closed. The case was fixed for arguments. On 23-9-1986 when the case came up for arguments, the defendant's Advocate sent an application for adjournment on the ground that he was attending a training course on prevention of drugs. The case was, therefore, adjourned. Again the case was fixed for arguments on 20-10-1986, but it was adjournment at the request of the defendant's Advocate. The case was again fixed on 18-11-1986, but by this time the defendant had changed the Advocate and another Advocate was engaged, who moved an application being C.M.A. No. 6044 of 1986 on 13-11-1986 praying that the side of the defendant should be reopened. On this application an order was passed that the Advocate, who was conducting this case should personally appear to explain the default and to meet the allegations made by the defendant in her application C.M.A. No.6044 of 1986. The allegations against the defendant were that she was a Pardahnasheen lady. Her husband was in Dubai and the ex parte orders were passed on account of lack of information and lack of interest shown by her counsel. The case was adjourned for appearance of the Advocate and for final order on this application, because the defendant was a Pardahnasheen lady. After this order the case was fixed on 1-2-1987, but the new Advocate Mr. Suleman was called absent and there was no appearance till 11-45 a.m. Application C.M.A. No.6044/86, was, therefore, dismissed for non-prosecution and the case was adjourned. Today the case was fixed for arguments and even upto the closing hours of the Court there was no appearance on behalf of defendant No.1.

10. I have heard the arguments of the learned counsel for the plaintiff and feel that this case should now be disposed of and it would not be worthwhile to allow any further adjournment. From the perusal of the material on the record, it is evident that an agreement of sale has been executed by the defendant, that she has received Rs. 40,000 advance and Rs. 60,000 remain in balance which the; plaintiff is ready and willing to pay.

I would, therefore, decree the suit for specific performance. The plaintiff should deposit the entire amount of the balance of' Rs.60,000 with the Nazir within 15 days. The defendant should execute the sale-deed in terms of the agreement dated 8-6-1979 Exh. 5/2 and should also deliver vacant possession of the house on plot No.2526 situated at Picture Road, Kalakot, Karachi. In the event of failure of the defendant No.1 to execute the sale-deed, the Nazir should prepare a sale-deed and execute the same on behalf of the defendant No.1. Suit decreed as prayed with costs.

S.Q./M-63/K Suit decreed.

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