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Suit No: 2 of 1979, heard on 3rd December, 1986.

---S.12--Specific performance of contract--Defendant cancelling agreement of sale of a shop to plaintiff--Payments of instalments were made by plaintiff well in time and same were accepted by defendant--Defendant's only grievance was that payments of instalments were not made by plaintiff in time, and no other defence had been raised by him in written statement--Plaintiff's version remaining un-rebutted and unchallenged--Held, defendant could not cancel agreement unilaterally and deprive plaintiff of possession and document of title in respect of shop for which he had made full payment--Suit decreed and defendant directed to execute 'sale-deed and deliver possession of shop in question to plaintiff.

---S.12--Contract Act (IX of 1872), S.73--Specific performance--Breach of contract--Claim for damages--Plaintiff, claiming damages for breach of contract but failing to prove same by evidence--Claim for damages not accepted.

Muhammad A. H. Baloch for Petitioner.

M.A. Latif for Respondent (absent).

Date of hearing: 3rd December, 1986.

This is a suit for specific performance of a contract filed by a widow against the Defendants, who are Construction Company. The contract of purchase was in respect of Shop No.6 situated on Plot No.4, Modern Colony, Manghopir Road, Karachi. The Defendants were served. They have filed written statement and on 12-5-1979 issues were framed.

2. The Plaintiff Mr. Bismillah has appeared and her statement was recorded in Court on 7-10-1986. In the contract, according to her, the payments were to be made in instalments and she has paid the instalments well in time. She has filed receipts of payments dated 7-2-1977, 17-6-1977, 24-1-1978, 2-4-1978, 29-4-1978 and 12-10-1978 (Exhs.5/1, 5/4, 5/6, 5/8, 5/9 and 5/11 respectively. Photo-stat copies of these receipts -have been filed and the amount paid under these receipts upto 12-10-1978 was Rs.49,750 leaving a balance of Rs.5,250. Even this amount the Plaintiff sent through Pay Order dated 19-12-1978, but it was returned by the Defendants. The Defendants have filed a Written-Statement. Although the contents of this written statement are not substantive evidence to be relied upon, but a perusal of the written statement indicates that they have accepted all these payments. The only grievance is that these payments were not made by the Plaintiff in time.

3. In the first instance there is no evidence to show that any time schedule was prescribed. According to the version in the plaint, the payments were to be made at different stages of the construction and the Plaintiff has not only paid the instalments in time, but well advance in time before the construction reached at the particular stage at which the payment was due. But assuming for the sake of arguments that there was some delay, the same would be deemed to have been condoned because all the instalments tendered were accepted by the Defendants without any protest or without any objection. The Plaintiff admits that after having paid Rs.49,750 out of the total

consideration of Rs. 55, 000, the balance due is a sum of Rs.5, 250 which was tendered through a Pay Order, but was returned by the Defendants.

4. As no substantial defence has been raised in the Written Statement and the Plaintiff's version remains un-rebutted and un-challenged and the receipt of payment is accepted by the Defendants, there is no reason why the contract of the Plaintiff should be unilaterally cancelled and she should be deprived of the shop for which she has made about 90 payment. Although full consideration was made by 19th December, 1978, she still remains deprived of the possession and documents of title and has rightly claimed damages. She has claimed damages at the rate of Rs.3,000 per month being the rent of the shop which she might have earned if the possession of the shop was delivered to her. Unfortunately these damages have not been proved and it is difficult to award damages to the plaintiff without any evidence. The premises have been sealed by the order of the Court and no party has been able to take any advantage or draw any benefit out of this shop which was ready for occupation by the close of 1978.

In the circumstances the suit is decreed with costs as prayed. Possession of the shop should be delivered to the Plaintiff. The Defendants are directed to execute the sale-deed and other necessary documents according to law within one month, failing which the plaintiff would be entitled to obtain the execution of this document through Nazir of this Court.

In the circumstances of the case, as no damages have been proved, the claim for damages at the rate of Rs.3,000 per month is dismissed.

M.Y.H./B-19/K Suit decreed.

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