ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. 1014 of 2008

Date	Order with signature of Judge

1. For hearing of CMA No.2155/2010 (U/S 151 CPC) :

2. For hearing of CMA No.8312/2009 (U/S 151 CPC) :

3. For final disposal :

Mr. Muhammad Aziz Khan, advocate for the plaintiff.

M/S Ayaz Ahmed Ansari & Hassan Sabir, advocates for defendant No.2.

Mr. Ejaz Mubarak, advocate for defendant No.3

Date of hearing : 16.09.2015.

O R D E R

NADEEM AKHTAR, J. – This Suit has been filed by the plaintiff for specific performance, declaration and permanent injunction in respect of Shop No.2, measuring 300 sq. ft., situated on the ground floor of Plot No.43-C, Badar Commercial Street No.10, Phase V Extension, Defence Housing Authority, Karachi (‘the suit property’). The case of the plaintiff, as averred in the plaint, is that defendant No.1 is the owner of the suit property ; on 24.04.2007, defendant No.1 offered to sell the suit property to him in consideration of Rs.6,200,000.00, which offer was accepted by him ; defendant No.2 is the attorney of defendant No.1, and the said offer was made to him by defendant No.2 on behalf of defendant No.1 ; on 24.04.2007, defendant No.2 executed a sale agreement in his favour, received an amount of Rs.1,000,000.00 from him towards part payment and issued a receipt for the same ; the sale was to be completed in his favour on 20.05.2007 when he was required to pay the balance sale consideration of Rs.5,200,000.00 and the title and possession of the Suit property were to be transferred in his favour ; and, despite all his efforts and repeated demands, defendants 1 and 2 refused to complete the sale in his favour. In the above background, the plaintiff has prayed for a declaration that he is entitled to purchase the suit property ; defendants 1 and 2 be directed to specifically perform their agreed part of the contract by transferring the suit property in his favour, and be restrained from selling, transferring or alienating the same ; and, defendant No.3 / DHA be restrained from transferring or mutating the suit property in favour of any third party.

2. In support of his case, the plaintiff has filed with the plaint copies of the sub-lease in respect of the suit property in the name of defendant No.1, general power of attorney executed by defendant No.1 in favour of defendant No.2, sale agreement executed in his favour by defendant No.2, legal notice issued by his counsel to defendant No.2, and reply of his legal notice from the counsel of defendant No.2.

3. On 25.07.2008, an ex-parte ad-interim order was passed on the plaintiff’s injunction application bearing CMA No.7407/2008, whereby the defendants were restrained from creating third party interest in the suit property till the next date of hearing. Vide order dated 03.09.2008, the said ad-interim order was confirmed. Thereafter, the plaintiff filed CMA No.8193/2008 praying that he may be allowed to deposit the balance sale consideration of Rs.5,200,000.00 with the Nazir of this Court within such time as may be fixed by this Court, and defendants 1 and 2 be directed to perform their part of the contract within a specified period. It was further prayed in this application by the plaintiff that if defendants 1 and 2 fail in performing the contract after such order, this Suit may be decreed in his favour ; and, in case of his failure in depositing the balance sale consideration within the time fixed by the Court, his Suit may be dismissed without further proceedings. In view of the consent given on behalf of defendant No.2, the above application was allowed vide order dated 11.05.2009 by directing the plaintiff to deposit the entire balance sale consideration of Rs.5,200,000.00 with the Nazir of this Court within four weeks, and the Nazir was directed to invest the same in some profit bearing Government scheme.

4. On 03.09.2009, defendant No.2 filed CMA No. 8312/2009 under Section 151 CPC praying that since the plaintiff had failed to deposit the amount within the time fixed by this Court and the above order passed by this Court on 11.05.2009 was not complied with, his Suit should be dismissed as prayed by him in his CMA No.8193/2008. On the other hand, the plaintiff filed CMA No. 2155/2010 on 08.03.2010 under Section 148 CPC praying that the time fixed by this Court for depositing the amount by him may be extended.

5. The record shows that summons were issued to the defendants, which returned duly served upon defendants 2 and 3 ; whereas, defendant No.1 remained un-served as he had shifted from the address given in the plaint as per the bailiff’s report. Vide order dated 16.10.2008 passed by the Additional Registrar (O.S.) of this Court, the plaintiff was directed file fresh address of defendant No.1. As he did not comply with the said order, he was directed by the Additional Registrar vide orders dated 22.01.2009, 24.02.2009 and 28.04.2009 to make compliance within the time specified in the said orders, and on 27.08.2009, last chance was given to him for this purpose. In his order dated 24.02.2009, it was further ordered by the Additional Registrar that meanwhile summons be repeated to defendant No.1. In the orders dated 28.04.2009 and 27.08.2009, it was noted by the Additional Registrar that costs for issuance of summons were not paid by the plaintiff. Despite repeated chances, the plaintiff failed to file fresh address of defendant No.1 or to deposit costs, and due to this reason, summons could not be issued to defendant No.1. In view of such persistent default by the plaintiff, the plaint was struck off by the Additional Registrar against defendant No.1 under Rule 128 of the Sindh Chief Court Rules (O.S.) vide order dated 17.11.2009, and an endorsement to this effect was made by him on the plaint on the same day under the said Rule.

6. Rule 128 of the Sindh Chief Court Rules (O.S.) provides that process fee for issuance of summons, notice or other process and costs of advertisements “shall” be paid within seven (07) days from the date of the order directing summons, notice, process or advertisement to issue, or within such further time as may be allowed by the Registrar (O.S.) by an order in writing ; and, in default of such payment, the plaint or application “shall” be struck off by the Registrar (O.S.), who “shall” make an endorsement to that effect on the plaint or application and sign it. It is further provided in this Rule that the plaintiff or the applicant or his advocate presenting the plaint or application is expected to ascertain and “shall” be presumed to know the date of the order directing the issue of the process or advertisement. Under Rule 129 of the Sindh Chief Court Rules (O.S.), on the application filed by the plaintiff or applicant and on sufficient grounds being shown to the satisfaction of the Registrar (O.S.), a plaint or miscellaneous application struck off the file under Rule 128 ibid may be restored to the file as of the date on which it was originally filed.

7. Under Rule 128 ibid, the plaintiff and his counsel were expected to ascertain and they “shall” be presumed to know the date of the aforementioned orders directing the issue of the process. As noted above, fresh address of defendant No.1 was not filed by the plaintiff nor did he deposit the process fee for issuance of summons despite repeated chances and in view of such persistent default by the plaintiff, the plaint was struck off by the Additional Registrar against defendant No.1 vide order dated 17.11.2009, and an endorsement to this effect was made by him on the plaint on the same day. Thus, compliance of Rule 128 ibid was duly made at the time of striking off the plaint against defendant No.1. The only remedy for the plaintiff against the above order was to file an application under Rule 129 ibid for restoration of the plaint against defendant No.1 by showing sufficient grounds to the satisfaction of the Additional Registrar. However, no such application was ever filed by the plaintiff with the result that the said order, having attained finality long ago, is still in the field.

8. The overall effect of the failure on the part of the plaintiff in getting the plaint restored against defendant No.1 is that there is no Suit or cause before this Court against defendant No.1. Therefore, the main reliefs of declaration and specific performance as well as the consequential relief of injunction prayed for by the plaintiff against defendant No.1, cannot be granted.

9. In addition to the above, it is the plaintiff’s own case that defendant No.1 is the actual owner of the suit property and defendant No.2 is merely the attorney of defendant No.1. Admittedly, the sale agreement was not executed by the owner (defendant No.1), but was executed by his attorney (defendant No.2). It is significant to note that the agreement was executed by defendant No.2 in his own personal name and capacity claiming himself to be the owner and vendor of the suit property and without disclosing that he was acting as the attorney of defendant No.1. This means that the actual owner (defendant No.1) never entered into any agreement with the plaintiff for sale of the suit property. In view of this legal position, declaration and or specific performance cannot be granted against defendant No.1 as there was/is no privity of contract between him and the plaintiff, nor can specific performance be granted against defendant No.2 as he was/is not the owner of the suit property nor was he competent to enter into the purported agreement with the plaintiff for sale of the suit property in his personal name and capacity claiming to be the owner and vendor.

10. From the above discussion, I have come to the conclusion that this Suit is not maintainable and is liable to be dismissed as none of the reliefs prayed for by the plaintiff can be granted. Foregoing are the reasons of the short order announced by me on 16.09.2015, whereby the Suit was dismissed with costs and pending CMA Nos. 8312/2009 and 2155/2010 were disposed of as having become infructuous. Precious time of this Court has been consumed and wasted in this misconceived and frivolous Suit which remained pending before this Court unnecessarily for more than seven years. The plaintiff is, therefore, directed to pay costs of Rs.25,000.00 (Rupees twenty five thousand only) by depositing the same with the Nazir of this Court in the account of High Court Employees’ Benevolent Fund.

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J U D G E