HIGH COURT OF SINDH AT KARACHI

Suit No. 1154 of 2014

Hamad Illahi ……. Plaintiff

Versus

Abdul Hussain Mohsin Jawad Sajwani ……. Defendant

Date of Hearing:	16.12.2017 & 21.3.2018

Date of Announcement:	26.3.2018.

Plaintiff: Through Mr. Mushtaq Ahmed Memon, Advocate a/w Mr. Qazi Shunail Ahmed, Advocate.

Defendant : Through Mr. Yousuf Moulvi, Advocate.

J U D G M E N T

MAHMOOD AHMED KHAN-J: This is a suit for specific performance filed in respect of property bearing Bungalow No. 55/1, 3^rd Street, Phase V, D.H.A., Khayaban-e-Badban, Karachi (hereinafter referred to as the subject property) in respect of which according to the plaint though abbreviated it is contended that the defendant agreed for the sale of the subject property for a total consideration of Rs.4,38,00,000/- (Rupees four Crore Thirty Eight Lac only), which according to him was the sole property of his wife late Mrs.Nusrat and the defendant in respect of his share as husband and the remaining of his children being co-sharer in the said property. That the plaintiff paid sale consideration of Rs.800,000/- (Rupees Eight lac only) through Cheque No.RP-1197237 dated 04-03-2012 and Cheque No. RP, 1197266, dated 16-05-2012 drawn on Bank Alfalah Limited, Progressive Square, Shahrah-e-Faisal Branch, Karachi plus Rs. 500,000/- (Rupees Five lac only) through cheque No. RP-9262385 dated 02-10-2012 drawn on Bank Alfalah Limited, Progressive Square, Shahrah-e-Faisal Branch, Karachi, and an amount of Rs. 350,000/- (Rupees Three Lac Fifty Thousand only) through Cheque No. RP-8262409, dated 14-11-2012 and drawn on Bank Alfalah Limited, Progressive Square, Shahrah-e-Faisal Branch, Karachi, thus he acknowledged total partial payment of Rs. 16,50,000/- (Rupees Sixteen Lac Fifty Thousand only) as seller against receipts and defendant further agreed with the plaintiff that he will fulfill the legal documents for the transaction of the suit property as soon as possible and will get executed the sale deed favoring the plaintiff through all the LRs and will get the remaining amount in the office of concerned Registrar. That after sometime said sale transaction plaintiff made approaches to defendant for execution of sale deed and delivery of possession and was kept on hope and ultimately on 22-6-2013 the legal notice was sent to the defendant but thereafter about one month before filing of the suit the defendant refused point blank to register Sale Deed and the possession without any cogent reason.

The defendant in the matter filed written-statement denying the contentions of the plaintiff. The promise of sale was claimed to be based upon the consent and approval of the legal heirs along with the executions as present and required and it is stated that the Defendant in his individual capacity agreed and received the payment on the condition that if all the legal heirs agreed to sale the suit property the defendant will sign a sale agreement and will collect 10% of the total sale consideration failing which the amount shall be returned. The payments were admitted along with the legal notice, however the keeping of false hopes and promises as alleged were denied. The non-delivery of possession not having a cogent reason was denied. It is further stated that the defendant as early as in 2013 at his residence in presence of his lawyer had conveyed his inability on account of refusal of his all five children to the plaintiff or any other person and requested the taking back of his money but the legal notice was sent to which a reply was given which according to him has been concealed by the plaintiff. The defendant as such also denied cause of action.

2) Following issues were framed on 27-04-2015;

1. Whether the payments made by the plaintiff to the defendant constitute an agreement /contract? If yes, then.

2. Whether the defendant has received the amount of Rs.16,50,000/- only as the token money against the full consideration of Rs. 4,38,00,000/- pertaining to the sale consideration amount for Bungalow No. 55/1-3^rd Street Phase V, D.H.A, Khayaban-e-Badban , Karachi in capacity of share holder including Guardian and father of rest of other share holders.

3. Whether the defendant has committed any breach of such agreement/contract?

4. Whether such agreement/contract is specifically enforceable?

5. What should the decree be?

3) Evidence of Plaintiff’s witness namely Hamad Illahi was recorded who filed his affidavit-in-evidence and produced the same as Ex. P/1, copy of the receipt dated 14.11.2012 as Ex. P/2, copy of CNIC of the son of the defendant, the defendant & cheque of Rs. 50,000/- dated 04.03.2012 as Ex. P/3 to P/5, copy of the token receipt dated 03.03.2012 as Ex. P/6, copy of cheque Rs. 3,00,000/- dated 16.05.2012 alongwith the photo copy of the receipt marked Article O/1, photocopy of the cheque of Rs. 5,00,000/- dated 02.10.2012 marked Article O/2 and copy of the legal notice dated 22.06.2013 as Ex. P/7 along with the witness namely Semab Anthony Gill was also recorded who produced his affidavit-in-evidence as Ex. PW/1.

The evidence of Defendant namely Abdul Hussain Mohsin Jawad Sajwani was also recorded who produced his affidavit-in-evidence as Ex. D/1, copy of the legal notice dated 22.06.2013 as Ex. D/2 and copy of the reply of the legal notice dated 22.07.2013 as Ex. D/3, along with the evidence of his witness namely Adnan Memon who produced his affidavit-in-evidence as Ex. DW/1 and copy of the reply of the legal notice dated 22.07.2013 alongwith TCS receipt as Ex. DW/2.

All the witnesses were cross-examined.

4. It is contended on part of learned counsel for the plaintiff that the defense as taken by the defendant in the matter is that it was a conditional contract whereas no condition is fund in the receipts issued at the relevant time, as such it stands concluded that no condition was present. It is further contended that the defendant has failed to attempt the return of the amounts received at the first opportunity and that the four payments received cannot be termed as token payments only. It is further contended that the burden was on the defendant to prove that the alleged condition was present. The presence of copy of the son’s CNIC establishes the presence of the son and consent of sale. That the defendant having failed to cross examine the plaintiff as to the paragraph 6 of the affidavit in evidence specifying the agreement of the defendant to fulfill the legal documents and execution for the transection of sale as soon as possible in his favor through all the legal heirs of the wife and get the remaining amount before the registrar amounts to admission. That an independent person has supported the case of the plaintiff and that the defendant has failed to come up with the best evidence as required under Article 129 and 102 of the Evidence Act as no other legal heirs was produced and non-production of the said children cannot be substantiate by the oral evidence of the defendant and as such the adverse presumption has to be taken. In support of his contentions learned counsel has relied upon NLR 1992 SCJ page 87, 1996 SCMR page 137, PLJ 2011 S.C. page 191, 1997 SCMR page 1570, 2002 SCMR page 326, 2016 SCMR page 274. It is also contended on part of learned counsel for plaintiff that written agreement is not required and in this regard he has relied upon PLD 1981 Karachi page 170, 1996 CLC page 1758, 1997 MLD page 1294 and 1994 SCMR page 2189. It is further contended on part of learned counsel for plaintiff that non-deposit of the balance amount on part of the plaintiff is not requirement of law and only showing readiness and willingness is required which is otherwise available in the present case and in this regard he has relied upon PLD 2009 Lahore page 514.

On part of the defendant it is contended that the understanding between the parties was not a concluding contract as the same was dependent upon will and consent of all the parties and that the said willingness and consent was the condition required in the matter which being missing specific performance was not available. He further states that also considerable are the surrounding circumstances being that no property documents copies thereof were given against the four installments and the amount received was prima facie only 3.2 % of the agreed price. That agreement of sale was not subsisting in a conventional form and that all the owners had not consented sale, as such no specific performance to the same is available. It is further contended that the amount received has since been deposited in Court by the defendant at his own will. It is also contended on part of learned counsel for defendant that balance sale consideration has never been got deposited on part of the plaintiff. That the name of the agent as deposed was Javed whereas one Samuel Anthony Gill has been produced, belonging to Estate Agency Pak Property and that the receipt has been made out on the letter head of Carwall Estate Agency. That during the evidence the plaintiff has come with a different plea in violation of the pleadings that the sons of the defendant were present in the meeting. The same being beyond pleadings is not liable to be consideration. That the evidence as lead by the plaintiff is self-contradictory in respect of consent of the other legal heirs and presence of sons in the first and/or the second meeting by the witness. That the share of the father cannot be treated as a separate contract as the same was never agreed, reliance in this regard was placed on Section 17 of Specific Relief Act and the case reported as 1993 SCMR page 804. That as to Article 103 of Qanoon-e-Shahadat relied upon by the plaintiff proviso 2 of the same supports the case of the defendant. In this regard reliance has been made to 1993 SCMR page 374 and the case relied upon by the other side 1997 SCMR page 1570 is said to be distinguishable as the same is not in respect of contradictory evidence which is present in this case. That Article 129 of the Qanoon-e-Shahadat is not applicable as the same was in contradiction to what was stated in the plaint.

Learned counsel for the plaintiff in rebuttal contends that there was a concluding contract as offer acceptance and consideration was present and in this regard learned counsel has relied upon PLD 1981 Karachi page 170, 1996 CLC page 1758, 1997 MLD page 1294, 1994 SCMR page 2189, 2017 SCMR page 98. It is contended that the alleged conditional and contingency is not supported by evidence as burden of proof present on part of defendant under Article 118 and 119 has failed to shift. It is also contended that the payment of the balance sale consideration is not based upon any order of this Court nor there is any legal requirement. In this regard reliance has been made to Section 35 of the Specific Relief Act stating that the same become redundant as it is provided in the decree of specific performance wherein time is also specified for payment. That the father acted as an agent of the children considering Section 230 of the Contract Act and reliance in this regard was made to PLD 1950 Sindh page 126, PLD 1966 page 340, PLD 1969 Dacca page 214, 2003 Lahore YLR page 278, 2002 YLR page 1053, 1993 SCMR page 804. Learned counsel for plaintiff has also relied upon Section 18 of Specific Relief Act alongwith Article 70 and 71 of Qanoon-e-Shahadat in support of contention that no direct evidence of denial is present on part of the children.

5. Having heard the learned counsels and gone through the record, in my humble understanding the findings to the issues are as under;

1. Whether the payments made by the plaintiff to the defendant constitute an agreement /contract? If yes, then……..Negative

3. Whether the defendant has committed any breach of such agreement/contract? ………… Consequently becoming redundant
and as discussed.

4. Whether such agreement/contract is specifically enforceable? ……………………………………. Consequently becoming redundant
and as discussed.

5. What should the decree be? …. Suit dismissed with costs.

Issue No.1: Whether the payments made by the plaintiff to the defendant constitute an agreement /contract?

For a specific performance the relevant law is the Specific Relief Act 1877, to which however the basic law governing the parties is Contract Act 1872. According to which the agreement arises from the offer and acceptance thereof, the offer concluding into acceptance, in the present case it is alleged by the plaintiff that there was an agreement (being enforceable by law as such a contract) whereas the defendants denies the same on the ground of authority and in other words consent of the required parties. The plaintiff having paid partial amounts against documented transections at different times along with whatever evidence as has been brought up, prefers to interpret the same as having received with due authority. No actual details to this effect however has come up, it is however apparent that at the time of entering into negotiations the plaintiff was aware of there being multiple owners being LRs of the late owner Mrs.Nusrat. The admitted receipts despite having other details are silent to this aspect. After evidence and without going into the question of whether such evidence is liable to be lead or to its entertainment, it bears therefrom that the plaintiff at best can muster consent of only two of the owners at best. In respect to the other four for which it has been argued that evidence had to be brought up on part of the defendant the same will only arise once the plaintiff has brought up material showing any consent existing as to the alleged agreement i.e. consent of the said owners, nothing having been shown, no rebuttal to the same is required more then what has already come from the defendant. It can as such safely be concluded that the plaintiff has failed to prove that the payments made constituting an agreement qualifying to a contract, liable to be specific performance, the same at best constitute an agreement or an understanding to attempt and acquire consent of all the owners, however not a contract irrespective to there being the four installments, as the position apparently never changed, the same at best being an obligation of an agent of due care, nothing in law and fact/s has/can be brought up to this obligation open to be specifically enforced as the same was present on part of other persons and not the agent himself. It is also observed that the said owners are not even parties to this proceedings who’s details may never have been available with the plaintiff. This court without the specific allegation with the required background in this regard and without being made a party cannot pass any order effecting there rights. The plaintiff having acted accordingly cannot be given the benefit of an undisclosed principal on account of his knowledge to this respect. On account of this discussion this issue is decided in negative.

Issue Nos.2,3 & 4: being consequential have become redundant, the same need no further/detailed discussion, however it is observed that the plaintiff having failed to out-pocket/deposit the balance consideration cannot demand a discretionary relief which is required in this regard to also preserve the equity between the parties on account of ever increasing sale prices due to inflation etc. as no one can be allowed to benefit financially for time spent in the proceedings and a right of specific performance is quite different from the right to purchase at a specific price which is different from the value thereto. On the other hand the defendant in his reply to the legal notice had not only already offered the return of amount since received the same has also been deposited before this court without any order in this regard. The said issues as such not only redundant, stands decided in negative.

Issue No.5: What should the decree be? For the fore given reasons and discussion the suit of the plaintiff is dismissed with costs. It has bears from the record however that the defendant has deposited the amounts received from the plaintiff. It is as such ordered that the same be disbursed to the plaintiff along with any profit accrued thereon in accordance with rules.

Office to prepare the decree accordingly.

JUDGE