ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

High Court Appeal No.130 of 2017

Date	Order with signature of Judge

Hearing / priority case :

1. For hearing of CMA No.627/2017 (Stay) :

2. For hearing of Main Case :

20.12.2018 : Mr. Muhammad Shafiq, advocate for the appellant.

Mr. Abdul Wajid Wyne, advocate for the respondent.

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Suit No.1192 of 2008 was filed by the respondent at the original side of this Court against the appellant for declaration, injunction and possession with the following prayer :

“a) To declare and adjudge that the defendant had committed breach of contract dated 24.03.2004 Annexure H to the plaint and in consequence thereof the defendant be ordered by this Honourable Court to deliver up vacant and peaceful possession of Bungalow No. A-55, Block II, measuring 200 Sq. yards, Chapal Sun City, Plot No. 29/1, Sector 29, KDA Scheme No.33 Karachi to the plaintiff.

b) For possession of the said Bungalow No.A-55, Block II, measuring 200 Sq. yards Chapal Sun City, Plot No. 29/1, Sector 29, KDA Scheme 33, Karachi be delivered to the plaintiff.

c) Permanent injunction restraining the defendant, his employees, agents, subordinates and any one working under his from selling, transferring, alienating or creating any encumbrances of the suit to any third party or to deliver possession of the said Bungalow No.A-55, Block II, measuring 200 Sq. yards Chapal Sun City, Plot No.29/1, Sector 29, KDA Scheme 33, Karachi.

d) Cost of the suit.

e) Any other relief(s) which this Honourble Court may deem fit and proper under the circumstances of the case.”

Through the impugned judgment dated 07.12.2016 and decree dated 22.12.2016, the respondent’s above Suit was decreed against the appellant to the extent of prayers (a), (b) and (c), subject to refund / return to the appellant the amount paid by him to the respondent along with 10% profit per annum (not being compoundable). Record shows that upon service of summons, a counsel had filed power on behalf of the appellant / defendant, but written statement was not filed within the statutory period and eventually the appellant was debarred vide order dated 08.09.2011 from filing written statement. Record further shows that an application for recalling the aforesaid order was filed on 22.12.2015, that is after more than four (04) years, which was dismissed vide order dated 10.11.2016. It is stated by learned counsel for the appellant that the appellant did not file any appeal against the aforesaid order dated 10.11.2016. It was noticed in the impugned judgment by the learned single Judge that even on the date of hearing of the Suit no one was present on behalf of the appellant to assist the Court.

Before the learned single Judge, it was the case of the respondent that the appellant had entered into an agreement with him whereby he agreed to purchase the suit property from him in consideration of Rs.3,030,000.00 ; after receiving an amount of Rs.1,206,600.00 from the appellant, possession of the suit property was handed over to him ; it was agreed that the balance amount of Rs.1,823,400.00 will be treated as a loan and will be settled by the appellant in equal installments payable in advance by the 10^th day of each month from April 2004 onwards ; the appellant committed default and did not settle the liability despite repeated demands by the respondent ; and, as at 25.05.2007, the appellant was liable to pay an amount of Rs.1,979,600.00 to the respondent. Since the Suit had proceeded ex-parte against the appellant, the respondent / plaintiff filed his affidavit in ex-parte proof whereafter he produced his witness who was not cross-examined by the appellant. The respondent’s witness had produced the originals of all relevant documents.

Record shows that before the learned single Judge a statement was made on behalf of the respondent that he will return the amount paid by the appellant along with markup at the rate prescribed by State Bank of Pakistan if possession of the suit property is handed over to him by decreeing his Suit. Thereafter, the plaint and evidence of the respondent were minutely examined by the learned single Judge and it was also noticed that the appellant had not filed written statement despite being represented by a counsel and had also failed to cross-examine the respondent’s witness. After examining the material available on record and keeping in view all the aspects of the case and the above statement made on behalf of the respondent, the Suit was decreed against the appellant in the above terms through a well-reasoned and speaking judgment.

No valid reason, ground or justification is available on record or has been argued before us as to why written statement was not filed by the appellant when he was duly served and was being represented by a counsel ; why the order of dismissal of application for recalling the order whereby he was debarred from filing written statement, was not challenged by him ; and, why the respondent’s witness was not cross-examined by him. By not challenging the said order of dismissal of his application, the appellant had accepted the order passed in the Suit whereby he was debarred from filing written statement, and as such the said order dated 10.11.2016 attained finality long ago. Despite this situation, the appellant could have cross-examined the respondent’s witness in order to dislodge the claim made in the Suit, but for the reason best known to him he chose not to do so. In spite of the fact that the Suit had proceeded ex-parte and the respondent’s evidence had remained unchallenged and un-rebutted, the plaint and evidence of the respondent were still examined minutely by the learned single Judge and only after examining the material available on record and keeping in view all the aspects of the case and the above statement made on behalf of the respondent, the Suit was decreed against the appellant in the above terms.

In view of the above, we do not find any illegality or infirmity in the impugned judgment and decree which do not require any interference by this Court in our humble opinion. Accordingly, the appeal and listed application are dismissed with no order as to costs.

J U D G E