Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Second Appeal No. 64 of 2013

 

Date

           Order with Signature of Judge

 

 

                Hearing / priority case.

 

1.       For hearing of CMA No. 3274/2014.

2.       For hearing of main case.

 

 

12.03.2019 :

 

                Mr. Raja Mir Muhammad advocate for the appellant.

                Chaudhry Abdul Rasheed advocate for respondent No.1.

                               

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                The appellant and respondent No.1 entered into an agreement for sale in respect of Flat No.A/3, Ground Floor, Block-A, Bath Island Apartments, Frere Town Quarters, Karachi (‘suit property’). In view of some dispute between the parties, respondent No.1 filed Suit No.1059/2011 for specific performance of the agreement in respect of the suit property and the appellant filed Suit No.1911/2003 for possession, mesne profits and permanent injunction in respect of the suit property. Suit of the appellant was dismissed and appeal filed by her was also dismissed against which the present Second Appeal has been filed by her. In the Suit for specific performance filed by respondent No.1, the appellant filed an application under Order VII Rule 11 CPC for rejection of the plaint which was dismissed by the trial Court, but the same was allowed by the Revisional Court and consequently plaint of the respondent No.1’s Suit was rejected. The said order of rejection of his plaint was impugned by respondent No.1 before this Court in C.P. No.D-4843/2013 which was dismissed vide order dated 22.08.2017 and such dismissal was upheld by the Hon’ble Supreme Court vide order dated 19.06.2018 passed in Civil Petition No.528-K/2017 filed by respondent No.1 seeking leave to appeal against the above order of this Court.

 

                Vide order dated 28.02.2019 passed in the present appeal, it was observed by me that despite the fact that the plaint of Suit for specific performance filed by respondent No.1 was rejected and the rejection has been upheld up to the level of Hon’ble Supreme Court, he is still in possession of the suit property ; and, the above background of litigation shows that the agreement cannot be preformed or enforced by any of the parties, therefore, the possession of respondent No.1 appears to be unjustified. In view of the above observation, learned counsel for respondent No.1 sought time on the aforesaid date to seek instructions from respondent No.1 regarding handing over possession of the suit property to the appellant. On the next date of hearing viz. 06.03.2019, respondent No.1 appeared in person and requested for further time to make a statement in view of the above observation. Today one Rahim Bux Metlo (CNIC No.42301-0977667-7) has appeared on behalf of respondent No.1, who states that he is the attorney of the latter. He has filed a statement dated 12.03.2019 along with copy of general power of attorney executed in his favour by respondent No.1, which are taken on record. As per the above statement, the suit property has been vacated by respondent No.1 and he is willing to handover its vacant and peaceful possession to the appellant by handing over its keys to the appellant. With the consent of learned counsel for respondent No.1 and his above named attorney, keys of the suit property have been handed over to learned counsel for the appellant.

 

                In view of the fact that respondent No.1 has failed in his Suit for specific performance up to the level of Hon’ble Supreme Court and also in view of the above observation made on 28.02.2019, the judgments and decrees impugned in the present appeal cannot be allowed to remain in the field. Since it has been established that respondent No.1 did not acquire any right, title or interest in the suit property nor was he entitled to seek specific performance of the agreement for sale in respect the suit property, his possession in respect thereof was illegal. Therefore, in addition to possession of the suit property, appellant is also entitled to mesne profits in respect thereof. Accordingly, the Suit of the appellant stands decreed to the extent of possession of the suit property and mesne profits in respect thereof. The appeal is allowed in the above terms with costs throughout and listed application stands disposed of accordingly.  

                  

 

                                                                                                                                                 J U D G E