IN THE HIGH COURT OF SINDH AT KARACHI

Suit No.1118 of 2005

[Mrs. Bilquis Mohsin Butt and 3 others v. Ghulam Rasool Unnar and 4 others]

Date of hearings : 06.03.2018 and 08.03.2018

Date of Decision : 13.07.2018

Plaintiffs : Mrs. Bilquis Mohsin Butt and 3 others, through

Mr. Naraindas C. Motiani, Advocate

Defendants : Nemo for Defendants.

Case law relied upon by Plaintiffs’ counsel

1. 2010 SCMR page-1976

[Chiragh (deceased) through legal heirs v. Ibrahim]

2. 1993 SCMR page-356

[Mst. Zainab v. Majeed Ali and anther]

3. A.I.R. 1915 Allahabad page-383

[Rajmangal Misir and others v. Mathura Dubain and another]

4. A.I.R. (35) 1948 Bombay page-322

[Timmavva Dundappa Budihal v. Channava Appaya Kanasgeri]

Case Law cited by the Defendants’ Counsel

……….

Other Precedent

1. PLD 2014 Supreme Court page 506.

{Liaquat Ali Khan versus Falak Sher}.

Law under discussion: 1. Specific Relief Act, 1877, (SRA)

2. Contract Act, 1872.

3. Qanoon-e-Shahadat Order, 1984,

(Evidence Law)

4. Civil Procedure Code, 1908 (CPC)

JUDGMENT

Muhammad Faisal Kamal Alam, J: The Plaintiffs have instituted the present proceeding with the prayer of Specific Performance of Contract; Agreement of Sale dated 10.01.2005 entered between Plaintiffs and Defendants (as claimed) in respect of 16 Acres of land belonging to Defendants and falling in Survey Nos. 408, 409, 410 and 411, situated in Deh Joreji, Gadap Town, Karachi-the subject property. Following relief has been claimed_

“That this Hon’ble Court will be pleased to decree the suit of Plaintiffs as under: -

a). Decree the suit of Plaintiffs for specific performance of contract and direct the Defendants to execute the Sale Deed in favour of the Plaintiffs and deliver the original title documents and possession of the property to the Plaintiffs.

b). ALTERNATIVELY; Decree the suit of Plaintiffs for the sum of Rs.15,00,000/- of earnest money Rs.10,00,000/-of penalty as agreed in Clause VIII of Agreement of Sale and damages of Rs.Two Crores with mark-up 14.5% from the date of the suit till the satisfaction of the decree.

c). Grant the injunction against the Defendants restraining them from renting / leasing-out, or selling the property or further creating any third party interest in the suit property.

(d). Award cost.

e). Any other relief which this Hon’ble Court deem fit and proper in the circumstances of case.”

2. On service of summons, a detailed Written Statement has been filed by Defendant No.5 (Hameer Imdad) for himself and on behalf of Defendants No.1 to 4, being their Attorney. A copy of the Power of Attorney has been produced in the evidence as Exhibit PW-1/4, by the Plaintiffs’ witness (PW/1-Fawad Mohsin Butt). From the pleadings, following Issues were framed_

1. Whether the Agreement of Sale dated 10.01.2005 was made between the Plaintiff and Defendant?

2. Whether any advance amount in respect of the agreement was paid by the Plaintiff to the Defendants?

3. Whether the Defendants are lawful owners of land agreed to be sold in the agreement in question?

4. To what relief if any, the Plaintiffs are entitled to?

5. What should the decree be?

3. Both parties led evidence by examining one witness each. Plaintiff No.3 and Defendant No.5 testified on behalf of Plaintiffs and Defendants respectively. Although it was not necessary, yet to give an opportunity to Defendants to argue the matter, even at the stage of final arguments, Defendants were notified about the pendency of present suit through publication in the Newspaper, as reflected, from the order dated 07.10.2016.

4. Findings on the issues are as follows:

FINDINGS

ISSUE NO.1. In Affirmative.

ISSUE NO.2. In Affirmative.

ISSUE NO.3. In Affirmative.

ISSUE NO.4. As under

ISSUE NO.5. Decreed

REASONS

ISSUE NO.3.

5. Finding on this Issue is material for deciding the other Issues as unless it is proven that Defendants were the owners of the subject property, no relief for Specific Performance can be granted, except for such an agreement to sell entered by a lawful owner as Vendor and plaintiff as Vendee.

6. The ownership in respect of the subject property has not been disputed by the Defendants in their Written Statement as well as in the evidence. The Plaintiffs’ witness has produced the extract of ownership in Form-II, issued by the concerned Government Functionaries showing that the above mentioned Survey numbers stand in the name of Defendants No.1 to 4. Separate Extract of ownership (in the shape of Forms-II) is exhibited as PW-1/5 to PW-1/9. Authenticity of these documents was never questioned by Defendants. Secondly and significantly, though it is a subsequent development in this case, but the fact of the matter is that the subject property was / has been sold to one Mr. Akbar Lodhi, through an Agreement of Sale (dated 09.12.2005) and registered General Power of Sub-Attorney dated 15.02.2006, having registration No.88. This subsequent transaction was also done by Defendant No.5, on the strength of a registered General Power of Attorney dated 29-3-1995 (exhibit PW-1/4) executed in his favour by the other Defendants, as owners of the subject property. The afore-mentioned documents, except the subsequent Agreement of Sale (dated 09.12.2005) are all official documents and carry a presumption of genuineness with them by virtue of Article 90 of the Evidence Law. The subsequent Sale Agreement and the registered General Power of sub-Attorney were produced by Defendants’ witness and have been exhibited as DW-1/3 and DW-1/4, respectively.

7. Though the afore mentioned official documents are not the title / ownership document(s) but only evidence the ownership of Defendants No.1 to 4 in respect of the subject property, but, looking at the nature of controversy and the relief claimed, the evidence which has been led in support of this Issue No.3, leads to the conclusion that when subject sale transaction was entered into between Plaintiffs and Defendants, the latter (Defendants) were / are the owners of the subject property. Hence, Issue No.3 is replied in Affirmative.

ISSUES NO.1 AND 2.

8. It has been specifically testified by Plaintiffs’ sole witness, the Plaintiff No.3 that Agreement of Sale dated 10.01.2005 (Exhibit PW-1/3) was entered into between Defendants No.1 to 4 through their duly constituted attorney, the Defendant No.5 as Vendors and Plaintiffs as Vendees. The original Agreement of Sale has been produced by the Plaintiff as PW-1/3, containing terms of the subject transaction. Total sale price was Rs.95,00,000/- (Rupees Ninety Five Lacs Only) as mentioned in Clause-1, out of which Rs.15,00,000/- (Rupees Fifteen Lacs Only) was paid through a Pay Order No.0139524 dated 10.01.2005, which was drawn on Saudi Pak Commercial Bank Limited, by Plaintiffs in favour of above named Defendant No.5, who was mentioned as ‘beneficiary’. Clause-3 of the said Sale Agreement also stipulates that an amount of Rs.37,92,000/- (Rupees Thirty Seven Lacs Ninety Two Thousand Only) was to be paid to Government Department towards differential malkano (price) and this amount will be deducted from the total sale price. In his cross-examination, the Plaintiffs’ witness could not be shaken about the factum of Sale Agreement as well as making of part payment of Rs.1.5 Million.

9. On the other hand, testimony of the sole witness of the Defendants’ side (Hameer Imdadullah), who is also the attorney for other Defendants, is significantly contradictory. In his Affidavit-in-Evidence / examination-in-chief, the said Defendants’ witness in one breath denies the existence of Sale Agreement, but also admits signing of documents including the subject Sale Agreement on the instructions of his father (Mr. Imdad Ullah Unnar). He has not disputed the fact that there were family terms between Plaintiffs and Defendants. The said Defendants’ witness in his examination-in-chief denied having receipt any Pay Order from Plaintiffs so also the legal notice issued by Plaintiff’s side (Exhibit PW-1/13), which was replied to by the father of said Defendants’ witness, which has been produced in evidence by the Plaintiffs as Exhibit PW-1/14. But in the cross-examination, the credit of Defendants’ witness was impeached. He has admitted that the Exhibit PW-1/3 (Agreement to Sale) bears his signature. He has further acknowledged another Agreement of Sale of same date containing the same terms and condition, though witnessed by his father and Defendant No.1 was produced by the Advocate of Defendants’ witness, while cross-examining the Plaintiff’s witness. This Agreement to Sale is of same date and has been exhibited as PW-1/16. Comparison of both the Agreement of Sale shows that both contain the same terms but only witnesses are different. It further lends support to the evidence of Plaintiff that two sets of Sale Agreements were prepared by the parties hereto, viz. Plaintiffs as Vendees and Defendants as Vendors. The copy of the registered Power of Attorney (as mentioned above) is already available in record and it is not disputed by the Defendants’ witness that original of the same (General Power of Attorney) is lying with the latter (Defendants’ witness), therefore, the copy of the said General Power of Attorney (Exhibit P-1/4) dated 29.03.1995, produced by the Plaintiffs’ witness is admissible in the evidence. This General Power of Attorney has been executed on behalf of Defendants No.1, 2, 3 and 4 in respect of immovable properties including the subject property, in favour of present Defendant No.5, who has also testified on behalf of Defendants. By virtue of this General Power of Attorney, Defendant No.5 was / has been empowered, inter alia, to sell / mortgage and otherwise dispose of the subject property. In his cross-examination, the Defendants’ witness further admits that the above-mentioned Pay Order (PW-1/11) was deposited in Defendants’ Bank account, maintained at Muslim Commercial Bank (MCB) in its Boat Basin Branch, Clifton Karachi.

10. The appraisal of evidence of both the witnesses also leads to the conclusion that before filing the present proceeding, legal notice and its reply were exchanged between the parties and the Plaintiffs called upon the Defendants to complete the sale transaction in question, but in the above reply dated 14.05.2005 (exhibit PW-1/14), the Defendants took a contrary stance.

11. During his cross-examination, the said Defendants’ witness has admitted that the subject land was sold to the above-named Mr. Lodhi, however, the counsel for the Defendants raised an objection to the directions given by the learned Commissioner (for recording the evidence) to produce the registered Sale Deed about the subsequent transaction. However, that objection was addressed by the consent order of 14.01.2008, when Defendants were directed to produce the copy of registered Sale Deed before the learned Commissioner.

12. In the following evidence proceeding after the passing of the above Order, it transpired that subsequent transfer of the subject property was not done through a registered sale deed but by way of an Agreement of Sale dated 09.12.2005 and a registered Power of Sub-Attorney. The subsequent Agreement of Sale dated 09.12.2005 between the present Defendants and the above named Akbar Lodhi was produced by the Defendants’ witness as Exhibit-DW-1/3 and the registered General Power of Sub-Attorney executed by the Defendants’ witness (Hameer Imdadullah Unnar) in favour of the aforementioned subsequent purchaser / vendee, was produced as exhibit DW-1/4.

13. This subsequent Agreement of Sale (Exhibit DW-1/3) between the present Defendants and the said Mr. Lodhi was executed on 09.12.2005, that is, eleven months after the afore mentioned subject Sale Agreements between present Plaintiffs and Defendants. The total sale consideration in the subsequent Sale Agreement has been mentioned as rupees ten million, that is, five hundred thousand more than the subject Sale Agreement and the subsequent purchaser (Akbar Lodhi) has further agreed to pay the differential malkono of Rs.3.8 Million (approximately) from his own funds, whereas, in the subject sale in question (in the present proceeding), that was the obligation of present Defendants as Vendors. In his cross-examination, the Defendants’ witness acknowledged that due to slip of tongue he earlier testified that the subsequent sale transaction was done through a registered Sale Deed but in fact it was done through a afore mentioned Sale Agreement of 09.12.2005 and the registered General Power of Sub-Attorney.

14. Mr. Naraindas C. Motiani, the learned counsel representing the Plaintiffs has argued that once the Sale Agreements dated 10.01.2005 (Exhibits PW-1/3 and PW-1/6) have been admitted by the Defendants’ side in their evidence, so also the part payment received through Pay Order (Exhibit PW-1/11), nothing more is left to be proved by the Plaintiffs. Learned counsel for Plaintiffs has relied upon Judgments of Hon’ble Apex Court handed down in Chiragh and Mst. Zainab Cases (supra); in the latter case (Mst. Zainab), the Hon’ble Supreme Court has explained the principle of evaluating evidence in civil matters, by holding that rule of preponderance of evidence is to be applied in civil matters, which means that the Court is to consider the entire evidence on record of all the parties, in order to arrive at the correct conclusion. It has been further held that once the evidence is brought on record, the question of burden of proof loses its significance. The arguments of the learned counsel have substance and therefore, is sustained. Consequently, Issues No.1 and 2 are decided in Affirmative and in favour of Plaintiffs, that the Agreement of Sale dated 10.01.2005 (exhibit PW-1/3) was made between the Plaintiffs and Defendants and an advance amount was received by the Defendant No.5 as attorney and on behalf of Defendants No.1 to 4.

ISSUES NO.4 AND 5.

15. The second part of the evidence of Defendants is also important in which it has come on record (as also discussed in the forgoing paragraphs) that the subject property has been sold to one Akbar Lohdhi. In this regard, the Defendants’ witness has made an admission in his cross-examination. He has further stated that the property was sold on price mentioned in the subsequent Sale Agreement with Akbar Lodhi. It is also a matter of record that this particular fact was never disclosed by Defendants in their Written Statement. It is not difficult to hold that conduct of Defendant No.5 in the entire transaction is tainted with mala fide and dishonesty.

16. Exchange of the legal notice dated 06.05.2005 (Exhibit PW-1/13), by Plaintiffs and its written response by the Defendants, has already been discussed in the foregoing paragraphs. It is ironic and has become a litigation trend that the agreements with lawful objects are entered into with all eagerness but subsequently the eagerness to fulfill one’s contractual obligation diminishes; inter alia, usually in the pursuit of a higher price. But in this process, the parties / persons forget that terms of an agreement or contract are sacrosanct and cannot be taken lightly. A community or society, whose members / citizens if cannot keep up with their pledge, then that society is bound to suffer decadence. Even oral agreement is also on the same pedestal. Written agreements cannot be considered merely worthless paper but such agreements carry with them not only a legal obligation for its compliance but also Religious and social responsibility. Verse 282 of Surah AL Baqarah (2:282), is the longest Verse in the Holy Quran, primarily explaining the importance of a contract.

17. Since Defendants have created third party interest in the subject property, the legal and practical difficulties would be there for Plaintiffs, even if the Decree for Specific Performance is awarded; not only this it would cause immense hardship to the said third party (Akbar Lodhi) who has purchased the subject property on a higher price and was never impleaded as a defendant, because of non-disclosure of this fact by Defendants, as discussed in the foregoing paragraphs.

18. Thus in view of the above discussion, the Plaintiffs at least is entitled for the alternative relief, as also prayed by them but to the extent discussed in the following paragraphs.

19. It is also noteworthy that despite the admission in his cross-examination that the Defendant No.5 did receive the part payment, the said witness/Defendant No.5 did not offer to return the said amount of rupees fifteen hundred thousand (Rs.15,00,000/-) to Plaintiffs, to show at least some element of bona fide on the part of Defendants. In these circumstances, Sections 19 and 22 of Specific Relief Act are invoked to extend a relief to the Plaintiff. Section 22 speaks about, inter alia, hardship that Defendants can face if a decree of Specific Performance is granted, but, on the other hand, the Plaintiff will not face such a hardship, if the relief is refused. Section 19 makes a provision for compensation. In the present case it will be the above named third party who will face hardship, all the more if the subject property is further transacted. Therefore, I am inclined to follow the decision of Hon’ble Supreme Court handed down in Liaquat Ali Khan versus Falak Sher, reported in PLD 2014 Supreme Court page-506 (ibid). In this case, the Hon’ble Apex Court though did not decree the suit for Specific Performance, but granted compensation. A pragmatic approach has been laid down while granting a compensation of Rs.5,000,000/- (Rupees Five Million) for a part payment of Rs.30,000/- (Rupees Thirty Thousand Only) received by Vendor way back in 1979 against the total sale price of Rs.3,56,000/- (Rupees Three Hundred Fifty Six Thousand Only).

20. Consequently, the Defendants are liable to return the afore mentioned part payment of rupees fifteen hundred thousand (Rs. 15,000,00/-) to Plaintiffs, which was lying with the Defendants since January 2005, that is, for thirteen years and admittedly the said amount was deposited in the bank account of Defendant No.5, hence, being utilized by him to his advantage and that of Defendants; wherefore, the latter (Defendants) shall pay a further sum of rupees thirty lacs (Rs. 3 million/30,000,00/-) jointly and severally towards compensation to Plaintiffs for their overall conduct as discussed herein above. Thus, in total the Defendants are jointly and severally liable to pay a sum of rupees forty-five lacs (Rs. 45,000,00/-) to Plaintiffs together with ten percent (10%) mark-up from the date of judgment till the realization of the amount.

21. Parties to bear their respective costs.

J U D G E

Karachi.

Dated: 13.07.2018

M.Javaid P.A.