ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

J.M. No.16 of 2016

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DATE                ORDER WITH SIGNATURES OF JUDGE(S)

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1. For hearing of CMA 5737/16

2. For hearing of main application.

Dated: 04.10.2018

None for the applicant.

Mr. Muhammad Yasin Azad for respondent No.1.

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None is present on behalf of the applicant though in the presence the applicant’s counsel, the matter was adjourned for today by way of last opportunity and it was observed that if the counsel for the applicant does not appear and the counsel for the respondent is present, the matter will be heard exparte and decided solely on the material available on record.

Learned counsel for the respondent No.1 submits that merely on the basis of one chit dated 06.12.2012 at page 27, this application has been moved under section 12(2) CPC in essence seeking specific performance of that chit on 09.04.2016. If that was the case, counsel for the respondent submits, the appropriate remedy available to the applicant was to file a suit for specific performance rather than making a 12(2) application after 3½ years of date of the chit that allegedly relates to a contract which is non-existent. Counsel for the respondent further submits that operation of the consent decree has been stalled by stay granted in this 12(2) application.

Brief facts of the case are that the property bearing Plot No.222, 25^th Street, Phase-VIII, DHA, Karachi, through a settlement reached between the husband and wife recorded in a Court of California, stood transferred in the name of respondent No.1 in the year 1988 and when he reached for mutation, DHA raised objection, which resulted him filing Suit No.101 of 2013 against his wife, wherein his wife appeared stating that she has no objection to the transfer/mutation of the property in the name of her husband.

With this background, the applicant jumped into the controversy alleging that through the chit dated 06.12.2012 available at page 27 of the file, the lady (respondent No.2) had contracted/agreed to sell the property in favor of the applicant. Neither any contract/agreement has been provided nor any proof is made available to the Court that the payment, as allegedly shown at page 29, in fact was transferred in account of the said lady. Of peculiar concern is that three payments/pay orders are of the same date and the time when the lady was living in U.S.A.

          Further, after obtaining the exparte interim relief, no efforts have been made by the applicant to proceed with the case to the extent that on 11.09.2018, as mentioned hereinabove, the matter was adjourned for today with clear directions that in case no appearance is effected on behalf of the applicant and if counsel for the respondent is present, the matter would be heard and decided solely relying on the material available on record.

For the reasons mentioned hereinabove, if at all there is a case, the applicant to pursue the same through filing a suit for specific performance, which in fact he had done through filing suit bearing No.1997 of 2017 tagged with this JM and it is interesting to note that there were clear directions for depositing balance sale consideration of Rs.38,500,000/- (later amended to read as 4 Crore 35 lacs), with the Nazir of this Court in 30 days from 18.09.2017, which till date had not been deposited, thus in the light of the dicta laid down by the Hon’ble Supreme Court in the case reported as 2017 SCMR 2022, the very maintainability of that suit itself is questionable. In these circumstances I dismiss the main application made under section 12(2) CPC along with CMA 5737/16.

                                                                   J U D G E