ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.300 of 2021

___________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.2392/2021 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.2393/2021 (Exemption).

4. For hearing of main case.

5. For order on CMA No.2394/2021 (Stay).

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10^th December 2021

Mr. Khan Zaman Khattak, Advocate for Appellant.

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1. Urgency granted.

2. Learned counsel for the appellant undertakes to comply with office objection before next date of hearing.

3. Exemption granted, but subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against an order dated 08.12.2021 passed by the learned Single Judge, on the original side, of this Court in Suit No.-2565 of 2021, whereby, according to learned counsel for the appellant, on account of default in payment of balance sale consideration the suit filed by the appellant seeking specific performance has been dismissed. It has been further contended by the learned counsel that reliance placed through impugned order with hearing the appellant or assigning valid reasons by the learned Single Judge in the judgments of the Superior Court is misplaced, whereas, in the recent judgment passed in the case of MUHAMMAD ASIF AWAN v. DAWOOD KHAN AND OTHERS (2021 SCMR 1270), the Hon’ble Supreme Court has been pleased to hold that the deposit of balance sale consideration is not mandatory requirement of law.

Mr. Ahmed Ali Hussain, Advocate has shown appearance on behalf of the respondents No.1&2 upon service of notice under Order 40 Rule 3 CPC, has vehemently opposed the contention of the learned counsel for appellant and submits that reliance placed by the learned counsel for appellant in the afore-cited judgment of the Hon’ble Supreme Court of Pakistan is incorrect, as according to learned counsel, in the aforesaid judgment, time period was extended by the trial Court for depositing balance sale consideration, which order was challenged before the High Court and the High Court was pleased to hold that since balance sale consideration was paid within time, therefore, no extension could be granted and such order was assailed before the Hon’ble Supreme Court, who was pleased to hold that the Court has the discretion to grant extension of time, whereas, according to learned counsel, in the instant case extension of time was granted to deposit balance sale consideration, however, the appellant did not deposit such amount within extended period. Without prejudice to hereinabove submission, learned counsel for the respondents has further submitted that the very suit seeking specific performance is not maintainable, as there is no privity of contract between the appellant and respondent No.2, who is owner of the subject building in which suit properties are situated. Learned counsel, however, waives notice of instant appeal, claims its copy alongwith annexures and requests for time to file objection. Learned counsel for the appellant undertakes to provide copy of the same to him during course of the day.

Let notice be issued to the respondent No.1, to be served through first three modes, for 21.12.2021 when objection/reply, if any, shall be filed with advance copy to the learned counsel for appellant. In the meanwhile, R&Ps of Suit No.-2565 of 2021 be called.

J U D G E

*Farhan/PS*