Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1173 of 2009
Present :
Mr. Justice Nadeem Akhtar
Dates of hearing : 02.11.2012 and 16.11.2012.
Plaintiff : Choudhry Abdul Waheed Nasir through
Syed Haider Imam Rizvi, Advocate.
Defendant : Mukhtar Ahmed called absent.
J U D G M E N T
Nadeem Akhtar, J.- This suit for specific performance has been filed by the plaintiff against the defendant in respect of Plot No.S-35, Staff Lane No.12, Phase VII, Defence Housing Authority, Karachi, measuring 200 sq. yds., with construction thereon, hereinafter referred to as “the Suit Property”.
2. It is the case of the plaintiff that the plaintiff and the defendant entered into an Agreement to Sell dated 26.07.2008 (the Agreement), whereby the defendant agreed to sell the suit property to the plaintiff and the plaintiff agreed to purchase the same from the defendant in consideration of Rs.9,000,000.00. The plaintiff has stated in the plaint that he paid a sum of Rs.8,000,000.00 to the defendant on 26.07.2008 at the time of execution of the agreement, whereafter the defendant handed over the vacant and physical possession of the suit property to him on the same day. Handing over of possession of the suit property to the plaintiff was confirmed by the defendant by executing a letter of possession dated 26.07.2008. The defendant also executed a receipt dated 26.07.2008 in respect of the amount of Rs.8,000,000.00 paid to him by the plaintiff. Under clause 2 of the agreement, the balance sale consideration of Rs.1,000,000.00 was to be paid by him to the defendant at the time of registration of the conveyance / sale deed in his favour within six (06) months from the date of the agreement.
3. It is also the case of the plaintiff that he requested the defendant a number of times to accept the remaining balance sale consideration of Rs.1,000,000.00 from him, and to execute the conveyance / sale deed in his favour. However, despite numerous calls, reminders and demands by him, the defendant avoided, neglected and failed to complete the sale of the suit property in favour of the plaintiff by executing the conveyance / sale deed in his favour within the agreed period of six (06) months. The plaintiff has claimed that he has always been and is still ready and willing to perform his agreed part of the contract, but the defendant has committed a deliberate and wilful breach of the agreement by not completing the sale in his favour.
4. In the above background, the plaintiff filed this Suit praying for a decree of specific performance against the defendant praying for a direction against him to execute the conveyance / sale deed in respect of the suit property in his favour, or in the alternative for a direction to the Nazir of this Court to do the needful. The plaintiff has also prayed for permanent injunction against the defendant that he should be restrained from selling, transferring, alienating, encumbering, etc., the Suit property.
5. Summons were issued to the defendant initially through the bailiff and then simultaneously through the bailiff and TCS, which were returned unserved. Thereafter, summons were published in the Urdu daily ‘Jang’ of 23.04.2010. Accordingly, service was held good on the defendant by the Additional Registrar (O.S.) on 30.04.2010. Despite all the above attempts including publication, the defendant did not appear to contest this Suit nor did he file his written statement. Vide Order dated 08.11.2010, the Suit was ordered to be proceeded ex-parte against the defendant.
6. The learned counsel for the plaintiff submitted that the plaintiff paid a sum of Rs.8,000,000.00 to the defendant on 26.07.2008 at the time of execution of the Agreement, and the balance sale consideration of Rs.1,000,000.00 was deposited by him with the Nazir in pursuance of the Order passed by this Court on 21.08.2009. He further submitted that after paying and depositing the entire agreed sale consideration, the plaintiff completed his agreed part of the contract, and that nothing remained or remains to be done by him. He prayed that the plaintiff is entitled to a decree as prayed for in the Suit.
7. The plaintiff examined himself and produced in original the agreement, the receipt for Rs.8,000,000.00, and the possession letter, all executed by the defendant on 26.07.2008, as Exhibits PW-1/4 to PW-1/6, respectively. The plaintiff has also produced as Exhibit PW-1/7 the original bill / challan in respect of the house tax, conservancy tax and water charges of the suit property paid by him to the Cantonment Board Clifton on 30.07.2009. He has also produced the bills of telephone, gas and electricity paid by him in July, 2009, for the said utilities installed at the suit property, as Exhibits PW-1/8, 1/9 and 1/10, respectively. A copy of the registered conveyance deed dated 17.08.1992, executed in respect of the suit property in favour of the defendant, which was handed over by the defendant to the plaintiff for verification purposes, has also been produced by the plaintiff as Exhibit PW-1/11.
8. The contents of the plaint and those of the affidavit in ex-parte proof have been reiterated by the plaintiff in his evidence, which have remained un-rebutted. The documents produced by him clearly show that there was an agreement in respect of the suit property between him and the defendant, and that the plaintiff performed his agreed part of the contract by paying and depositing the entire agreed sale consideration in full and final settlement. Under Clause 2 of the agreement, the defendant specifically undertook to execute the conveyance / sale deed in favour of the plaintiff within six (06) months from the date of the agreement. However, the defendant committed breach of the agreement by not performing his agreed part of the contract.
9. In view of the averments made by the plaintiff in the plaint, the original documents / evidence produced by him, as well as in view of the breach committed by the defendant, the plaintiff has successfully proven his case. I do not see any reason for disbelieving the plaintiff especially when the case set up by him and the evidence produced by him have remained unchallenged / unrebutted. Therefore, the plaintiff is entitled to the reliefs sought by him in this Suit against the defendant.
The above are the reasons for the short Order announced by me on 16.11.2012, whereby this Suit was decreed with costs against the defendant as prayed by the plaintiff. C.M.A. No.7784 of 2009 filed by the plaintiff is disposed of in view of this judgment.
J U D G E
*Suit 1173-09 Specific Performance/Judgments Single/Court Work*