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IN THE HIGH COURT OF SINDH AT KARACHI H.C.A. NO. 196 / 2011 Present:- Mr. Justice Syed Hassan Azhar Rizvi. Mr. Justice Muhammad Junaid Ghaffar. MADAD ALI MADAN & ANOTHER ……………………… APPELLANTS VERSUS FAYSAL BANK LIMITED & OTHERS …………………….RESPONDENTS Date of hearing: 23.12.2013 Date of judgment: 10.03.2014 Appellant: Through Mr. Abdul Qadir Khan Advocate. Respondent No. 1: Through Mr. Mayhar Mustafa Kazi Advocate. Respondents No 2 to 5: Nemo, though served. J U D G M E N T Muhammad Junaid Ghaffar, J. The instant Appeal has been preferred against an Order dated 18.11.2011 passed by a learned Single Judge of this Court on CMA No. 7180 of 2003 being an application under Order 39 Rules 1&2 CPC, in Suit No. 1365 of 2003 filed by the appellant seeking interim injunctive relief against the respondents, in particular the respondent No. 1, has been dismissed. 2. Briefly, the facts germane for the disposal of the instant appeal are that the appellant No. 2 owned a plot of land bearing No. ST-2 (Commercial) admeasuring 3000 square yards situated on main Shahrah-e-Faisal, Opp: Aisha Bawani School, Karachi (“property”). The said property was mortgaged with Habib Bank Limited (“HBL”) as a security on which certain companies owned by the appellant No. 1 had obtained finance facilities. It is stated that the possession of the property always remained with the appellants. It is further stated that the respondent No. 2 which is a company engaged in construction business and has expertise in Civil engineering and Town Planning approached appellant No. 1, to acquire the property for developing and building a commercial complex and for this purposes, entered into some arrangement with respondent No. 1 to finance the said project. The idea behind this was to pay off the mortgage of HBL by the respondent No. 1 who would step into its shoes. This arrangement was entered into somewhere in 1996-97. This arrangement materialized as planned, whereby HBL was paid off by the respondent No. 1 and property was acquired by the respondent No. 2 from the appellant No. 1 for a total sale consideration of Rs. 220 million and thereafter the property stood transferred in the name of respondent No. 2 by means of a registered conveyance deed dated 20.3.1997. Subsequently, respondent No. 2 started construction of the proposed project on the said property but for some reason it went into certain difficulties with the relevant building control authorities and the respondent No. 2 had to file a Petition bearing No. 880 of 1999 before this Court which was disposed of on 8.7.1999 and thereafter the respondent No. 2 was able to continue with the construction of the said project. It is stated that in the meantime, the appellant No. 1 entered into an agreement dated 23.12.1997 to acquire two floors of the building being constructed by the respondent No. 2 on the said property being the first and second floors thereof. Subsequently another agreement dated 19.1.2000 was entered into between the appellant No. 1 and the controlling shareholders of the respondent No.2 (who are also respondents in this appeal), whereby the latter agreed to sell their share holding in respondent No. 2 to the appellant No. 1. Though the Respondent No.2 to 5 have chosen not to contest the instant appeal, despite service, the aforementioned two agreements on record are admitted by the respondent No. 2 as well as respondents No. 3 to 5 in the Suit. It is also a matter of fact that the project being built on the said property was being financed by the respondent No. 1 and a substantial portion of the total consideration was paid in the manner as described above whereby the said consideration was paid to the appellant No. 2 at the time of acquiring of the said property by the respondent No. 2. Since the respondent No. 1 by way of this payment had charge over the property for the finance that had been availed by the respondent No. 2, therefore by means of a conveyance deed dated 10.9.2002 the respondent No. 2 transferred the said property to the respondent No. 1 for a total sale consideration of Rs. 210,296,190. It further appears that the sale consideration was by way of set-off against the amount payable by the respondent No. 2 to the respondent No. 1 on account of the finance that had been availed by the respondent No. 2. 3. It is the case of the appellant that since by way of agreement dated 23.2.1997 they had made huge investment in the property and therefore they had lien in the said property and subsequently, the appellants came to know that on 10.9.2002 the respondent No.2 has executed sale deed in favour of the respondent No.1, whereby the entire property with construction thereon was sold to the respondent No. 1. It is averred by the appellants that the said sale deed was invalid, illegal and does not affect the rights of the appellants in the aforesaid property as they had 50% share in the said property as per admission of respondent No. 2. It is their case that such fact was in the knowledge of respondent No. 1 from as back as 23.12.1997 when the appellant had entered into an agreement with respondent No. 2. In this situation, the appellants filed a Suit before this Court bearing No. 1365 of 2003 for Declaration, Cancellation of Document, Specific Performance, Damages and recovery of the amount. Along with this Suit an application under Order XXXIX Rule 1 & 2 CPC bearing No. 7180 of 2003 was also filed for restraining the respondents from dealing with the said property, raising any construction or otherwise changing its position as existed at the relevant time. Initially a status quo order was passed on 26.12.2003 whereafter on 15.1.2004 a learned Single Judge of this Court modified the said status quo order and allowed the respondents to raise construction, subject to appellant’s right and interest in the property and had also restrained the respondents from creating any third party interest in the said property. Subsequently on 3.6.2004 the earlier orders were again modified to the extent that the restraining order was restricted to the claim of the appellants on two floors being first and second floors of the building being raised on the said property. Thereafter, through the impugned Order the learned Single Judge has dismissed the injunction application of the appellants against which the instant appeal has been filed. 4. Mr. Abdul Qadir Khan, Advocate for the appellants contended that the learned Single Judge has over looked and failed to appreciate, that the appellants had invested an amount of Rs. 40 million in the property as disclosed in the agreement dated 23.12.1997 read with agreement dated 19.1.2000. The learned Counsel contended that various receipts and copies of bank statement were brought on record to substantiate that the appellants had invested in the property; therefore the appellant had a lien on the said project. The learned Counsel contended that in fact, respondent No. 1 & 2 had acted in collusion and to defeat the right, title and interest of the appellants in the said property. Learned Counsel further contended that the execution of the sale deed dated 10.9.2002 was a collusive arrangement between respondent No.1 & 2 and for all times, respondent No.1 was aware, and in knowledge of the agreement entered into between the appellant and respondent No. 2, therefore the appellant was protected under the provisions of Section 55 (6) (b) of the Transfer of Property Act 1882. Per learned Counsel the learned Single Judge has not appreciated such contention of the appellant. Learned Counsel also referred to the plaint filed in Suit No. 1365 of 2003 and contended that the learned Single Judge has dismissed the injunction application merely on technical ground that the prayer clause in the said Suit was defective, therefore the learned Single Judge has drawn a wrong conclusion that no specific performance of the agreement was sought in the prayer clause of the plaint. Learned Counsel specifically referred to Para 25 and 26 of the plaint, and contended that such averments fully justified the claim of the appellants for specific performance, and without prejudice, even if a specific prayer was not made in the prayer clause, the same was available in the plaint and the Court had ample power to mould such relief in favour of the appellants. Learned Counsel also contended that since the respondent No. 1 had knowledge of the agreement dated 23.12.1997, entered into between the appellants and the respondent No. 2, therefore, the respondent No.1 was not protected under the provisions of Section 27(b) of the Specific Relief Act 1877. Learned Counsel further submitted that it is a settled law that a subsequent vendee has to prove that he had no knowledge of any prior agreement and was a bonafide purchaser which, per learned counsel, the respondent No. 1 had failed to substantiate; therefore the learned Single Judge has erred in dismissing the injunction application, as the contention of the respondent No.1 can only be appreciated after recording of the evidence, hence the impugned order is liable to be set aside. In support of his contention learned Counsel for the appellant relied upon the case of Chandrika Prasad V. Pullo (dead) by Lrs. and others (AIR 2000 SC 1785), Delhi Development Authority V. Skipper Construction Co. (P) Ltd and others (AIR 2000 SC 573), Asgar S. Patel And others V. Union of India and others (AIR 2000 SC 2222), Rasool Bakhsh Naich through L.Rs. and others V. Syed Rasool Bakhsh Shah through L.Rs. and others (2010 SCMR 988), Ghulam Rasool through LRs. and others V. Muhammad Hussain and others (PLD 2011 SC 119), Hikmat Khan V. Shamsur Rehman (1993 SCMR 428), Mian Muhammad Latif V. Province Of West Pakistan through the Deputy Commissioner, Kahairpur and another (PLD 1970 SC 180), Haji Feroze Din V. the District Magistrate, Lahore and another (1995 SCMR 705) and Javed Iqbal V. Abdul Aziz & another (PLD 2006 SC 66). 5. Conversely, Mr. Mazhar Mustafa, learned Counsel appearing on behalf of respondent No.1, supported the impugned order and contended that the appellants have failed to make out a prima facie case to seek an injunctive relief and the appellant’s case can only be proved after recording of evidence in the Suit and not at the interlocutory stage. Learned Counsel contended that the respondent No. 2 owns the said property through a registered conveyance deed dated 10.9.2002, and merely for the fact that there was any sale agreement entered into, between the appellants and the respondent No. 2, would not create any right in the said property as conveyance deed was a registered document and was protected under section 17 of the Registration Act 1908. Learned Counsel submitted that one, who seeks title to ownership in a property, must have a registered document in its favour. Learned Counsel further submitted that the appellants have tried to improve their pleadings at the appellate stage, and the very material point, that as to whether the respondent No. 1 had any knowledge of the sale agreement entered into between the appellant and the respondent No. 2, has not been prima facie proved by them at the injunction stage, therefore, they are not entitled for grant of such injunction at this stage of the case. Learned Counsel further submitted that without prejudice, even if the sale agreement is examined, the same is not enforceable at law as it does not disclose that on the execution and completion of the said agreement, whether any sale deed would be executed or not in favour of the appellants and does not depicts as to how the appellants could claim any ownership in the said portion of the property. Learned Counsel also argued that this agreement was defective, as it relates to a future covenant for agreeing to do something in future, hence was not enforceable in law and does not confer any title to the purchaser. Learned Counsel argued that merely on the basis of this agreement, the appellants cannot claim any charge on the said property and submitted that various clauses of the said agreement are also inconsistent with each other, and this is for the reason, that it relates to a future covenant and therefore even otherwise no specific performance could have been sought in respect of the said agreement. Learned Counsel also argued that the appellants have failed to show from the record that as to when the possession was handed over to them as per the terms of the said agreement. Learned Counsel next contended that since the sale deed was a registered document, it would have priority under the law over an unregistered agreement between the parties, of which the respondent No. 1 had no knowledge. Learned Counsel referred to Section 53-A of the Transfer of Property Act, 1882 and submitted that since respondent No. 1 had no notice of the agreement, as such the rights of the respondent No. 1 are protected under the proviso to Section 53A of the Transfer of Property Act, 1882. Learned Counsel further submitted that since the appellants have failed to prove its possession, therefore the case of the appellants is not protected under the Transfer of Property Act, 1882, therefore no claim would lie against the respondent No. 1. Learned Counsel, again without prejudice to its case, submitted that the alleged documents on the basis of which the appellants claim to have made payments are of the year 1998, whereas the agreement was purportedly executed in 1997. Per learned Counsel this is not a case in which the appellants could become entitled from this Court to mould the relief which was not sought in the plaint, and further the ingredients for grant of injunction are lacking in the case of the appellants. In support of its contention learned Counsel for the respondent No.1 relied upon the case of Jinabhai Nathabhai Rashia V. Collector and T.S. Officer (AIR 1926 BOMBAY 325), Haji Muhammad Younus V. Mst. Jameela (1994 CLC 151), Mst. Khair ul Nisa and 6 others V. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Javed Iqbal V. Abdul Aziz & another (PLD 2006 SC 66). 6. We have heard both the learned counsel and have perused the record and the case law relied upon in this regard. By consent the instant appeal is being decided at Katcha Peshi. 7. It appears that the appellants had filed a suit for Declaration, Cancellation of Documents, Specific Performance, Damages and Recovery against the respondents and the basis for filing the Said suit was execution of agreements dated 23.12.1997 and 19.1.2000 and primarily on the basis of these agreements, the appellants contends that they have lien and or charge on the said property which was allegedly transferred in favour of the respondent No. 1 by the respondent No. 2 in a collusive manner and according to the appellants the respondents No. 3 to 5 as well as respondent No. 1 have conspired to enrich themselves at the cost of the appellants by creating the rights of respondent No. 1 in the said property. Insofar as the agreement dated 19.01.2000 is concerned, it has been rightly observed in the impugned order by the learned Singly Judge that no specific prayer has been made in respect of the said agreement and no relief or its enforcement has been sought, as such it need not be considered. In fact, the learned Counsel for the appellants in the instant appeal has only confined his arguments with regard to the agreement dated 23.12.1997 of which specific performance is being sought in the Suit before the learned Single Judge. It is also a matter of record that the respondent No.2 as well as respondent’s No.3 to 5 have not denied the execution of such agreement. However the appellant has merely focused the enforcement of the said agreement against the respondent No. 1 by claiming lien and or charge in the said property which has already been constructed on the said plot. The case of the appellants is based on the specific performance of the said agreement against respondent No.1 and not of recovery and or any action against the respondent No.2 as well as the respondent No.3 to 5. From the perusal of the plaint it further transpires, that though, damages have been claimed generally against the respondents, but there is no specific prayer with regard to the claim of recovery of the amount against the respondent No. 2 as well as respondent No. 3 to 5. It also transpires from the prayer clause that at the time of institution of the suit, the appellants were not in possession of the said property and claimed to have been unauthorizedly and illegally dispossessed by the respondents collusively. However it has not been narrated in the plaint, that as to when they were put in possession of the two floors which purportedly stood transferred in their names, and that as to when such possession, if any, was taken over and they were dispossessed. The entire claim of the appellants is in respect of and against the property, for which they have relied on the agreement dated 23.12.1997. The appellants have though, stated in the plaint that respondent No.1 who derive its title from respondent No.2, had full knowledge of the rights and interest of the appellants, but has failed to prima facie establish such contention, which is the most crucial and important aspect in the instant matter, whereby the appellants could claim any specific performance of the said agreement against respondent No.1. It would be advantageous here to refer to Section 27 (b) of the Specific Relief Act, 1877, which is of vital importance in the instant matter and on the basis of which the appellant could claim any specific performance of its agreement dated 23.12.1997 against the Respondent No.1:- “Relief against parties and persons claiming under them by subsequent title: Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against. either party thereto; any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; ……………….; ……………….; ……………….; 9. From the perusal of the provisions of Section 27(b) of the Specific Relief Act 1877, as reproduced above, it could be seen that a person can seek specific relief against parties claiming under them by subsequent title, through specific performance of contract against such person claiming under him for a title arising subsequently to the contract, but except against a transferee for value who has paid his money in good faith and without notice of the original contract. The appellants in this case are seeking specific performance against respondent No. 1 of an agreement dated 23.12.1997 entered in to with Respondent No.2, from whom the Respondent No.1, now derives its title to the said property. However, for claiming such specific performance of the agreement, the appellants have to overcome the hurdle and the conditions embodied in favour of a subsequent transferee under Section 27(b) of the Specific Relief Act 1877. In our view (and for reasons to follow in the latter part of the order) the appellants have not been able, prima facie, to establish that the sale deed executed in favour of the respondent No. 1 was not against payment of money and in good faith, and so also it has not been established by the appellants, prima facie, that the respondent No. 1 had any notice of the purported agreement dated 23.12.1997, which is prior in time to the sale deed executed in favour of respondent No. 1. 10. We have also noticed, and had even asked the learned Counsel for appellants, that as to why the appellants are merely seeking specific performance of the agreement against the respondent No. 1 in respect of the said property, whereas it would have been more appropriate for the appellants to rather seek the recovery of the amount so invested allegedly by them from the respondent No. 2, and so also seek compensation and damages for any breach in performance of the said agreement. However, the learned Counsel for the appellants has failed to satisfy us with any sound reasoning on this aspect of the case, and has rather pressed upon the appellants claim against the respondent No. 1 for the specific performance of the said agreement. In our view, though, the above mentioned two conditions, that is, as to whether the respondent No. 1 had bought the property in question on payment of money / consideration or not, and whether, the respondent No. 1 had any prior knowledge or notice of the purported agreement dated 23.12.1997 are required to be proved in positive by the Respondent No.1, but once such initial burden has been discharged by it through filing of counter affidavit and the written statement duly verified on oath, such onus to prove otherwise had shifted to the appellants. In the instant matter, though the appellant has averred that such agreement was in the knowledge of the Respondent No.1, but unfortunately has failed to bring on record any document or material to substantiate such allegation. The appellants are required to prima facie establish this assertion, at least with some evidence or material and then it was for the Respondent No.1 to deny and prove it with positive evidence, though in limited terms, at the stage of injunctive relief, but we are not inclined to agree to any such assertion being made by the appellants without there being any material on record. On a tentative assessment and perusal of the material available on record, we are not satisfied that any injunctive relief could have been granted to the appellants on the basis of such material on record and the learned Single Judge has correctly and eloquently examined such material, and has drawn a conclusion, which in our view is correct, and cannot be disturbed by the appellate Court at this stage of the case. In absence of any such material on record, which could be taken as a prima facie evidence, on a tentative assessment the appellants ought to have lead their evidence to substantiate and discharge the onus in this regard that the respondent No.1 had acquired the property in question without payment of money / consideration and so also had prior notice of the agreement of which specific performance is being sought by the appellants in the Suit before the learned Single Judge. The Hon’ble Supreme Court in the case of Surraya Begum V. Suban Begum reported in 1992 SCMR 652, while examining the provisions of Section 27(b) of the Specific Relief Act 1877 has held as under:- “Since in civil suits an issue is to be decided by preponderance of evidence, the initial burden would be on the plaintiff to prove his prior contract, which if discharged, the burden of proving the subsequent bona fide transfer for value without notice would be on the party alleging it. Very little evidence and in certain circumstances a mere denial regarding want of knowledge of the earlier contract would discharge this burden and shift the onus on the Plaintiff to prove that the subsequent transferee had the notice of the earlier contract.” Similarly, same view has been reiterated by the Hon’ble Supreme Court in the case of Muhammad Ashraf V. Ali Zaman reported in 1992 SCMR 1442. 11. Therefore, in all fairness, first it is for the appellants to assert with some reasonable material to discharge the initial burden to prove the existence of a prior agreement, and thereafter it would be for the respondent No. 1 to substantiate the bonafide transfer in their favour for value and without notice of the said agreement. Therefore, even otherwise the case of the appellants on merits, at this stage of the case does not justify any indulgence, so as to grant them any injunction in the matter wherein they are also not in possession admittedly, and also for the fact that the respondent No. 2 has not come forward to adduce anything in their favour with regard to the fact that respondent No.1 had any prior knowledge about the agreement dated 23.12.1997. In so far as the other ground raised by the learned counsel for appellants is concerned, that the Court can always mould the relief which has not been claimed by a party specifically but has been raised in the plaint, it would suffice to observe that there is no cavil to such proposition but even if we allow and mould the relief with regard to seeking specific performance of the agreement dated 23.12.1997, the same would again be hit by the protection under section 27(b) of the Specific Relief Act 1877 as discussed above, and then again for which the appellants have not been able to prima facie bring on record any material that such protection available to respondent No.1 under section 27(b) of the Specific Relief Act 1877 could not be invoked in favour of the respondent No. 1 at this stage of the case. 12. Learned Counsel for the appellant also relied upon the provision of Section 55 sub-section 6(b) of the Transfer of Property Act 1882 to contend, that in view of this provision, the appellant has a charge on the said property as on the basis of the agreement dated 23.12.1997 the appellant has paid considerable amount to the respondent No. 2. We have gone through the said provision and are of the view that such contention of the learned counsel for the appellant is misconceived and not appreciable. This provision is only relevant, and is to protect the interest of the buyer, when unless he has improperly declined to accept delivery of the property, and such buyer will be entitled for a charge on the property as against the seller and all persons claiming under him only to the extent of the seller’s interest in the property for the amount of any purchase money properly paid by the buyer in anticipation of the delivery and when the buyer properly declined to accept the delivery, also for the earnest money if any, and the cost if any, awarded to him through proper adjudication. In the instant matter the appellant who is claiming to be the buyer of the said portion of the property, has not setup its case that the delivery of the property was properly declined by the appellants, hence the protection which is being claimed under the above provision is not available to the appellants. Further, we have noticed that no such plea or defence was ever raised in the plaint by the appellants, and it is only at the appellate stage that this line of argument has been raised. The cases of Delhi Development Authority (supra) and Asgar S. Patel (supra) relied upon by the learned Counsel on this issue, are therefore not relevant and distinguishable. In so far as the case of Rasool Bux (supra) is concerned, it is also not relevant, as in that case the Hon’ble Supreme Court had given its findings only, when the case was put up before the Hon’ble Supreme Court after recording of evidence of all the parties, and it was the evidence which prevailed upon the Hon’ble Supreme Court to hold that the plaintiff had led sufficient evidence, both documentary and circumstantial, to show existence of prior agreement and so also of the notice of the same to the subsequent transferee, and thereafter the benefit of Section 27(b) of the Specific Relief Act 1877 was denied to the subsequent transferee. Similarly, in the case of Ghulam Rasool (supra) the same situation existed, as in that case the Hon’ble Supreme Court after perusal of the evidence on record, came to the conclusion that since the subsequent vendee had purchased the property in question with notice of the prior agreement to sell, therefore was disentitled from protection under Section 27(b) of the Specific Relief Act 1877. The case of Javed Iqbal (supra) relied upon by the learned counsel for the appellant is in respect of the discretion of the Court to mould the relief, with which there is no cavil but since we have already discussed in the preceding part of the judgment, that even if we allow and mould the relief as being claimed through the instant appeal, even then the case of the respondent No. 1, on the basis of material on record, and at this stage of the case, is duly protected under Section 27(b) of the Specific Relief Act 1877, and therefore again this judgment is of no help to the case of the appellants. The reliance on the case of Hikmat Khan (supra) is also misconceived as the facts of that case are entirely different inasmuch as the respondent therein before the Hon’ble Supreme Court, was in possession of the property in question on the basis of unregistered documents, whereas in the instant case the appellants have not been able to substantiate the possession of the property, rather in fact claims to have been dispossessed unlawfully. In so far as the other cases reported in Mian Muhammad Latif and Haji Feroze Din (supra) are concerned, they are also in relation to entirely different facts and hence not relevant in the instant matter. 14. The learned Counsel for the respondent No.1 has vehemently argued that since the purported agreement dated 23.12.1997 between the appellant and the respondent No.2 was not registered, though required to be registered, therefore has to pave its way to the registered conveyance deed dated 10.09.2002 in favour of the respondent No.1. Though, we are not entirely in agreement with such contention, that if an agreement is not registered, it loses its sanctity and cannot be specifically enforced, however, we may observe that to a certain extent, owing to its non-registration, the respondent No. 1 can claim benefit of the fact that it was sufficient enough for them not to have knowledge of it, and their conduct entitles them the benefit of one of the three conditions required to be fulfilled, while claiming benefit of section 27(b) of the Specific Relief Act 1877. In this context it would be advantageous to refer to a judgment delivered by a learned Single Judge of this Court, namely Late Mr. Sabihuddin Ahmed, J (as his Lordship then was) in the case of M/s Raees Amrohvi Foundation (Regd.) V. Muhammad Moosa and others reported in 1999 CLC 296, wherein his Lordship has dealt with the issue in the following terms; “ 18. It may be observed that under section 41 of the Transfer of Property Act when a persona ostensibly being the owner of the property transfers the property for consideration to the transferee and such transfer is questioned on the ground that the transferor had no legal power to vacate the same, the transferee may be exempted from its consequences, provided, he establishes that he has taken reasonable care to ascertain the power of the transferor and has acted in good faith. This is known as the Caveat – emptor Rule and requires the transferee apart from acting in good faith to take all reasonable care to apprise himself of any defeat in the transferor’s title or clog on his power to effect the transfer. On the other hand, section 27-B of the Specific Relief Act contemplates that equity of Specific Performance may not be enforced against a person who has subsequently purchased the property and paid his money in good faith and without notice of the original contract. It may be observed that the duty to ascertain contemplated by section 41 of the Transfer of Property Act is not stipulated in the Specific Relief Act. Apparently, there is rationale for this difference. Under the Transfer of Property Act the purchaser can, with reasonable diligence, discover a defect in the plaintiff’s title or a legal clog on his power of disposition by making an inquiry from relevant public authorities. However, it is not possible to do so in cases where only agreements are sought to be enforced because no public records of mere agreements to sell properties are available and such agreement can indeed be oral as well. Therefore, by the mandate of Legislature the burden on the transferee under the Specific Relief Act is less onerous and Specific Performance against him can be refused if it is shown that he acted in good faith and was not aware of a pre-existing equity in favour of some other person. Therefore, respectfully disagreeing with the view taken by the Lahore High Court and following the precedents of the Hon’ble Supreme Court and a Division Bench of this Court I am inclined to hold that the defendant NO. 6 was only required to prove that he was not aware of the agreement between the plaintiffs and the defendant No. 3 at the time of execution of the sale deed.” (Emphasis supplied) 15. It must also be kept in mind that the learned Counsel for the appellants has based his entire line of arguments on the premise that the respondent No.1 had knowledge of the agreement dated 23.12.1997, entered upon between the appellant and the respondent No.2, and had acted hands in glove with the respondent No.2 all along. This relates to one of the conditions prescribed in section 27(b) of the Specific Relief Act 1877, whereas with regard to the other two conditions i.e. whether, the respondent No.1 was a transferee for value and such transfer was in good faith and or with bona fide, nothing has been argued by the learned Counsel for the appellants, nor has he raised any such contention in his pleadings. The entire edifice of the appellant’s case is build up on the issue that the respondent No.1 was in knowledge of the agreement dated 23.12.1997. The Honourable Supreme Court while dealing with the ingredients of section 27(b) of the Specific Relief Act 1877, with regard to “good faith” and “lack of knowledge of earlier agreement” in the case of Hafiz Tasaduq Hussain V. Lal Khatoon and others reported in PLD 2011 SC 296, has made the following observations which are materially relevant in the instant matter as well; 7. The second ingredient “good faith” is the term which reflects the state of mind and according to section 3(2) of the General Clauses Act, 1897 “a thing shall be deemed to be done in ‘ good faith’ where it is in fact done honestly, whether it is done negligently or not”. While interpreting this, it was held in Nannu Mal V. Rani Chander (AIR 1931 All 277 (FB) that good faith as defined above is equivalent to honestly or dealing and does not entail upon the purchaser the necessity of searching the registry, even assuming that there were facts indicative of negligence in investigating title, that by itself was not predicative of a lack of bona fides. Therefore, the second condition shall stand settled if the subsequent vendee has acted as a man of ordinary prudence in making inquiries expected from a purchaser who wants to acquire a good title for the price / value he is paying. This may include the checking of the Revenue Record or obtain the copies thereof to verify about the title of the vendor or any third party in right, interest or charge over the property or any endorsement in such record about any pending litigation or an injunctive order etc.; this may be a good and adequate exercise of investigative process, in case of rural / agriculture property. And for the same purpose, regarding urban property, the Excise and Taxation record may be examined coupled with the verification and obtaining the original documents of title form the vendor, if those are available. However, the subsequent vendee is not obliged to run from the pillar to post in any interest etc. in the property which otherwise is visibly lacking. But if there exist some overt, prominent and conspicuous indicators about the third party interest, which are so patently noticeable and manifest that those could not and should to be missed and ignored by a purchaser, such as the possession not with the vendor but someone else, who if approached or its nature investigated would lead to discover such interest, the purchaser is obliged to probe about it, otherwise he may not be able to take resort of the noted equitable rule. If therefore a subsequent vendee has taken due care in the above manner and there are no indicators to put him to a notice of third party interest, he shall be said to have acted in good faith, thus satisfying the second condition of the rule. (Emphasis supplied) Similarly at pg. 306 of the said judgment, the following observation of the Honourable Supreme Court is also relevant; “In the light of the noted authoritative pronouncements, it can be safely concluded that though the initial onus is on the subsequent vendee, however, it is light one, and once it is discharged by abiding by the above criteria set out hereinabove, it shall be the burden and duty of the plaintiff to prove positively that the subsequent vendee had the notice of his sale agreement; besides, the subsequent transaction is without the passing of the sale consideration; it is a colourable or a fraudulent transaction entered into with dishonesty of purpose by the vendor and the subsequent vendee in order to cause prejudice his rights under the sale agreement. This in our view to an extent should settle the law regarding the rule providing protection to bona fide purchaser for value without notice and the standards of proof thereof.” 15. In view of the facts and circumstances of this case and the legal position as stated herein above, we do not find any substance in the instant high court appeal, which is devoid of any merits; hence the same is hereby dismissed along with pending application(s) with no order as to cost. However, the above observations are tentative in nature and shall not prejudice or have any effect on the Suit pending before the learned Single Judge of this Court which shall be decided on its own merits after recording of evidence of the parties. Karachi Dated:___.03.2014 J U D G E J U D G E     PAGE  PAGE 19 ')048=>?@AMqr—˜™š´½¾ÇÈÉÊËÒÓðú    õêßÔßÔÉÔ½±¥™¥™Ž†~v~†vnv†nc†v~†v†Xh§ hKXCJaJhUNhq.ƒCJaJhUNCJaJhIbÐCJaJh²1CJaJhq.ƒCJaJh§ h°ÄCJaJhö{*h°Ä5CJaJhö{*hCÎ5CJaJh§ h°Ä>*
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