IN THE HIGH COURT OF SINDH AT KARACHI
SUIT No.717 of 2012
Present :-
Mr. Justice Muhammad Junaid Ghaffar
Dr.Uzma Farooq ------------------------------------------------------Plaintiff
Versus
Lt.Col.(R) Ikramullah & others -----------------------------------Defendants
Date of hearing 30-03-2015
Plaintiff Through Mr.Sardar Muhammad Yousuf
Advocate.
Defendant No.1 Through Mohammad Yasin Azad, advocate
Defendant No.3 (DHA) Through Mr.Ejaz Mubarak Khattak, advocate
O R D E R
MUHAMMAD JUNAID GHAFFAR, J:- Through listed application Under Order 39 Rule 1 & 2 CPC, it has been prayed on behalf of the plaintiff that the defendants be restrained from selling, transferring, mutating, or creating any third party interest in respect of Plot No.7-C, Khayaban-e-Usman, Phase-VIII E-8, D.H.A. Karachi admeasuring 100.00 sq. yds approximately (Suit property) .
2. The Plaintiff has filed instant Suit seeking specific performance of an Oral agreement alleged to have been entered into between plaintiff and the defendant No.1 in respect of the Suit property. Learned Counsel for the plaintiff has contended that the plaintiff and defendant No.1 had negotiated for sale / purchase of Suit plot through defendant No.2, and thereafter through a verbal agreement, it was agreed that plaintiff will purchase and the defendant No.1 shall sell the Suit plot against total sale consideration of Rs.1,0700,000/- (Rupees One Crore Seven lac only). It has been further contended that the plaintiff through defendant No.2 made payment of Rs.10,00,000/- (Rupees Ten Lac only) through pay order bearing No.3777883 dated 16.03.2012 drawn on Faisal Bank Ltd, Khayabane Shahbaz Branch, Phase-VI, DHA, Karachi, as advance payment, which was sent to the plaintiff by defendant No.2 through Courier service receipt dated 16.03.2012 and the balance sale consideration of Rs.97,00,000/- was agreed to be paid to the defendant No.1 at the time of signing the verification of transfer documents in the office of defendant No.3. Per learned Counsel, the defendant No.1 after receipt of such advance payment, refused to sign the written sale agreement and pointed out 14 improvements in the same, which were agreed by the plaintiff and a further sum of Rs.70,000/- was also paid vide cheque No.00404745/02 dated 19.03.2012 through defendant No.2. Learned Counsel further submits that thereafter on 23.03.2012, the plaintiff had sought objections from general public by publication of an advertisement in daily “Dawn”. Learned Counsel further contended that due to increase in prices, the defendant No.1 failed to honor its commitment, whereafter the plaintiff served a legal Notice dated 29.03.2012 upon defendant No.1, which was never replied. Learned Counsel has further contended that in the written statement, the defendant No.1 has not denied the receipt of payment as stated hereinabove, and therefore oral agreement of sale stands established between the parties and can be specifically enforced by this Court. In support of his contention, learned Counsel has relied upon the cases reported in 2010 SCMR 537 [Muhammad Bakhsh and another versus Sagheer Ahmad and another, 2004 SCMR 530 [Mushtaq Ahmad and others versus Muhammad Saeed and others], 1993 SCMR 183 [Bashir Ahmad versus Muhammad Yousaf through Legal heir] and order dated 16.09.2014 passed in Suit No.159/2012 (Roshan Ali V/s Mrs. Parveen Salim Shah), order dated 17.03.2014 passed in Suit No.393/2014 (Dr. Masuma Hasan V/s Mohammad Hafeez), and order dated 14.10.2013 passed in Suit No.1276/2013(Syed Muhammad Waqar uddin V/s Owais Ahmed Idrees).
3. Conversely, learned Counsel for defendant No.1 has contended that there is neither privity of contract between the plaintiff and defendant No.1, nor any agreement in writing or oral was ever entered into, between the plaintiff and defendant No.1. Learned Counsel further submitted that no consideration of whatsoever nature was received by the defendant No.1 from the plaintiff, whereas, the amount claimed to have been paid by the plaintiff was infact paid by the defendant No.2 and at the most and without prejudice, it is only defendant No.2, who can file a Suit for specific performance. Learned Counsel further contended that the plaintiff had even appeared before the office of defendant No.3 for performance of his part of agreement, however, neither the plaintiff nor the defendant No.2 turned up to make payment of the balance sale consideration, whereafter, the earnest money stands forfeited and the oral agreement, if any, stands cancelled. Per learned Counsel, in such circumstances, entire Suit filed by the plaintiff is misconceived and is not maintainable and neither any prima facie case has been made out on behalf of the plaintiff.
4. Learned Counsel for defendant No.3 (DHA) has referred to the written statement and letter dated 16.04.2012 annexed thereto, addressed by the defendant No.1 to defendant No.3, and submits that it is an admitted position that the defendant No.1 was present before the office of defendant No.3 on the relevant date to sign necessary papers, however, nobody turned up on behalf of the plaintiff or defendant No.2 to finalize the sale and transfer of the plot in question.
5. I have heard all the learned Counsel for the parties and perused the record. It appears that the plaintiff has sought specific performance of an oral agreement in respect of Plot No.7-C, Khayaban-e-Usman, Phase-VIII, E-B, D.H.A. Karachi, admeasuring 100 sq. yds and has claimed to have paid total earnest money amounting to Rs.10,70,000/- to the defendant No.1 in this regard. It has been admitted by the learned Counsel for the Plaintiff, that the earnest money was paid through Defendant No.2, who had infact made the pay orders and drawn cheque from his own sources, but such payment was made on behalf of the Plaintiff. However, while confronted, the learned Counsel for the plaintiff could not refer to any document or material or bank advice or statement, which could reflect that such payment of earnest money through pay orders / cheque amounting to Rs.10,70,000/-, was made by the plaintiff or the funds available with the plaintiff were ever utilized. Learned Counsel for the plaintiff was specifically asked to show any document through which it can be ascertained or reflected, that such amount was paid from the account of the plaintiff or was encashed by debiting the account of the plaintiff, however, learned Counsel could not refer to any such document or statement in this regard. Though there is no cavil to the proposition, that oral agreements can also be specifically enforced and relief in this regard can be sought in terms of Specific Relief Act, 1877, however, only when it fulfils all the requirement of a valid contract, which in my opinion are lacking in the instant matter at this stage of proceedings. The learned Counsel for the Plaintiff has referred to various judgments of the Hon’ble Supreme Court in this regard, however, the facts in those cases were entirely different, besides in all the cases, enforcement of oral agreements was allowed after adducing evidence, hence the same are distinguishable and not relevant in the instant matter. It is pertinent to note that in cases of oral agreements, the onus and burden on the person who claims specific performance of such oral agreement, is on a higher pedestal as compared to a written agreement, for which the conduct of the parties is of vital importance, as it is only word against word which is before the Court in such matters. In the instant matter, at this stage, prima facie the Plaintiff by her conduct, has not been able to show that there existed any oral agreement between the Plaintiff and the Defendant No.1, for which specific performance was being sought through instant Suit.
6. It has been further noted that even otherwise, the defendant No.1 appeared before the office of defendant No.3 for performing its part of the agreement, as reflected from the written statement filed on behalf of Defendant No.3, whereas, nobody turned up before the office of defendant No.3 on behalf of the plaintiff or defendant No.2 to make payment of the balance sale consideration and to get the plot in question transferred in the name of the plaintiff. Further, such factual assertion could not be controverted by the learned Counsel for the Plaintiff, whereas, Defendant No.2 has chosen not to contest instant Suit and has been debarred from filing written statement on 17.09.2013. In view of such position, at this stage of hearing interlocutory application, there is not material before this Court to believe that there was an oral agreement between the Plaintiff and Defendant No.1. It is also an admitted position, that instant Suit was filed in the year 2012, whereas, no effort has been made on behalf of the plaintiff to deposit the balance sale consideration before this Court immediately, at the time of filing of instant Suit or thereafter. It appears that since prices of the property in question have increased, therefore, now the plaintiff wishes to deposit the balance sale consideration as contended by the learned Counsel for the plaintiff during hearing of the listed application. However, since I have already observed that at this stage of proceedings, there is no material on record to suggest that any oral agreement was entered upon between the Plaintiff and Defendant No.1 in respect of Suit property, nor there exists any privity of contract between them, hence, such request for deposit of balance sale consideration cannot be granted by this Court while hearing instant application.
7. In view of hereinabove facts and circumstances of the instant case, I am of the view that the Plaintiff has failed to establish co-existence of the three ingredients required for seeking a temporary injunction i.e. a prima facie case, balance of convenience and irreparable loss / injury. Accordingly, listed application under Order 39 Rule 1 & 2 CPC, bearing CMA No.6184 of 2012 was dismissed by means of a short order on 30.03.2015 and above are the reasons for such dismissal. Needless to mention that the above observations are tentative in nature and shall not have any effect on the merits of the Suit which shall be decided on the basis of evidence led by the parties.
JUDGE
Talib