' JAWWAD S. KHAWAJA, J.- Ahmad Ullah Zafar respondent-plaintiff filed a suit seeking specific performance of an agreement (Exit.P.4) dated 6-9-1996. This suit was dismissed in its entirety by the learned trial Court. However, the learned appellate Court has reversed this finding vide judgment and decree dated 14- 9-2005. Although specific performance of the agreement has not been decreed, the respondent-plaintiff has been held entitled to recover Rs. 8,00,000 from the appellant. The execution of the agreement (Exh.P.4) by the appellant Mst. Fuazia Shaukat is not in dispute. The reason for declining specific performance was that respondent No.2, namely, Mst. Munaza Shaukat, who is the sister of the appellant, was not a signatory to the agreement and further that there was nothing on record to show that she had authorized the appellant to execute the agreement on her behalf.
2. The learned appellate Court has held that the respondent-plaintiff had paid Rs. 1,00,000 to the appellant as earnest money and thereafter had also incurred expenses of Rs.3,00,000 on repairs and improvements in the suit property. It has been held that the respondent was entitled to twice the aforesaid sums. This finding, however, appears to be a result of misreading of the agreement (Exh.P.4), In the same the appellant agreed to pay twice the sum of earnest money to the respondent-plaintiff in the event of failure to for the respondent-plaintiff did not seriously dispute the. Fact that the obligation of the appellant to pay double the amount was limited to the earnest money of Rs. 1,00,000 only. It is, therefore, clear that the appellant had not assumed responsibility for paying twice the amount . Spent on the repairs and improvements on the suit property.
3. Learned counsel for the appellant argued that even the amount of Rs.3,00,000 claimed by the respondent-plaintiff for improvements on the property, had not been proved. This contention, however, is not well-founded. The respondent himself appeared as a witness to prove this amount and also examined five other witnesses. Moreover, correspondence between the parties was also adduced on record including Exh.P.9 and Exh.P.10 wherein the appellant had agreed to reimburse the respondent in respect of expenses incurred by him. At this stage it may also be added that the appellant had entered appearance before the learned trial Court but thereafter was proceeded against ex parte. In the circumstances the evidence produced by the respondent- plaintiff remained uncontroverted. The breach of contract on the part of the appellant stands established on the record. Secondly, even the representation made by the appellant that she was the attorney of her sister Munaza Shaukat respondent No.2, was not proved on record.
4. In view of the foregoing discussion, I find that the respondent- plaintiff was entitled to recover the sum of Rs.3,00,000 incurred by him on repairs, improvements etc. Together with a sum of Rs.
2,00,000 being double the earnest money paid by him. The appellate decree, execute a conveyance. Learned counsel is therefore, modified accordingly. This appeal succeeds partially in the above terms.