1. ' KHILJI ARIF HUSSAIN, 1.---The plaintiff has filed this suit for specific performance of contract in respect of property bearing No, T-33, measuring 976 sq, yd. 15th. East Street, Pakistan Defence Officers Housing Authority, Karachi.
2. ' The brief facts of the case are that by an agreement of sale dated 9th March. 1973 defendant No,1 agreed to sell and the plaintiff agreed to purchase the suit property in total sale consideration of Rs,250,000. The defendant No,1 received entire sale consideration mostly by pay orders and finally payment of Rs,220,000 was received by the defendant No, 1 on 9th March, 1973 by pay Order No, OAF 667191 drawn on Habib Bank Ltd. Eidgah Branch Karachi. The defendant No, I on the same day i.e, 9th March, 1973 executed a registered general power of attorney in favour of the husband of the plaintiff. The defendant No, 1 also handed over original documents of the suit property to the plaintiff including sub-lease dated 16th June, 1970 executed by the defendant No,2 in favour of the defendant No,
1. The plaintiff is in possession of the suit property from 1973 without any hindrance or interference from anyone. It is also stated in the memo. Of plaint that the plaintiff who is in possession of the property is paying all the taxes in respect of the said property including water tax property tax etc. ' The plaintiff's case as set up in the plaint is that an application for mutation was filed before the defendant No,2 on 15-6-1983 and a sum of Rs, 27,700 through pay order was deposited with the defendant No,2 for the purpose of mutation of the name of the plaintiff in their records. The plaintiff stated that the plaintiff remained under bona fide impression that the suit property would have been mutated in her favour by the defendant No,2 in their records and further that necessary documents have been executed for the transfer of the property in favour of the plaintiff by the defendant No,1 as the affairs pertaining to the suit property were looked after by her deceased husband who expired on 27-3-1982. It is stated that recently plaintiff approached the defendant No,2 for getting the said property transferred in favour of her two daughters namely Hina Nakshab and Amber Rizvi when she came to know that the property had not been transferred in her name and further that the sale deed had not been executed by the defendant No,1 in favour of the plaintiff. The plaintiff thereafter tried to contact the defendant No,1 but failed to do so and hence filed the suit.
3. ' Summonses were issued to the defendants. Defendant No,1 remained absent though summonses were issued to him by TCS, registered post AID and by Publication of same in Daily 'Dawn' and Daily `Nawa-e-Waqe. The learned Additional Registrar (0.5.) by his order dated 4th August, 2003 has debarred the defendant No,1 from filing written statement. The defendant No,2 is a formal party.
4. However, the defendant No,2 also failed to file written statement and he was debarred from filing written statement by the Additional Registrar on 28-8-2003.
5. ' I have heard learned counsel for the plaintiff and have gone through the agreement of sale. The plaintiff who is present in person in Court holds original sub-lease of the property in question in her possession. It also appears that the defendant No,1 had admitted and acknowledged receipt of entire sale consideration as well as the defendant No,1 had handed over possession of the property in question to the plaintiff.
6. ' Para. 5 of the said agreement though provides that the defendant No,1 will execute sale deed in favour of the plaintiff within six months from the date of the agreement but the said period prescribed in the agreement of sale had not been made essence of the contract so as to attract first part of Article 113 of the Limitation Act. The defendant No,1 has not refused to perform his part of the obligation under agreement till the suit has been filed.
7. ' The plaint is on oath, duly supported with necessary documents and the defendant No,1 has failed to contravene the contents of plaint. I, therefore, decree the suit as prayed with no order as to costs.