' KHALID ALI Z. QAZI, J.---This is a suit for recovery of Rs.34,02,500 and damages filed by the plaintiff on 19-7-2005 against the defendant. Notices were issued several times to the defendant but none has appeared. It appears that publication was also made in daily Jang', dated 5-5-2006 no one made appearance for defendant.
2. Brief facts of the case requisite for disposal of this suit as per plaint is that defendant is friend of Syed Hijaz Haider Jaffri, who is brother of the plaintiff and is settled in America, permanently. The defendant entered into (verbal) sale agreement with the plaintiff for the sale of his 52 acre of N.C.
Land situated at Deh Thoming, Scheme-33, Near Northern By-pass Super Highway, Karachi, for a total sale consideration of Rs.2,50,00,000. The defendant also took the plaintiff to the land, for site inspection, whereafter a sum of Rs.10,00,000 was paid to the defendant through pay order on 6-8- 2004 the defendant promised to complete the formalities required for mutation/transfer, within 3 months from 6-8-2004.
3. The plaintiff further stated in plaint that on 7-10-2004 the defendant took further Rs.24,02,500 from the plaintiff towards part payment, on the pretext that he has to clear certain dues, whereafter the land will be cleared for transfer. This amount was also paid by the plaintiff to the defendant through pay-order on 7-10-2004, under these circumstances, the defendant has received a sum of Rs.34,02,500 from the plaintiff, towards part payment of the said land.
Subsequently the plaintiff came to know that the land which was claimed by the defendant and was shown to the plaintiff was not in his name and the plaintiff has been defrauded by the defendant. Hence the plaintiff started locating the defendant but he avoided to meet him.
Ultimately the plaintiff served upon the defendant, legal notice on 26-1-2005 the defendant never replied the same or even attempted to contract the plaintiff hence this suit.
4. It is further stated that plaintiff's first preference will be for specific performance of the contract for which he is willing to pay the balance amount, which, apparently appears to be impossible.
Plaintiff therefore, claims his amount of Rs.34,02,500 plus the damages he has suffered being escalation in the prices of the land and delay in his planning to set-up some business thereat.
Tentatively, plaintiff claims Rs.1,00,00,000 towards damages.
5. Plaintiff prayed for the following relief:--
(i) Decree for Rs.34,02,500 be passed against the defendant and in favour of the plaintiff for the amount, being given as advance payment towards sale of the land, plus 14% mark-up from the date of payment, until the amount is recovered.
(ii) Decree for Rs.1,00,00,000 be passed against the defendant and in favour of the plaintiff for the damages suffered by the plaintiff, as mentioned in the plaint.
(iii) In the alternate defendant may be directed to produce the title documents of the land, thereafter get the land transferred in favour of the plaintiff after receiving the balance amount.
(iv) Costs of the suit may also be awarded.
(v) Any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case, may also be awarded.
' In rebuttal no written statement has been filed by defendant. From the pleadings following issues requires determination:- ISSUES
(i) Whether the plaintiff is entitled to the relief claimed? If so, to what extent?
(ii) What should decree be?
In order to establish his case, the plaintiff examined himself as Exh.P., but defendant failed to cross- examine him. The defendant has miserably failed to adduce his evidence despite various opportunities provided to him to plead his case and adduce his evidence, which is evident from the record and proceedings of this suit.
' I have heard Mr. Munawar Malik learned counsel for the plaintiff and perused the record while the defendant's counsel did not adduce final arguments.
' My findings with reasons on the above issues are as under:-- FINDINGS Issue No.l. In affirmative Issue No.2. Suit is decree with costs.
REASONS Issue No.1 ' On this issue plaintiff namely Syed Mustafa Jaffri has deposed almost the same facts, which are stated in the plaint as Exh.P/2. Due to absence of the defendant he could not be cross-examined therefore, his testimony and credibility could not shake.
While the defendant has miserably failed to adduce his evidence, despite ample opportunities provided to him.
' It is well settled proposition of law that the plaintiff has to stand on his own legs and cannot take benefit from the weakness of the defendant. The plaintiff has not produce any evidence in respect of damages therefore, he is not entitled for the same. Since the photocopies of the two pay orders issued by the Allied Bank Ltd., Gulistan-eJohar, Karachi were produced in evidence which clearly proved the payment to the extent of Rs.34,02,500 was made to the defendant by the plaintiff. Issue No.2 ' In view of my findings on issue No.1, the suit of the plaintiff is decreed with costs. The plaintiff is entitled to recover a sum of Rs.34,02,500 from the defendant with mark up at the rate of 14% per annum from the date of filing of suit till realization of the decretal amount with cost.