' SYED MAHMOOD ALAM RIZVI, J.-This suit has been filed by the plaintiff on 6-5-2004 for specific performance of contract, declaration, permanent injunction and damages. Thereafter in compliance of the Court order, dated 24-4-2006 amended plaint was filed on 23-5-2007 adding Mst. Saima Hasnie therein as defendant No,2.
2. Brief facts of the case are that the plaintiff entered into an agreement to sell with the defendant No,l in respect of Plot No,435, Defence Officers Housing Scheme No,l, Survey No, 1/2, measuring 550 sq.Yds. Situated at Malir Cantonment, Karachi, which is in the name of the defendant No,l and her sister the defendant No,2, for a total sale consideration of Rs,38,00,000. The plaintiff paid an amount of Rs,50,000 to the defendant No,l towards the above sale consideration, the defendant No, 1 issued a receipt whereof in which terms and conditions of the agreement were also mentioned. It was agreed between the plaintiff and the defendant No,l that the balance sale consideration would be paid at the time of documentation and handing over the original documents with 'No Dues Certificate's, which exercise was to be done on or before 30-4-2004.
3. The plaintiff alleged that the defendant No,l failed, neglected and avoided to comply with her part of obligations. Thereafter, the plaintiff served a legal notice, dated 14-4-2004 to the defendant No, 1 and a copy thereof was also endorsed to the office of the Cantonment Board Malir Cantt., Karachi in which the defendant No,l was requested to perform her part of obligation. The defendant No,l, through her advocate, replied the above legal notice and stated that the said agreement/receipt was conditional, however, payment of Rs,50,000 towards sale consideration was admitted. It was further stated that as the co-owner of the plot i.e, defendant No,2 was not ready to sell the plot therefore, the defendant No,l was ready to refund the said amount of Rs,50,000 to the plaintiff. Thereafter, it came to the knowledge of the plaintiff that the defendants were selling the said plot to some other person on a higher price. The act of the defendants was dishonest and mala fide and they were required to perform their part of obligation, hence the plaintiff filed this suit.
4. The written statement was filed on 8-2004 on behalf of the defendant No, 1 wherein she stated that the alleged receipt was obtained fraudulently and it was agreed between the parties that if the co-owner, the defendant No, 1, did not agree then the advanced amount of Rs,50,000 would be returned by the defendant No,l to the plaintiff and the agreement would stand cancelled. She informed the plaintiff that her sister/co-owner, the defendant No,2, was not agreed, hence she offered for return of the advance money of Rs,50,000.
5. The following issues were settled by this Court:--
(1) Whether the instant suit is maintainable in view of sections l2, 14, 15, I6, 17, 22, 42, 56(f) of . Specific Relief Act, 1877 and sections 39, 41, 56, 196 of Contract Act, 1872?
(2) Whether there is any privity of contract between the plaintiff and defendant No,2?
(3) Whether the suit for specific performance is maintainable against the co-owner/defendants?
(4) Whether any contract can be executed by executing the disputed token receipt by the defendant No,l, which was not in favour of the plaintiff and token receipt was fabricated and the contract in respect of joint property owned by the defendants cannot be enforced without consent of the defendant No,2/co-owner?
(5) Whether the plaintiff who has failed to deposit the balance amount of PKR 37,50,000 only is entitled for specific performance of contract/agreement?
(6) What should the decree be?
6. On 2-2-2009 the matter was fixed for final arguments, but the learned counsel for the plaintiff was absent and the learned counsel for the defendants stated that the plaintiff is not interested, in proceeding the case and his side was closed before the Commissioner for recording evidence.
However, in the interest of justice a notice was issued to the learned counsel for the plaintiff for final arguments on 9-2-2009, but he even didn't turn up on the said date also. It seems that he has lost his interest in the case.
7. The learned counsel for the defendants has Contended that in evidence the defendants narrated the same facts which have been mentioned in their written statement and further stated that under Articles 132 and 133 of Qanun-e-Shahadat Order, 1984 if any contents are narrated in examination-in-chief or through affidavit- in-evidence and if they are not rebutted/challenged/thrashed out or questioned in cross-examination, the same would be treated/termed as correct. He further contended that it. Was in the knowledge of the plaintiff that the suit property was in the names of both the defendants, hence he should have executed the agreement for sale with both the defendants.
8. He has further contended that the suit is not maintainable under the Specific Relief Act as well as under the Contract Act. That the plaintiff has failed to perform the contract is question to deposit the balance amount of Rs,3,750,000 within the prescribed period for even till to date in compliance of the order, dated 24-4-2006 as the stay was confirmed subject to deposit of the above amount.
He has further contended that the impugned receipt of payment of Rs,50,000 is also disputed and not in the name of the plaintiff, hence even no document has been produced to show that there was any connection between the plaintiff and the defendants as purchaser and seller. He has further contended that the plaintiff had no case, therefore, the plaintiff and his counsel lost their interest is the above case.
9. He has relied upon the following judgments:--
(1) 2001 CLC 595, (2) 2002 CLC 1367, (3) 2007 MLD 1978, (4)2004 SCMR 595, (5) 2005 SCMR 1408, (6)
PLD 2004 Peshawar 104, (7) PLD 1995 Karachi 388, (8)PLD 2004 Karachi 543, (9) 2001 SCMR 1700 and
(10) 2008 CLD 412,
10. The plaintiff and his copnsel did not appear before the learned Commissioner to record his evidence to substantiate the contention averred in the plaint, hence his side was closed and so also they have chosen not to argue before this Court inspite of notice, dated 3rd February, 2009.
11. I have gone through the case file, evidence relevant laws as'' well as the authorities cited by the learned counsel for the defendants and in view thereof I am of the considered view that since the plaintiff could not substantiate his claim and even he could not rebut the contention of the defendants' side, therefore, the suit is dismissed with costs.