1. ' Repeatedly notices were issued to the respondents, but returned unserved. Learned counsel for the appellant stated that the respondents were declared ex parte before the learned Single Judge and the matter was proceeded in their absence. In view of the above, we heard Mr. Haq Nawaz Talpur, learned counsel for the appellant.
2. ' Brief facts for the purpose of deciding the appeal are that the appellant filed suit for specific performance of an agreement of sale, dated 18-3-2003 in respect of Property, bearing No,117, measuring 2000 square yards, situated at Popular Avenue, Phase-VI, Pakistan Defence Officers'
3. Housing Authority, Karachi. The appellant agreed to purchase the property in question for the total sale consideration of Rs,27,000,000, out of which a sum of Rs,500,000 was paid at the time of execution of agreement of sale, a further sum of Rs,2,000 was paid on 20-4-2004 and thereafter a new agreement was executed between the parties on 20-4-2004. The respondents then failed to transfer the property in question in favour of the appellant despite his request and as such the appellant filed suit for specific performance, praying for a decree of special damages against respondent No,1 in the sum of Rs,50,000,000 and damages on the amount paid by the appellant with 30% compensation thereon. The learned Single Judge, when the matter was listed for further orders, dismissed the suit by holding that the relief of specific performance is an equitable relief and since the appellant has failed to deposit balance sale consideration, the same dis-entitled the appellant for the relief of specific performance of the contract.
4. ' We have gone through the documents on record as well as memo of plaint, from the perusal whereof it appears that apart from claiming relief for specific performance, the appellant has claimed damages and compensation in respect of the amount paid by the appellant as advance part payment. Even if for any reason if it is accepted that failure to pay balance sale consideration at the initial stage tantamount to dis-entitle equitable relief of specific performance, the appellant at least was entitled for damages, if any, proved by him. Section 29 of the Specific Relief Act, bars the plaintiff's right to sue for compensation for breach of contract or part thereof, on dismissal of a suit for specific performance of a contract or part thereof. Under section 19 of the Specific Relief Act if Court decides that specific performance ought not be granted, and contract has been broken by the defendant, the Court can award compensation, if the plaintiff is entitled to it.
5. ' For the foregoing reason the impugned order is set aside. The matter is remanded to decide the suit on merits.
6. ' The appeal in the above terms stands disposed of.