' KHALID ALI Z. QAZI, J.---This suit has been filed by the plaintiff seeking specific performance, declaration and permanent injunction against the defendants with the following reliefs:-- "(i) For specific performance of the agreement dated 3-11-1999 by defendant No,1 and in the absence of defendant No,1 the Nazir of this Honourable Court may be directed to execute the sale- deed of the subject property.
(ii) Declaration that the plaintiff is the owner and entitled to the property bearing House No,B-159, Block-2, Gulshan-e-Iqbal, Karachi, admeasuring 440 Sq. Yards or thereabout.
(iii) Restrain the defendant No,3 its agent, employees, nominees from alienating/selling/ transferring in any way the said property.
(iv) Directing defendant No,3 to accept the entire decretal amount and in lieu thereof deposit all the original title documents of the aforesaid property with the Nazir of this Honourable Court till the disposal of the above suit.
(v) Cost of the suit.
(vi) Any other further relief or reliefs warranted by facts and
2. Brief facts of the case as disclosed in the plaint are that the plaintiff entered into an agreement to sell dated 3-11-1999 with defendant No,1 for the purchase of House No,B-159, Block-2, Gulshan- eIqbal, Karachi, admeasuring 447 sq. Yards along with fittings and fixture for total sale consideration of 33,00,000. The plaintiff has paid a sum of Rs,20,00,000 to defendant No,1 and remaining amount of Rs,13,00,000 was to be paid after the documentation/mutation is completed but the defendant No,1 is not available and untraceable. Defendants Nos.1 and 2 handed over the possession of the said property to the plaintiff at the time of execution of sale agreement dated 3- 11-1999 and since then the plaintiff is in peaceful possession of the suit property. It is submitted that on 10-2-2004 plaintiff came to know, about the pendency of the execution proceeding. It is further came to the knowledge of the plaintiff that defendant No,2 has got the loan facilities from defendant No,3 and mortgaged the said property of the defendant No,
1. The plaintiff immediately moved an application under Order I Rule 10 r/w section 151, C.P.C. As intervenor, which is pending before the Banking Court No, III, Karachi. It is submitted that at the time of execution of sale agreement the defendants Nos.1 and 2 did not inform the plaintiff regarding the mortgage of the suit property with the defendant No,3. It is submitted that defendant No,2 is the husband of defendant No,1 and the defendant No,3 is joined as a pro forma defendant being a necessary party, who has filed recovery Suit No,1742/2000 in the Banking Court No, III Karachi, which suit was decree for an amount of Rs,12,13,431.00 with future cost of fun on 7.87% per annum from the date of filing of suit till realization. The mortgaged properties including the above mentioned property was also ordered to be sold in execution of the decree. An execution application bearing No,72/2003 was also filed which is still pending before the Banking Court No, III.
3. Further, case of the plaintiff is that he has also moved application before Banking Court No, III for making payment of the decretal amount in lieu of defendant No,3 Bank deposits the original title documents of the subject property in the Court till the title of the plaintiff is clear. It is submitted that plaintiff is already in possession of the suit property and entitled to get the sale-deed executed in his favour, as he has fulfilled. His part of obligation under the said agreement and is ready and willing to honour the same while defendant No,1 has failed to fulfil his part of the obligation by not executing the sale-deed. It is also submitted that defendant No,2 is required by the National Accountability Bureau Sindh, Government of Sindh for investigation in respect of disbursement of financial facilities to Messrs. Northern plyethylene Ltd. And inspite of notices he has not attended the said office and reportedly defendants Nos.1 and 2 are not traceable and it seems that they have left the country. It is further submitted that plaintiff is entitled to specific performance of the agreement and is willing to discharge the liability of defendant No,1 in respect of the mortgage by making payment to the defendant No,3 of the entire decretal amount.
4. After filing of the suit, summonses were issued to the defendants through bailiff, which were returned un-served on defendants Nos.1 and 2. Defendant No,3 has been served. Notice was repeated to the un-served defendants through bailiff as well as registered post A.D., which was also returned un-served with the endorsement of the bailiff that they are not residing at the given address. Again, notice was ordered to be issued through all modes including publication. Notice was duly published in daily 'Jang' dated 7-12-2007, but the defendants have failed to appear and contest the suit. On 28-1-2008, the defendants have been declared ex parte. Thereafter the plaintiff has filed affidavit-in-ex parte proof, wherein he has reiterated the same facts as stated in the memo. Of plaint and has submitted that plaintiff is entitled for specific performance, as he is willing to discharge all the liability of defendant No,1 in respect of mortgage by making payment of the defendant No,3 of the entire decretal amount.
5. I have heard the learned counsel for the plaintiff and perused the case record. Perusal of record reveals that this suit was presented on 22-6-2005 and since then several notices were issued to the defendants through all modes including publication' in daily `Nawa-e-Waqt' dated 13-12-2007, but no body has turned-up on behalf of the defendants. It further reveals that plaintiff has purchased-the suit property from defendants Nos.1 and 2 during proceedings pending before the Banking Court No, III, Karachi. The mortgage of the suit property with the defendant No,3 is prior than the date of sale agreement between the plaintiff and defendants. On 8-3-2006, plaintiff was directed to deposit a sum of Rs,17,56,013 with the Nazir of this Court and the defendant No,3 was also directed to deposit the title documents of the suit property with the Nazir of this Court. In compliance of the directions issued by this Court the plaintiff has deposited the decretal amount and defendant No,3 deposited the original title documents of the suit property with the Nazir of this Court. After withdrawal of the amount by defendant No,3 from the Nazir of this Court, the Execution Application, which was sub judice before Banking Court No, III was disposed of having been satisfied and the name of defendant No,3 was deleted from the array of defendants.
6. Despite several opportunities afforded to defendants to appear before this Court and contest the suit, but they have failed or avoided to appear before this Court and vide order dated 28-1-2008 they have been declared ex parte. In absence of any defence I have no option but to accept the claim of the plaintiff that he purchased the suit property from the defendant vide sale agreement dated 3rd November 1999 and paid full consideration, so also the decretal amount in the sum of Rs,17,56,013 to the defendant No,3/decree-holder National Bank of Pakistan.
7. In view of above the suit of the plaintiff is decreed. Nazir of this Court is directed to execute sale- deed and sign all the documents in respect of transfer of suit property and record statement on behalf of the defendants before the concerned Sub-Registrar, in favour of the plaintiff.
8. The office is directed to the decree in the above terms.