1. ' MS. SOOFIA LATIF, J:--By this single judgment I will dispose of these two Suits bearing No, 1533 of 2001 filed by the plaintiff Syed Anwer Ali for specific performance, declaration, injunction and recovery of Rs,60,61,645 against the defendant Syed Hamid Umer and Muhammad Hussain, whereas Suit No,131 of 2002 was filed by Syed Hamid Umer against Syed Anwer Ali for cancellation of instrument, fake agreement dated 22nd December, 1997 in respect of plots situated at Jami Commercial Phase-Vll, Defence Housing Authority, Karachi and Damages of one crore. Both the suits were consolidated by this Court vide order dated 7-11-2006 and the Suit No, 1533 of 2001 is. treated as leading suit.
2. ' Precisely, the facts of suit bearing No, 1533 of 2001 are that the plaintiff is engaged in building constructions and as a builder he has completed several units in Karachi especially in Defence Housing Authority. The defendant No,l being his closed friend and the defendant No,2 is also inter- linked with the defendant No, 1 persuaded him to. get somehow constructions on the said plots and after several meetings it was agreed between them and reduced into writing and an agreement was signed on 22-12-1997 that the plaintiff be engaged in constructing projects on the said plots in accordance with their approved building plan at the rate of Rs,525 per square feet with material.
3. They also requested him for construction from his own resources and the defendants .will pay in addition to Rs,525 per sq. ft. as * construction cost, 25% profit on the sale of the shops/flats in the said plots/projects, which he accepted. According to the plaintiff .as per agreement he obtained approval of plans . from the Defence Housing Authority and the construction commenced and progressed in accordance with approved plan. He also obtained verification certificate. Thereafter he raised construction on the said plots and got materials of the constructions from his own resources and made payment to the suppliers cash as well as on credit basis. He raised construction on the said plots as follows:-- (i)Covered area including under-ground tank and over head tank10,560 sq. feet (ii)Charges with material per Sq. ft. Rs.525 (iii)Construction Cost Total Rs.55,44,000 (iv)Claim amount of Rs.5,50,000 balance in consideration cost to be paid by the Defendants to the plaintiff (v)Construction Cost Total Rs.55,44,000 (vi)Value of the plot in 1997 Rs.38,00,000 (vii)Total Building value Rs.93,44,000 (viii)Total Sale Price of Building Assessed Rs.1,4,71,000 (ix)Less Rs.93,44,000 (x)Profit Rs.31,27,000 (xi)Less 25% Profit of plaintiff Rs.7,81,750 (xii)Total claiming amount including construction. Rs.7,81,750 Balance and Profit 25% Rs.5,50,000 Claim receivable by the plaintiff from the defendants Rs.13,31,750 That the above said project is completed.
(B) Plot No.3-C situated on Street No.7, Jamil Commercial VII and DHA.
4. (i)Covered area including under ground tank (ii)And Overhead tank feet 10,560 sq. ft.
5. (iii)Charges with material per sq. ft. Rs.525 (iv)Claim amount of Rs.5,50,000 balance in consideration cost to be paid by the defendants to the plaintiff (v)Construction cost total Rs.56,47,950 (vi)Value of the plot in 1997 Rs.40,00,000 (vii)Total Building value Rs.96,47,950 (viii)Total Sale Price of Building Assessed less Rs.34,74,500 (ix)Less Rs.96,47,950 (x)Profit Rs.38,26,750 (xi)Less 25% profit of Plaintiff ,Rs.9,56,637 (xii)Total claiming amount including construction Rs.6,90,000 Balance and Profit 25% Rs.5,50,000 Claim receivable by the plaintiff from the defendant Rs.16,46,637 That the above said project is completed.
(C) Plot No.3-C situated on Street No.7, Jamil Commercial VII, DHA (i)Covered area including under-ground tank and overhead tankRs.6607 sq. feet (ii)Charges with material per sq. ft. Rs.525 (iii)Construction Cost Total Rs.34,68,675 (iv)Value of the plot in 1997 Rs.25,00,000 (vii)Total Building value Rs.59,68,675 (viii)Total Sale Price of Building Assessed Rs.77,61,600 (ix)Less Rs.59,68,675 (x)Profit Rs.17,92,925 (xi)Less 25% Profit of plaintiff Rs.17,92,925 That the above said project is completed.
(D) Plots Nos.66-C and 67-C situated on Street No.7, Jamil Commercial VII, DHA (i)Covered area including underground tank and overhead tankRs.21120 sq. feet (ii)Charges with material per sq. ft. Rs.525 (iii)Construction cost Total Rs.1,10,83,000 (iv)95% work completed amount Rs.1,05,33,600 (v)Already received amount Rs.93,33,600 (vi)Balance amount of 95% claimed cost of constructions to be paid by the owner to the contractor (sic)
6. Note: 25% balance amount should be claimed received after on completed building.
(E) Plot No.29 situated on Street No.2, Jamil Commercial VII, DHA (i)Covered area including underground tank and overhead tankRs.10,458 sq. feet (ii)Charges with material per sq. ft. Rs.525 (iii)Construction Cost Total Rs.54,90,450 (iv)65% work completed amount Rs.35,68,792 (v)Already receive amount Rs.26,00,000 (vi)Balance amount of 65% claimed amount receivable Rs.9,68,792 ' It is also the case of the plaintiff that the defendants failed and neglected to pay Rs,55,95,365 for which he made request to the defendants on various occasions but they failed/neglected and arranged for payment to him despite that he completed all wonfs in accordance with the terms and conditions of die agreement except Plots Nos.66-C, 67-C and 29-C completed 95% construction work pn 66-C, 67-C and 29-C completed 95% construction work on 66-C and 67-C and 65% work completed on plot No,29-C and also admitted satisfaction of the defendants at all stages. Accordingly, in the first week of July, 2001 he was stopped to complete the remaining work in the above-mentioned plots and also stopped for payment and thusviolated the terms and conditions of the agreement. The total claim of the plaintiff being due and payable against the defendants comes to Rs,60,61,645, hence this suit with following prayers
(i) Pass judgment and decree against the defendants and each of them directing them to perform their part of obligation as per agreement dated 22nd December, 1997.
(ii) Pass judgment and decree against the defendants and in favour of the plaintiff for the sum of Rs,60,61,645 with further charge of the additional amount at the same rate i.e, 25% per annum on the principal amount of Rs,60,61,645 from the date of institution of this suit.
(iii) To restrain the defendants, their men, agents, servants, employees, nominees, attorneys, labourers, petty contractor, representatives and/or anybody acting and/or claiming in their names and/or their behalf from selling, alienating, transferring, leasing, completing the remaining construction work on Plots Nos.66-C, 67-C and 29-C. Phase-Vll, Jamil Commercial Street No,7 and 2 respectively, DHA, Karachi and/or further restrain from creating third party interest till payment of due and payable amount to the plaintiff.
(iv) Cost of the suit may also be awarded.
7. ' Defendants were duly served and filed their written statement separately, in which they challenged the maintainability of the suits and also denied all allegations made in the plaint and stated that the plaintiff was in fact the employee of Messrs Sea International owned by the wife of defendant No,l and the defendant No,2 has got nothing to do with the plaintiff. They also denied that the plaintiff is a licensed builder, in fact, there is no project to his credit anywhere in Karachi.
8. Since the plaintiff was known to the defendant No,l he had all trust and faith and he had all documents relating to the construction and properties under his control at the office of Messrs Sea International and at his request a couple of plots were also purchased in his name just because of good faith and blind trust but he betrayed the defendant No,l and tried to deprive him of his wife's assets, rather, did this in all matters of financial losses to him. It is further stated that the plaintiff was a trusted employee and working in Messrs Sea International, hence there exists no agreement of any sort between him and the defendants. The impugned agreement produced by the plaintiff is evident even to a naked eye, in fact, there was no agreement between them and as such the alleged agreement is a forged and their signatures are also forged thereon. It is further stated that the defendant No,l on 13-12-1997 left Pakistan for Umrah and returned on 30-12-1997 when alleged agreement was got executed by the plaintiff. He being an employee sitting in the office of Messrs Sea International had access to all record and documents at his discretion and he took hold of all original documents relating to the construction and their properties. It is further stated that the plaintiff through alleged petty contractor in order to blackmail/pressurize them got served legal notice and the reminders, therefore, the plaintiff is liable to be prosecuted. The defendants prayed for dismissal of the suit.
9. ' Whereas in Suit No,131 of 2002 the plaintiff Syed Hamid Umer (defendant in Suit No, 1533 of 2001) has asserted the same facts which he has stated in his written statement filed in Suit No, 1533 of 2001 and he prayed for the following reliefs:--
(a) By a judgment and decree adjudge the fake, forged and fraudulent agreement dated 22nd December, 1997 with forged signature of the plaintiff as void and, therefore, may be delivered to this Court to be cancelled.
(b) Restrain the defendants from using and acting upon he fake and fraudulent agreement dated 22nd December, 1997 with the forged signature of the plaintiff.
(c) Judgment and Decree for damages of Rs, 100,00,000 for mental agony, tortures, agony and shattering of reputation/goodwill caused to the plaintiff by the defendant by forging the signature of the plaintiff on the fake and fraudulent Agreement dated 22nd December, 1997.
(d) Any other relief or reliefs as this Court may deem fit and proper under the circumstances of the case.
(e) Award cost to the plaintiff.
10. 'In his written statement the defendant Syed Anwar Ali (plaintiff in Suit No, 1533 of 2001) has denied the allegations levelled in the suit and stated the same facts which he asserted in his plaint in Suit No, 1533 of .2001. He requested for dismissal of suit. 'From the pleadings of the parties, following issues were framed: ~
(1) Whether the suit is not maintainable under the law?
(2) Whether there is no privity of contract between the plaintiff and the defendant No,2, if so, what is its effect?
(3) Whether the Agreement dated 22nd December, 1997 between the parties is a forged and fabricated document?
(4) Whether the plaintiff obtained approval of plans from the Defence Housing Authority and commenced construction on the suit plots?
(5) whether the plaintiff raised construction on the suit plots and got materials of the construction from his own resources and made payment to the suppliers cash as well as on credit basis?
(6) Whether the plaintiff is entitled to claim an amount of Rs,60,61,645 with further charge of the additional amount at the same rate i.e, 25% per annum?
(7) Whether the plaintiff is an employee of the defendant No,l?
(8) Whether the plaintiff is entitled to the relief claimed?
(9) What should the decree be?
11. ' The evidence of the parties was recorded on commission and as per commissioner's report'though the plaintiff filed his affidavit-in-evidence but did not appear for cross-examination despite that several opportunities were given to him.
12. ' The defendant No,l Syed Hamid Umer also filed affidavit-in-evidence and his examination-in- chief was recorded, in which he had produced photograph of the agreement as Exh.P/3, photocopy of passport as Exh.PM and as per Commissioner's report, plaintiff Syed Anwar Ali did not bother to cross-examine the defendant's witness, therefore, his side for cross-examination of the 'defendant's witness was closed.
13. ' Heard learned counsel for the defendants. No arguments has been placed from the plaintiff's side.
14. ' I have gone through the record of both suits very carefully, my findings on the above issues with reason are as under:-- ' Issues Nos.l, 2 and 3 ' These issues being interconnected, therefore for the sake of convenience I would discuss them together.
15. ' In their written statement both defendants have challenged the maintainability of suit.
16. ' It is urged by the learned counsel for defendant that the suit in its present form is not maintainable as there is no privity of contract between them and plaintiff, the alleged agreement filed by the plaintiff is forged and fabricated document.
17. ' Admittedly the plaintiff has filed the present suit for specific performance, declaration, injunction and recovery of Rs,60,61,645. Along with the plaint plaintiff has filed a photocopy of agreement (Annexure A) alleged to have been executed between him and defendants. In his written statement as well as in his affidavit-in-evidence the defendant No,l has categorically denied the execution of this agreement. D.W.l Syed Hamid Umer has categorically denied his signature on the alleged agreement dated 22-12-1997, he has stated that on 22-12-1997 he was not present in Pakistan, in fact, he had left Karachi on 13-12-1997 for Saudi Arabia for performing Umrah and returned on 30-12-1997. In support of his contention he has produced photocopy of his passport.
18. Exit and re-entry visa documents as annexures P, P/l, P/2 and P/3.
19. ' It is an admitted position that as per Commissioner's report neither the plaintiff come into witness box for his cross-examination after filing his affidavit- in-evidence nor cross-examined the defendant No,l though several opportunities were given to him, therefore, in such circumstances the statement made in the affidavit-in-evidence of plaintiff cannot be taken into consideration. It is well-settled principle that non-appearance of plaintiff in witness-box; the absence of affirmative statement in support of plaint and absence of cross-examination of defence witness would give rise to an adverse presumption against the plaintiff and were good enough to safely assume that the agreement in favour of the plaintiff was not executed as defendant categorically denied its execution and his evidence has gone unrebutted and unchallenged. Reference can be made in the case of Wali Muhammad v. Sardar Muhammad 1998 M LD 536, Messrs ,Taj Construction Company v.
20. Federation of Pakistan 378(sic). In the case of Abdul Shakoor v. Province of the Punjab 2005 SCM R 1673 it has been observed that it is reflected from the record that in spite of numerous opportunities given on various occasions plaintiff failed.to produce any evidence to substantiate their claim and thus the order for dismissal of suit does not warrant any interference. In the case of Mst. Bilqees and others v. Mst. Khan Bibi and others 2003 M LD 185, it has been held that contesting party must undergo test of cross-examinatioh for ascer-taining truth or otherwise of their claims, failing which adverse presumption could be drawn against them under Article 129 of Qanun- e- Shahadat Order, 1984.
21. ' The onus to prove the execution of agreement initially lies upon the plaintiff and it is for him to exhaust all satisfactory modes of its execution as there is clear dispute about the execution of agreement and doubts cast on its genuineness, the plaintiff in order to remove all suspicions, must produce all the marginal witnesses and scribe of the deed. If he discharged that onus, then it shift on the defendant to prove otherwise, as to disentitle the plaintiff to . relief claimed for. It is obvious from the record that the plaintiff has miserably failed to discharge his onus by coming into witness-box for cross-examination and also to cross-examine the defendant. It has been observed in the case of Wali Muhammad v. Sardar Muhammad 1998 M LD 536 that "in a suit for specific performance of agreement of sale non-appearance.of plaintiff in witness-box: absence of affirmative statement in support of plaint and absence of cross-examination of defence witness would give rise to adverse presumption against plaintiff and was good enough to safely assume that sale agreement in favour of defendant was executed and registered according to law."
22. 'In the instant case as the plaintiff did not prove the execution of agreement from his own evidence, therefore, it would give rise to adverse presumption against the plaintiff and is good enough to safely assume that no agreement Exh.A has been executed in his favour in respect of alleged contract by the defendants.
23. ' Section l2 of Specific Relief Act also does not provide any right to the plaintiff to claim such relief, such relief being discretionary in nature could not be claimed as of right. Discretion must be exercised on sound judicial principle. In the instant case when the plaintiff has not proved the execution of agreement by giving his own evidence and by cross- examining the defendant. Even he did not produce any attesting witness of agreement in terms of Article 79 of Qanun- e- Shahadat which reveals that the document required to be attested shall not be used in evidence until two attesting witnesses at least have been called for the purpose, therefore the agreement (Annexure 'A') appears to be a forged and fabricated document.
24. ' In view of the circumstances, the suit for specific performance is not maintainable under the provision of section l2 of Specific Relief Act as there is no privity of contract between the plaintiff and defendants.
25. 'Plaintiff has also sought the relief of recovery of amount of Rs,60,61,645, permanent injunction under section 54 of the Specific Relief Act. It is well-settled principle for the grant or refusal of injunction in a suit for specific performance plaintiff must prove the existence of contract. No doubt the burden is upon the plaintiff to show prima facie existence of his right. In the instant case as discussed above that the suit for specific relief is not maintainable, the subsequent reliefs asked for are also not maintainable. Issues answered accordingly.
26. ' Issues Nos.4 and 7 ' These issues being interconnected, therefore, for the sake of convenience I would discuss them together.
27. ' As it has been held in the above discussed issues that no agreement has been executed between the plaintiff and defendant No, 1 and there is also no privity of contract between them. The plaintiff has also failed to prove the authenticity of documents annexed with the plaint and with the affidavit-in-evidence by giving his own evidence or by producing any witness of Defence Housing Authority or the said contractor through whom he got raised construction on the plot in question nor he produced any supplier from whom he purchased construction material on credit basis, therefore, no reliance can be placed upon the said documents as well as upon the contents of plaint and the affidavit-in- evidence of plaintiff. Consequence thereof, the affidavit-in evidence of plaintiff is discarded from the record and I have no alternative but to hold that the plaintiff did not obtain any approved plan from Defence Housing Authority and did not commence construction.
28. ' Though in the written statement in Suit No, 1533 of 2001 and in the plaint in Suit No,131 of 2002 the defendant No,l has stated that the plaintiff, in fact-, was the employee of Messrs Sea International owned by the wife of defendant No,l. To prove these contentions the defendant No, 1 in his affidavit- in-evidence has stated nothing about jt, therefore, the contents of written statement cannot be treated as evidence ^gainst defendant No,l without leading evidence, who had stated so in his written statement as well as in the plaint in Suit No,131 of 2002 and the contentions raised in the written statement and plaint cannot be considered merely on the basis of assertion. Issues answered accordingly. ' Issues Nos.5 and 6 ' These issues being interconnected, therefore, I would discuss them together.
29. ' In the plaint as well as in his affidavit-in-evidence plaintiff in Suit No, 1533 of 2001 has stated that before raising construction on the said plots he entered into a Contract Agreement with the petty contractor to complete the construction and whereby he raised construction and got materials of the construction from his own resources and made payment to the supplier as well as on credit basis. To support these contentions the plaintiff has filed photocopy of approved plan and permission to construct exclusive mezzanine floor and receipt of penalty for mezzanine floor.
30. Verification letter, contract agreement, debt vouchers and bills as Annexures E-14 to E-37. Whereas in his affidavit-in-evidence the defendant No,l has categorically denied that the properties shown in the plaint are owned by him. He has also denied that the plaintiff has raised construction for him as the plots described in the plaint have no concern with him. To prove such allegations the burden was upon the plaintiff and was his duty to come into witness box for cross-examination and also - to cross-examine the defendant^No,l but it appears from the commissioner report that the plaintiff, after filing his affidavit-in- evidence disappeared from the scene of trial despite that several opportunities were given to him for his cross-examination as well as to cross-examine the defendant No,l, therefore, the facts asserted by him in the plaint as well as in the affidavit-in- evidence do not inspire any confidence to the Court and his affidavit-in-evidence cannot be taken into consideration.
31. ' From the above discussed evidence when the plaintiff has miserably failed to prove the authenticity of the documents filed by him in respect of approved plan from the Defence Housing Authority and getting material of the construction from his own resources on cash payment and credit basis, consequence thereof, he is not entitled to claim any amount as he claimed in the suit with further charges. Issues answered accordingly.
32. ' Issues Nos.8 and 9 ' In view of finding of above discussed issues, I, therefore, hold that plaintiff in Suit No, 1533 of 2001 is not entitled to any relief claimed in the suit.
33. ' As regards, the prayer (a) sought in Suit No,131 of 2002, it has already been held in the above discussed issues that no agreement was executed between the plaintiff and defendant No,l and the agreement appears to be forged, fake and fabricated document, which was prepared by the plaintiff Syed Anwar Ali (in suit No, 1533, 2001) with forged signature of Hamid Umer thereon, therefore, it is hereby declared that the agreement Exh.A is null and void and stands cancelled.
34. 'In Suit No,131 of 2002 plaintiff Hamid Umer has also sought the relief for damages of Rs, 10,00,000 for mental agony, tortures, and shattering of reputation/ goodwill caused to him by the defendant by forging his signature on the fake and fraudulent agreement dated 22-12-1997 but in his affidavit- in-evidence he has not stated a single word about it nor he produced any convincing evidence to prove as to what kind of mental shock and torture was caused to him due to the act of defendant and what amount he spent on his treatment. No doubt the defendant Syed Anwer Ali in Suit No,131 of 2002 has failed to lead his evidence and also failed to cross-examine the plaintiff but the plaintiff cannot take any benefit of any weakness of the defendant. It is well-settled principle of law that a party approaching to the Court for seeking some relief has to stand on his own legs for that purpose and no benefit of any weakness in the case of the opposite party could be extended to him. To fortify this view, reference can be made to the following reported cases:--
(1) M.D. Anwarullah Mazumdar v. Tamina Bibi and others 1971 SCM R 94;
(2) Haji Muhammad Sarwar Khan v. Hussain Nawab 1992 CLC 1915;
(3) Mst. Zainab and another v. Majeed Ali and another 1993 SCM R 356.
35. ' In view of evidence of plaintiff in Suit No,131 of 2002 and above cited laws, I am of the considered view that the plaintiff has miserably failed to establish his claim for damages from his own evidence, therefore, he is not entitled for any damages as claimed in the suit.
36. ' Consequently the Suit No, 1533 of 2001 stands dismissed and Suit No,131 of 2002 stands decreed to the extent above with cost.