' KHALID ALI Z. QAZI, J.---This suit has been filed by the plaintiff seeking specific performance, damages and permanent injunction against the defendants with the following reliefs:--
(i) To declare and order that the defendants for withdrawal cancellation of the subject flat and hand over the said flat being described as under No,A-303 type "A" with all the amenities as agreed to the plaintiff on payment of balance amount was agreed and in failure thereof the same the Nazir of this Court may be directed to execute the said sub-lease/SaleDeed in favour of the plaintiff.
(ii) Permanent injunction against the defendants from acting in any matter whereby the right of specific performance, declaration and enjoyment of the said property for the plaintiff is hampered in any manner and form.
(iii) Money decree in the sum of Rs,30,00,000 lacks along with a further amount of Rs,10,000 being the damages and loss of profit/rent from the defendants.
(iv) Cost of the suit."
2. Brief facts of the case as stated in the memo. Of plaint are that The plaintiff holds an executive position in a private financial institution, got a flat booked with the defendant No,1 in its project namely Hill City bearing No,A-304 in the year 1998-99, being regular in its payment in accordance with the agreement existing between the parties. The defendant however failed to come with the required construction in the matter on the pretext that some litigation has occurred in the matter.
In the circumstances the plaintiff who was/is living with his mother and father and in dire need of residential abode acceded to the offered as made to him by the defendant No,1 that the amount paid be treated against another flat of in the project namely Messes Rado Hill View in the year 2000, wherein also the part payments as required were made by him regularly in accordance with demands made by the defendant No,1, as such provisional allotment order in his name was also issued. It is stated that the construction as required on part of the defendant No,1 however failed to come up and the plaintiff in the circumstances where he was required to pay a total sum of Rs,5,76,000 had paid a sum of Rs,4,76,500 (approximately) and the construction having been stopped further amount were told and assured to be paid on renewal of start of construction. It is also stated that the defendants got documents/executed from the plaintiff in this regard to financing being obtained from House Building Finance Corporation. The defendants kept the matter abeyance on its part and without intimation to the plaintiff and on the abnormal increase of prices of properties out of blue and cancellation letter was got issued to him on 19-2-2007, wherein though a reface is made to some earlier correspondence the same has never been made by the defendant nor has reached the plaintiff.
3. Further case of the plaintiff is that firstly a personal meeting was got made by the plaintiff with the defendants however, the same for the obvious reason of escalation in price failed to bring forward any betterment as the defendants are stalling the issue and gaining on time in the circumstances the plaintiff made a written correspondent in the matter which has failed to receive any response. The defendant No,1 keeping the matter stalled and having failed to make any reply to the written communications such in the circumstances has even brought the subject flat of the plaintiff for sale in the market. It is submitted that the said act of cancellation of flat and subsequent bringing of the same in the market for sale is illegal where the plaintiff was willing and ready to pay the small balance amount left in the matter and it is was also possible for him to arrange for the amount required from HBFC if the same have not been received by arranging financing from some other financial institution provided such a notice is/was available to him. The plaintiff has no other alternate left but to approach this Honourable Court for redressal of his grievance as made herein. It is further submitted that the subject flat was required to be delivered to the plaintiff in the year 2002 not only to which failure is present on part of the defendant. The failure of the defendants to act in accordance with the understating given as entered into with the plaintiff have resulted in sever mental torture and loss of profit for the plaintiff as such apart from the specific performance damages in the sum of Rs,30 lacks is also claimed in the matter along with monthly rent/loss of about Rs,10,000 per month being the rate of rent available in the area from the date of filing of the suit till the date of actual acquiring the physical possession of the flat.
The plaintiff as such is entitled to get the said purported notice of cancellation declared illegal and the defendant is liable to specifically perform his part of the agreement as the plaintiff has always been willing to make all the agreed payment as required in the matter.
4. After 'filing of the suit, summonses were issued to the defendants through bailiff, which were duly served on defendants and matter was fixed for filing of written statement, but no written statement has been filed so far. Notice was again issued to the defendants through bailiff as well as courier service and as per bailiff report notice issued to defendants for 24-4-2007 was received by one Muhammad Aslam, claiming to be a supervisor in the defendant No,
1. However, notice does not disclose whether the said Muhammad Aslam was authorized by the defendants to receive notice on their behalf or the reason as to why defendant No,1 could not be personally served. Again notice was ordered to be issued. To defendants through all modes including pasting and publication. As per order dated 8-10-2007 notice was duly publication. As per order dated 8-10-2007 notice was duly published in daily lang' Urdu Karachi dated 5-11-2007 and the service upon defendants is held good. As a matter of indulgence one more chance was afforded to them for filing written statement within one month, but no written statement has been filed by them and vide order dated 4-2-2008 they have been declared ex parte. Thereafter the plaintiff has filed affidavit-in-ex parte evidence, wherein he has reiterated the same facts as stated in the memo. Of plaint and has submitted that repeatedly notices have been issued and served on the defendants, but they have deliberately failed to effect their appearance despite service. Therefore, the plaintiff is entitled for specific performance of his part of agreement as the plaintiff has always been willing to make all the agreed payments as required in the matter.
5. I have heard Mr. M.A. Khan, learned counsel for the plaintiff and perused the case record. Perusal of record reveals that this suit was presented on 28-3-2007 and since then several notices were issued to the defendants through all modes including publication in daily `Jang' dated 5-11-2007, but no body has turned-up on behalf of the defendants to contest the suit and file written statement. On 21-4-2008, interim order passed earlier was confirmed till final disposal of the suit.
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 4-2-2008 they have been declared exparte. In absence of any defence I have no option but to accept the claim of the plaintiff that he booked the suit property in the project of defendant No,1 Messrs. Rado Hill View in the year 2000 and has paid Rs,4,76,500 out of total sum of Rs,5,76,000. The fact regarding payments made to the defendants has been confirmed from the receipts annexed with the A memo. Of plaint. Such fact has also been admitted by the defendant No,1 in its letter dated 23-2-2007 for cancellation of allotment of apartment issued to plaintiff.
6. In view of above the suit of the plaintiff is decreed and he is directed to deposit the balance amount with the Nazir of this Court. After deposit of balance amount, Nazir of this Court is directed to execute sale-deed and sign the all 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. So far the prayer regarding money decree is concerned, prima facie no case for grant of damages has been made out as no tangible evidence has been produced by the plaintiff. It is also well settled principle of law that plaintiff could not take benefits of weaknesses of the defendants and he has to prove his case according to his own pleadings. Therefore, the claim or money decree in the sum of Rs,30,00,000 along with a further amount of Rs,10,000 being the damages and loss of profit/rent from the defendants is declined.
6. The office is directed to prepare the decree in the above terms.