' AZIZ-UR-REHMAN, J.---The plaintiff has filed the above suit for specific performance of contract, possession, permanent injunction and recovery of special damages with following prayers:- "(a) To direct the defendants Nos.1 and 2 to perform their part of the contract/agreement dated 15-3-2004, regarding the sale of Plot of land bearing No.3-C, Coastal Commercial Street No.5 (admeasuring "100 sq.Yds) situated at Phase-V111, Pakistan Defence Officers Housing Authority, Karachi and transfer this plot in favour of the plaintiff by executing and signing the necessary documents before the concerned officer of defendant No.3. In case the defendants Nos.1 and 2 do not execute the requisite documents as prayed, the learned Nazir of this court may be appointed as commissioner to perform this act in place of defendant No.1, by allowing the plaintiff to deposit the balance sale consideration with the Nazir of this court.
(b) To direct the defendants Nos.1 and 2 to hand over vacant possession of the aforementioned plot of land to the plaintiff (c)- To restrain permanently, the defendants Nos.1 and 2, their servant, representatives, attorneys and any person acting on their behalf, from selling, transferring or creating a third party interest in the suit plot in any manner.
(d) Award a sum of Rs.15,00,000 as special damages as the defendants Nos.1 and 2 have given mental torture, stress and agonies anti financial loss to the plaintiff by refusing the completion of transaction of sale of the suit plot in his favour.
(e) Any other relief with this court deems proper under the circumstances of the case may be also be granted in the interest of justice.
' Cost of the suit may be awarded."
2. Succinctly the facts in the background are:
3. Per assertions of the plaintiff, defendant No.1 is owner of Commercial Plot of land bearing No.3-C, measuring 100 sq.Yds, situated at Costal Commercial Street No.5, Phase-VIII, Defence Housing Authority, Karachi (hereinafter referred to as the said plot) by virtue of letter/ intimation letter dated 19-7-1997. The defendant No.1, per assertions made had agreed to sell the said plot to defendant No.2 for a total sale consideration of Rs 18,00,000 [Rupees Eighteen Lacs only] vide agreement to sell (biana) dated 15-2-2004. Per assertions in the plaint, a sum of Rs.3,00,000 [Rupees Three Lacs only] was received by defendant No.
1. The balance sale consideration of Rs.15,00,000 [Rupees Fifteen Lacs only] was agreed to be paid by defendant No. 2 on or before 1-4-2004. Per assertions in the plaint since defendant No.2 was not in a position to pay the balance sale consideration of Rs.15,00,000 [Rupees Fifteen Lacs only] regarding purchase of the said plot to defendant No.
1. Defendant No.2, thus acting as an agent of defendant No.1 in order to save his advance part payment of Rs.3,00,000 [Rupees Three Lacs only] introduced the plaintiff to defendant No.1 for purchase of the said plot.
4. Per assertions of the plaintiff in this regard an oral agreement for purchase of the said plot reached between the plaintiff and defendant No.2. On the basis of such oral agreement allegedly defendant No.1 agreed to sell the suit, plot to the plaintiff through defendant No.2 for a total sale consideration of Rs.18,50,000 [Rupees Eighteen Lacs and Fifty Thousand only]. Per averments in the plaint the plaintiff thus paid a sum of Rs.4,00,000 [Rupees Four Lacs only] to defendant No.
2. For and in acknowledgment thereof receipt of 15-3-2004 was issued. According to plaintiff Rs.4,00,000 [Rupees Four Lacs only] so paid was adjusted in the account of defendant No.l. The balance sale consideration of Rs.14,50,000 [Rupees Fourteen Lacs and Fifty Thousand only] as agreed' was to be paid to defendant No.1 through defendant No.2 on 1-4-2004. Per averments, the said plot was agreed to be transferred in the name of the plaintiff by signing and executing requisite documents on 1-4-2004. In this regard the plaintiff, per assertion, had prepared two pay orders in the name of defendant No.1 i.e.:--
(a) Pay Order bearing No.1624605 dated 4-4-2004 for Rs.5,24,000 [Rupees Five Lacs and Twenty Four Thousand only] and;
(b) Pay Order bearing No.1624606 dated 2-4-2004 for Rs.2,00,000 [Rupees Two Lacs only].
' Both to be drawn on UBL, Central South Boulevard, Karachi.
5.According to the plaintiff's assertions defendants Nos.1 and 2 were asked to appear in the office of defendant No.3/DHA for executing and singing of documents of transfer of the said plot in favour of the plaintiff. Nonetheless defendants Nos.1 and 2 did not come to the office of DHA/defendant No.3 and thus remaining balance amount of Rs.7,26,000 [Rupees Seven Lacs and Twenty Six Thousand only) could not, be paid. Notwithstanding follow up the plaintiff was kept on hope and promises. On two occasions i.e. 12-7-2004 and 15-7-2004, the defendants Nos.1 and 2 was offered to the receive the balance sale consideration and thereafter the requisite documents in the name of the plaintiff be executed but the defendants Nos.1 and 2, per averments, refused to complete the transaction on the agreed sale price.
6.Per averments, the plaintiff remained always ready and willing to perform his part of obligations per agreement to sell (biana) dated 15-2-2004 in respect of the said plot. The defendants Nos.1 and 2 according to the plaintiff were duty bound to perform their part of the contract by executing and signing the transfer documents of the said plot in favour of the plaintiff before defendant No.3/DHA. Per assertions of the plaintiff, the sale of the said plot later on was also negotiated in market at higher rate. Per averments in the plaint on account of such breaches/negligence the plaintiff suffered metal torture, agony and stress much less due to arranging balance sale consideration. On this account the plaintiff has claimed special damages in the sum of Rs.15,00,000 [Rupees Fifteen Lacs only] against defendants No.1&2 jointly.
7. Upon filing of the suit, summons were issued to the defendants. Per diary sheet of the Additional Registrar (O.S.) dated 30-9-2004 defendant No.3/DHA was served. Thereafter, from record it reveals that many opportunities were afforded to the defendant No.3/DHA for filing written statement. DHA being a pro forma defendant did not file any written statement. Consequently, on 15-3-2005 defendant No.3/DHA was debarred from filing of written statement.
8. Significantly, the plaintiff on many occasions failed and/or avoided to pay cost for issuance of summon to. Defendant No.2, therefore, in the circumstances, on 15-3-2005 the plaint was struck off under Rule 128 of the SCCR.
9. Defendant No.1, filed his written statement on 27-9-2004. In the written statement defendant No.1 has specifically denied the execution of any agreement to sell (biana) with defendant No. 2 on 15- 2-2004 regarding said plot of land. The alleged agreement to sell (biana) per averments of the defendant No.1 is uncertain. Signature of defendant No.1 besides forged is based on fraud. It is not known how alleged amount of Rs.3,00,000 [Rupees Three Lacs only) as advance biyana has been paid. Stamp paper of Rs.60 and Rs.40 r.%. d for preparation of agreement to sale are not signed by stamp vendor and the name of any seller or purchaser or their agent is also not mentioned thereon. On the agreement to sale (biana) the typed year mentioned has been changed from 2003 to 2004 and it bears no signature of the alleged seller and/ or purchaser to justify such alteration. Besides the date of agreement stated to be of 15-2-2004, the date of attestation, written by Notary Pubic is of 16-1-2004. Per averments in the written statement the alteration of date not only shows the fraudulent intention of the plaintiff but also the plaintiff's ill will.
10. In the written statement filed by defendant No.1, it has been specifically denied that the defendant No.2 was either his agent or otherwise, purchaser of the suit plot. The defendant No.2 has no authority and/or title to sell the said plot to the plaintiff and that too on the basis of forged documents. Per averments in the written statement the plaintiff besides guilty of misrepresentation has also committed fraud. The so-called oral agreement, between the plaintiff and defendant No.2 for purchase of the said plot belonging to the defendant No.1 besides being not bona fide is the product of The defendant No.1, as averred in the written statement is the sole owner of the said plot.
Per averments in the written statement the defendant No. 1 never entered into any agreement to sale (biana) with the plaintiff and/or defendant No.2.
11. On 12-12-2005, the following issues were settled:--
(i) Whether the defendant No.1 entered into an agreement to sell Property bearing No.3, Block C, Postal Commercial No.5, measuring 100 sq.Yds situated in Phase-V111, DHA, Karachi with the plaintiff and received any amount against sale consideration?
(ii) Whether the plaintiff is entitled to any damages against defendants, if yes, to what extent?
(iii) What should the decree be?
12. The plaintiff and defendant No.1 in pro and contra of the settled issues went on trial and parties thus chosen the forum of commission for recording evidence of parties.
13. Consequently, on 28-8-2006 the commissioner was appointed for recording of evidence of the parties. Accordingly, the evidence was recorded and the commissioner report regarding recording of evidence was taken on record on 5-5-2008.
14. The plaintiff in support of issues examined the following witnesses:--
(i) Himself as "P.W.1 [Exhibit P-5]. His 'examination-in-chief' was recorded on 24-11-2007. During his deposition, P.W.1 produced his 'affidavit-in-evidence' as Exhibit P-5/1, Original AGREEMENT TO SALE A PLOT [B1YANA] dated 15-2-2004 as Exhibit P-5/2, Receipt dated 15-3-2004 as Exhibit P-5/3 and photostat copies of three other documents, which due to objection raised by the learned counsel for the defendant No.1, were kept on record and marked as '0/1', '0/2' and '0/3'.
(ii) Azhar Hussain son of Nazeer Muhammad as P.W.2 [Exhibit P-6]. During his 'examination-in-chief' he only produced his affidavit-inevidence as Exhibit P-6/1.
(iii) Wing Commander (Retd) Muhammad Ismail son of Abdul Khaliq [who is defendant No. 2 in the instant suit] as P.W.3 [Exhibit P-7]. Defendant No.2 in his capacity as witness in his 'examination-in- chief' produced his affidavit-in-evidence as Exhibit P7/1.
15. All the aforesaid witnesses were duly 'cross-examined' by the learned counsel for the defendant No. 1.
16. Vide Exhibit 'P-8' the learned counsel for the plaintiff closed the plaintiffs' side of evidence on 13- 12-2007.
17. From the defendants side, only defendant No.1 appeared and deposed. During his 'examination- in-chief', DW-1 [Exhibit D-1] the defendant No.1 produced his affidavit-in-evidence as Exhibit D-1/1.
18. Defendant No.1 was duly cross-examined by the learned counsel for the plaintiff.
19. Vide 'Exhibit D-2', the learned counsel for the defendant No.1 closed the defendants' side of evidence on 2-2-2004.
20. On 7-2-2013, when the above case came up for arguments Mr. Sabir Hussain, learned counsel for the plaintiff and Mr. Shahid Qadeer Suharwardy, learned counsel for the defendant No.1 advanced their arguments in support of their respective contention.
21. Mr. Sabir Hussain, learned counsel for the plaintiff argued that defendant No.1 is owner of commercial plot of land bearing No.3-C, measuring 100 sq. Yds, situated at Costal Commercial Street No. 5, Phase-VIII, Defence Housing Authority, Karachi and had agreed to sell the said plot to defendant No.2 for a total sale consideration of Rs.18,00,000 [Rupees Eighteen Lacs only] vide agreement to sell (biana) [Exhibit P-5/2] dated 15-2-2004. Learned counsel contended that a sum of Rs.3,00,000 [Rupees Three Lacs only] was paid by defendant No.2 to defendant No.
1. The balance sale consideration of Rs.15,00,000 [Rupees Fifteen Lacs only] was agreed to be paid by defendant No.2 on or before 1-4-2004. Mr. Sabir Hussain, learned counsel .For the plaintiff argued that defendant No.2 was not in a position to pay the balance sale consideration of Rs.15,00,000 [Rupees Fifteen Lacs only] to defendant No. 1 . Thus defendant No.2 acting as an agent of defendant No.1 in order to save his advance part payment of Rs.3,00,000 [Rupees Three Lacs only) had introduced the plaintiff to defendant No.1 for purchase of the said plot.
22. Per learned counsel for the plaintiff thus an oral agreement for purchase of the said plot reached between the plaintiff and defendant No.2. On the basis of such oral agreement defendant No.1 agreed to sell the suit plot to the plaintiff through defendant No.2 for a total sale consideration of Rs.18,50,000 [Rupees Eighteen Lacs and Fifty Thousand only]. Mr. Sabir Hussain, learned counsel for the plaintiff further argued that a sum of Rs.4,00,000 [Rupees Four Lacs only] was paid by the plaintiff to defendant No.2. For and in acknowledgment thereof receipt of 15-3-2004 [Exhibit P-5/3] was issued. According to learned counsel for the plaintiff Rs.4,00,000 [Rupees Four Lacs only] was adjusted in the account of defendant No.
1. The balance sale consideration of Rs.14,50,000 [Rupees Fourteen Lacs and Fifty Thousand only] as agreed was to be paid to defendant No.1 through defendant No.2 on 1-4-2004. Per Mr. Sabir Hussain, learned counsel for the plaintiff, the said plot was agreed to be transfered in the name of the plaintiff by signing and executing requisite documents on 1-4-2004. In this regard, per learned counsel, the plaintiff prepared two pay orders in the name of defendant No.1:--
(a) Pay Order bearing No.1624605 dated 4-4-2004 for Rs.5,24,000 [Rupees Five Lacs and Twenty Four Thousand only]
(b) Pay Order bearing No.1624606 dated 2-4-2004 for Rs.2,00,000 [Rupees Two Lacs only] ' Both drawn on UBL, Central South Boulevard, Karachi.
23. Mr. Sabir Hussain, learned counsel for the plaintiff further contended that despite requests defendants Nos.1 and 2 did not come to the office of DHA/defendant No.3 for signing and executing requisite documents. Per learned counsel remaining balance amount of Rs.7,26,000 [Rupees Seven Lacs and Twenty Six Thousand only] thus could not be paid. Notwithstanding follow up the plaintiff was kept on hope and promises.
24. Mr. Sabir Hussain, learned counsel for the plaintiff further contended that the defendants Nos.1 and 2 were duty bound to perform their part of the contract by executing and signing the transfer documents of the said plot in favour of the plaintiff before defendant No.3/DHA. Per learned counsel on account of such breaches/negligence the plaintiff suffered metal torture, agony and stress inter alia due to arranging balance sale consideration. On this account, per learned counsel, the plaintiff is entitled to claim special damages in the sum of Rs.15,00,000 [Rupees Fifteen Lacs only] against defendants Nos.1 and 2.
25. In support of his contentions learned counsel for the plaintiff relied upon the cases reported in PLD 1981 Karachi 1.70 [Ali Muhammad Khan (represented by his heirs) v. Riazuddin Khera] and 2000 YLR 1513 (Lahore) (Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others).
26. The relevant portion/placitums on which Mr. Sabir Hussain, learned counsel for the plaintiff has placed reliance read as under:-
(A) PLD 1981 Karachi 170 [Placitum 'G' & "7. An oral agreement by which the parties intended to be bound is valid and enforceable.
However, an oral agreement requires for its proof clearest and most satisfactory evidence. In the present case as discussed above there is no iota of doubt that the agreement did not exist. The appellant had agreed for the sale of the property for valuable consideration which was reduced in writing and was acted upon. Merely because the respondent had not signed any of the documents or that no document was duly signed by both the parties will not lead to the inference that a valid agreement did not exist.
10. Specific performance is an equitable relief which is not granted as a matter of course or as a matter of right in the party seeking-such relief but of discretion of the court to be exercised on the basis of established sound judicial principles and upon a consideration of all the circumstances of each particular case. The jurisdiction conferred under section 22 of the Specific Relief Act is not compulsory but subject to discretion and the relief will not be refused unless sound and reasonable principles justify the same."
(B) 2000 YLR .1513 (Lahore) [Placitum "Section 54 of the Transfer of Property Act has defined the "sale is transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Contract for Sale. ---A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. The essential elements of a sale are:---(1) The parties;
(2) the subject-matter; (3) the transfer of conveyance; (4) the price or consideration. The courts in a contract for sale of immovable property will grant the decree for specific performance of contract unless special reasons to the contrary are shown. All agreements or contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
10. Another aspect of the case is that writing is not necessary to constitute a valid agreement to sell. Oral agreement can also be valid and legal and is binding on the parties. All the agreements or contracts whether oral or in writing if they are made by the free consent of the parties competent to contract for a lawful object and are not expressly declared to be void. In this context reference may be made to Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar.
170."
27. In contra Mr. Shahid Qadeer Suharwardy, learned counsel for the defendant No.1 argued that the alleged agreement to sale is uncertain. Per learned counsel for defendant No.1 signature of defendant No.1 on Exhibit P-5/2 besides forged is based on fraud. Per learned counsel it is unknown how alleged amount of Rs.3,00,000 [Rupees Three Lacs only] as advance biana was paid. Stamp paper of Rs.60 and Rs.40 used for preparation of agreement to sale a plot [biana] i.e. Exhibit P-5/2 are not signed by stamp vendor and the name of the seller or purchaser or their agent are not mentioned thereon. Mr. Shahid Qadeer Suharwardy, learned counsel for defendant No.1 further contended that on the agreement to sale [Exhibit P5/2] the year mentioned has evidently changed from year, 2003 to 2004. Besides the date of agreement stated to be of 15-2-2004 not tallies with the date of Notary Public i.e. 16-1-2004.
28. Per learned counsel for defendant No.1, the defendant No.2 was neither agent of defendant No.1 nor purchaser of the suit plot. The defendant No.2, per learned counsel, has no authority and/or title to sell the said plot to the plaintiff and that too on the basis of forged documents. Per learned counsel for defendant No.1 argued that plaintiff besides guilty of misrepresentation has also committed fraud. The so-called oral agreement between the plaintiff and defendant No.2 for purchase of the said plot besides .Being not bona fide is the product of ill will. The defendant No.1 admittedly is sole owner of the said plot and per learned counsel has never entered into any agreement of sale with the plaintiff and/or defendant No.2. .29. Learned counsel for the defendant No.1 placed reliance on the following reported cases:--
(A) 2003 MLD 345 (Lahore) (Chiragh Din v. Muhammad Siddique),
(B) 2001 MLD 401. (Lahore) (Mst. Ferozi. v. Muhammad Aslam and another),
(C) PLD 1995 Lahore 395 (Muhammad Yaqoob and others v. Naseer Hussain and others),
(D) 2004 YLR 432 (Lahore) (Ibrar Hussain v. Khalid Hussain and 3 others),
(E) 2005 YLR 2727 (Lahore) (Nazir Ahmad v. Sher Muhammad), 1991 SCMR 2300 (Mst. Nur Jehan Begum through Legal representatives v. Syed Mujtaba Ali Naqvi) and
(G) 2001 CLC 1743 (Lahore) (Muhammad Hassan and another v. Liaqat Ali Khan).
30. The relevant placitums/portions of the judgments on which Mr. Shahid Qadeer Suharwardy, learned counsel for the defendant No.1 has placed reliance read as under:-- ' A. 2003 MLD .345 (Lahore) [Placitum `111 "4. The crux Of the above evidence is that the respondent has admitted his thumb impression upon the agreement to sell dated 1-8-1988. Mere admission of the thumb-impression whether entitles the petitioner to the specific performance or in this eventuality whether the petitioner is required to establish by cogent evidence that Muhammad Siddique did not put his thumb- impression on a plain paper but he thumb-marked it after being aware of all the facts and the contents recorded in this agreement. The plaintiff/petitioner has failed to discharge this onus because there is no evidence with regard to the fact of delivery of possession of the suit property in favour of the petitioner by the respondent in consequence of the referred' agreement to sell.
Therels nothing on record to prove that out of the sale consideration Rs.I8,000 were paid by the petitioner to the respondent. Even the marginal witness does not state that the amount in question was paid by the petitioner to the respondent in his presence. The scribe of the said agreement also has not. Stated anything in the affirmative with regard to the payment of , the amount by the petitioner to the respondent. These facts establish the agreement, if to be executed; being without consideration, as such the petitioner/plainnff by withholding evidence of Barkat Ali, by having failed to prove the awareness of the respondent at the time of it being thumb-marked by him with regard to the contents of the agreement has failed to prove its execution. The petitioner/ plaintiff has neither proved the execution of the agreement to sell qua the payment of consideration, as such the learned Additional District Judge has rightly dismissed his suit. The petitioner has failed to establish any misreading or non-reading of evidence on record. There is no illegality or material irregularity established on record, as such the revision petition is dismissed with no order as to costs."
B. 2001 MLD 401 (Lahore) [Placitum 'It 'I "...Furthermore, respondent No.1 /plaintiff claimed his title on the basis of agreement of sale. There is no sale-deed or mutation attested in his favour; mere on the basis of agreement of sale it cannot be presumed that he has become the owner of the property without seeking/filing a suit for specific performance and at least he should have sought declaration, but mere suit for possession on the basis of agreement of sale and the finding of the courts below that he has become owner of the property in dispute by payment of consideration is patently illegal".
C. PLD 1995 Lahore 395 [Placitum 'B'1 " ...While according to Article 79 of the Qanun-e-Shahadat Order, to prove the execution, two attesting witnesses at least have to be called by the party relying on it. Article 79 reads as under:- - 'Proof of execution of document required by law to be attested. ---If document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the court and capable of giving evidence The cumulative effect of Article 17(2) (a) and Article 79 is that in order to prove Exh. P8 the plaintiff had to call two witnesses. But the document was not proved in accordance with law. Therefore, it is excluded from consideration.'
D. 2001 YLR 432 (Lahore) [Placitum 'D "13. The allegation that the transaction is different from one described in the deed the circumstances indicate its different nature must be very strong character. For a transaction to be a sale it is necessary that price in cash must have been paid for the things sold. There must be ownership in a thing on one side and cash price for it on the other. In the instant case, the plaintiff' has not been able to indicate/ establish the circumstances proving the transaction as a sale. "
E. 2005 YLR 2727 (Lahore) placitum'E "8. Agreement to sell Exh.P-I and receipt Exh.P-2 have cuttings and overwriting making these documents, doubtful which were claimed to have been executed by an illiterate villager, who is not shown to have access to any independent or legal advice before parting with his immovable property. It is also not proved that these documents if at all were executed by the respondent, were executed of his own free-will, without any misrepresentation or coercion, by merely producing 2 marginal witnesses of an agreement, without proof of bargain and transaction between the parties, hardly furnish a lawful basis for grant of a decree for specific performance, especially when the statements of the marginal witnesses are discrepant and self-contradictory.
It is clear from the evidence on the file, as discussed above, that the parties were already under the litigation and in absence of evidence that how they happened to transact the sale of land in question without resolving their other dispute, is not believable. F. 1991 SCMR 2300 IPlacitum 131 " ...The principle enunciated in the commentaries and rulings is that where as a material part of his evidence a witness is not cross-examined it may be considered that the truth of such statement has been accepted. Statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence. G. 2001 CLC 1743 (Lahore) [Placitum "...Needless to refer to the settled legal position that where a portion of statement of a witness is not challenged in cross-examination, then it shall be deemed that the party against whom the evidence is being given accepts the same."
31. To find out the answer to the issues framed and reproduced hereinabove in the light of arguments, case-laws cited, record available and evidence led by the parties, it would be appropriate to proceed as under:-- ' Issue No.1 ' As far as Issue No.1 is concerned manifestly the burden of proof lies on the plaintiff. Whether the plaintiff has discharged such burden or not the answer can only come after scrutinizing evidence led by the parties. I have gone through the evidence/cross-examination of parties with the able assistance of learned counsel for the parities. From evidence/crossexamination of the plaintiff who examined himself as .P.W P.W. 1 [Exhibit P-5], Azhar Hussain as P.W.2 [Exhibit P-6] and Wing Commander (Retd) Muhammad Ismail, [defendant No.2] as P.W.3 [Exhibit P-7] following averments/ admissions are important as far as Issue No.1 is concerned:
(i) P.W.1 viz. Syed Shahid Aleem ' The subject plot is belonging to defendant No.1; Agreement to sale [Exhibit P-5/2] was not executed between the plaintiff and defendant No.1 directly or in writing; [Exhibit P-5/2] i.e. Agreement to sale of plot (biana) is between defendant No.1 and defendant No.2 and not with plaintiff; Defendant No.2 was not authorized to sell the subject/said plot to any person; No power of attorney was given to, defendant No.2 by defendant No.1 for sale of the said plot; In the agreement to sale [Exhibit P-5/2J the plaintiff is not a vendee; The earnest money mentioned [Exhibit P-5/2] has not been paid by defendant No.2 to defendant No.1 in the presence of the plaintiff; The agreement of sale [Exhibit P-5/2] manifestly executed on 15-2-2004 but the date of attestation by Notary Public is 16-1-2004; No suit for specific performance has been filed by defendant No.2 against defendant No.1 on the basis .Of Exhibit P-5/2; Receipt i.e. [Exhibit P-5/3J has been issued in favour of the plaintiff by defendant No.2 and not by defendant No.1; Defendant No.1 has not issued any receipt in favour of the plaintiff; Two pay orders prepared by. Plaintiff in favour of defendant No.I regarding sale of the said plot have been encashed by the plaintiff later on; The plaintiff does not want to examine Major (Retd.) Lawrence who is sole witness to agreement to sale of the said plot (biana) dated 15-2-2004 [Exhibit P-5/2].
(ii) P.W.2 viz. Azhar Hussain ' P.W.2 .Denies that plaintiff has purchased the subject/said plot from defendant No.2; P. W..2 voluntarily states that the said plot was purchased by the plaintiff from defendant.No.1 through defendant No.2 and transaction orally took place at Islamabad in the office of defendant No.2; In presence of P.W.2 no agreement to sale was executed between the plaintiff and defendant No.1 in writing; In presence of P.W.2 no receipt of money has been issued to the plaintiff ; Per P.W.2 balance sale consideration was agreed to be paid by the plaintiff to defendant No.1 directly; No time frame was settled for performance of sale agreement.
(iii) P.W.3 viz. Wing Cdr (R) M. Ismail/Defendant No.2 ' P.W.3 admits that he has not received any notice from the court; No written statement was filed by me in the instant suit; P.W.3 admits that he has come to tender/give evidence at the plaintiff's request; P.W.3 has also admitted that no suit for specific performance was tiled against defendant No.1 on the basis of agreement to sale of plot (biana) on 15-2-2004 ([Exhibit P-5/21; Regarding genuineness of Exhibit P-5/2 he has not produced any witness; Receipt for sum of Rs.3,00,000 [Rupees Three Lacs .Only] has not been produced in evidence/court; P.W.3 admits that regarding sale of said plot he has no power of attorney from defendant No.1; No receipt by defendant No.1 has been issued in favour of the plaintiff; Receipt dated 15-3-2004 [Exhibit P-5/3] does not bear signature of defendant No.1; PW-3 admits that the amount of Rs.4,00,000 [Rupees Four Lacs only] received by him from the plaintiff was retained by him; Regarding adjustment of Rs.4,00,000 [Rupees Four Lacs only] against Rs.3,00,000 [Rupees Three Lacs only] the P.W.3 states that he has no proof; The transaction regarding subject/said plot took place at Islamabad.
32. The defendant No.1 examined himself as DW-1 and also gone through test of cross-examination.
The admissions/ averments having come on record in the evidence/cross-examination of defendant No.1 [DW-1] vis-a-vis Issue No.1 are as follows:-- ' Defendant No.1 viz. Muhammad Akhtar Gill, [DW-11.
' Exhibit P-5/2 is forged document; Defendant No.I not entered into any agreement of sale with plaintiff viz Shahid Aleem through defendant No.2; DW-1 voluntarily states that he neither met the plaintiff nor seen him; DW-I denies that Major (Retd.) Lawrence is known to him; DW-1 stated that he is leading a retired life and not carrying any business. He denies any meeting with defendant No.2; He deposed that in January, 2008 for the first time he came to Karachi. He deposed that the contents of his 'affidavit-inevidence' are correct and true.
33. Before dilating upon issues in the light of the above it is worth-mentioning that in the instant case the plaint against defendant No.2 was 'struck off' vide order dated 15-3-2005 passed by Additional Registrar (0.S.) of this court obviously on account of non-payment of process fee for issuing summons to defendant No.2.
34. Being relevant, it would be helpful to produce herein the relevant, rules pertaining to 'stricking off' of the plaint and follow up situation from Sindh Chief Court Rules (O.S.). Rules 128, 129 and 130 SCCR (0.S.) read as under:--
(i) Rule 128 of SCCR (O.S.): "128. Time for payment of process fee and consequences of nonpayment. Process fee for the issue of summons, notice or other process and costs of advertisements shall be paid to the Nazir within seven days from the order directing such summons, notice, process or' advertisement to issue or within 'such further time as may be allowed by an order in writing of the Registrar, (O.S.). In default or such payment, the plaint or application shall be struck off by the Registrar, (O.S.), who shalt make an endorsement to that effect on the plaint or application and sign it. The plaintiff or applicant or his advocate presenting the plaint or application is , expected to ascertain and shall be presumed to know the date of the order directing the issue of the process or advertisement."
(ii) Rule 129 of SCCR (O.S.)
"129 Restoration. A plaint or miscellaneous application struck off the file under the last proceeding rule, may be restored to the file, as of the date on which it was originally filed; on the application of the plaintiff or applicant and on sufficient grounds being shown to the satisfaction of the Registrar (O. S. ). "
(iii) Rule 130 of SCCR (O.S.)
"130. Fresh plaint. When a plaint or miscellaneous application, is so struck off the file, the plaintiff or the applicant shall be at liberty subject to the law of limitation to present a fresh plaint or miscellaneous application for the same matter. "
35. From the perusal of the above it is manifestly clear that upon 'stricking off' the plaint, Rule 130 SCCR (OS) though permits filing of fresh plaint but such filing of plaint in view of Rule 130 SCCR (O.S.), of course, is subject to limitation. In the instant case, now there is no plaint against defendant No.2, therefore, any claim against defendant No.1 through defendant No.2, in my opinion, besides .Incompetent in law is unjustified.
36. Now coming to the Issue No.1 the plaintiff has vehemently failed to establish any oral or written agreement with defendant No.l. Even 'clause 9' of the agreement to sale a plot (biana) [Exhibit P- 5/2], on which the learned counsel for the plaintiff has placed reliance goes against the plaintiffs stand as it speaks about signing of the agreement which means, 'written agreement' and not an 'oral agreement'. For better understanding clause (9) of Exhibit P-5/2 is reproduced as under: "9. That the Purchaser shall be entitled to enter into any agreement to sell with any other party, he likes on the prevent market value or any other consideration, he deems fit and Seller has no objection to sign the sale agreement/transfer deed/transfer documents for such party during biana period."
37. Exhibit P-5/2 is not a sale agreement but an agreement to sale (biana) and does not fulfil essential elements of sale. An agreement, if, is subject to preparation of a formal contract then as being not a binding contract, 'specific performance' thereof cannot be sought under provision of Specific Relief Act [I of 1877]. The plaintiff, besides not a party to the agreement to sale (biana)
[Exhibit P-5/2] has also failed to establish that under [Exhibit P-5/2] any amount was paid to defendant No.1 on behalf of defendant No.2. Even defendant No.2 has failed to establish the payment of Rs.3,00,000 [Rupees Three Lacs only] or any part thereof as earnest money to defendant No.l. As far as Exhibit P-5/3 is concerned the same document/receipt has been signed only by defendant No.2 and not by defendant No.1 who is owner of the plot. Plaintiff has also failed to prove existence of any oral sale agreement between the parties.
38. From the evidence it is quite clear that amount of Rs.4,00,000 [Rupees Four Lacs only] was retained by defendant No.2 against whom the plaint has been struck of long ago. In the evidence of the plaintiff it has come on record that two so-called pay orders have been encashed by the plaintiff. The plaintiff has also failed to establish any lawful binding/agreement between the plaintiff and defendant No.1. The case-laws cited by the learned counsel for the plaintiff are distinguishable and not helpful to the plaintiff's case. Specific performance, it worth to mention is an equitable relief and notwithstanding provisions of Specific Relief Act, [I of 1877] usually it is not granted in routine manner and merely because of any contract. This relief of specific performance, indeed, is in the nature of an indulgence and not as a matter of right for him who is seeking such relief. Even in the cases of valid contract, specific performance can be granted or refused on the basis of equitable consideration. Keeping in view the evidence available on record and perusal of the case-laws, I am of the considered opinion that plaintiff has failed to establish any agreement of sale in writing or oral with the defendant No.
1. Besides plaintiff has failed to prove any payment of any amount to the defendant No. 1 .
Conversely, defendant No.1 has successfully proved/established the nonexistence of any agreement with plaintiff and/or defendant No.2 or otherwise has received any amount from the plaintiff or defendant No.2. Issue No.1 thus answered in negiatve. Issue No.2
39. As far as Issue No.2 is concerned the plaintiff did not lead any evidence regarding damages or quantum of damages. Under law, damages cannot be granted in absence of evidence. In the instant case, ID since the plaintiff has failed, even remotely, to establish any privity of contract with the defendant No. 1 . Hence, under law, on this score also the plaintiff is not entitled to any special damages as prayed for in the plaint. Issue No.2 thus answered in negative.
40. Consequently, the suit filed by the plaintiff is dismissed with costs.