' SADIQ HUSSAIN BHATTI, J.---The plaintiff, Mrs. Rubina Ali, has filed the present suit through his husband and Special Attorney, Mirza Masood Ali Baig, against the defendants for specific performance, declaration and permanent injunction.
2. The brief facts of the case are that in the month of November, 2005 the plaintiff was approached by one property broker namely Iftikhar Haider, who is stated to be the defendant No,6 but his name does not find mention in the title of plaint and defendant No,5 has again been _ mentioned as defendant No,6, to purchase the property i,e, A-52, Block-12, Gulberg, Federal 'B' Area, Karachi, along with construction thereon Ground + First Floor, measuring 200 square yards from its owners i,e, defendants Nos.1 to 5, who were interested to sell the said house/property, hereinafter referred to as the "suit property". Originally the suit property belonged to the father/husband of the defendants Nos.1 to 5, namely Rehmatullah Kamal, and after his death was mutated in. The name of defendants Nos.1 to 5 by way of inheritance vide Mutation Order No,CDGK/KDA Wing/I&E/D.D.O./SCH-1/1854/2005 dated 30-11-2005. The defendants Nos.1 to 5 finally offered to sell the said property for total sale consideration of Rs,50,68,126 (Rupees Fifty Lac Sixty Eight Thousand One Hundred Twenty Six only) as such sale consideration of the said property was accepted by the plaintiff. The plaintiff by accepting their offer, had agreed to purchase the said property for a total sale consideration of Rs,50,68,126 and defendants 1-5 and plaintiff agreed orally for the total sale consideration as the defendant No,2 and defendant No,4 were out of Pakistan and on their behalf their mother (now deceased) and defendant No,5 Arshad Kamal dealt with the affairs/matter of the said property. That the plaintiff advance payment of Rs,400,000 (Rupees Four Lac only) to the defendants Nos.1 to 5 through the Estate Broker, Iftikhar Haider, in cash vide Receipt No,1315 dated 10-11-2005 issued by Estate Agent. In pursuance of this sale/purchase agreement between the parties the plaintiff paid the full sale consideration of the said property to the defendants as under:--
(i) On 30-09-2005 a sum of Rs,250,000 (Rupees Two Lac Fifty Thousand) were paid to the defendant No,5 namely Arshad Kamal through Pay Order No,998036 drawn at National Bank of Pakistan, Muhammad Ali Housing Society Branch, Karachi. That on 30-09-2005 a sum of Rs,250,000 (Rupees Two Lac Fifty Thousand only) were paid to the defendant No,4 namely Muhammad Ali Housing Society Branch, Karachi, as well as Rs,20,000 (Rupees Twenty Thousand) in cash as per his share money.
(ii) On 29-11-2005, a sum of Rs,6,06,250 (Rupees Six Lac Six Thousand Two Hundred Fifty) were paid to the defendant (sic) No,2731619 dated 29-11-2005 drawn at U.B.L. Gulberg Branch, Karachi. On 30- 11-2005 a sum of Rs,11,00,000 (Rupees Eleven Lac) were paid to the defendant No,5 namely Muhammad Arshad Kamal through Pay Order No,007130 dated 30-11-2005 drawn at Faysal Bank Ltd. Iqbal Arcade, D.M.C. Society Shaheed-e-Millat Road, Karachi.
(iii) On 10-05-2006 a sum of Rs,10,00,000 (Rupees Ten Lac) were paid to the defendant No,4 namely Raffat Kamal through Pay Order No,1418855 dated 10-5-2006 drawn at Bank Al-Habib, Water Pump Branch, Karachi, in favour of Rashida Anis on the request of Raffat Kamal for Purchase of property in the name of Vendor. On 28-06-2006 a sum of Rs,6,86,400 (Rupees Six Lac Eighty Six Thousand Four Hundred only) to the defendant No,3, namely, Farah Kamal, through Pay Order No,009585 dated 28-6-2006 drawn at Faysal Bank Ltd. Iqbal Arcade, D.M.C. Society Shaheede-Millat Road Branch, Karachi and a Balance Share of Farah Kamal through cash payment amounting to Rs,24,538 (Rupees Twenty Four Thousand Five Hundred Thirty. Eight only).
(iv) On 28-6-2006 a sum of Rs,6,86,400 (Rupees Six Lac Eighty Six Thousand Four Hundred only) were paid to the defendant No,2 namely Naghma Kamal through Pay Order No,9,586 dated 28-6- 2006 drawn at Faysal Bank Ltd. Iqbal Arcade, D.M.C. Society Shaheed-e-Millat Road, Karachi, and a balance share in shape of cash Rs,24,538/(Rupees Twenty Four Thousand Five Hundred Thirty Eight only).
(v) On 28-06-2006 a sum of Rs,6,86,400 (Rupees Six Lac Eighty Six Thousand Four Hundred only) were paid to the defendant No,2 namely Naghma Kamal through Pay Order No,9586 dated 28-6- 2006 drawn at Faysal Bank Ltd. Iqbal Arcade,. D.M.C. Society Shaheed-e-Millat Road, Karachi, and a balance share in shape of cash Rs,24,538/(Rupees Twenty Four Thousand Five Hundred Thirty Eight only).
(vi) On 25-03-2007 a sum of Rs,20,000 (Rupees Twenty Thousand) were paid to the defendant No,1 in cash, the said amount received by the defendant No,1 as full and final sale share/amount of the sale.
3. That the defendants 1-5, after receiving of full and final payment of entire sale consideration, handed over the peaceful and vacant possession of the suit property to the plaintiff and since then plaintiff is enjoying the possession as lawful owner of the suit property. The plaintiff after obtaining possession of the said property invested heavy amount for the renovation and betterment of the property as well as on payment of the outstanding utility bills in respect of the suit property. The plaintiff constantly approached the defendants for the execution of sale deed in her favour as well as for the custody of original documents, but the defendants avoided the same on the ground that their mother Ayesha Kamal (the defendant No,1) is seriously ill and not able to execute the sale deed before the concerned Registrar. During this period the defendant No,1, namely Ayesha Kamal, the mother of defendants Nos.2 to 5, expired. After the death of defendant No,1, the defendant No,5 requested the plaintiff that a short time may be given to obtain Letter of Administration for the suit property for the transfer/rnutation of the same in the name of her legal heirs, but after expiry of long time the defendants Nos.2 to 5 failed to transfer/mutate the share in their names being sons and daughters of defendant No,l. In the month of July 2008 the plaintiff's husband succeeded to find out the address of defendant No,5 (Arshad Kamal) and requested him to transfer the said property in the name of his wife/plaintiff, who asked for Rs, 100,000 (Rupees One Lac) for the transfer/mutation of said property in the name of legal heirs of defendant No,1, which was paid to him by plaintiff in cash through the Estate Agent. But the defendants failed to perform their part of the agreement. The plaintiff is legally entitled for specific performance of contract of sale in respect of the suit property as the plaintiff has paid full sale consideration to the defendants Nos.1 to 5 and nothing is outstanding against the, plaintiff in respect of sale transaction of suit property. That the plaintiff lastly through her husband on 3-8-2009 contacted the defendant No,5 and once again requested to perform their part of agreement but the defendants failed to perform their part of , agreement i,e, execution of sale deed in favour of plaintiff' and further failed to give the addresses of other defendants. Hence the plaintiff filed the present suit with the following prayer:- "It is, therefore, prayed that this Hon'ble Court may be pleased to pass Judgment and Decree in favour of plaintiff and against the defendants as under :-
(a) To declare that the sale proceed in between plaintiff and defendants Nos.1 to 5 in respect of sale of said property/House No,A-52,Block-12, Federal 'B' Area, Karachi, along with construction with Ground + First Floor measuring 200 square yards, were entered and agreed and mutual consent of the plaintiff and defendants Nos.1 to 5 of the said property is legal valid and enterable under the law.
(b) To further declare that the plaintiff is entitled for specific performance of the contract in respect of suit property and the defendants No,2 to 5 hand over the title, relevant documents to the plaintiff i,e, Property/House No,A52,Block-12, Federal 'B' Area, Karachi. To Specific performance of contract in respect of immovable property Plot/House No,A-52, Block-12, Gulberg, Federal 'B' Area, Karachi, measuring 200 square yards directing the defendants Nos.2 to 5 and for defendant No,1 being the legal heirs of defendant No,1 to execute and sign Sale Deed in respect of the Suit property in favour of the plaintiff before the Sub-Registrar Gulberg Town, Karachi Central in compliance of the total sale consideration amount received by them from plaintiff and in case of failure from them failure to do so, the same be done through the Nazir of this Hon'ble Court. Permanent Injunction, restraining the defendants, their men, agents, workers, heirs, relatives, attorneys to create third party interest in respect of said property viz. Plot/House No,A52, Block-12, Gulberg, Federal 'B' Area, Karachi, measuring 200 square yards, in any manner of whatsoever till the final disposal of the above suit.
(c) Cost of the suit.
(d) Any other relief or reliefs, which this Hon'ble Court may deem fit and proper.
4. After institution of the suit, summons were issued to the defendants. Defendant No,6 was served and granted four weeks' time for filing the written statement, whereas defendants Nos.1 to 5 remained unserved. Summons were repeatedly issued but could not be served upon defendants Nos.1 to 5, while defendant No,6 also filed to file the written statement. Ultimately on the application moved by the counsel for the plaintiff, summons were published in Daily Nawa-e-Waqt in its issue of 20th January, 2011 and service upon the defendants was held good.
5. Vide order dated 28-2-2011, all the defendants were' declared ex parte. Accordingly, the plaintiff filed Affidavit-in-ex parte proof wherein he reiterated the assertions made in the plaint. Thereafter evidence of the plaintiff's witness namely, Mirza Masood Ali Baig was recorded. He produced his Affidavit-in-ex pane proof as Exh.P.W.1/3, original mutation order dated 30-11-2005 as Exh.P.W.1/4, original receipt dated 10-11-2005 whereby .Advance money of. Rs,4,00,000 was paid to defendant No,1 through Estate Broker viz. Defendant No,6 as Exh.P.W.1/5, photocopy of Pay Order dated 10-5- 2006 as Exh.P.W.1/6, original receipt duly signed by defendant No,3 as Exh.P.W.1/7, original receipt whereby defendant No,2 acknowledged receipt of the amount of Rs,6,86,400 as Exh.PW/1-8, original receipt dated 25-3-2007 issued by defendant No,4 as Exh.PW/1-9. He was not cross-examined, as none from the side of the defendants put his appearance.
6. Vide order dated 17-5-2011, Nazir of this Court was directed to confirm from CDGK as to whether the property in question stands in the name of Rahmatullah Kamal, father of defendants Nos.2 to 5.
Accordingly, the Nazir vide his report dated 4-7-2011 stated that the, residential plot No,A-52, Block 12, Federal "B Area, Karachi, was in the name of Mr. M.R. Kamal, however, subsequently the said residential plot was mutated in the name of his legal heirs viz. Defendants Nos.1 to 5.
7. On 4-10-2013 matter was fixed for final disposal when learned counsel for the plaintiff appeared, whereas none put appearance on behalf of the defendants. Accordingly, the arguments of the counsel for the plaintiff were heard.
8. Learned counsel for the plaintiff contended that the plaintiff has performed his part of contract whereas the defendants despite having received entire sale consideration towards the suit property, miserably failed to perform their part of the contract. He further contended that despite issuance of summons through all modes including publication, the defendants 1-5 neither filed written statement, nor adduced any evidence to rebut the averments made in the plaint and the averments of the plaintiff, as such remained unrebutted/uncontroverted and are to be admitted.
He, in the circumstances, prayed for decreeing the suit.
9. He also stated that although there is no written agreement between the parties but in such cases the receipt of advance payment can be treated as agreement to sell between the parties. In this regard he relied on the case of Muhamamd Ikhlaq v. Sheikh Muhammad Saeed 1991 CLC 2064.
10. I have considered the arguments advanced by the learned counsel for the plaintiff and perused the material available on the record as well as the evidence adduced on behalf of the plaintiff.
11. Needless to emphasize the well settled principle of law that if none from the side of the defendants files written statement and/or steps into the witness box in order to rebut / controvert the assertions made by the plaintiff in the plaint of the suit as well as in the affidavit in evidence, such averments stand unrebutted and are to be-admitted. In the present case, despite issuance of the summons through all modes including publication, the defendants did not bother to turn up to file their written statement and/or adduce any evidence in order to rebut the assertions made by the plaintiff on oath. However, despite such legal proposition, I have examined the evidence of the plaintiff's witness as well as the documents produced by him during the evidence.
12. From the report dated 4-7-2011 submitted by the Nazir, it is established that the property in question stands in the names of the defendants Nos.1 to 5. The plaintiff has also produced original mutation order dated 30-11-2005 as Exh.P.W.1/4 which indicates that the suit property stands mutated in the name of defendants Nos.1 to 5. The plaintiff has also produced the receipts/pay orders which prove that the entire amount of sale consideration was paid to the defendants.
However, Pay Order dated 10-5-2006 for an amount of Rs,10,00,000 was issued in favour of one Rashida Anis, who is neither a legal heir of the deceased owner of the suit property nor is a defendant in this suit, but the plaintiff claims that it was done so at the request of defendant No,4, Raffat Kamal. In the absence of any statement to the contrary made by the defendants, I have no option but to accept the plea of the of the plaintiff that, in fact, the said Pay Order was issued in favour of Rashida Anis at the request of defendant No,3. Even otherwise, the statement made by the plaintiff appears to be true in view of the fact that the plaintiff has been in the possession of the suit property for the last several years and had the said payment, or for that matter, any other payment towards sale consideration, not been made to the defendants, they would have certainly agitated against the illegal possession of, the plaintiff. The acquiescence on the part of the defendants supports the plea made by the plaintiff. In the case of Mrs. Mariam and others v.
Muhammad Ayub (1985 CLC 2531) it was held as under:-- "The only point now remains to be decided in the case is, whether' the plaintiffs are, entitled to a decree of the specific performance.. I have already held under the previous issue that the agreement was duly executed by the parties. The entire sale consideration has been paid and that Late Ghulam. Ali Memon was put in possession of the premises in performance of this agreement of sale. In these circumstances a very heavy burden was cast on the respondents to establish circumstances which could persuade the Court to refuse specific performance. The plaintiff's predecessor having paid the entire consideration and having taken possession of the premises in pursuance of the agreement of sale had fulfilled his part of the contract and he was not required under the agreement to do anything further. The default in completion of sale, if any, was on the part of defendants or their predecessors for which they cannot take any advantage.
Mr. Inayat Ali, learned counsel for the defendants contended that because of inordinate delay on the part of Late Ghulam Ali Memon to enforce his right under the agreement, it will now prejudice the defendant greatly, as in the meantime the prices of the property in the locality have gone very high. The contention raised by the learned counsel for the defendant has not impressed me at all.
There was no delay as such, on the part of the vendee in the present case as he was not required to do anything further, having paid the entire consideration and taken possession of the property in the part performance. All that was required on his part in these circumstances, to make a demand on the defendant to execute the sale-deed, which was made but the defendants, predecessor cancelled the agreement by latter, dated 7th April, 1977. The suit was brought within three years of the cancellation of the agreement by the legal representatives of deceased Ghulam Ali Memon. The defendants have not been able to establish in the evidence anything to show that the delay, if any, amounted to a abandonment of contract or that they altered their position on account of delay which will now prejudice them. The fact that the prices of property have gone up has no bearing in the present case. I accordingly decree the suit of plaintiffs and direct the defendants to specifically perform the agreement of sale, dated 28-6-1969 by executing a valid and proper sale-deed in favour of the plaintiffs within one month from today failing which Nazir of this Court will execute the same on behalf of the defendants on usual terms. The defendants will also pay the costs of the suit."
13. In the case in hand also the entire sale consideration has been paid by the plaintiff to the defendants Nos. 1 to 5 and she was put in possession of the suit property. Thus the law laid down in the cited case is fully applicable to the present case.
14. So far as the question that no written sale agreement between the parties exists, suffice it to state that in such circumstances the receipt by vendee of advance in respect of the immovable property constituted a privity of contract between the parties. Reliance in this regard may be placed on the case of Muhammad Ikhlag (supra).
15. From the perusal of the plaint of the suit, it appears that although the plaintiff has disclosed the name of defendant No,6 viz, the Estate Agent, 'Iftikhar Haider', however in the title, name of defendant No,6 has been shown as 'Muhammad Arshad Kamal'. It seems to be a typographical mistake; even otherwise, he is only a proforma defendant and not a contesting party, as such it will not have any serious repercussions on the fate of the case.
16. The upshot of the above discussion is that, the plaintiff has succeeded in proving the assertions made in the plaint and her evidence. The plaint in the suit as well as the affidavit in ex parte proof are on oath and there is nothing in rebuttal. Accordingly, I decree the suit in favour of the plaintiff as prayed and direct the defendants to specifically perform the agreement of sale in respect of the suit property by executing a valid and proper sale-deed in favour of the plaintiff within one month from today failing which Nazir of this Court will execute the same on behalf of the defendants on usual terms.