' SADIQ HUSSAIN BHATTI, J.---The appellant is aggrieved by the Judgment dated 3-12-2009 and Decree dated 10-12-2009, passed by the learned IV Additional District Judge, Karachi East in Civil Appeal No, 161 of 2006 whereby the appeal of the appellant was dismissed and the judgment dated 29-7-2006 passed by the Vth Senior Civil Judge, Karachi East in Suit No,678 of 2005, dismissing the same, was maintained.
2. Facts of the case, briefly stated, are that the appellant filed suit for specific performance of Contract, Declaration and Permanent Injunction before Vth Senior Civil Judge Karachi East averring therein that in the year 2002 the appellant desired to purchase top floor of property bearing Plot No,153-C, Block-2, P.E.C.H.S. Karachi ("the suit property"), which was owned by one. Muhammad Hanif Maniar. Respondent No,4/defendant No,4 who, posing himself attorney of his father Muhammad Hanif Maniar, contacted with the appellant through respondents Nos.5 and 6, who were running the business of the estate agency and introduced the respondent No, 4 to him and stated that the said defendant has right to sell the top floor constructed on Plot No, 153-C, measuring 100 square yards, situated in P.E.C.H.S., Block-2, Karachi. It is further averred that on 22- 11-2002 the appellant entered into an agreement to sell in respect of the suit property with the respondent No,4 and the total sale consideration was agreed between the parties at Rs,400,000 and the appellant/plaintiff paid a sum of Rs,300,000 through pay order dated 25-11-2002 and Rs,100,000 in cash to the respondent No,4 and took over the possession of the property on the same date and also issued NOC to the appellant/plaintiff to raise construction on top floor of the suit property. It is further averred that since the handing over of the possession the respondent No,4/avoided to contact with the appellant and is not fulfilling his contractual obligation, therefore, finally the appellant served legal notice to the respondent No,4 which was not responded to by the said respondent. On the contrary, the appellant received legal notice from the respondent No,4 in which the he called upon the appellant to hand over the suit property to the respondent No,4 within seven days and thereafter he visited at the suit property and directed the appellant/ plaintiff to vacate the suit property otherwise he will forcibly dispossess the appellant from the suit property due to which the appellant filed Suit bearing No,299/2004, but respondent No,4 avoided to appear in that suit due to which the Court declared the suit as ex parte and debarred him from filing written statement. Thereafter the respondent No,4 filed a statement in which he disclosed that the owner has expired and challenged the legality of the suit, therefore, the appellant withdrew the above suit as the same was filed against a dead person instead of the respondent No,4 and other legal heirs of the said deceased. It is further averred in the plaint that the respondents Nos. 1 to 4 with mala fide intentions are avoiding to fulfil their part of the commitment for the transfer of suit property in the name of the appellant, with sole motive to sell the suit property to someone else on higher price but the appellant being bona fide purchaser and on payment of substantial agreed sale consideration amount of Rs,400,000 vested legal right to have the suit property transferred in his name has accrued to him and the respondent Nos. 1 to 4 are liable to execute sub-lease of the suit property in the name of the appellant/plaintiff. Since the respondents failed to perform their part of the sale agreement, therefore, the appellant filed Suit No,678 of 2005 to enforce his rights.
Notices were issued to the defendants in the normal mode but they could not be served. Therefore, notices were served upon them through publication in the daily "Jasarat" dated 7th May, 2006 and the service on defendants was held good vide order dated 19-5-2006 and the Matter was directed to proceed ex parte against the defendants and appellant/ plaintiff filed ex parte proof. However, vide judgment dated 29-7-2006, the learned trial Court dismissed the suit. The appellant challenged the said judgment dated 29-7-2006 by filing Civil Appeal No,161 of 2006 which was also dismissed by learned IV Additional District Judge; Karachi East vide judgment dated 3-12-2009.
Thereafter, the appellant filed this second appeal impugned the judgments of the two Courts below.
3. Summonses were issued to the respondents through publication of notice in the daily Jang and The News, Karachi but since no one appeared on behalf of the respondent, vide order dated 16-4- 2013, the matter was directed to proceed ex parte against them.
4. Mr. Khaleeq Ahmed, learned counsel for the appellant, submitted that the learned trial Court dismissed the suit mainly on the ground that the marginal witnesses of the alleged agreement were not examined. He also submitted that the learned Appellate Judge while passing the impugned Judgment and Decree ignored the material facts of the case and contentions of the appellant and dismissed the appeal on the ground that the trial Court was justified in dismissing the suit of the appellant for want of production of two marginal witnesses of the sale agreement and thus failed to prove the same. He also stated that the two Courts below failed to consider the fact that despite service of notices no written statement was filed by the respondents and, therefore, the contents of plaint as well as affidavit in ex parte proof, which were on oath, were unchallenged and were deemed to hale been admitted by the other side. He further contended that the Courts below failed to consider the fact that the respondents failed to deny the execution of Sale Agreement and possession of the suit property in favour of the appellant. It was also stated that the learned Appellate Court failed to consider the fact that the trial Court, while dismissing the suit of the appellant, did not follow the provisions of Order VIII, Rule 10, C.P.C.
5. I have heard the learned counsel for the appellant and have perused the record.
6. Before dilating on the merits of the case, it would be advantageous if the legal objection is dealt with first. It was contended that provisions of Order VIII, Rule 10, C.P.C. Were not followed by the trial Court. Rule 10 of Order VIII, C.P.C. Reads as under:
7. Rule. 10 of Order VII, C.P.C. Reads as under:-- "Procedure when party fails to present written statement called for by the Court.---Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the, Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
8. A perusal of the above quoted Rule 10 of Order VIII, C.P.C. Shows that in case a party fails to file a written statement within the time fixed by Court then there are two options available to the Court:
(i) either pronounce judgment against such party, or, (ii) make such order in relation to the suit as it thinks fit. Thus, in case a party fails to file written statement within the time fixed by the Court it is not mandatory for the court to pronouncement judgment against it, as was argued by the learned counsel for the appellant. This rule was discussed in minute details by my learned brother, Ali Ahmed M. Shaikh, J, in the case reported as Mrs. Naghma Nawab v. Waseem Nawab (2010 YLR 2372) in the following manner:- "The Rule 10 of Order VIII clearly demonstrates that in every case in which the written statement has not been filed, the Court is not bound or required to pronounce the judgment and decree as it is not supported by the law by using the word "may" in Order VIII, Rule 10 C.P.C. It has been left open to the Court, that on consideration of the material annexed with the plaint pronounce the judgment or may pass such order it deems fit. Before passing the judgment and decree the trial Court was required to see the memo of plaint and documents or record in order to reach at correct conclusion whether they were admissible or inadmissible in evidence and if the trial Court had to reach the conclusion that the plaintiff has good case on merits in that eventuality it has to pass the judgment and decree. The provisions of striking off the defence requires greater care on the part of the trial Court as it would shut out one party to defend itself and virtually it would be at the mercy of the other party to do justice between the parties. If party has failed to file written statement, judgment can be pronounced against such party, but that judgment would not mean decreeing the suit ipse dixit without any proof whatsoever. Court is obliged to give reasons indicating application of mind and it is appropriate that cases be decided on merits after recording the evidence." (emphasis supplied)
9. Thus, in my opinion, there was no violation of the provisions of Order VIII, Rule 10, C.P.C. And the trial Court was fully competent to make such order in relation to the suit as it thinks fit.
10. Coming to the merits of the case, it is an admitted position that the respondent No,4, with whom the appellant alleged entered into a sale agreement, was not the owner of the suit property and the appellant claimed in the suit that he purchased the suit property from defendant No,4, who was attorney of the owner of the suit property, namely, Muhammad Hanif Maniar. However, while filing ex parte proof the appellant/plaintiff failed to produce the power of attorney executed by the said owner of the suit property in favour of the respondent No,4. Thus, according to the learned trial Court, the appellant failed to substantiate his claim that the respondent No,4 was attorney of the owner of the suit property. In this regard the stand of the appellant was mentioned in para 15 of the plaint of the suit, which reads as under:-- "That after filing of that suit the defendant No,4 visited at my shop and stated that he is required the Photocopy of the Power of Attorney as original was misplaced, somewhere and under his undertaking that he will return the same in response to which 1 handed over copy of Power of Attorney to defendant No,4. Thereafter the said defendant No,4 filed a statement in which he disclosed that owner was expired and challenged the legality of the suit, however, this Hon'ble Court passed an order on the said statement."
11. Thus, as per the appellant himself, a copy of the power of attorney was given to him by the respondent but the same was taken back by the said respondent on the pretext that the original has beeh misplaced somewhere. The learned trial Court dealt with this aspect of the case in the following' manner:- "It reveals that the plaintiff has failed to produce the power of attorney executed by the legal heirs of Muhammad Hanif Maniar in favour of defendant No,4. The defendant No,4 has no authority to enter into any Sale Agreement in respect of the property (which) belongs to his father Muhammad Hanif Maniar. There is no authority in favour of defendant No,4 to sale (sell) the property in question. Plaintiff has failed to establish his claim."
12. Thus, it is not correct to say that the learned trial Court dismissed the suit of the appellant on the ground that the marginal witnesses were not produced. The fact is that the appellant, as per the trial Court, was not able to show that the respondent No,4 was competent to enter into an agreement in respect of the suit property on behalf of its true and lawful owner with the appellant.
13. Therefore, it is to be seen whether the respondent No,4 was competent to enter into a sale agreement with the appellant or not. In this regard the claim of the appellant is that the two estate agents, respondents Nos. 5 and 6, introduced the respondent No,4 as the attorney of the lawful owner of the suit property. Thereafter, the respondent No, 4 entered into some sort of negotiation and as per the appellant, the total sale consideration of the suit property was settled at Rs,400,000 which was paid by the appellant to the respondent No,4. According to the appellant, Rs,300,000 were paid through pay order in the name of respondent No,4 and Rs,100,000 were paid in cash. This version is admitted with slight variation by the respondent No,4. It would be advantageous to reproduce the version of the respondent No,4 in the words of his counsel, who appeared before the appellate Court, which reads as under:-- "The above contention on behalf of the appellant has been contested by Mr. Muhammad Mustafa Hussain, learned counsel for the respondent No,4 contended that the suit property was owned by the father of the respondent No,4/defendant No,4 by virtue of sub-lease in Form C, granted by the P.E. C.H.S. On 30-10-1976 and duly- registered in his favour before Sub-Registrar on 1-11-1976. He further contended that in the month of November, 2002 the appellant/plaintiff approached the respondent No,4/defendant No,4 for the purchase of the third floor of the said property and tendered him the pay order dated 25-11-2602 for Rs,300,000 as earnest money and on his request the respondent No,4/defendant No,4 put him in possession of the third floor in the said property but no other amount was received by the respondent No,4/defendant No,4 from the appellant/plaintiff He' further contended that the\ alleged agreement dated 27-11-2002 filed/ relied upon the appellant/plaintiff is a forged and fabricated document and does not bear the signature of respondent No,4/ defendant No,
4. He further contended that the appellant/ plaintiff has no right, title or authority to claim specific performance inasmuch as there is no valid, legal or binding contract, oral or written, between him and the owners of the said property nor that has ever been the case of the appellant.
14. A perusal of the above quoted underlined portion of the contentions of the learned counsel for the respondent No,4 before the first Appellate Court, clearly establishes that there were some negotiations in respect of the suit property between the appellant and the respondent No,4. It is also admitted by the counsel for the respondent No,4 that respondent No,4 received a sum of Rs,300,000 from the appellant through pay order. However, the dispute arises whether the contention of the appellant is correct that the total sale consideration of the suit property was fixed at Rs,400,000 out of which he paid Rs,300,000 through pay order and the rest in cash to respondent No,4 or that the said amount was paid as token money, as alleged by the counsel for the respondent No .4 .
15. The case of the appellant is that he approached the respondent No,4 for purchasing the suit property. This is admitted by the counsel for the respondent No,4. The appellant further claims that the total sale consideration of the suit property was fixed at Rs,400,000 out of which he paid Rs,300,000 through pay order and Rs,100,000 in cash to the respondent No,4. This is denied by the respondent No,4 as learned Counsel for the respondent No,4 submitted before the trial Court that Rs,300,000 was paid as token money. However, it is not mentioned by the learned counsel for the appellant as to what was the total sale consideration of the suit property agreed between the parties.
16. So far as the status of respondent No,4 as attorney of the real and lawful owner of the suit property is concerned, the same was not challenged before the appellate Court. Even otherwise, when the respondent No,4 entered into negotiations with the appellant and also accepted a sum of Rs,300,000, on whatever account, from the appellant in respect of the same property, he is estopped from denying that he was not the attorney of the real owner of the suit property. In case he denies the same then he is exposing himself to serious charges of impersonation and fraud.
However, the other legal heirs of the real owner of the suit property could, and should, challenge his status as such but none of them came forward to do so.
17. It is also not denied that the appellant is in possession of the suit property. However, a perusal of the "Agreement of Sale" that even the case put up by him is not free from doubt. While he claims that the total sale consideration of the suit property was fixed at Rs,400,000 and the same was paid in full by paying Rs,300,000 through pay order and RS.100,000 in cash to the respondent No,4, but it is astonishing to note that Clause 1 of the agreement dated 21-11-2002, this, is the stamped date and not the date of execution of the agreement as no such date has been mentioned therein; the entire sale consideration of Rs,400,000 has been paid by the appellant in cash to the respondent No,4. However, no such receipt has been attached by the appellant with his plaint. According to the appellant Rs,100,000 were paid in cash to the respondent No,4 but again no such receipt is placed on record. The question arises as to which of the version of the appellant is correct i,e, whether the entire sale consideration in respect of the suit property was paid in cash, for which no receipt has been filed, or that Rs,300,000 was paid through pay order and Rs,100,000 was paid in cash and again no receipt for payment of Rs,100,000 in cash is available on record.
18. It is well-settled principle of law that a party has to succeed on the strength of his own case and not on the weakness of the other. It is also worth mention that when a case is being decided ex parte against a party, a duty is cast upon the Court to ensure that no injustice is done to B such party due to his absence only. It is for this reason that I have minutely discussed each and every aspect of the case.
19. There is another aspect of the case, which was not considered by any of the Courts below, that the appellant claims to be in possession of the suit property after payment of Rs,400,000 to the respondent No,4. This is very important to decide whether the appellant was put in possession in consideration of the payment of the above amount or was in possession on some other count.
There is a plethora of judgments on the point that when a person is put in possession of some immovable property in consequence of a sale agreement in respect of the same presumption would be that he has validly entered into such agreement.
20. It is also worth mention that even before this Court none .Of the respondents appeared to contest the appeal.
21. In view of the above, I am of the opinion that the parties should be allowed to adduce evidence so that the above questions can be answered properly. I allow this second appeal, set aside the impugned judgments of the Courts below, and remand the case back to the trial Court to decide the case afresh after providing full opportunity to the defendants. The parties would be at liberty to adduce evidence and produce documents in support of their respective cases.