1. ' SYED SAEEDUDDIN NASIR, J.---This is a suit for declaration, specific performance, possession, mesne profit, cancellation and permanent injunction, filed by the plaintiff against the defendants with following prayers:--
(i) Grant a declaration that the plaintiff No,1 has performed her part of the Agreement and is the lawful owner of the Plot i,e, bearing No, E-6, situated in North Western Industrial Zone Bin Qasim, Karachi, admeasuring one acre.
(ii) Grant a declaration that the plaintiff No,1 is entitled to collect/receive all previous generated mesne profit from the Plot since the execution of the agreement.
(iii) Grant mandatory injunction directing the defendants Nos. 1 to 5 to perform their part of the agreement i,e, file proper Succession Certificate/Letter of Administration with the defendant No,6.
(iv) Grant mandatory injunction directing the defendants Nos.1 to 5 to hand over peaceful physical vacant possession and original documents of the Plot i,e, bearing No, E-6, situated in North Western Industrial Zone, Bin Qasim, Karachi admeasuring one acre.
(v) Grant mandatory injunction directing the defendants Nos.1 to 5 to clear all charges/dues/taxes bills of the defendant No,6 or any other entity on the Plot i,e, bearing No, E-6, situated in North Western Industrial Zone, Bin Qasim, Karachi, admeasuring one acre.
(vi) Grant mandatocy injunction directing the defendant No, 6 to transfer/mutate the Plot. (i,e, bearing No, E-6, situated in North Western Industrial Zone, Bin Qasim, Karachi admeasuring one acre) in favour of the plaintiff No,1.
(vii) Grant a permanent injunction prohibiting the defendants Nos.1 to 5 from auction/sale/gift of the Plot or from creating any third party interest therein.
(viii) Grant a permanent injunction prohibiting the defendant No,6 from transfer/mutation of the plot in favour of any other person, other than the plaintiff No, 1.
(ix) Without prejudice to the above reliefs, in the alternative grant a decree in the total sum paid by the plaintiffs to the defendants Nos. 1 to 5 and there predecessor in entrust Mr. Sadiq son of Muhammad Ramzan with markup at the rate of 14% per annum, and damages in the sum of Rs,10,000,000 (Rupees Ten Million only) may also be awarded to the plaintiff.
2. ' It is the case of the plaintiff that the plaintiff No,1 is wife of plaintiff No,2, who is a well reputed business man of his vicinity. The defendants Nos. 1 to 5 are legal heirs of late Sadiq son of Muhammad Ramzan (hereinafter referred to as the deceased). The defendant No,6 is the concerned authority, who allotted the plot bearing No, E-6 situated in North Western Industrial Zone, Bin Qasim, Karachi, admeasuring one acre (hereinafter referred to as the Plot) to the Deceased, which was subsequently inherited by the defendants Nos. 1 to 5. The defendant No,7 is pro forma defendant.
3. ' The Plot allotted to the deceased was in his life time agreed to be sold by him for total sale consideration of Rs,1,000,000 (Rupees Ten Lac only) to the plaintiff No,2. However, as part performance, it was agreed between the parties that initially the Plot will be transferred in favour of friend of the plaintiff No,2 i,e, Mr. Raja Hashim. Therefore, in this regard the plaintiff No,2 had paid Rs,100,000 (Rupees One Lac only) in cash and Rs,400,000 (Rupees Four Lac only) through Pay Order No, PAB/4-021861154/107, drawn on Muslim Commercial Bank Limited, Paposh Nagar Branch, Karachi dated 16-2-2002 in favour of the deceased. The balance amount of Rs,500,000 (Rupees Five Lac) was to be paid to the deceased within six (6) months from the date of part payment, but unfortunately he expired on 5-6-2002, therefore the sale transaction remained incomplete.
4. ' After the death of the deceased, when the plaintiff No,2 demanded the transfer of the Plot in his favour, all his legal heirs (defendants Nos. 1 to 5) demanded Rs,1,500 000 (Rupees Fifteen Lac only) in excess to the part payment of Rs,500,000 (Rupees Five Lac) already made for transfer-of the plot in favour of the plaintiff No,2.
5. ' Subsequently, on 4-9-2002, a written agreement to sell in respect of Suit Plot was accordingly entered into between the defendants Nos.1 to 5 and the plaintiff No,2, whereby the total sale consideration of Rs,1,300,000 (Rupees Thirteen Lac only) was agreed, other than amount mentioned in paragraph 7 herein below, and payment of Rs,700,000 (Rupees Seven Lac) was made to the defendants Nos.1 to 5. Thereafter, the balance amount of Rs,600,000 (Rupees Six Lac only) was to be paid within ninety (90) days at the time of execution of Sale Deed and undertaking before the concerned Sub-Registrar, Karachi in favour of the plaintiff No,2.
6. ' The plaintiff No,2 in pursuance of above mentioned demand paid an additional amount of Rs,200,000 (Rupees two Lac only) to the defendants Nos. 1 to 5 on 2-9-2002, from which payment of Rs,162,691 (Rupees One Lac Sixty Two Thousand Six Hundred and Ninety one) was made vide Pay Order bearing No, HBZK 0165415 drawn on Habib Bank AG Zurich dated 2-10-2002 in favour of Port Qasim Authority and the remaining balance of Rs,37,309 (Rupees Thirty Seven Thousand Three Hundred and Nine) was paid in cash on 11-9-2002.
7. ' On 30-12-2002, in supersession of earlier sale agreement, the defendants Nos. 1 to 5 entered into another separate/fresh Sale agreement dated 30-12-2002 (hereinafter referred to as the agreement) with the plaintiff No,1 on the terms and conditions mentioned therein, and further executed an undertaking in favour of the plaintiff No,1 and an irrevocable general power of attorney in favour of the plaintiff No,2 in this regard. The General Power of Attorney dated 30-12-2012 was duly Registered at No, 936 Book No, IV Sub-Registrar T-Div-VIII-A, Karachi.
8. ' The plaintiff No,1 performed her part of the agreement by making full and final payment of total sale consideration agreed i,e, Rs,1,300,000 (Rupees thirteen Lac), however the defendants Nos.1 to 5 failed to perform their part of the agreement i,e, obtain proper succession certificate/letter of administration and file the same with the defendant No,6 to complete the sale transaction/transfer of the Plot, and delayed the transaction on one pretext or the other.
9. ' Subsequently, the defendants Nos.1, 3 and 4 sent a legal notice dated 28-2-2004 to the plaintiff No,2 revoking his irrevocable General Power of Attorney and the same was duly refuted by the plaintiff No,2 vide reply dated 10-3-2004 followed by their reply dated 17-3-2004. On the other hand, the defendants Nos. 1 to 5 kept the plaintiff No,1 on hopes that as soon as, they are issued/granted the required Succession Certificate/Letter of Administration from the competent Court, which is prerequisite for transfer of ownership of the Plot, they shall hand over the possession, original documents and mutate the Plot in favour of the plaintiff No,l.
10. ' That the plaintiff No,2 kept on approaching the defendant No,6 who also delayed the transfer in favour of the plaintiff No,l. On the pretext of non-availability of Succession Certificate of Administration of the deceased from competent Court.
11. ' On 5-9-2007, the plaintiff No,1 finally sent a Legal Notice to the defendants Nos. 1 to 5 on their addresses mentioned in the agreement, whereby it was inter alia demanded from the defendants Nos. 1 to 5 to submit Succession Certificate/Letter of Administration with the Port Qasim Authority for transfer/mutation of the Plot in the name of the plaintiff No,l. However, the legal notice returned un-served due to non-availability of the defendants Nos. 1 to 5 on the given address. The plaintiff No,1 made further inquiry to obtain addresses of the defendants Nos.1 to 5 and getting hold of the addresses of defendants Nos. 1 to 5, the plaintiff No,1 again sent to the defendants Nos. 1 to 5 fresh legal notice dated 25-10-2007. This time the defendants Nos.2 and 4 received the legal notice but failed to respond to the same. Furthermore, in this regard, the plaintiff No,1 also published a public notice in Newspaper 'Jassarat' on 31-10-2007. After re,-eiving no response, the plaintiffs to the same also were left with no other option, but to file the present suit.
12. ' The defendants Nos. 1 to 5 filed their written statement on 13-12-2008, wherein inter alia denied the contents of the plaint. Defendants Nos. 1 to 5 have stated that the suit filed is hopelessly time barred by the contents of the pleadings itself. It is stated in Paragraph No,10 of the written statement that the legal notice dated 29-2-2004 was sent to the plaintiff to revoke the general power of attorney and the same was duly refuted by the defendant No,2, vide reply dated 10-3- 2004. After the above referred correspondence if taken at starting point of limitation for filing the present suit being three years under Article 113 of the Limitation Act, 1908, the plaint is liable to be dismissed being barred under Order VII Rule 11, C.P.C.
13. ' That the plaint is filed without any cause of action as the plaintiff No,1 has relied upon the alleged agreement of sale with one Raja Hashim with the father of the defendant, which is dated 11-1-2001.
14. The agreement of sale dated 4-9-2002 favours Mr. Hadi, whereas prayer in the suit has been in favour of Mrs. Mumtaz Bano. In the plaint it has been suggested that Mrs. Mumtaz Bano is wife of plaintiff No,2 and that it was agreed initially that the property in question shall be transferred in the name of one Raja Hashim, who has not been made party, not it has been stated anywhere in the plaint that the plaintiff No,1 is nominee/ successor in the interest of the plaintiff No,2. The suit is liable to be dismissed on this sole ground only.
15. ' In para 4 of the written statement the Defendants Nos. 1 to 5 have not denied the execution of sale agreement dated 4-9-2002,,entered into between the defendants Nos. 1 to 5 and the plaintiff No,1, wherein the total sale consideration of Rs,13,00,000 (Thirteen Lacs only) was agreed, other than amount mentioned in paragraph No,7 and payment of Rs,7,00,000 (Seven Lacs only) was made to the defendants Nos. 1 to 5. Whereafter the balance amount of Rs,6,00,000 (Six Lacs only) was to be paid within 90 days at the time of registration and execution of sale deed before the concerned Registrar in favour of the plaintiff No,2. However, the said defendants Nos.1 to 5 have mentioned nothing in their written statement anything about the ejectment of further agreement dated 30-12- 2002 and General Power of Attorney dated 30-12-2002.
16. ' Upon pleading of the parties this Court framed the following issues on 14-12-2009 :-
(i) Whether the Suit is barred by time?
(ii) Whether the Sale Agreement dated 30-12-2002 and Power of Attorney dated 30-12-2002 are forged and fabricated documents, if so, its effect?
(iii) Whether the Irrevocable Power of Attorney executed by defendants Nos. 1 to 5 has been lawfully revoked by the Principal if so, its effect?
(iv) Which of the party is entitled to collect/receive the mesne profit in respect of the subject property, if so, from what date and what amount?
(v) Which of the party to the suit committed breach of the Agreement to Sale, if so, of what consequence?
(vi) Whether the Agreement of Sale is capable of specific performance, if so, on what terms?
(vii) In case the Issue as to the specific performance is decided against the plaintiff, whether the plaintiffs are entitled for refund of the amount along with mark up or interest as the case may be and damages, if so, what amount?
17. ' Vide order dated 20-11-2013 this Court appointed Syed Koser Ali Shah Bukhari, former District and Sessions Judge, as Commissioner for recording evidence of the parties, who has given his report dated 6-2-2004, which is as follows:-- "Learned counsel for the plaintiff filed affidavit in evidence of witnesses Mr. Hadi Hemani who is plaintiff No,2. The examination in chief witness was recorded on 1-2-2014. The plaintiff No,2 namely Hadi Hemani produced his affidavit in evidence as Exh.P.W.1/1 and copy of the plaint as Exh.P.W.1/2 the plaintiff No,2 also produced General Power of Attorney on behalf of the plaintiff No,1 which has been exhibited as Exh.P.W.1/3. Plaintiff No,2 in support of his case also produce documents which have been exhibited from Exh.To P/W 1/31. The defendants and their counsel chosen to remain absent though counsel for defendants Mr. Mehmood Ahmed Khan, Advocate, duly served through bailiff and as well as through urgent mail service. The photocopy of the notices are attached herewith as annexures 1&2. The evidence of plaintiff recorded by 'undersigned as Exh.P.W.1 to P.W.31 also attached. The report is submitted for closing right of cross examination of defendants or for further orders by Hon'ble Court which deems fit, proper and necessary in the circumstances of the case."
18. ' Upon perusal of the evidence on record of the case, it is an admitted position that the plaintiff No,2 filed his affidavit in evidence, and examined himself in which the plaintiff No,2 reiterated the contents of the plaint and produced documents as Exhibits P.W.1/4 to P.W.1/31
(i) Affidavit in evidence as Exh,P.W.1/1
(ii) Photocopy of plaint which already filed in court as Exh. P.W.1/2
(iii) General Power of Attorney on behalf of the plaintiff No,1, executed as Exh. P. W . 1/3.
(iv) Agreement dated 11-1-200-2 as Exh.P.W.1/4.1.
(v) Pay order for Rs,400000 (four lacs) dated 16-2-2002 as Exh.P.W.1/5.
(vi) Death Certificate of Muhammad Sadiq dated 19-8-2002 as Exh.P.W.1/6.1
(vii) Agreement of Sale dated 4-9-2002 as Exh.P.W.1/7.
19. (viii)Death certificate of witness Syed Hassan Mehdi issued on 3-9-2002 as Exh. P.W.1/8.
(ix) Payment receipt dated 4-9-2002 amounting to Rs,700000 (seven lacs) Rs, Exh.P.W .1/9.
(x) Payment receipt amount to Rs,200000 (two lacs only) as Exh.P.W.1/10
(xi) Pay order dated 2-10-2002 amounting to Rs,162.69 as Exh. P.W.1/11.1
(xii) Acknowledgment receipt issued by Port Qasim Authority dated 26-10-2002 as Exh. P. W.1/12.1 (xiii)Challan No, 2456 dated 2-11-2002 as Exh. P.W.1/12/1.
(xvi) Original affidavit of plaintiff No,1 dated 30-12-2002 as Exh.P.W.1/13.
(xvii) Indemnity bond dated 30-12-2002 executed by plaintiff No,1 as Exh.P.W.1/14.
20. (xviii) Publication dated 20-12-2002 published in Daily Aman Karachi as Exh.P.W.1/15.
(xix) Sale agreement dated 30-12-2002 as Exh.P.W.1/16
(xx) Affidavit undertaking dated 30-12-2002 as Exh.P.W.1.17.
(xxi) Irrevocable General Power of Attorney dated 30-12-2002.
(xxii) Letter dated 20-8-2003 written by Port Qasim Authority to defendants as Exh.P.W.1/19.
21. (xxiii) Legal notice dated 28-2-2004 sent by Khanzada Law Associate as Exh. P. W. 1/20.
(xxiv) Reply of legal notice dated 10-3-2004 as Exh.P.W.1/21.
(xxv) Legal notice dated 11-3-2004 as Exh.P.W.1/22.
(xxvi) Copy of letter dated 11-11-2004 written by Mr. Aftab Ahmed Rana Advocate as Exh.P.W.1/23: (xxvii) Letter dated 26-4-2006 written by Zulfiqar Mehdi Mirza Advocate to Port Qasim Authority as Exh.P.W.1/24.
22. (xxviii) Verification documents from Micro Filing Unit dated 26-2-2005.
(xxix) Legal notice dated 25-10-2007 sent to defendants Nos. 1 to 5 separately as Exh.P.W.1/26 to 1/30, along with O.C.S. Receipts.
(xxx) Publication dated 31-10-2007, published on Daily Jasarat as Exh. P. W.1/31.
23. ' The plaintiff examined himself before the Commissioner for recording evidence however, the defendant neither cross-examined the plaintiff nor led evidence for themselves.
24. ' Amongst the aforesaid documents/Exhibits the Registered General Power of Attorney dated 30-12- 2002 with power to sell the aforesaid property in suit executed by the defendants Nos. 1 to 5 in favour of the plaintiff No,2 is of great importance. In Agreement to sell of the same date, which is produced by the plaintiff No,2, in his affidavit in evidence as Exhibit P.W.1/16 the defendants Nos. 1 to 5 have acknowledged a receipt of Rs,13,00,000 from the plaintiff No,1 .
25. 21-5-2014 for the defendant's evidence, as an indulgence and last chance Commissioner directed the office to issue notice to the defendants, by all modes except publication, with the note of caution that if the defendants failed to appear on the next date, then the appropriate order may be passed. Thereafter on 29-5-2014, despite issuance of notice to the defendants by all modes except publication, including pasting, neither the defendants defendants' counsel appeared before the court. Therefore, in view of the statement of service dated 29-5-2014, filed by the learned counsel for the plaintiff along with original courier receipt and registered post A.D., were taken on record and the defendants' side for recording, evidence was closed. On 2-10-2014 the counsel for the plaintiff sought time to file application for service of notice through publication under Order V. R. 20, C.P.C., and the matter was adjourned to 22-10-2014. On 22-10-2014 learned counsel for the plaintiff pointed out that publication had been effected in Daily Jung newspaper on 15-10-2014, which is also filed along with the statement dated 16-9-2014.
26. ' Mr. Najeeb Jamali, the learned counsel for the plaintiff has submitted that in view of the fact that the defendants Nos.1 to 5 have admitted execution of sale agreement dated 9-9-2002 wherein the said defendants' father has also acknowledged receipt of Rs,700,000, the suit entitled to be decreed. Thereafter, the defendants Nos. 1 to 5 executed another "sale agreement dated 30-12- 2002 and duly registered General Power of Attorney dated 30-12-2002, wherein, in the agreement to sell the defendants Nos. 1 to 5 have acknowledged receipt of Rs,1300,000 (thirteen hundred thousand only) in Para 2, and in General Power of Attorney, in Para 3, power to sell has been conferred by the said respondents in favour of the plaintiff No,2.
27. 'The learned counsel, thereafter, submits that the plaintiff No,2 filed affidavit-in-evidence for self and as duly authorized attorney of the plaintiff No, 1 and examined himself and produced Exh.P.W./1/1 to Exh.P.W.1/31 which is un rebutted inasmuch as the defendants did not come forward to lead evidence on their behalf since the evidence was deliberately withheld by the defendants Nos. 1 to 5, the written statement filed by such party is required to be ignored and cannot be treated as evidence. In view of the above, I hold that the plaintiff has discharged the onus with regard to proving the issues Nos. 1 to 3. In law if the defendants have failed to lead evidence, the written statement filed by them should also be discarded. I am fortified in my view by the cases of Faqir Muhammad v. Abdul Moin PLD 2003 SC 594 and Muhammad Bashir v. Iftikhar Ali PLD 2004 SC 465.
28. ' For the aforesaid reasons I am of considered view that suit is maintainable and the issues 4 to 6 are also answered in favour of the plaintiff. The plaintiff is entitled to reliefs prayed in prayer clauses 1, 4, 5, 6, 7 and 8 of the plaint.
11. In view of the aforesaid facts, the evidence led by the plaintiff is also un rebutted inasmuch as the defendant did not come forward to lead any evidence before the learned Commissioner, appointed by the Court for recording evidence, therefore, I hold that the plaintiffs are entitled for decree in terms of prayer clauses 1, 4, 5, 6, 7 and 8. In terms of the same.