MRS. ASHRAF JAHAN, J.---Appellant through instant High Court Appeal has assailed the Judgment and Decree dated 14.12.2017 and 30.12.2017 respectively,, passed in Suit No,275 of 2004; whereby his suit was dismissed by learned Single Judge of this Court.
2. We have heard learned counsel for the Appellant, who contended that the Appellant executed a Sale Agreement at Karachi with Respondent No,1 on 11.03.1996 in respect of residential plot bearing House No,C-355, Block No,1, Gulistan-e-Jauhar, , K.D.A. Scheme No .36, Karachi, measuring 600 Square Yards ("Subject Property"), for a sale consideration of Rs,600,000/-. At the time of execution of the Agreement an amount of Rs,75,000/- was paid in cash to the Respondent No,1 towards the sale consideration, while the balance sale consideration was agreed to be paid by the Appellant within 31 days of signing the agreement subject to handing over the vacant possession of the Subject Property to the Appellant along with original documents.
3. The suit proceeded before the learned Single Judge, whereafter framing of Issues and recording the evidence of the parties, it was dismissed by way of impugned Judgment.
4. According to learned counsel for the Appellant, learned Single Judge passed the impugned Judgment and Decree without going through .the facts of the case and material available on record in an arbitrary manner based on assumptions and presumptions, therefore, the same is liable to be set aside.
5. We have considered the arguments advanced by the learned counsel for the Appellant and have perused the record, which reveals that the Appellant had filed the suit for Specific Performance of Contract, Declaration, Cancellation, Injunction and Damages, with the following prayers:-- "a) The defendant No, I be directed to perform his part of contractual obligations, in respect of the suit plot, by virtue of sale agreement dated 11.3.1996 and incase of his failure, the plaintiff be awarded damages to the tune of Rs, 35,00,000/-, being the present market value of the said plot, with markup at the bank rate, till realization of the amount. b) Declaration that the defendant No,1 has no legal and lawful authority to execute, Sale Agreement dated 16.4.1996 or 06.6.1996, as the case may be, in respect of the said plot, with the defendant No,2 and get the said plot transferred and mutated in her name. c) The sale agreement dated 16.4.1996 or 06.6.1996, as the case may be, be declared as void and be cancelled, simultaneously, the transfer and mutation of the said plot, in the name and favour of the defendant No,2, be cancelled. d) Declaration that the defunct K.D.A. now the defendant No,4 had no legal and lawful authority, to receive any further amount, from the defendant No,1 in respect of the said plot and handover possession of the same, to the defendant No,1, and also had no legal and lawful authority to' effect transfer and mutation of the said plot, in the name and favour of the defendant No,2, during the ban' period when the said plot along with other plots was frozen, by the Govt. of Sindh and all allotments were being scrutinized. e) The plaintiff be granted damages, to the, tune of Rs,5,00,000/-, for the mental torture and agony sustained by him. f) Permanent injunction be issued against the defendant No,2 restraining from transferring, conveying, selling, alienating and creating third party interest, in any manner, whatsoever, in respect of the said plot. The defendant No,2 be also restrained from raising any construction, on the said plot. g) Temporary injunction be issued against the defendant No,2 from transferring, conveying, selling, alienating and creating third party interest, inany manner, whatsoever, in respect of the said plot till the decision of the suit. The defendant No,2 be also restrained from raising any construction, on the said plot. h) Permanent injunction be issued against the defendants Nos, 3 and 4, restraining them from effecting transfer, and mutation of the said plot, in the name and favour of any other person. i) Temporary injunction be issued against the defendants Nos, 3 and 4, restraining then from effecting transfer, and mutation of the said plot, in the name and favour of any other person. j) Cost of the suit be awarded. k) Any other relief which this. Hon'ble Court may deem fit and proper in the circumstances of the case."
6. It was the case of present Appellant that at the time of execution of Agreement, he had paid Rs,75,000/- for which a separate receipt was also executed. It is a matter of record that on 24.03.2004, the learned Single Judge granted ad-interim relief to the Appellant subject to the deposit of balance sale consideration of Rs,5,25,000/- with the Nazir of this Court, which order was not complied by the present Appellant. Though the Respondent No,1 (Firdous Matri son of Fakhar Matri) could not be served in the suit proceedings and was declared ex parte vide order dated 23.01.2006, but the remaining Respondents Nos,2 to 4 were served, who filed their Written Statements denying the case of Appellant. The Respondent No,2 produced on record the registered documents in her favour through which the -Subject Property was transferred in her name on 06.06.1996 against the Payment of total sale consideration of Rs,600,000/-. The Court settled the Issues on 15.01.2007 and Commissioner was appointed for recording of evidence. It will be relevant to mention here that on 25.02.2015, suit was dismissed for non-prosecution, but it was restored on 25.08.2015. During the intervening period, the Subject Property was transferred in the name of one Shah Rukh Khan through a registered document by the Respondent No,2. Subsequently, on 15.10.2015, the new purchaser was joined as Defendant No,5 and thereafter for a period of more than nine (09) months, suit remained fixed for Final Arguments, but the counsel for the Appellant remained absent on several hearings and finally after hearing learned counsel for the Respondents and going through the record, the impugned Judgment was passed.
7. It is the requirement of law that in the cases of Specific Performance of Contracts, burden lies upon the Plaintiff to prove the existences of contract and his willingness to comply its obligations.
8. However, in instant case, when the learned Single Judge vide order dated 24.03.2004, directed the Appellant to deposit the remaining sale consideration before the Nazir of this Court, he failed to deposit the amount in the Court even though the suit remained pending up till 14.12.2017. It is also important to note that during the period when the suit was dismissed for non-prosecution, the Subject Property was sold out to a new purchaser by way of a registered document, which has further made the Appellant disentitled for grant of such discretionary relief of specific performance in his favour.
9. In view of foregoing factual and legal positions, we do not see any error in the impugned Judgment and are of considered view that the learned Single Judge has rightly dismissed the suit.
Thus the present Appeal being misconceived was dismissed on 20.03.2018. These are the reasons of short order referred above.