' This suit has been brought by the plaintiffs wherein they have prayed for the grant of following reliefs :-
(1) "Declare the plaintiff No, 2 as the owners in possession of the case property ;
(2) Order the defendants to fulfil their contractual obligations and complete the transaction of sale by finally executing the Conveyance Deed relating thereto and getting the same registered in accordance with the existing laws in favour of the plaintiff No, 2 ;
(3) Grant permanent injunction restraining the defendants and all persons acting on their behalf from transferring, selling, encumbering or dealing with the aforementioned property or a part thereof to any other person/persons or party other than to the plaintiff No, 2, its nominees ;
(4) Grant costs of the suit."
' The defendants though served have remained absent. The Advocate for the defendants Nos. 1 to 5 on 1st March, 1983 reported no instructions, while the Advocate for defendant No, 6 is absent.
1. The facts briefly stated as disclosed in the plaint are as follows :- "That the plaintiff No, 1 entered into an agreement dated 19th August, 1979 with the defendants whereby the defendants as the sellers agreed to sell and plaintiff No, 1 agreed to purchase Survey Nos. 282, 284 and 285 situated in Deh Thano, Tappo Malir, Taluka Karachi for a total consideration of Rs, 9,00,000. The perusal of the agreement shows that the plaintiff No, 1 paid Rs, 1,00,000 to the sellers towards part payment of sale consideration by cheque, dated 13th August, 1979 drawn on the Grindlays Bank Ltd., Karachi and on the date of signing of the above agreement a further sum of Rs, 4,00,000 was paid by pay order, dated 18th August, 1979 drawn on the Muslim Commercial Bank Ltd., Karachi."
The receipt of both the sums amounting to Rs, 5,00,000 was admitted by the sellers in the above- mentioned agreement. According to clause 3 of the agreement the balance of the sale consideration viz. Rs, 4,00,000 was agree to be paid by the plaintiff No, 1 to the defendants on their executing proper deed of Conveyance make out a clear and marketable title in respect of the said property in favour of the purchaser or his nominee. According to clause 4 of the agreement in part performance of the contract the defen dants handed over vacant and peaceful possession of the said property t the purchaser/plaintiff No, 1 pending the completion of the transaction by execution and registration of the Conveyance Deed relating to the said property.
2. The plaintiffs have produced photo copy of the agreement of sale alongwith the plaint marked as Annexure 'A'. According to the averments made in the plaint although the remainder of the consideration was to be paid at the time of execution and registration of Conveyance Deed in favour of the plaintiff No, 1 or his nominee, the plaintiffs paid to the defendants Rs, 6,97,000 in cash besides various sums of monies amounting to Rs, 98,500 on the instructions of the defendants leaving a balance Rs, 1,07,200 only to be paid by the plaintiffs towards the agreed amount of sale consideration of Rs, 9,00,000. The plaintiffs have filed statement showing the details (reproduced below) of Rs, 7,92,800 stated to have been paid to the defendant No, 1 :- "Payments made to defendant No, 1 (Mr. M. A. Hashmi) {{TABLE}} PART I Date Amount paid 16-8-1979 1,00,000 18-8-1979 4,00,000 29-8-1979 30,000 17-10-1979 35,000 31-10-1979 15,000 4-11-1979 55,000 8-12-1979 62,000 6,97,000 PART II Amount claimed by way of adjustments :
(1) 31-8-1979 1,000 31-8-1979 400 22-9-1979 6,900
(vi) 22-9-1979 100
(v) 22-9-1979 1,670
(vi) 7-10-1979 84,100
(vii) 8-10-1979 100
(viii) 13-11-1979 830
(ix) 2-2-1980 200
(x) 24-11-1980 500 95,800 Total (i) 6.97,000
(ii) 95,800 Rs, 7,92,800 {{TABLE}}
3. As the defendants failed to perform their obligations under the agreement and the transaction was to be completed by 31st December, 1979 the plaintiffs after serving legal notice, dated 6th March, 1981 filed the suit claiming the reliefs reproduced herein above.
4. The plaintiffs have also filed affidavit in ex parte proof of Jahangir Feroze Shah Collector, and another affidavit by Feroze Mehta and have also produced documents in evidence.
5. From the perusal of the plaint and documents filed alongwith the plaint and the affidavit I am satisfied that between 16th August, 1979 and 8th December, 1979 the plaintiffs made payment of Rs, 6,97,000 to the defendants towards the total sale consideration of Rs, 9,00,000.
6. As regards further the alleged payments made amounting to Rs, 95,800 payments shown in the statement and reproduced above in para. 2, I find that except for payment of Rs, 837 paid towards arrears of electricity bill for the period when the defendants were in possession, the plaintiff No, 1/plaintiffs cannot claim adjustment of the rest of the amounts, allegedly paid or incurred by him/them. My reasons for not allowing the adjustment of the various amounts shown in Part II in Annexure 'B' and reproduced above in para. 2 are as follows : ' Items Nos. (1) and (ii).-In support of payments of Rs, 1,000 and Rs, 400 on 31st August, 1979 with the affidavit in ex parte proof filed by Jahangir Feroze Shah Collector, a note in writing showing payments of Rs, 1,000 in cash on 31st August, 1979 and Rs, 400 paid to sweeper has been produced.
There is no mention in this document if any such payment was made on the instructions of the defendants or any part of the amount (Rs, 1,000) was paid to any of the defendants towards the sale consideration.
' As regards the Items Nos. (iii) and (iv).-Payments of Rs, 6,900 and Rs, 100 are stated to have been made on 22nd September, 1979 the plaintiffs have not been able to produce any documentary evidence or entry in account in support of payment of any such amount to the defendants much- less towards the sale consideration. These amounts, therefore, cannot be adjusted towards the sale consideration.
' Re : Item No, (v).-Rs, 1,670 are alleged to have been paid on 2nd September, 1979 by the plaintiffs.
Plaintiffs have produced document Annexure 'B/6' which is an electricity bill. According to the plaintiffs they were put in possession of the property on 19th August, 1979 when the agreement of sale was executed in favour of plaintiff No,
1. The electricity bill consists of two items : (i) Rs, 837.12 on account of arrears as on 27th August, 1979 and (ii) Rs, 942.07 which represents the charges for the subsequent period. The plaintiffs cannot claim adjustment for the charges for electricity for the period after the plaintiff No, 1 came in possession of the property in question. Accordingly, adjustment of Rs, 837.12 towards the salt consideration can reasonably be claimed as the said amount was the liability for the period when the defendants were in possession.
' Re : Item No, (vi).-The plaintiffs have claimed adjustment of Rs, 84,100 on account of payment made for a tractor on 7th November, 1979. The plaintiffs have produced Annexures 'B/7 and B/8' in support of their claim. Annexure 'B/8' is a cable, dated 18th September, 1977 sent by Hashmi from Dublin addressed to Mr. Mehta of National Motors. The said cable reads as follows : - "Send one Ford Tractor Bahawalpur A.M. Reaching 25th September, Phone 420303 regards."
"HASHMI"
' Annexure 'B/7' is a receipt from Marshal Motors (Pak) Ltd., issued on 7th October, 1979 acknowledging the receipt of Rs, 83,100 by pay order, dated 7th September, 1979 drawn on Habib Bank Ltd., K.D.A. Branch on account of full payment against the total price of Rs, 84,100 for sale of brand new tractor (FORD 4600, 62 H.P. Model 1979).
' I have considered these two documents but find that the same do not prove that the alleged payment towards the supply of the tractor could be adjusted towards the consideration payable to the defendants for the sale of the property in suit. Mr. Hashmi, the defendant No, 1, is only one of the co-owners who are parties to the agreement of sale. There is nothing on record to show that Hashmi acted or had authority to act on behalf cf the defendants Nos. 2 to 6. There is also nothing to show that the defendants Nos. 2 to 6 were consenting parties to the transaction of the said tractor or were benefited by it in any manner.
' The Annexure `B/7' has also remained unproved. The executant of this document, has not been examined. This amount, therefore, cannot be allowed to be adjusted towards the sale consideration.
' Re : Items Nos. (vii) to (ix). -There is nothing on record to support the payments of these amounts which consist of alleged payments for purchase of poultry feed, for purchase of two tickets paid to servants to travel to Bahawalpur and alleged payment of Rs, 500 to one Gullu. These amounts even otherwise cannot be allowed to be adjusted towards the sale consideration payment to the defendants.
7. For the reasons discussed above while holding that the plaintiff No, 1 is entitled to the decree for specific preformance of the agreement of sale I hold that out of the total sale consideration Rs, 9,00,000 agreed to be paid to the defendants the plaintiff No, I has shown to have made payment of Rs, 6,97,000 besides Rs, 837.12 paid on account of arrears of electricity charges which were due and payable by the defendants in respect of the property in question.
The suit is accordingly decreed in favour of the plaintiff No, 1 in terms of prayer made in suit clauses Nos. 2, 3 and 4 in the plaint on payment of Rs, 2,02,163 (i,e, after giving adjustment of Rs, 6,97,837) as the balance payable towards the sale consideration to the defendants.
' The relief claimed in sub-clause (1) for declaration that the plaintiff No, 2 is the owner of the property in question cannot be granted as no case has been made out in the plaint to this effect. It would, however, be open to the plaintiff No, 1 to obtain a conveyance deed in his own name or in the name of the plaintiff No, 2 as his nominee, in terms of the agreement of sale, dated 19th August, 1979.
' The defendants shall bear the costs of the suit.