1. ' This suit by the plaintiff for specific performance of an agreement sale, dated 6th April, 1974 was originally institute against defendants ' 1 and 2 only. During the pendency of the suit defendant No,2 transferred the property in suit to defendant 3 under a registered-sale deed whereupon on the application of the plaintiff he was impleaded as a party to the suit. It further transpired that defendant 3 after having obtained conveyance of the property in suit in his favour, mortagaged the same with the defendant No,4, to obtain a loan and accordingly defendant 4 was also impleaded as a party in the suit. It may be mentioned here that defendant 3 is an employee of defendant No,4. The following facts are alleged in his plaint:- ' That on 6th April, 1974 plaintiff entered into an agreement with defendant No,1, for purchase of house bearing No,A-652, Block 'H' North Nazimabad, Karachi, constructed on a plot of land measuring 225.56 square yards. Defendant No,1 executed the above agreement in favour of plaintiff as attorney of defendant No,2, for sale of the property in suit for a sum of Rs,90,000 and received a sum of Rs,25,000 as advance upon execution of the agreement of sale agreeing to receive the balance of the sale consideration on registration of the final sale-deed and completion of all formalities in favour of the Plaintiff. It appears that defendants 1 and 2 failed to complete the sale in favour of plaintiff as agreed and, therefore, after waiting for some time by notice, dated 5th July, 1976, the plaintiff called upon them to complete the sale in accordance with agreement of sale. However, defendants 1 and 2 failed to comply with the above notice and the present suit was instituted by the plaintiff for specific performance of agreement of sale, dated 6th April,1974. The plaintiff alleged in the plaint that he was always ready and willing to perform his part of the contract but defendants 1 and 2 avoided to complete the sale. Alongwith the suit the plaintiff also filed an application under Order XXXIX, rules 1 and 2 read section 151, C.P.C., for grant of a temporary injunction restraining defendant 2 from transferring the property in suit to any one else till the disposed of. The Court granted ex parte ad interim injunction in favour of plaintiff and later confirmed the same on 25th October, 1976. Defendant 1 did not dispute the claim of the plaintiff in his written statement. However defendant No,2 disputed the agreement of sale in favour of the plaintiff on the ground that defendant 1 was not her duly appointed attorney. The Court settled the following two issues in the case.
(1) Whether the agreement of sale of house between defendant 1 and the plaintiff is binding upon defendant 2.
(2) To what relief if any the plaintiff is entitled.
2. ' On 13th February, 1978 by consent of the parties certified true copies of the mortgage deed dated 5th Apri1,1974, search certificate dated 13th May, 1976 and sale-deed dated 19th September,1971 were admitted on record. It appears that in the meantime defendant No,2, instituted Suit No,262/1978 in this Court for cancellation of power-of-attorney and recovery of Rs,25,000 against defendant and the plaintiff. The Court on 2nd May, 1978, therefore, passed an order that both the suits should be fixed on one date in future. On 24th October, 1979 when the above suits were filed in Court, the learned counsel for the plaintiff and defendant 1 made a statement that their clients have come to know that defendant 2 in violation of the injunction order granted by the Court has sold the property to defendant No,3 and has also parted with the possession of the same.
3. Accordingly on 17th November,1979, the Court passed an order impleading defendant 3 in the suit.
4. The defendant 3, on being impleaded in that suit contended that the property in suit was mortgaged by him with defendant 4 and, therefore, by order dated 23rd August,1980, the defendant 4 was joined as a party in the suit. On 13th November,1980 defendant No,3, undertook before the Court that he would not dispose of or transfer possession of the property in suit until disposal of the case. Thereafter on 3rd October,1982, the Court framed the Following additional issue in the case:- "Whether the transfer of suit property by way of sale-deed, dated 17th May, 1979 executed by the defendant 2 in favour of defendant 3 and subsequent mortgage-deed dated 4th October, 1979 executed by defendant 3 in favour of defendant 4, are mala fide, illegal, having no legal effect and liable to be cancelled."
5. ' The Court diary, dated 15th May, 1983, shows that additional issues filed by the parties were adopted, but the learned counsel for the parties are unable to point the issues which were adopted by the Court. It is quite clear from the file that on 15th May,1983, when the Court passed the above order regarding additional issue it was not brought to the notice of the court that an additional issue was already framed by the Court on 3rd October,1982. The plaintiff has examined himself (Exh.7) and has produced documents Exhs. 7/1 to 7/4 in support of his case. While defendant 1 has examined himself (Exh.9) and has produced documents Exhs. 9/1 and 9/2 and has also examined two more witnesses namely, Chand Muhammad (Exh.10) and Syed Akhtar Hussain (Exh.11). The defendant 2 has examined herself (Exh.13) and 3 witnesses namely, Malik Shahid, Raza Kazmi and Abdul Khalid as Exhs 12,14 and 15 respectively.
6. ' When this suit came up for evidence before me on 18th October,1983, the learned counsel for the plaintiff and defendant 1 conceded before me that in so far the claim of defendant 4 (Bank) is concerned the same is not affected by the present suit. The learned counsel also agreed that out of the total sale consideration due and payable to defendant 1 the mortgage money due to defendant 4 may be paid in satisfaction of mortgage. I accordingly by consent directed defendant 4, to submit the exact amount due against the mortgage security. On 15th November,1983 a statement was filed by the learned counsel for defendant 4 in Court which showed that a sum of Rs,51,407.52 was due and payable by the defendant 3 in respect of the suit property upto 31st October,1983. The correctness of this statement was not disputed by the learned counsel for defendant No,1 and the plaintiff and accordingly with the consent of the learned counsel for parties then present I directed the plaintiff to deposit in court the entire balance of the sale consideration amounting to Rs,65,000 and further observed that out of this amount a sum of Rs,51,407.54 may be paid to defendant 4 upon execution of a redemption deed and surrender of all original documents of title in his possession to the Nazir of this Court. The sum of Rs,65,000 has since been deposited by the plaintiff in Court. In these circumstances there is no controversy now in the suit between the plaintiff and defendant 4. I will, therefore, modify the additional issue framed on 3rd May,1982 as follows:-- "Whether the transfer of suit property by way of sale-deed, dated 7th May,1979 executed by defendant 2 in favour of defendant 3 is mala fide, illegal and having no legal affect and liable to be cancelled and or defendant 3, is bound to transfer the suit property to plaintiff having purchased the same during pendency of the suit."
7. ' I have heard Mr.Ahmed Yousuf Ali Rizvi, and Mr.Dastagir Ghazi, for plaintiff and defendant 1, respectively in the suit and my findings on the above 'issues are as follows:-- 'Issue No,1.
8. ' On the above issue the plaintiff has examined himself (Exh.7) and one Zi3uddin Ahmed, (Exh.8). He is also supported by defendant 1, (Exh.9). Apart from this oral evidence the plaintiff has produced the original agreement of sale executed in his favour by defendant 1, (Exh.7/1), the registered general power-of-attorney executed by defendant 2 in favour of defendant 2 (Exh.7/2), and the receipt for Rs,25,000 executed by defendant 1 1 favour of plaintiff (Exh.7/3). The above documentary evidence supported by aril evidence do show that defendant No,1 executed the agreement of sale in respect of property in suit in favour of plaintiff and agreed to sell the same for a consideration of Rs,90,000 and received a sum of Rs,25,000 as advance agreeing to receive the balance sale consideration at the time of final conveyance of property in favour of plaintiff. Exhibit 7/1 shows that it was executed on behalf of defendant 2 by defendant 1 as her attorney. The registered power-of- attorney (Exh.7/2) executed by defendant 2 in favour of defendant 1 shows that defendant 1, was fully authorised to sell the above property for such consideration he deemed fit. The defendant 1, in his evidence has produced the original agreement of sale (Exh.9/1) in respect of the property in suit executed in his favour of defendant 2. He has also produced the original receipt (Ex.9/2) executed by defendant 2 in his favour acknowledging the sale consideration of the suit property from defendant 1. From the above evidence it is quite clear that the agreement of sale executed by defendant 1, in favour of plaintiff was on the basis of a registered power-of-attorney which in turn was executed by defendant 2 in favour of defendant 1, pursuant to agreement of sale (Exh.9/1). The defendant 2 did file Suit No,262/1978 in this court against defendant 1, and the present plaintiff for cancellation of the power-of-attorney but the suit has been dismissed on account of continued non-appearance of defendant 2, on 15th December,1983 and no application for its restoration has been filed so far. There is nothing on record to show that the registered power-of-attorney executed by defendant 2, in favour of defendant 1, has been cancelled. The burden of proving that the power-of-attorney was not valid or that the agreement of sale Exh. 7/1 was not validly entered into on behalf of defendant 2, by defendant 1, as entirely on defendant 2. Defendant 2 failed to discharge this burden. I therefore, hold that agreement of sale, dated 6th April, 1974 (Exh.7/1) is binding on defendants 1 and 2. Issue No,1 is decided in the affirmative. Before dealing with issue No,2, I will first deal with the additional issue framed by the Court on 3rd October,1982 and which has been modified by me for the reasons given above. The issue is as follows:- "Whether the transfer of suit property by way of sale-deed, dated 7th May,1979 executed by defendant 2 in favour of defendant 3 is male fide, illegal and having no legal affect and liable to be cancelled and or defendant 3 is bound to transfer the suit property to plaintiff having purchased the same during pendency of the suit."
9. It is an admitted position on record that the sale-deed in favour of defendant 3 by defendant 2 has been executed on 17th May,1979. The execution of sale-deed in favour of defendant 3, therefore, took place during the pendency of the present suit and during subsistence of an injunction order whereby defendant 2 was restrained from transferring the aforesaid property. In these circumstances the burden of showing that defendant 3 is not bound to transfer the suit property in favour of the plaintiff was entirely on him. The defendant 3 has not led any evidence in this regard.
10. The property having been acquired by defendant 3 during the pendency of the suit and on the face of existence of an injunction interim order prohibiting defendant 2, from transferring suit property, the sale in favour of defendant 3 is hit by S.52 of the Transfer of Property Act. I, therefore, hold that defendants 1 to 3 are liable to convey the property in suit in favour of the plaintiff under the agreement of sale Exh. 7/1. Issue No,2.
11. ' As a result of above discussion I am of the view that the plaintiff is entitled to conveyannce of the suit property in his favour. The plaintiff has paid Rs,25,000 to defendant 1 at the time of execution of agreement of sale Exh.7/1 and he deposited the balance of the sale consideration amounting to Rs, 65,000 in Court. Out of this amount a sum of Rs,51,407.52 is to be paid to defendant 4 upon execution of a valid redemption deed of property and surrender of all original documents of title relating thereto to the Nazir of this Court. The balance amount of Rs, 12,592.98 will be paid to defendant No,1, upon completion of sale in favour of plaintiff.
12. ' The sale-deed will be executed by the defendants in favour of plaintiff within one month from today failing which Nazir of this Court will execute the same in accordance with the law. The plaintiff is also entitled to a decree for possession of the suit property against the defendants. The cost of redemption deed will be borne by defendant 3 and the cost of suit will be borne by defendants 2 and 3 jointly. It is however, clarified that the decree in the present suit will be no bar to any remedy which may be available to defendant 1 against defendants 2 and 3.