1. ' C.M.A. No, 3856/1989 is an application under Order 39 Rules 1 & 2 read with Section 151, C.P.C.
2. Praying that the defendants be restrained from disposing of the suit property and the Nazir be directed to deseal six flats in the above property. C.MA. No 5244/1989 is an application to vacate the order of interim stay which was granted by this Court restraining the defendants from disposing of this property pending the disposal of the application.
3. ' Case of the plaintiff is that Defendants Nos.1 to 22 are the heirs of Haji Wali Mohammad Haji Habib'
4. Bawany, who was the owner of Plot No,RC-10, Survey No,21/1-2 (Old Survey No,E-3/PO-13), Ranchore Quarters, Karachi, measuring 207.75 sq. Yds., consisting of ground plus three storeys building of eight flats and have inherited the same from him. By an Agreement of Sale dated 31-1-1987 the Defendants had agreed to sell the above property for a sum of Rs,10,25,000 to the Plaintiff. Plaintiff paid Rs,5,45,000 as earnest money and part performance. The Defendants put the plaintiff in six flats out of eight and undertook to hand over the possession of remaining two flats on registration of Conveyance Deed. The plaintiff agreed to pay the balance of Rs,4,80,000 before the Sub- Registrar. The time for completion of sale was fixed as one year. The Defendants Nos.14 to 20, who were occupying these two flats, refused to hand over the possession and backed out from the sale transaction. Defendants Nos.14 to 22 also filed an application for execution of a decree in Suit No,972/1978 whereupon the Court ordered for sealing those six flats, possession whereof was handed over to the plaintiff and ordered the sale of the entire property by Official Assignee. The plaintiff filed an application under Order 21 Rule 58, C.P.C. Praying to recall the attachment and dismiss the execution application. The Court ordered the plaintiff to deposit Rs,9,00,000 (Rupees nine lacs) in Court to show his bona fides. On his failure to deposit the amount, the plaintiff's application was dismissed. Hence the plaintiff filed the present suit and has prayed for specific performance of the contract.
5. ' Defendants Nos.1 to 3 have chosen to remain absent and have not filed any written-statement.
6. Hence they are ex parte. They appear to be in collusion with the plaintiff.
7. ' Defendants Nos.14 to 22 have contested the suit and filed written-statement. They have denied to have agreed to sell the property in suit to the plaintiff as alleged. They have stated that the Agreement of Sale was per se executed only by Defendants Nos.1 to 13 through their Attorney Mohammad Yahya Godil, while Defendants Nos.14 to 22 had not executed any Sale Agreement and their so-called Attorney. Ilyas had also not signed the said Sale-Agreement. They have denied to have received the sum of Rs,5,45,000 or any other amount. Hence they claim that their 48.04 % share in the building remains unaffected.
8. I have heard Mr. Abdul Latif A. Shakoor, Advocate for plaintiff and Mr, Khalil-ur-Rehman Advocate for Defendants Nos.14 to 22. Photocopy of Agreement of Sale has been produced by plaintiff himself. It is signed by Mohammad Yahya Godil, Attorney of Defendants Nos.1 to 13 and not by Ilyas, the Attorney of Defendants Nos.14 to 22. No, evidence has been produced to show that Defendants Nos.14 to 22 had at any time agreed to sell this property to the plaintiff. Plaintiff's application under Order 39 Rules 1 and 2, C.P.C. Is supported by his own Affidavit, while Defendant Nos. 14 to 22's application under Order 39 Rule 4, C.P.C. Is supported by the Affidavit of Defendant No,17, who is also Attorney of all other Defendants. In his Affidavit Ilyas has denied on oath all the allegations made by the plaintiff. Neither any receipt nor any other documentary evidence has been produced to show that the amount of Rs,5,45,000 was paid by the plaintiff, particularly to Defendants Nos.14 to 22. Defendants Nos.14 to 22 have filed their suit as early as 1978 for administration and partition of the properties left by Haji Wali Mohammad Bawany. The said suit was decreed and on execution application being filed by Defendants Nos.14 to 22, sale of the property was ordered. The application under Order 21 Rule 58, C.P.C. Filed by the plaintiff appeared to be mala fide and therefore the Court had ordered him to deposit Rs,9,00,000 (rupees nine lacs) in Court to show his bona fides, as even alleged payment of Rs,5,45,000 was not through cheque or any other document. The plaintiff did not deposit the said amount and therefore, the Court treated his application as mala fide and dimissed the same.
9. ' Mr. Abdul Latif A. Shakoor, Advocate appearing for the cited the following authorities in support of his case: ' PLD 1971 SC 785 (M/s. Jamal Jute Baling & Co. Dacca v. M/s. M.
(2) 1984 MLD 1951 (Ashiq Ali v. Muhammad Hashim) the ratio decidendi of these two rulings is that "absence of signature of the seller would not have the effect of rendering the agreement invalid, if the execution thereof is otherwise proved". These rulings are distinguishable from the facts of the present case in that there is nothing to show that the Agreement of Sale was executed by defendants Nos.14 to 22 or that they had agreed to sell the land or had received the consideration.
10. ' It was next contended by Mr. Abdul Latif A. Shakoor that an application under Order 39 Rule 4, C.P.C. Was not maintainable unless a final order of interim injunction was granted by the Court. He has relied upon 1986 CLC 2218 (Muhammad Ashfaq v. Sohail Hameed) and 1988 MLD 2668 (Pakistan v. Karachi Development Authority) in this connection, I have gone through both these rulings and find that they do not support the proposition put forth by Mr. Abdul Latif A. Shakoor. I am, therefore, of the clear view that the plaintiff has no prima facie case at least so far as defendants Nos.14 to 22 are concerned. Hence I dismiss C.M.A. No, 3856/89 so far as defendants Nos.14 to 22 are concerned. Consequently C.M.A. No, 5244/1989 is allowed. The interim order dated 29-5-1989 is recalled. Since defendants Nos.1 to 13 have not filed any written statement, I decree plaintiff's suit against them with costs and declare that the agreement of sale is binding only against defendants Nos.1 to 13 and the plaintiff is entitled to specific performance of sale of 52% share in the property in suit in his favour. He would step in the shoes of defendants Nos.1 to 13 even so far as Ex.Application No,51/88 in suit No,972/78 is concerned.