1. ' This suit for specific performance of an agreement of sale of property has been filed by the plaintiff against the defendant. The facts of the case, according to the allegations made in the plaint, are that on 21-6-1987, the defendant agreed to sell and transfer in favour of the plaintiff his residential bungalow, bearing Survey No,258, Survey Sheet GRE, measuring 1,120 square yards, situated in Garden East, Quarters, Karachi, for a total sale consideration of Rs,25,50,000 and received from the plaintiff Rs,50,000 in cash towards part payment and executed a writing dated 21-6-1987. The transaction was entered into through M/s. Afshan Estate Agency. The defendant was required to make out a valid, marketable and subsisting unencumbered title to the said property and put the plaintiff into vacant possession thereof.
2. ' On 30-6-1987 the plaintiff requested the defendant vide his letter of the said date to receive from the plaintiff the balance sale consideration of Rs,25,00,000 and execute and register the conveyance deed in his favour which was followed by another notice dated 27-7-1987 However, the defendant sent a reply dated 2-8-1987, raising false and untenable excuses and refusing to honour his commitment and hence the suit.
3. ' The suit has been resisted by the defendant. According to him, one Moulana Abdul Majeed, who was running an estate agency in the name of Afshan Estate Agency at Britto Road, Karachi, had contacted the defendant about 5 months prior to the transaction for sale of the suit property. The bargain was then settled at Rs,30,40,800 but the same could not be materialised as the defendant had insisted upon payment of the entire sale consideration in white money. On 21-6-1987, Moulana Abdul Majeed alongwith his brother Moulana Muhammad Amin again contacted the defendant and after negotiation the bargain was settled at Rs,35,50,000 out of which a sum of Rs,25,50,000 was to be paid in white money and the balance of Rs,10,00,000 in black money. Moulana Muhammad Amin also brought a written receipt and a sum of Rs,50,000 was handed over by him to the defendant in exchange of the receipt which was signed by the defendant. However, according to the defendant, the receipt (Annexure "A" to the plaint) had been fabricated as that was not the actual receipt which was signed by the defendant. According to the defendant, his signature had been obtained by the said estate brokers on a blank sheet of paper which must have been subsequently utilised by them in fabrication of the receipt (Annexure "A"). The defendant also pleaded lack of knowledge of English language, as according to him, he had only studied upto Class-IV of Urdu medium. The blank sheet of paper, according to the defendant, had been signed in good faith as he was made to understand that on application for grant of a copy of extract of the record-of-rights in respect of the suit property would be written on the same.
4. ' On the basis of the aforesaid pleadings of the parties, the following issues were framed by the Court:-
(1) Whether the defendant had on 21-6-1987 entered into any agreement with the plaintiff for sale of the suit property?
(2) Whether the plaintiff had paid a sum of Rs,50,000 to the defendant and obtained from him the Receipt (Annexure A to the plaint) and copy of extract Annexure B to the plaint?
(3) Whether there exists any private of contract between the parties?
(4) Whether the bargain was settled at Rs,35,50,000 between the defendant and M/s (i) Moulana Abdul Majid and (ii) Moulana Muhammad Amin of Afshan Estate Agency?
(5) Whether the defendant's signatures were obtained on a blank paper for obtaining certified extract from the Property Register maintained at City Survey Office and the receipt (Annexure A to the plaint) was subsequently written thereon, by or at the instance of M/s. Abdul Majid and Muhammad Amin?
(6) Whether the receipt passed on by the defendant was original of Annexure D 1 to the written statement?
(7) Whether the plaintiff has any cause of action against the defendant?
(8) What should the decree be?
5. ' After hearing Mr. Abdul Sattar and Mr. SA. Samad Khan, learned counsel for the plaintiff and the defendant respectively, my findings on the issues are as follows:- ISSUES NOS. 1, 2, 3 & 5: ' As issues Nos. 1, 2, 3 and 5 are interconnected, I would like to discuss the same together. Reference in this respect may be made to the evidence of the parties, which, by their consent, was recorded on commission. Admittedly there is no sale agreement in writing between the parties. The only documentary evidence, relied upon in this respect by the plaintiff, is the receipt (Annexure P.1) This receipt shows that Rs,50,000 had been received in advance by the defendant from one Muhammad Ikhlaq for his Bungalow No,258 situated in Garden East, measuring 1,120 square yards.
6. The receipt further shows that the total consideration for the said house was Rs,25,50,000. Mr.SA.
7. Samad Khan, learned counsel for the defendant, has vehemently argued that this receipt cannot be a substitute for an agreement. According to the learned counsel, the receipt is completely silent as to the terms of the agreement. Neither the receipt gives any description of the vendee apart from his first name nor the time of the execution of the agreement has been fixed thereby. The receipt speaks of initial deposit which shows that some other deposit was also to be made by the plaintiff but no further details in respect of the same have been mentioned in the receipt. However, according to Mr. Abdul Sattar, the receipt constitutes an agreement in absence of any other agreement of sale and the same must be considered alongwith the other oral evidence adduced by the parties. Before any finding is given as to the status of the receipt, it is also pertinent to point out that the same has been disputed by defendant as a fabrication as the defendant has filed a photostat copy of another receipt dated 21-6-1987, purported to have been signed by the defendant at the time of receiving the advance. The original of this receipt, according to the defendant, was with the plaintiff. However, the execution of this receipt by the defendant has been very much denied by the plaintiff. According to him, the only receipt signed by the defendant was Ex.P.1. Admittedly, neither any notice was given to plaintiff to produce the original receipt nor any attempt appears to have been made by the defendant to bring it on record, apart from the photostat copy, which was filed by the defendant alongwith his written statement Ex.D.1.
8. ' As far as the question, whether the defendant had entered into any agreement with the plaintiff on 21-6-1987 is concerned, the parties have also relied upon the oral evidence. The plaintiff, besides examining himself, has also examined Abdul Majeed and Muhammad Amin as witnesses in support of the plea that there was an oral agreement between the parties. According to the plaintiff, he had seen the house about a month before entering into the transaction with the defendant. The deal was then struck through the brokers Abdul Majeed and Muhammad Amin for a total sum of Rs,25,50,000. A sum of Rs,50,000 was paid to the defendant through Abdul Majeed as advance. The balance of Rs,25,00,000 was to be paid on the execution of the sale. The plaintiff is fully supported by both Abdul Majeed and Muhammad Amin in material particular& So far as the evidence of the defendant is concerned, although he has admitted to have received. Rs,50,000 as advance through brokers Abdul Majeed and Muhammad Amin, but, according to him, he had not seen the purchaser nor was he aware as to who was the purchaser of the property. The total consideration of the property agreed to be paid to the defendant, according to him, was Rs,35,50,000 and not Rs,25,50,000 as alleged by the plaintiff. Be that as it may, but the evidence adduced by the parties, clearly shows that the defendant has entered into a transaction for the suit property through Abdul Majeed and Muhammad Amin, estate brokers and had received Rs,50,000 as advance from them in respect of the said transaction. No doubt, the defendant has denied to have entered into any transaction consciously with the plaintiff but the evidence of the plaintiff and the two estate brokers coupled with the receipt (Ex.P.1) shows that the defendant had entered into an agreement with the plaintiff for sale of the suit property, for which the defendant had accepted Rs,50,000 as advance and passed on a signed receipt to the said estate brokers. The contention of the defendant that the receipt actually passed by him was Annexure D-1 filed by him alongwith the written statement and not Ex.P-1 cannot be accepted firstly, because its execution has been denied by the plaintiff and, secondly, the defendant has admitted his signature on the receipt, Ex.P-1 although according to him, the contents thereof were subsequently fabricated by the plaintiff. But the burden to prove fabrication is clearly on the defendant, once signature on Ex P-1 has been admitted by him. In this respect, apart from his oral evidence no other evidence had been adduced by the defendant on the point. No doubt, according to his evidence, the defendant was an illiterate person and could not read English language but admittedly he was a businessman and an owner of a factory. Consequently, in my opinion the burden to prove fabrication was entirely on the defendant which he has failed to discharge by adducing sufficient evidence on the point. I, therefore, hold that' Ex. P-1 was the receipt passed on by the defendant to the plaintiff's estate brokers at the time of receiving of the advance by him.
9. ' It now remains to be determined, whether Ex.P.1 could be construed as an agreement of sale between the parties. Mr. Abdul Sattar has placed reliance on (1) Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 (W.P.) Kar. 521), (2) Sheikh Muhammad Rafiq Akhtar v. Sqn./Ldr.
10. (Rtd.) Shaikh Ghulam Sadiq (1981 CLC 453) and (3) Major (Retd.) Ahmad Khan Bhatti v. Mst.
11. Masood Fatimi (PLD 1981 Kar. 398). In all these cases, the question that arose before the Court, was whether a document regarding receipt of advance in respect of immovable property could be construed as sale agreement in a suit for specific performance of the contract. Although the first two cases cited by the learned counsel are distinguishable, the case reported in PLD 1981 Kar. 398 does lend some support to the plaintiff's case. In this case the receipt passed on by the vendor to the vendee showed receipt of advance by the vendor. It also showed the total value of the property and the description of the vendee and the names of the witnesses to the transaction. It was held that such document for the purposes of section 10 of the Transfer of Property Act read with section 54 of the said Act for all practical purposes could be construed as an agreement of sale in absence of a formal sale agreement. No doubt, in the present case the receipt (Annexure P-1) neither shows the full description of the vendee nor the names of the witnesses nor the other details regarding the completion of the sale transaction but when read with other evidence adduced on behalf of the plaintiff, it does indicate that there was an agreement of sale between the plaintiff and the defendant in respect of the suit property. The receipt further shows that the advance had been received by the defendant on behalf of the plaintiff, therefore, there was a privity of contract between the plaintiff and the defendant. The issues are, therefore answered accordingly.
12. ISSUE NO.4.
13. ' The next question is whether the bargain was settled at Rs,35,50,000 as alleged by the defendant or Rs,25,50,000 as alleged by the plaintiff. In this respect both the parties have adduced oral evidence.
14. ' However, as far as the evidence adduced on behalf of the plaintiff is concerned, the same is supported by the documentary evidence (Annexure P-1) which shows that the deal had been struck at Rs,25,50,000. There is no other evidence adduced by the defendant in rebuttal thereof, except for his oral evidence and the receipt produced by him as Annexure D-1. However, as I have already pointed out earlier, no reliance can be placed on Annexure D-1. As far as the oral evidence of the defendant is concerned, his plea that the deal had been struck for Rs,35,50,000 has been denied by the plaintiff and his two witnesses. There being word of the defendant against that of the plaintiff it is difficult to draw any definite conclusion from the oral evidence adduced by the parties.
15. However, Ex.P-1, which was admittedly signed by the defendant, lends support to the plea of the plaintiff that the total consideration agreed was Rs,25,50,000. Issue No,4 is, therefore, decided in favour of the plaintiff. ISSUE No,6.
16. ' This issue is ambiguous as the same is not happily worded. However, the same is not pressed by any of the counsel and the issue has been dropped. ISSUE NO.7 In view of the foregoing discussion the case of the plaintiff against the defendant for specific performance has been fully established. Mr. SA. Samad C Khan has invited may attention to section 22 of the Specific Relief Act, which provides as follows: "22. The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
17. ' The following are cases in which the Court may properly exercise a discretion not to decree specific performance...."
18. ' The cases in which the Court may decline to exercise discretion in favour of the plaintiff are also referred to in the said section. The first of the three cases referred to therein, on which Mr. SA.
19. Samad Khan has relied, is as follows:- "1. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part."
20. ' Basing his argument on the said section Mr. SA. Samad Khan has vehemently argued that since in the present case there is no definite agreement of sale between the parties and even the receipt (Ex.P-1) fails to provide the details, on the basis of which specific performance of the agreement can be ordered the Court may decline to pass a decree in the plaintiff's favour. Reliance in this respect has been placed by him on (1970) 3 All E.R. 961, wherein at page 963 it has been observed as follows:- "The plea of non est. Factum obviously applies when the person sought to be held liable did not in fact sign the document. But at least since the sixteenth century it has also been held to apply in certain cases so as to enable a person who in fact signed a document to say that is not his deed.
21. Obviously any such extension must be kept within narrow limits if it is not to shake the confidence of those who habitually and rightly rely on signatures when there is no obvious reason to doubt their validity. Originally this extension appears to have been made in favour of those who were unable to read owing to blindness or illiteracy and who therefore had to trust someone to tell them what they were signing. I think that it must also apply in "favour of those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate incapacity."
22. As I have already pointed out earlier, the defendant, as per his own admission, was a businessman and owner of a factory. His plea that the receipt was fabricated by the plaintiff on a blank signed paper cannot be accepted lightly. In any case as already pointed out, once signature has been admitted by the defendant, the onus to prove forgery would be entirely on him. Since no sufficient evidence was adduced in this behalf to discharge such onus the plea cannot be accepted. The case cited by Mr. S.A. Samad Khan, therefore, in my opinion is not attracted to the facts of the instant case.
23. ISSUE NO. 8.
24. ' In the result the case of the plaintiff is decreed against the defendant as prayed.