1. This is a suit for Specific Performance of Contract dated 12-5-1983 entered into by the plaintiff with deceased Mrs. Azizun Nisa Khan, wife of defendant No,1 and mother of defendants 2 and 3, for the purchase of Bungalow No,11-C, Phase II, South Sea View Avenue, Sunset Boulevard, Defence Housing Authority, Karachi. The case of the plaintiff as disclosed in the plaint is as follows: 2.The deceased had agreed to sell the above noted bungalow to the plaintiff for a sale consideration of Rs, twelve lakh and had executed an agreement on 12-5-1983 when the plaintiff had made the following payments to the deceased against receipts.
(a) Rs,2,58,363 were paid by Pay Order No,D-873160 dated 12-5-1983 drawn on National Bank of Pakistan, Model Branch, Clifton, Karachi in full and final satisfaction of the total loan liability of the seller and for redemption of the mortgage of the property in question from Muslim Commercial Bank Limited, Defence Society Branch, Karachi.
2. (b.) Rs,1,40,000 were paid to the seller as earnest money by Pay Order No,D-873161 dated 12-5-1983.
(c) Rs,12,500 (in cash).
3. Another sum of Rs,44,185.14 (Rs, Forty-four thousand one hundred eighty-five and paisas fourteen only) was paid on 11-8-1983, through separate pay drafts of Rs,31,935 and Rs,12,250 and one receipt was executed by the deceased. Yet another sum of Rs, six lac four thousand nine hundred fifty-two (Rs,6,04,952) was paid on 28th August, 1983 through pay order and on this date possession of the premises was delivered to the plaintiff. By now, Rs,10,60,000 had been received by the deceased, leaving a balance of Rs,1,40,000 which was to be paid before the Registrar at the time of the registration of the sale-deed. On the same date (28-8-1983) the deceased executed an irrevocable power of attorney in favour of 'Muhammad Zafar Karim, brother of the plaintiff. After obtaining possession of the bungalow, the plaintiff made the following payments on behalf of the deceased towards outstanding arrears in respect of the bungalow.
(a) Arrears of electricity bills. Rs,0,01,300
(b) Certain repairs. Rs,0,12,850
(c) Replacement of missing doors/windows. Rs,0,01,400
(d) Composition fee paid to Clifton Board. Rs,0,07,500
(e) Mutation fee to Military Estate Officer Rs,0,00,020
(f) To Excise & Taxation Department towards Capital Gain Tax.Rs,1.78.505 Total Rs,2 01 575 Defendant No,1 (the husband of the deceased) and defendants Nos.2 and 3 (her sons) had been throughout associated with the transaction and had signed the agreement and the receipts as marginal witnesses. The plaintiff therefore, addressed a letter to defendant No,1 on 27-94983 for expediting the registration of the sale-deed but no reply was received from the deceased or her husband. The vendor Mrs. Azizun Nisa Khan delayed and avoided the execution and registration of the sale-deed and expired on 9th December, 1984 and after her death, her legal heirs, who are defendants 1 to 3, also avoided the registration of the sale-deed. The plaintiff therefore, filed the suit on 14-4-1985. The Defence Housing Authority has been impleaded only as a pro-forma defendant and it has not contested the suit.
4. Defendants 1 to 3 had originally filed written statement on 4-114985 on which all the defendants had signed and defendant No,1 had also signed, in addition, as counsel of the other defendants.
5. However, defendant No,1 distanced himself from his sons (defendants 1 and 2) and moved an application only on his own behalf under Order 6, Rule 17, C.P.C. (C.M.A. No,452 of 1992) for amendment of written statement only on his behalf. This application was allowed and defendant No,1 filed a fresh written statement on 1-4-1992. Since original written statement filed on 4-11-1985 is still the only written statement on behalf of defendants 2 and 3, averments made therein are first given below: Legal objections were raised as to the maintainability of the suit as framed, non-existence of cause of action as against defendants 1, to 3, as to non-joinder of a necessary party (although the identity of such party was not disclosed) and as to the bar of suit under Pakistan Defence Officers Housing Authority Order, 1980. On facts, execution of the agreement of sale by the deceased was admitted and receipt. Of the amounts of Rs,2,58,363 and Rs,1,40,000 was admitted but cash payment of Rs,12,500 was denied. However, execution of receipt for this amount by the deceased, with defendants 2 and 3 acting as its marginal witnesses, was not denied. Receipt of Rs,31,935 and Rs,12,250/44 was also admitted. Receipt of an additional amount of Rs,6,04,952 on 28-8-1983 and delivery of possession of the bungalow to the plaintiff on this date and execution of irrevocable power of attorney (also on the same date) by the deceased in favour. Of Muhammad Zafar Karim, brother of the plaintiff, was also admitted but it was stated that by this date a total amount of only Rs,10,38,397 (Rs, ten lakh thirty-eight thousand three hundred ninety-seven) had been received by the deceased as against Rs,10,60,000 claimed by the plaintiff .(a difference of Rs,21,603) although in the irrevocable power of attorney receipt of Rs,10,60,000 was acknowledged. The defendants showed ignorance of the demand of Clifton Cantonment Board in respect of Rs,7,500 towards fee for approval of construction plan and maintained that Clifton Cantonment Board had illegally demanded this amount and that they did not know whether the plaintiff had paid this amount.
6. Defendants also showed ignorance of the demand of Military Estate Officer for Rs,20 as mutation fee or its payment by the plaintiff. It, was admitted that per clause 2 of the sale-agreement, the liability for the payment of Capital Gains Tax was exclusively on the seller but it was added that the terms and conditions of the agreement were varied in this regard by the terms of the General Power of Attorney executed on 28-8-1983 whereby such. Tax to the extent of Rs,1,40,000 was payable by the plaintiff and if the tax exceeded this amount then .Alone the seller was liable for the excess amount only and, therefore, the tax being Rs,1,78,505, the deceased was liable to pay only Rs,38,505. The defendants denied their liability, or that of the deceased, for obtaining the sanction of the completion plan of the property. In the end, the defendants stated that they had "no objection to the completion of sale": However, it was stated that Ale plaintiff was not performing his part of the contract.
7. In the amended written statement defendant No,1 raised the following further pleas: "During the four months prior to 17-3-1992 some new facts had come in the knowledge of defendant No,1 and they are as follows. The plaintiff was a Benamidar although the name of the beneficiary could still not be ascertained. The sale agreement was "extracted" prior to 12-5-1983 when it was executed (the preliminaries of the agreement might have been discussed prior to the date of execution but the use of the verb "extract" is indeed very novel for describing the preliminaries of the agreement). The amounts paid to the deceased were later on "extracted from her by deceitful means" (It was however not disclosed who had extracted this amount or what the plaintiff had to do with this alleged extraction). The staff of the Defence Housing Authority and Clifton Cantonment Board did not cooperate with the deceased or the defendants in completing requisite documents."
8. Issues were framed on 16-2-1986 and an additional issue was framed on 19-4-1987. Defendant No,1 appearing in person for himself and as counsel of defendants 2 and 3 had agreed on 26-4-1992 that no additional issue arose after the filing of the amended written statement by defendant No,1 on 1-41992. Thus the following issues are on record:
(1) Whether the suit as framed is maintainable?
(2) Whether the plaintiff has any cause of action against defendants Nos.1 to 3?
(3) Whether the suit is bad for non-joinder of necessary party in view of the documents produced by the plaintiff with the plaint?
(4) Whether the suit is barred under the provisions of Pakistan Defence Officers Housing Authority Order, 1980?
(5) Whether the deceased Mrs. Azizunissa has complied with all the formalities as per desire of the plaintiff and has given a General Power of Attorney in favour of plaintiff's real brother? If so, its effect on the suit?
(6) Whether the plaintiff carried out and complied with the requirements for completing the formalities during the lifetime of Mrs. Azizunissa. If not, its effect on the suit?
(7) Whether the plaintiff has undertaken the responsibility to get the documents completed for transfer of the property in his name?
(8) Whether the notification dated 9th September, 1984 is a bar to the contract by the defendant?
(9) Whether the plaintiff is entitled for the relief claimed?
(10) What should the decree be?
9. The plaintiff is a Saudi Arabian national and at the time of filing the suit he was a student of Dow Medical College. On 27-8-1988 he moved an application (C.MA. 6046 of 1988) for early disposal of the suit on the ground that he had already appeared in the Final M.B.,B.S. Examination and would be leaving the country shortly afterwards after completing the house job and would therefore either rent out the house or sell it but pendency of the suit would come in his way. It was however dismissed on 18-9-1988. The plaintiff preferred another application for early disposal of the suit (C.MA. 2618 of 1990) stating that as stated by him in his earlier application, he had completed his M.B.,B.S. Course but did not go back to his country lest he should lose the possession of the suit house and had therefore enrolled for Post-graduate course in Dermatology (in the college of Physicians and Surgeons Karachi) but even this course was concluding by 31st March, 1991 or thereabout and thereafter he would have no excuse to stay back in Pakistan and therefore prayed for early hearing. A certificate from the Chairman of the Post-graduate Education Committee of Dow Medical College was also placed on record in support of this application. This time his prayer was allowed on 12-5-1991 and office was directed to list the suit for evidence. After three months.
10. On 2041-1991 it was decided with the consent of the parties that parties would file affidavits-in- evidence instead of examining the witnesses in Court and the witnesses would only be cross- examined in Court and in pursuance of that order the plaintiff filed his affidavit-in-evidence on 2- 12-1991. On 26-4-1992 defendant No,1 appeared in person as well as for his two sons defendants 2 and 3 for orders on his two applications C.M.A. 561 of 1992 of 11-4-1992 and C.MA. 607 of 1992 of 26- 3-1992 (not carbon copies but exactly the same word by word; he said he had forgotten that he had moved the first application and therefore, had moved the second) praying that he be permitted to withdraw his Vikalatnama in respect of defendant No,3 as defendant No,3 was out of the country and his new address was not traceable since December, 1991. He did not disclose that he was not only the counsel of defendants 2 and 3, per Vikalatnama filed by him on 4-11-1985, but also their father. Both these applications were dismissed the same day (26-4-1992). The same day an application moved by the plaintiff before Honourable Chief Justice on 18-4-1992 was also listed for orders. In this application the plaintiff had again prayed for early hearing specially for the completion of his evidence (i,e, for his cross-examination since his affidavit-in-evidence was already on record). The Honourable Chief Justice had directed that this application be brought to the notice of the Court. This application was taken up in the presence of defendant No,1, who is also counsel of defendants 2 and 3, and it was ordered that the plaintiff would be examined on 12-5- 1992. On this date the plaintiff appeared in the Court for being cross-examined. He stated that immediately after the previous date (26-41992) he had to go back to his country and had returned only the previous day (11-5-1992) for being cross-examined. This position was ascertained from his passport and boarding cards of the airline. However, defendant No,1 conveniently decided to remain absent. Mr. A.R. Mirza, Advocate and Mr. NA. Faruqi, Advocate whose Vikalatnamas are also on record, also remained absent. Perhaps defendant No,1, who is also counsel of defendants 2 and 3, desires to move an application under Order 9, Rule 13, C.P.C. At a later stage with the ulterior motive of obstructing the final disposal of the suit. Under the peculiar circumstances of the case, it was not considered desirable to adjourn the hearing and the evidence of the plaintiff was recorded, that is, his two affidavits-in-evidence were brought off record as Exh.2 and Exh.3 along with the documents Exh.2/1 to Exh.2/31 and Exh.3/1. The evidence of the plaintiff was then closed and the suit was adjourned to a date in office for evidence of the defendants. The suit then came before the Court on 23-8-1992 and then on 15-9-1992 for evidence of the defendants but on both of these dates none appeared for them. On the above noted last date the evidence of the defendants (i,e, defendants 1 to 3) was closed and the learned counsel of the plaintiff was heard and the judgment was reserved.
11. Findings of the Court on the issues are as under:-- ISSUE NO.1: Admittedly an agreement of sale was executed by the deceased now represented by defendants 1 to 3 and the sale-deed has not yet been executed or registered by defendants 1 to 3 and the plaintiff could only pray for specific performance of the said agreement. The defendants did not disclose in their written statement as to how the suit should have been framed to be maintainable.
12. I would therefore, hold that the suit for the specific performance as framed is maintainable.
13. ISSUE NO.2: Defendants 1 to 3 are the only legal heirs of deceased Mrs. Azizun Nisa Khan the seller/vendor, being her husband and sons as admitted by the defendants in para. 11 of their written statement and therefore, cause of action has accrued to the plaintiff only against them and against no one else.
14. Issue decided accordingly.
15. ISSUE NO.3: While raising the objection as to non-joinder of a necessary party, the defendants did not disclose who was the necessary party to the suit which had been left out by the plaintiff from the list of the defendants. If the lady had been alive she would have been the only necessary party as the owner of the suit property and executant of the sale agreement and after her death her legal heirs are the only necessary party and therefore, the suit does not suffer from non-joinder of any necessary party.
16. ISSUE NO.4: Sale of plots and bungalows through irrevocable power of attorney in the Defence Authority area is quite common and judicial notice can be taken of this prevailing state of affairs. This issue was framed apparently in view of para. 17(1) of the written statement which is, however, quite vague and does not disclose any specific provision of any law. It is, therefore, held that the suit is not barred under any provision of Pakistan Defence Officers' Housing Authority Order, 1980.
17. ISSUE NO.5: This issue is not happily worded. In the first instance, execution of irrevocable power of attorney by the deceased in favour of the brother of the plaintiff was pleased by the plaintiff in para. 13 of the plaint; this was replied by the defendants in para. 13 of their written statement wherein they had not denied this averment. Secondly, the defendants in paras. 10(a) and 15(d) of the written statement explicitly admitted, in fact they themselves pleaded, the execution of this irrevocable power of attorney on which all the three defendants arc marginal witnesses and which is on record as Exh.2/15. As such, it being an admitted position, it could not be made the subject-matter of any issue. This portion of the issue is therefore, cancelled.
18. Under the first part of the issue it is held, on the strength of para. 24 of the affidavit-in-evidence of plaintiff Exh.2, that the deceased had not complied with all the formalities required of her in furtherance of the agreement of sale Exh.2/1.
19. As for the last portion of the issue, it is held that the effect of the execution of irrevocable power of attorney Exh.2/15 is that Mr. Zafar Karocm the brother of the plaintiff can lawfully do any or all the acts on behalf of the deceased as detailed in clauses 1 to 6 thereof and the deceased, and after her death, defendants 1 to 3, were bound to ratify them.
20. ISSUE NO.6: The sale-consideration is admittedly Rs,12 lakh out of which the following payments have been admitted or proved: At the time of sale agreement Rs,2,58,363 Rs,1,40,000 Rs,0,12,500Admitted in written statement. Acknowledged in agreement of sale Exh.2/15. There is also separate receipt Exh.2/6 for cash payment of Rs,12,500 and counterfoils of pay orders of Muslim Commercial Bank and National Bank for the first two amounts Exh.2/4 and Exh.2/5.
21. Cash payment of Rs,12,500 was denied in spite of above acknowledgment. The denial is rejected.
22. Rs,31,935 Vide pay order on 11-8-1983 towards taxes per terms of agreement vide Cantonment Board receipt Exh.2/7. (However, the bill Exh.2/8 is for 32,166 and the difference is not explained).
23. Rs,12,250.14 Vide Defence Authority Receipt Exh.2/9 and Authority's statement of Account Exh.2/10.
24. Rs,6.04.952 Vide pay order of 21-8-1983 on National Bank of Pakistan vide counterfoil Exh.2/1.2.
25. Total Rs,10 60 000 Rs,1,300 Electricity arrears.
26. Rs,12,850 Certain repairs.
27. Rs,1,400 Replacement of missing doors and windows (admitted, since not denied in para. 6 of written statement).
28. Rs,7,500 Paid to Clifton Cantonment Board vide Board's receipt dated 8-12-1983 Exh.2/17 and Demand Note Exh.2/16.
29. Rs,20 Mutation fee to Military Estate Officer vide Demand Note Exh.2/20 and receipt dated 13-3- 1985 Exh.2/21.
30. Rs,1,78,505 Towards Capital Gains Tax to Excise and.
31. Taxation Department (on behalf of seller) vide Bank certificate Exh.2/22.
32. Rs,1.500 Completion fee paid to Clifton Cantonmcnt Board vide Demand Note Exh.2/30 and Board's receipt Exh.2/31.
33. Grand total Rs,12.61.575 (against the total sale price of Rs, twelve lakh).
34. It may be noted that all the taxes and other charges due on the date of the execution of the agreement (12-5-1983) were the liability of the seller, the deceased, and the plaintiff paid them on her behalf just to facilitate and expedite the execution and registration of the sale-deed and therefore, must be deemed to be payments made to the deceased or to her heirs who are defendants 1 to 3.
35. Since the Capital Gains Tax was abolished, the amount deposited by the plaintiff was to be refunded and pending the decision of the suit the Court had directed on 18-11-1987 that Nazir should withdraw this amount and invest it in Khas Deposit Certificates. In his additional affidavit-in- evidence the plaintiff states that this direction has not been complied with and the amount is still lying with the Excise and Taxation Department and the defendants had surreptitiously withdrawn a sum of Rs,50,000 from it.
36. The plaintiff has thus proved that he has performed his part of the contract and in fact he has paid to the deceased and the defendants more than the stipulated amount of Rs, twelve lakhs, Rs,12,61,575 to be exact, to which must be added. Rs,50,000 withdrawn by the defendants from the Excise and Taxation Department. Thus, the defendants have been overpaid a sum of Rs,1,11,575 (Rs, one lakh eleven thousand five hundred seventy-five only) some of which in the life of Mrs. Azizun- Nisa and some after her death. The issue is decided accordingly.
37. ' ISSUE NO.7: ' As per para. 9 of the agreement of sale the plaintiff is responsible only for the expenses for stamps on the sale-deed and registration charges, rest of the responsibility is that of the seller (now of her heirs defendants 1 to 3). Issue decided accordingly.
38. ISSUE NO.8: The notification dated 9-9-1984 of the Ministry of Interior (page 59 of the file) has been perused. It prohibits a foreigner from acquiring any landed property in Pakistan except with the previous written permission of either the Provincial or Federal Government but this notification is prospective in effect. Besides, it does not say that its contravention will not convey any title to the foreigner. In respect of past transactions, the notification says that they are valid but that, if so required, the foreigner shall submit the particulars of the transaction to whosoever authority the Federal or Provincial Government nominates. Since the agreement of sale is prior in time to the notification the plaintiff is not required to seek the prior permission from any Government and he is also not to furnish details of the transaction to any Government or Authority because he is not called upon to do so. The notification is thus no bar to the specific performance of the contract.
39. Alternately I am of the view that if the specific performance is barred under the notification, the defendants are liable not only to refund Rs,12,61,575 plus Rs,50,000 to the plaintiff but shall also be liable to pay interest on the amount at 15 per cent. Per annum from the date of payment to its refund and also to pay damages besides the cost of the litigation. The issue is decided accordingly.
40. ISSUE NO.9: In view of the decisions on the above issues, it only follows that the plaintiff is entitled to the relief claimed.
41. ISSUE NO.10: The suit is decreed for specific performance of contract of sale dated 12-5-1983 (X-I) directing the first three defendants to execute a valid and proper sale-deed in respect of Plot No,11-C, Phase II, South Sea View Avenue, Sunset Boulevard, Defence Authority, Karachi measuring 1027 sq. Yards along with the double-storeyed bungalow constructed thereon after completing all the formalities mentioned in the agreement of sale dated 12-5-1983 (Exh.2/1) and on failure of the first three defendants to execute the required sale-deed as stated above, the Nazir or some other officer of the Court is authorised to execute a valid and proper sale-deed in favour of the plaintiff after completing all the formalities required in accordance with the execution of the sale-deed. A permanent injunction is also granted restraining defendants 1 to 3 and/or any other person or persons claiming right or interest through the deceased seller or acting through or under defendants 1 to 3 from transferring, alienating, encumbering or in any way dealing with the property in suit so as to prejudice the right of the plaintiff under the agreement of sale dated 12-5- 1983 (Exh.2/1).
42. A decree for the refund of the excess amount is also passed in favour of the plaintiff and against the defendants with 14% interest from the date of judgment to the date of payment/realisation but this amount shall be determined after adjusting the expenses for stamp duty and registration charges which are payable by the plaintiff.
43. The plaintiff is also held entitled to the refund of whatever amount is lying with the Excise and Taxation Department (or with the Nazir, just in case) towards the Capital Gains Tax.
44. It may also be noted that defendants, in spite of all the miscellaneous applications moved by them from time to time and in spite of all the explanations given by them in their written statement, had actually not contested the suit as would appear from para. 15(1) of their written statement in which they stated that "However, defendants 1 to 3 have no objection to the completion of the sale" and therefore, the suit, subject to the proof of payment of the entire consideration, was liable to be decreed under Order 12, Rule 6, C.P.C. As well.