' This is a suit for specific performance of contract of sale of House No,2526, Picture Road, Kalakot, Karachi. As per averments made in the plaint, defendant No,1, who is owner of the property, entered into an agreement of sale with the plaintiff on 8-6-1979 for a consideration of Rs,1 lac out of which Rs,40,000 had been paid to the vendor at the time of the execution of the agreement and the balance of Rs,60,000 was to be paid before December 1979 and after such payment possession of the house was to be delivered to the plaintiff. The grievance of the plaintiff is that the plaintiff requested defendant No,1 and defendant No,l's husband defendant No,2 in December 1979 to receive the balance sale consideration of Rs,60,000 but some dispute arose between defendants Nos,1 and 2 (wife and husband) as a result of which the conveyance deed could not be executed and registered. Subsequently, defendant No,1 executed a declaration on 7-2-1980 admitting her liability under the sale agreement. However, defendant No,1 still did not fulfil her part of the contract although she delivered to the plaintiff original lease deed in her favour in respect of the suit property. The plaintiff further states that he was, and still is, serving in the Army of the Shaikhdom of Doha and in April 1981 he came to Karachi to finalise this transaction but the defendants still avoided to finalise the conveyance deed. Eventually, the plaintiff filed this suit on 2nd May 1981.
Defendant No,1, who alone is the proper party to the suit, contested the suit and filed her written statement. She admitted that she had agreed to sell the suit property to the plaintiff for Rs, one lac and had received Rs,40,000 by way of part payment at the time of agreement and also admitted that the payment of the balance of the sale consideration was to be paid by December 1979 but she claimed that the plaintiff was neither in Karachi in December 1979 nor he made the payment of Rs,60,000 during the said month and therefore the agreement of sale stood automatically cancelled. She further denied the execution of the agreement on 8-6-1979 and according to her the sale agreement was signed by her on 10th January 1979.
2. On the above pleadings the following consent issues were adopted by the Court on 17-10-1982: Whether defendant No,1 agreed to sell Plot No,2526 Picture Road, Kalakot, Lyari Quarters, Karachi to the plaintiff with construction thereon for a total consideration of Rs,1,00,000 and received Rs,40,000 from the plaintiff as per Agreement of Sale dated 8th June 1979? If so, what is its effect?
(2) Whether the defendant NO,1 on account of disputes with her husband defendant No,2 refused to accept from the plaintiff the balance of Rs,60,000 in December 1979 and thereafter deferred the matter till 7th December 1980 when she executed another Agreement/declaration?
(3) Whether defendants Nos,1 and 2 ultimately refused and avoided to register the sale-deed before the Sub-Registrar concerned in favour of the plaintiff in respect of the aforesaid p-operty?
(4) What should the decree be?
3. A perusal of the file shows that defendant No,1 and her counsel have been negligent from the beginning in pursuing their defence. On 20-8-1986, when the suit was fixed for the evidence of the defendant, none was present for her and therefore her evidence was closed and the matter was adjourned for arguments. On the next date of evidence also none was present for defendant No,1but an adjournment application was received from her counsel which was granted on payment of Rs,100 cost. 20th October 1986 was the next date for the evidence of defendant No,1 but again defendant No,1, her witnesses and her counsel all were absent and only the clerk of the counsel appeared and sought adjournment on the ground that son of the counsel of defendant No,1 had been hospitalized. 18th November 1986 was the next date for the arguments when CMA No,6044/1986 was moved on behalf of defendant No,1 for reopening her side. However, even on this date none appeared for defendant No,1 even to pursue this application. Even so, the Court ordered the issuance of notice to the counsel of defendant No,1 to appear in person on the next date. This application (CMA No,6044/86) came up for hearing on 1-2-1987 and still none was present for defendant No,1 whereupon this application was dismissed for non-prosecution. 26th February 1987 was the subsequent date for arguments and on this date also none appeared for defendant No,1 and the Court heard learned counsel for the plaintiff and reserved judgment which was announced on 10-3-1987 and the suit was decreed. Defendant No,1 went in appeal in HCA No,113/87 and vide consent order dated 4th February 1991 the appeal was accepted and the appellant/defendant was allowed to lead evidence and the case was remanded for recording her evidence and for fresh adjudication. After the remand the suit came up before the Court on 26-8- 1991 for recording the evidence of defendant No,1 but defendant No,1 and her witnesses were not present and at the request of her counsel, who claimed that the witness was seriously ill, the hearing was adjourned. On the next date (17-12-1991) the evidence of defendant No,1 was again absent and at the instance of lerned counsel the hearing was adjourned to 21-1-1992 on which date examination-in-chief of defendant No,1 was recorded and her cross-examination was concluded on 123-1952. However, on 26-3-1992, which was the next date of hearing, no one was present for defendant No,1 and on the subsequent date (11-5-1992) Mr. M.A.I. Qarni, Advocate who was appearing for defendant No,1 had left a chit that he was busy before the Supreme Court. However, neither he nor defendant No,1 nor any of her witnesses appeared before the Court on 11-5-1992.
Even so, the hearing was adjourned to 21-5-1992 and on this date also defendant No,1 and her counsel and her witnesses all remained absent whereupon her evidence was closed and the matter was adjourned for arguments. Today also none has appeared for defendant No,1. Learned counsel for the plaintiff alone was therefore heard.
4. Even though defendant No,1 had denied the execution of agreement of sale Exh.5/2, the denial is of very little significance because in her written statement she admitted that she had entered into an agreement of sale of the suit property on the terms and conditions given ky the plaintiff in the plaint and also as given in the agreement Exh.5/2 even though she had stated that the agreement had been executed on 10-1-1979. Further, while appearing in Court as D.W.1 she admitted into the very first line of her examination-in-chief that the agreement for sale had been entered into by her and the plaintiff in June 1979. It is also an admitted position that out of the sale consideration of Rs,1 lac, Rs,40,000 were paid to defendant No,1 and the balance of Rs,60,000 was to be paid in December 1979 when the sale-deed was to be executed. From this point onward the version of the two parties is different and while the plaintiff claims that in December 1979 he offered to pay the balance of the sale price and showed his willingness to finalise the transaction, according to defendant No,1, he did nothing of the sort. There is, however, no denying the fact that defendant No,1 did not serve any notice upon the plaintiff for execution of the sale-deed and for payment of the balance of the amount. The plaintiff also did not give any such notice to defendant No,1 and according to him the first notice which he gave in this regard was by way of sending a telegram to defendant No,1 on 24-4-1981. A copy of this telegram has been placed on record as Exh.5/6. There are two snags which render this telegram highly suspicious. Firstly, that Exh.5/6 is a simple typed copy and it does not bear any authentication from telegraphic authorities and therefore it cannot be stated that any such telegram had in fact been sent by the plaintiff. It does not even bear any number. Secondly, the receipt issued by the Telegraph Office has also not been produced in evidence. In this regard my attention was drawn to Exh.5/3 which is a letter dated 12-11-1981 sent by the previous counsel of the plaintiff to SHO Joharabad Police Station informing that his brief case has been stolen from his car which was parked outside his house during the night. This copy is the certified copy issued by Joharabad Police Station and I would, under the circumstances, rely upon it. It appears to be for this reason that original agreement or any other original document has not been filed by the plaintiff. Exh.5/2 is only a photostat copy of the agreement dated 18th June, 1979. The plaintiff has further placed on record copy of a declaration signed by defendant No,1 in December 1980 in which she had reiterated the execution of the earlier agreement of sale and the receipt of Rs,40,000 in part payment. But the crucial thing to note in this regard is that in para. 3 thereof she also admitted that the plaintiff was willing to pay the sale price in December 1979 but she had refused to accept it because of certain differences between her and her husband and after making certain stipulations she had undertaken to finalise the deal. This document Exh.5/5 is proved through the evidence of P.W.2 Haji Muhammad Ramzan who is its marginal witness. Although this witness admitted that subsequent to the execution of this document, his son and daughter have been married to the son and daughter of the plaintiff and thus relationship between the two has come to exist, yet I am of the view that this relationship did not exist at the time of the execution of the document and therefore, notwithstanding this relationship, there is nothing to discredit this witness. Moreover, defendant No,1 appearing in the Court as D.W.1 admitted that P.W.2 Haji Muhammad- Ramzan was known to her and was her neighbourer. It would also indicate that he is truthful witness and would not have come to depose against his neighbour. Even otherwise, the target date for completion of the transaction was December 1979 and the suit.Was brought in May 1981 and in the intervening period defendant No,1 neither gave any notice to the plaintiff calling upon him to complete the transaction nor any notice to renounce the agreement of sale and therefore I am of the view that under these circumstances it cannot be stated that the plaintiff was not willing to perform his part of contract. The plaintiff has already deposited in Court the balance of the sale price which shows his anxiety to perform his part of the contract. Defendant No,1 admits in her cross-examination that she had delivered her original document of title to the plaintiff (even though she says that she was made to do this through misrepresentation). The evidence on record also suggests that time was not of the essence of the contract.
5. On the basis of the evidence before me I am satisfied that the plaintiff is entitled to the specific performance of the agreement of sale entered into by him with defendant No,1 in June 1979. I would therefore decree the suit as against defendant No,1 for specific performance. The plaintiff has already deposited the balance of Rs,60,000 in the Court. Defendant No,1 is directed to execute the sale-deed in terms of the agreement of sale dated 8-6-1979 Exh.5/2 and she is further directed to deliver vacant possession of the suit house to the plaintiff. In the event of her failure to do so within one month, the Nazir shall prepare the sale-deed and execute the same on behalf of defendant No,1 and shall get it registered. Defendant No,1 is also held responsible for the cost of the plaintiff.