1. ' This suit has been filed by the plaintiff for specific performance of the agreement with regard to the sale of the property in suit between the plaintiff and the defendant. The summons of the suit was sent through Bailiff but could not be served on the defendant and so also that sent by registered post A.D. Accordingly, publication was made in the issue of 16th June, 1991 of daily Mashriq and service by publication was held good. The defendant, however, did not appear before the Additional Registrar and as such the matter was fixed for final disposal in Court today. Today in Court also the defendant was called absent and, therefore, I have no option but to proceed and record the evidence of the plaintiff who was present since morning in Court.
2. ' The contention of the plaintiff is that by an agreement to sell dated 9-10-1985 he agreed to purchase from the defendant Plot No,E-66, Block-3, Nazimabad No,3, Karachi measuring 66.6 sq.Yds. Together with a double-storeyed building standing thereon for a total consideration of Rs,1,50,000, and for this agreement to sell Exh.3/1 was entered into between the parties. At the time of the said agreement the plaintiff paid an amount of Rs,15,000 to the defendant and it was agreed that the further amount of Rs,35,000 was to be paid within one month of execution of that agreement and another Rs,50,000 at the time of execution of the Sale Deed. The balance Rs,50,000 of the sale consideration was to be paid directly by the plaintiff to the House Building Finance Corporation whose loan was outstanding against the said property. It is contended that within a few days of the entering into of the above agreement the defendant approached the plaintiff and requested for payment of Rs,35,000 and offered to hand over vacant possession of the said property in return for such payment. Accordingly the plaintiff paid Rs,35,000 to the defendant and the defendant in part performance of the contract handed over the vacant possession of the suit property to the plaintiff. The aforesaid payment of Rs,15,000 and Rs,35,000 were acknowledged by the defendant in receipts Exhs.3/2 and 3/3. Later, it is stated, the defendant again approached the plaintiff for further payment on the pretext of urgent need of money and the plaintiff made this payment too. This payment was acknowledged by the defendant in receipt Exh.3/4. It is submitted that thereafter the defendant started avoiding the completion of the transaction and with this dishonest intention demanded further increase in the consideration of the said property. The plaintiff having already shifted his machinery in the suit property was placed in an awkward position and had to accede to the unjustified demand of the defendant with the result that after negotiations the plaintiff agreed to pay a further amount of Rs,50,000 which in other words amounted to increasing the sale consideration from the agreed amount of Rs,1,50,000 to Rs,2,00,000. After this understanding of the additional consideration the defendant required the plaintiff to pay off the loan of the House Building Finance Corporation of the said property and thereupon the plaintiff paid the said loan in eleven equal monthly instalments as set out in para. 6 of the plaint and the receipts of these payments have been produced as Exhs.3/9/1 to 3/9/11. The learned counsel for the plaintiff states that in this way the total amount paid to the House Building Finance Corporation towards the said loan was Rs,81,860 and not Rs,50,000 as the defendant had incorrectly informed the plaintiff. Thus, it is stated that a total amount paid towards the suit property works out to Rs,2,06,860 as against the agreed amount of Rs,2 lacs. Out of this payment Rs,1,25,000 was paid to the defendant directly and the balance was paid to the House Building Finance Corporation towards the redemption of the mortgaged property.
3. ' The above facts are supported by the evidence of the plaintiff who has appeared as a witness and produced the various documents. In his deposition the plaintiff has stated that the defendant is avoiding to execute the sale-deed and in spite of having recieved the entire sale consideration he is not to be found although the plaintiff has made repeated attempts to get hold of him. He has, therefore, prayed that if the defendant fails to execute the sale-deed the Nazir of this Court may be directed to execute the same.
4. ' In view of the above uncontroverted facts and the documents placed on record it appears that defendant has been paid the entire sale consideration and perhaps a little more than that in respect of the suit property and therefore, the plaintiff is entitled to a proper conveyance deed in his favour transferring the property. In the circumstances, I hold that the plaintiff is entitled to a decree of specific performance of the said contract and decree the suit accordingly. As such, I direct the Nazir of this Court to issue a notice to the defendant at his last known address as mentioned in the plaint and such other address, if any, supplied by the plaintiff, requiring him to execute the sale-deed of the suit property in favour of the plaintiff within one month of the date of issue of such notice and failing such execution by the defendant or the said notice remaining unserved the Nazir to execute the, Sale Deed. The costs of the suit is also awarded to the plaintiff.