1. ' MUHAMMAD HUSSAIN ADIL KHATRI, J.---This appeal is directed against the judgment and decree dated 26-4-1986, passed by a learned Single Judge in Suit No,83 of 1983 to the extent that the appellant, who was plaintiff in the suit, was not allowed cost of the suit and adjustment of Rs,30,000 paid by him to respondent No,1.
2. ' The facts of the case, relevant for the purpose of this appeal, briefly are that respondent No,1 had agreed to sell Property No,2-229, F-II, Block 2, P.E.C.H.S. Society, Karachi to respondent No,2, but before completion of sale respondent No,2 agreed to sell the aforesaid property to the appellant.
3. Accordingly a tripartite agreement dated 11-2-1981 was executed among respondent No,1 as seller, appellant as the purchaser and respondent No,2 as confirming party. Out of the total sale consideration, a balance of Rs,62,500 only was left to be paid by the appellant to respondent No,1.
4. In the aforesaid agreement it was stipulated that the aforesaid amount payable to respondent No,1, would be paid by the appellant to respondents Nos. 2 and 3 and the receipt issued by either of them, in respect thereof, shall fully discharge the appellant from her above liability.
5. ' With regard to liability to Capital Gain Tax and execution of sale-deed in favour of the appellant, the covenants read as under:--- "6. That the vendor shall at her own expense obtain and receive all the certificates, permissions and authorities necessary for selling the property to the vendee and the vendor shall also clear the Capital Gains Tax liability and obtain a certificate so that the same shall be produced before the Registrar at the time of registration of the sale-deed, whereas, all expenses of registration, stamp and mutation fee of concerned departments shall be borne exclusively by the vendee.
8. That a General Power of Attorney has been given by the vendor to Haji Abdul Hamecd, the husband of the confirming party and it is agreed that the confirming party and her husband shall also be responsible for obtaining the lease of the property from the society, permission of sale of the property from the society as well as from the Government, Capital Gains Clearance Certificate entirely at their cost and if the Attorney fails to perform any or all of the duties, the vendee shall be entitled to claim costs and to require the vendor to perform the same at her own expense. It is further agreed that the amount of Rs,62,500.00 agreed to be paid by the confirming party to the vendor shall be paid by the vendee either to the confirming party and/or to Haji Abdul Hameed, Attorney to the vendor and the receipt thereof, shall . fully discharge the vendee in all respects therefrom. The payment of amount of Rs,62,500.00 shall be made only at the time of execution and registration of the sale-deed before the Registrar."
6. ' The respondent No,1 and so also 2 and 3 failed to execute the sale-deed in favour of the appellant despite the fact that the appellant specifically by separate notices called upon respondent No,1 and respondents Nos.2 and 3 to perform their part of the contract.
7. ' The appellant, therefore, was constrained to file the suit, in which it was pleaded that he had paid to respondent No,1, at the request of respondents Nos.2 and 3, a sum of Rs,30,000.00 out of the balance sale consideration of Rs,62,500.00. It was further averred that respondent No,1 had executed Power of Attorney in favour of respondent No,3 for completion of sale transaction.
8. ' Respondent No,1 did not come forward to contest the suit. Respondents Nos.2 and 3, in their written statement denied that they had requested the appellant to pay the aforesaid sum of Rs,30,000.00 to respondent No,1. It was pleaded that they had no knowledge about the registration of Power of Attorney by respondent No,1 in favour of respondent No,3. It was further averred that respondent No,3 had no authority to receive the Power of Attorney, if it had been registered. With regard to Capital Gain Tax, it was stated that it was payable by respondent No,1.
9. ' We have heard M/s. Mansoorul Arfin and M. Farooq Hashim, the learned Advocates for the appellant and respondents Nos.2 and 3 respectively.
10. ' The learned Judge found on the basis of the evidence on record that there was nothing on the record to show that defendant No,2 had given any instructions to the appellant. It has been further observed that the appellant had failed to prove such oral instructions also as pleaded by him. This issue was accordingly decided against the appellant. Exhibit P.6, notice dated 10-1-1982, given by the appellant to respondents Nos. 1, 2 and 3, refers to the said payment in the following words:--- "However, Mst. Hasina Begum, her sons, S. Bazlur Rehman and S. Fazlur Rahman received a further sum of Rs,30,000 in cash from our client and gave a receipt in acknowledgment thereof to our client. This receipt can also be presented at any time before any authority to prove the fact that the amount of Rs,30,000 had been paid by our client in cash to the abovesaid person. Now only an amount of Rs,32,500 is payable by our client to Mst. Hasina Begum at the time of execution of registration of the sale-deed of the abovesaid property by her in favour of our client."
11. ' The above averments do not disclose that such payment of Rs,30,000 was made by the appellant under the instructions of respondents Nos.2 and 3. Abdul Jabbar son of respondent No,2 in his evidence stated that neither his father nor his mother had asked the appellant to pay the sum of Rs,30,000 or any amount to defendant No,1. The burden to prove the fact that the said payment was made by the appellant on the request of the respondents Nos.2 and 3 was on the shoulders of the appellant, which he failed to discharge and on the contrary the notice of the appellant, which contains the earliest averment with regard to the said payment to respondent No,1, does not refer to the alleged request of respondents Nos.2 and 3.
12. ' The covenants at paragraphs Nos.6 and 7 of the tripartite agreement clearly stipulates execution of General Power of Attorney by respondent No,1 in favour of respondent No,3 for the purpose of conveyance of the property to the appellant. It is established on record that respondent No,1 had presented on 14-2-1991 Power of Attorney in the Office of the District Registrar for registration and the same was executed. It has been established further that respondents Nos.2 and 3 were fully aware of the aforesaid fact but on the pretext that they had no knowledge about the registration of the Power of Attorney, denied the execution thereof. Such averments have been made by them in paragraph 5 of the written statement. It has been further stated in the same paragraph that respondent No,3 had no authority to receive the Power of Attorney if any, had been registered.
13. ' In any event so far as the appellant is concerned, he was made to believe that the Power of Attorney was executed. The terms of the agreement further suggest that the said Power of Attorney is in possession of respondents Nos.2 and 3, who had undertaken *to convey the property to the appellant by registered sale-deed.
14. ' It may be pointed out that the respondent No,2 had on 1-8-1980 purchased the property from respondent No,1 for a sum of Rs,350,000 out of which she had paid a sum of Rs,287,500, the balance amount of Rs,62,500, being payable at the time of execution of the sale-deed. Respondent No,2 thereafter sold the property on 11-2-1981 to the appellant for a sum of Rs,762,500.00.
15. The Capital Gain Tax was payable by the vendor for the gain made by her on sale of the immovable property. Under such circumstances on the one hand respondent No,1 was liable to pay Capital Gain Tax in case there was a capital gain and so also respondent No,2 had to pay the said tax on the gain made by her by selling the property for the aforesaid consideration after only six months and eleven days of the purchase of the property for nearly half of the sum for which it was sold by her to the appellant. Under these circumstances it cannot be said that respondent No,1 alone was liable to pay the capital gain tax. It had become the joint liability of both the respondents.
16. ' No doubt, paragraph 6 of the Agreement specifically provides that respondent No,1 shall clear the capital gain tax liability and obtain a certificate, but in paragraph 8 it has been specifically stipulated that respondents Nos.2 and 3 shall also be responsible for obtaining capital gain clearance certificate entirely at their costs. Respondent No,2 had gained the most in the transaction, sight of this fact cannot be lost, and such appears to be the reason for passing on the responsibility on the shoulders of respondents Nos.2 and 3. In any event, the maximum that can be said with regard to this liability, would be, as observed above, that it was to be jointly shared by respondents Nos.1 and 2 not by respondent No,1 alone.
17. The appellant was constrained to file the suit and such a situation could have been avoided if the respondents had performed their part of the contract. Therefore, the question of payment of cost ought to have been attended to by the learned Judge. However, nothing has been said about the cost. On the basis of above facts we are of the opinion that the appellant was entitled to cost of the suit at least proportionately as the appellant was wrongly claiming adjustment of Rs,30,000.00 from the balance sale consideration. We, therefore, allow this appeal to the extent that the suit shall be deemed to have been decreed with proportionate cost to the plaintiff and decree shall be prepared accordingly. The cost shall be payable by the respondents Nos.1 and 2 jointly and severally.
18. ' Since the appeal has been allowed partly, the appellant is allowed proportionate cost of this appeal against respondent No,2 alone.