1. ' The plaintiff had filed this suit for specific performance of an oral agreement between him and the defendant No,1 whereby the defendant No,1 agreed to sell and the plaintiff agreed to purchase the property namely, plot of land bearing No,72-C, situated at Tipu Sultan Lane-3, Phase-VIII, Defence Housing Authority, Karachi, for a total consideration of Rs,1,10,000. It is the case of the plaintiff that he paid the defendant No,1 Rs,50,000 in cash on the 31st March 1988, when the oral agreement was arrived at and that the balance of the consideration money was to be paid on verification of documents. It is further the case of the plaintiff that, after verification of the documents, the plaintiff approached the defendant No,1 and offered to pay the balance Rs,60,000 and asked him to complete the sale transaction but the defendant No,1 failed to do so. The defendant No,1 then entered into transaction for sale of the same property to the defendant No,2 and consequently the defendant No,2 was impleaded as a party to the suit.
2. ' The defendant No,1 was duly served with the summons in this suit but has not appeared to defend the suit. The suit has; therefore, proceeded ex parte against him. The defendant No,2 has filed a written statement pleading, inter alia, that he has purchased the properly bona fide, for value and without knowledge of the alleged agreement between the plaintiff and the defendant No,1. On the pleadings of the parties the following issues were framed:
(1) Whether the suit for specific performance is maintainable?
(2) Whether there is any oral sale agreement of the plot between the plaintiff and the defendant No,1?
(3) Is the defendant No,2 a bona fide purchaser, from the defendant No,1, of the sale plot, for consideration fully paid under the Sale Agreement dated 27-5-1988. If so, its effect?
(4) What should the decree be?"
3. ' I have perused the record of the case and heard the learned counsel for the plaintiff and the defendant No,2. My findings on the issues are as follows: ' Issues Nos. 1 and 2.--These issues have arisen because of the pleas taken by the defendant No,2 in his written statement. The plaintiff, in support of his case, has deposed that there was an oral agreement of sale between him and the defendant No,1 as averred in the plaint, and has produced the receipt for Rs,50,000 (Exh.6/1). The receipt shows that the amount of sale consideration was agreed to be Rs,1,10,000, that an amount of Rs,50,000 was paid by the plaintiff to the defendant No,1, and that the balance of the consideration money was to be paid on verification of documents. His evidence has gone unchallenged. It is thus established that there was an agreement for sale of the property in question between the plaintiff and the defendant No,l. It is also established that the defendant No,1 has failed to perform his part of the agreement. The suit for specific performance is, therefore, maintainable.
4. ' Issue No,3:--The defendant No,2 has produced the agreement of sale dated the 27th May, 1988 (Exh.7/1) whereby the defendant No,1 agreement to sell the property in question to him for Rs,2,40,000, he had also produced the receipts (Exhs.7/2 and 7/3) showing payment of Rs,2,40,000 to the defendant No,1. The documents produced by the defendant No,2 show that the documents necessary for transfer of the property to the defendant No,2 in the records of Pakistan Defence Officers Housing Authority were executed by the defendant No,1 and were lodged with the Authority for necessary transfer. It is the case of the defendant No,2 that the property was about to be transferred to him when an order was passed in this suit restraining the transfer. The transaction between the defendant No,1 and the defendant No,2 was, thus, in all respects complete and final transfer to the defendant No,2 has been withheld only because of an order passed in this suit. With regard to the agreement between the plaintiff and the defendant No,1, the defendant No,2 has deposed on oath that he had no knowledge of that agreement. That statement has remained uncontroverted. He has, thus, discharged the burden which was upon him of showing that he purchased the property in question without knowledge of the agreement between the plaintiff and the defendant No,1. That being so, the provisions of section 27(b), Specific Relief Act, 1877, are not applicable and the plaintiff is not entitled to a decree for specific , performance against the defendant No,2.
5. Issue No,4.--Since the property in question has already been transferred by the defendant No,1 to the defendant No,2, it is obvious that specific performance of the agreement for sale of that property cannot be granted. The plaintiff, however, is entitled, by virtue of para. 2 read with the Explanation, of section 19 of the Specific Relief Act to a decree for compensation/damages. The plaintiff has paid the defendant No,1 Rs,50,000 and is entitled to the refund thereof. He is also entitled to compensation; and since the defendant No,1 has sold the property to the defendant No,2 for Rs,2,40,000 the proper measure of damages would be the difference between that amount and the amount i,e, Rs,1,10,000 for which the defendant No,1 had agreed to sell the property to the plaintiff. That difference comes Rs,1,30,000. The suit of the plaintiff is, therefore, decreed against the defendant No,1 for Rs,1,80,000 with interest thereon at the rate of Rs,10% per annum from the date of the suit till payment and costs of the suit.
6. ' Mr. S. Ali Ahmed Tariq says that in pursuance of the order dated the 6th May, 1990, the plaintiff has deposited a sum of Rs,60,000 with the Nazir of this Court, and requests that the Nazir be directed to refund that amount to the plaintiff. It is, therefore, ordered accordingly.