1. ' The plaintiff has filed this suit for specific performance of contract, dated 13-4-1993 and transfer of office premises measuring 1200 Sq. Feet situated on Mezzanine Floor, Mazhar Arcade, Plot No,121, Block No,3, Behar Muslim Cooperative Housing Society, Karachi, hereinafter referred to as the ' suit property' and for possession thereof, in the alternate, compensation, referred as damages, is sought in the sum of Rs, 6,00,000.
2. ' The plaintiff's case, appearing from the plaint, is that it had booked the suit property in the project launched by the defendant No,1 on 13th April, 1993. The total amount of consideration for the suit property was settled at Rs,6,60,000. The Plaintiff claims to have paid a sum of Rs,3,35,000 to the defendant No,1 as per the agreed terms till February 1994. Such payments, according to the plaintiff, were made as and when demanded by defendant No,1. The plaintiff's further case is that after February 1994, the plaintiff did not receive any demand from the defendant No,1 of further payment despite willingness on her part to make payment of the balance amount. The plaintiff, at that stage, learnt that the defendant No,1 was trying to sell the suit property to a third party in order to defeat the rights of plaintiff. The present suit, therefore, was filed on 29-5-1996 against defendant No,1 seeking the various reliefs, as are contained in the prayer clause. It is further averred in the amended plaint that on 6-6-1996, the plaintiff came to know that the defendant No,1 had purportedly sold the suit property in favour of defendant No,2 and handed over its possession to him. Consequently, the defendant No,2 was impleaded as party vide Order, dated 8-4-1997 and the amended plaint was filed.
3. ' The defendant No,1 had filed written-statement on 8-9-1996 disputing the plaintiff' siclaim as was contained in the plaint originally filed on 29-5-1996. The defendant No,1, it appears, has not filed any amended written-statement, after the, submission of amended plaint. The defendant No,2, despite service of summons, has failed to file any written-statement and was debarred from filing written-statement through order, dated 20-1-1998. The case of defendant No,1, as if , found from the written-statement, is that the plaintiff was granted provisional allotment in relation to the suit property for a consideration of Rs,6,60,000. The amount of consideration had to be paid in quarter yearly instalments on the dates agreed between the parties and on account of default on the part of the plaintiff in payment of sixth and seventh instalment and after service of notices upon the plaintiff, the provisional allotment was cancelled. It is further the case of defendant No,1 that on 2-1- 1996, the plaintiff had informed it through telephone that she was not interested to continue the contract. The defendant No,1 is stated to have, then, intimated the plaintiff that the provisional allotment pertaining to the suit property was cancelled, further, requiring her to have refund of the amount in terms of the Agreement. It is further the case of defendant No,1 that the suit property was thereafter sold to the defendant No,2 on 14-2-1996 for a sum of Rs,6,20,000 with the result that the defendant No,1 had to suffer loss. It is further averred in the written-statement that defendant No,2 had taken over possession of the suit property and invested substantially therein. The plaintiffs claim, on the basis of above, has been disputed with the further assertion that the suit had been filed with the mala fide object of gaining from increase in the value of the suit property despite knowledge of the third party interest.
4. ' On the basis of above pleadings, the following issues, proposed on behalf of the plaintiff, were adopted on 10-8-1998.
ISSUES
(1) Whether the plaintiff is entitled for specific performance of the Contract of Sale dated 13-4-1993 with the defendant No,1 in respect of the premises bearing Office No,4 Mezzanine Floor. Mazhar Arcade, Plot No,121, Block No,3 Main Alamgir Road, Karachi on payment of balance sale consideration?
(2) Whether the plaintiff is entitled for possession of the said property?
(3) Whether the Contract of Sale between defendants Nos.1 and 2 liable to be cancelled and declared as of no effect against the plaintiff rights in the said property?
(4) Whether the defendant No,1 has sent legal notice and other demand notices in terms of the contract asking the plaintiff for the performance of his part of contract, if yes, what is its effect?
(5) Whether the defendant No,1 has sold the premises to the defendant No,2 for sale consideration of Rs,6,20;000 and suffered losses on account of the failure of plaintiff to perform his part of contract?
(6) Whether the defendant No,1 has rightly cancelled the allotment of the premises in favour of the plaintiff?
(7) Whether the defendant No,2 has made any investment in the premises in question after purchasing it from defendant No,1, what is its effect?
(8) Whether the plaintiff is entitled, in the alternative, for the damages to the tune of Rs,6,00,000 besides the refund of the sale consideration given to the defendant No,1 .
5. ' On the very date when issues were settled, Mr. Aamir Raza Naqvi was appointed as Commissioner for recording evidence. On 12-10-1998 application under Rule 159 of Sindh Chief Court Rules being C.M.A. No,8681 of 1998, filed on behalf of defendant No,2, was put up for orders before the Court and notice thereof was directed to be issued. The application is still pending and the diary of the Additional Registrar shows that the notice has not been issued for nonpayment of process fee. In the meantime, it appears that evidence from the plaintiff's side was recorded by the Commissioner and the sole witness produced by the plaintiff namely Riaz Ahmed Jawed, Exh. P/1, was duly cross- examined, too, by the learned counsel for both the defendants. The defendant No,1 produced its attorney Muhammad Naveed, Exh.D/1, who was partly cross-examined on 7-11-1998. Further, cross- examination was deferred, at that stage, at the request of the defendants' counsel but the witness did not turn-up despite a couple of adjournments. On account of failure of the defendants to produce the said Muhammad Naveed, Exh.D/1, for further cross-examination, the Commissioner submitted his report in Court which was taken on record by order, dated 21-12-1998. The, case was directed to be put up for final arguments implying thereby the side of defendants was closed.
6. ' I have heard Mr. Nazar Akbar, on behalf of the plaintiff, who has taken me though the record. The defendants Nos.1 and 2 and their learned counsel have chosen to remain absent without any intimation. Mr. Nazar Akbar has pointed out that the evidence of Muhammad Naveed, Exh.D/1, is to be discarded out of consideration due to his failure to turn-up for cross-examination. Thus, the defendants have failed to lead any evidence and for such reason the written-statement filed by defendant No,1 has lost its evidentiary value. My findings, issue-wise, are as follows: ' ISSUES NOS. 1 and 2.
7. ' Both these issues, can, conveniently, be dealt with together since finding on issue No,2 shall be depended on the out-come of issue No,
1. In relation to the first issue, the plaintiff's attorney, Riaz Ahmed Javed, Exh.P/1, in his deposition, has re-affirmed the contents of the plaintiff and given details of the Agreement reached with defendant No,1 for sale of the suit property. The plaintiff's attorney has produced the receipts, Exhs. P/3 to P/6, whereby the defendant No,1 had acknowledged a receipt of payment of a sum of Rs,3,25,000 towards booking/instalment of the suit property. The plaintiff's attorney, in his cross-examination, has denied receipt of various notices, allegedly sent to the plaintiff, except one letter, dated 23-5-1996, Exh.P/8/1, which is stated to have been received after institution of the proceedings. It is significant to note that the booking of suit property and agreement for sale pertaining thereto is not disputed by the defendant No,
1. The main defence, raised on behalf of defendant No,1, is that the plaintiff had failed to make payment and had expressed its disclaimer in relation to the suit property. Evidently, the burden to prove such assertion was upon the defendants who have failed to lead any evidence. I say so, since the defendant's sole witness Muhammad Naveed, Exh.D/1, did not appear for cross-examination after 7-11-1998. The statement of Muhammad Naveed, in relation to merits of the case could not be tested at all. The failure of Muhammad m Naveed to make himself available for cross-examination has rendered his evidence untrustworthy and devoid of credibility. As regards the entitlement to decree for specific performance, the plaintiff has to show existence of valid agreement between the parties and the willingness on her part to perform the contract. The plaintiff was obliged under the terms of booking to make payment of the agreed amount of consideration out of which a sum of Rs,3,25,000 was paid to the defendant No, 1 . The only material defence which has been urged from the defendants side is that the defendant No,2 had subsequently purchased the property and the plaintiff had known about transfer of suit property in favour of defendant No,2 before filing the present case.
8. ' During his cross-examination, the plaintiff's attorney has made admission in the following terms which is quite significant: "It is correct that when some one else had purchased the property and I had seen it that he had spent huge amount I had filed the present suit?"
9. The learned counsel for the plaintiff, when confronted with the above referred admission, has contended that upon proof of contract between the parties, decree for specific performance has to be granted unless any party can establish existence of the exception, contained in section 27 of the Specific Relief Act. The burden to prove that the defendant No,2 as the second purchaser did not have notice of Plaintiff's claim pertaining to the suit property was upon the defendant No,2. The plaintiff, despite having made the above referred statement, during his cross-examination, cannot be deprived of the relief of specific performance unless existence of exception contained in clause
(b) of section 27 of the Specific Relief Act is positively established from the defendant-side. The learned counsel, in support of his submission, has referred to the case of Mst. Khair-un-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) which lays down the following principle of law: "It will be noticed that under this provision of law, a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract. It is, therefore, for the transferee to prove that he was a transferee in good faith and without notice of the original contract for valuable consideration."
10. ' It is further laid down in the said judgment as follows: "It is thus quite clear that in a suit for specific performance of contract the onus lies heavily on the person whose title arises subsequent to the contract to sell and he must prove that he is a transferee for value and has paid the money in good faith and without notice of the original contract."
11. ' The position of law emanating from the principle laid down by the Hon'ble Supreme Court of Pakistan in the above cited judgment makes it incumbent on the subsequent transferee to prove in the negative that he had no knowledge of the earlier transaction. The burden to prove lack of knowledge, in the negative terms, can, sufficiently be discharged if statement is made on oath by the subsequent purchaser. The onus of proof would shift only then to the other side to prove knowledge on the part of subsequent transferee about the earlier sale. In the present case, the defendant No,2 has not filed any written-statement whereas the defendant No,1 has failed to adduce any evidence. The written-statement, filed by defendant No,1, though verified on Oath, loses its evidentiary value whereas no statement on Oath has come-forth from the side of defendant No,2 at all. In the circumstances, mere knowledge of subsequent sale on the part of plaintiff cannot be held a ground for denying the relief of specific performance to him. No other objection, having seriously been urged, my finding on issue No,1 is in the affirmative. Consequently, finding on issue No,2 has also to be recorded in the affirmative.
12. ' ISSUE NO. 3: ' It is an admitted position on record that the plaintiff had a prior claim in relation to the suit property and the alleged transaction in favour of defendant No,2 was effected at a much later date. In view of my findings on issues Nos. 1 and 2, the defendant No,1 could not have created any right in favour of defendant No,2 nor can the plaintiff's claim in relation to the suit property be defeated on account of the alleged transaction between the two defendants. While the parties have failed to show if any contract of sale of the suit property was executed inter se the two defendants and the same is liable to be cancelled, the plaintiff is surely entitled to a declaration that the alleged transaction between the defendants Nos.1 and 2 cannot defeat her right in relation to the suit property. Finding accordingly.
13. ' ISSUES NOS. 4, 5, 6 and 7: ' The burden to prove these issues is on the defendants who have failed to produce any evidence.
14. In any event, these issues were settled on the basis of written-statement filed by defendant No,1, which, in any event, has lost its evidentiary value for the reason that no witness was examined by the defendants. The four issues, therefore, have remained unproved.
15. ' ISSUE NO.8: ' This issue had been settled on account of the alternate prayer for compensation, contained in the plaint. In view of my findings on issues Nos.1 and 2, the plaintiff is not entitled to claim any compensation and such prayer, indeed, is not pressed by the hearted counsel for plaintiff.
16. In view of my findings on issues Nos.1 and 2, the plaintiff's suit is decreed against defendants for specific performance of contract dated 13-4-1993 pertaining to office premises measuring 1200 Sq.
17. Feet situated on Mezzanine Floor, Mazhar Arcade, Plot No,121, Block-3, Behar Muslim Cooperative Housing Society, Karachi in terms of the prayer clauses (1) and (2), contained in the plaint. Since the suit has not been defended beyond the stage of evidence, the parties are left to Bar their own costs .
18. ' The plaintiff shall deposit the balance amount of sale consideration which comes to Rs,3,25,000 with the Nazir of this Court within two weeks.