1. This revision is directed against the . judgment and decree dated 6th November 2001 passed by the learned IIIrd Additional District Judge. Karachi-South, allowing Appeal No,159 of 2000 filed by the present respondent No,1 and others and thereby setting aside the judgment and decree passed by the learned IInd Senior Civil Judge, Karachi-South, decreeing Suit No,417 of 1995 filed by the applicant/plaintiff against the present respondents/defendants for recovery of Rs,1,90,000 from defendants/ respondents Nos.1 to 6 as his commission/ brokerage.
2. The facts are short and simple. Applicant/plaintiff Daraius Cooper filed a suit for recovery of Rs,1,90,000 being the amount of his commission/brokerage for his services acquired by respondents/defendants Nos.1 to 6 for sale of their property bearing No,21/1, Survey Sheet No,CL-6, measuring 3671 sq. yards, with construction thereon (hereinafter referred as "the property"). In support of his claim, the plaintiff placed reliance on the photostat copies of title document's viz. extract from record of rights alongwith site plan which were handed over to him by the said defendants while agreeing to pay commission/brokerage at the rate of 2% (two per cent.) of the total sale consideration. It is the case of the plaintiff that he made hectic efforts by advertising in Daily "The News" dated 12-3-1993, 2-4-1993, 20-8-1993, 1-10-1993, 22-10-1993, 19-11-1993 and 24-12- 1993 for the sale of the property and ultimately found a buyer viz. defendant No,7 who agreed to purchase the same for a sate consideration of Rs,95,00,000 (Rupees ninety-five lacs). The said purchaser on his part had also agreed to pay commission/brokerage to the plaintiff at the rate of 2% (two per cent.) of the total sale consideration. According to the plaintiff the deal was finalized oh 12-10-1994 and the property was purchased by defendant No,7 who on his part has paid the commission/brokerage to the plaintiff amounting to Rs,1,26,000 vide Cheque No,01696345 dated 29-11-1994 drawn on MCB Binori Town Branch, Karachi. However, no relief was claimed against defendant No,7 though he was joined as a defendant in the suit. The plaintiff has also pleaded that the defendants Nos.1 to 6 went on avoiding to pay the commission/brokerage despite keeping him on hopes and ultimately refused to pay the same, hence he filed the suit.
3. In their written-statement defendants Nos.1, 2 and 6 while denying the claim of the plaintiff stated that the plaintiff had casually approached them when he came to know that the property was in market for sale and had promised to get some prospective buyer. He demanded photo copies of the title documents which were handed over to him without committing any contractual obligation. Any commitment for payment of any brokerage or commission as alleged by the plaintiff was denied. It was further pleaded that it is a common feature of the process to give advertisement in the newspapers until some contract between the seller and the buyer is materialized and no brokerage is to be paid till then. It was further stated that small advertisements periodically inserted in the Friday Issue of daily "The News" are free of cost hence nothing was spent by the plaintiff. It was further stated that, in fact, the defendants/vendors sold the property through another broker by name Abdullah as the plaintiff had failed to bring any purchaser and, in fact, after December, 1993 the property was not even advertised in the newspapers and it was through the efforts of another broker, namely, Abdullah that the deal was materialized and the said Abdullah was paid his commission/brokerage accordingly. The purchasers had given/published public notice in daily "Dawn" (English), Karachi dated 23-7-1995 and daily "Millat" (Gujrati), Karachi dated 21-7-1995 showing their intentions to purchase the property in question by inviting objections if any from any person having interest in the said property. It was further averred that the plaintiff never raised any objection at that time or asserted his alleged, rights. The fact that this deal was not made through him is evident from the fact that he is not even aware of the fact that two separate agreements of sale were executed between the vendors and the vendees. One between the defendants Nos.1, 2 and 6 as vendors and defendant No,7 as vendee for the sale of two-third of the property and the other between defendants Nos.3, .4 and 5 as vendors and defendant No,7 as vendee for the sale of the remaining one-third of the property. If the plaintiff would have been the broker for the said deal, he would have filed the copy of the agreement of sale which would have included his name as recipient of the alleged two per cent. brokerage. In fact, the plaintiff never procured defendant No,7 as a buyer of the property and it was one Abdullah who procured defendant No,7 as the buyer and with whom two per cent. brokerage had been agreed upon. This fact finds place in the agreement of sale executed on 15th June, 1994 between the parties to the sale which shows that brokerage at the rate of two per cent. was to be paid on the conclusion of the sale-deed to said Abdullah. It was denied that any payment allegedly commission/ brokerage amounting to Rs,1,26,000 was to be paid to the plaintiff by defendant No,7. It was stated that plaintiff was present at the time of registration of sale-deed and he never objected to it. It was, therefore, prayed that the suit be dismissed with costs as the plaintiff is not entitled for the relief claimed by him.
4. Defendant No,7 also filed his written statement challenging the locus standi of the plaintiff to file the suit against the said defendant. It was categorically denied that the property was purchased by him through the plaintiff. All other pleas taken by the plaintiff in his suit as against other defendants were denied for want of knowledge. It was categorically pleaded that the property was purchased by defendant No,7 from defendants Nos.1 to 6 through his friend Abdullah and not through the plaintiff, hence there was no occasion for payment of any commission or brokerage to the plaintiff. Contents of para-6 of the plaint in which the plaintiff had claimed the deal to have been finalized through him on 12-10-1994 or issuing any such cheque for Rs,1,26,000 being the commission/brokerage as alleged by the plaintiff, were denied being false and misconceived.
5. In view of the pleadings of the parties the learned trial Court framed the following five Issues:--
(1) Whether the defendants Nos.1 to 5 through their attorney defendant No,6 entered into an oral agreement, as per practice prevailing in the city, for sale of the property in question to defendant No,7 on payment of 2% brokerage charges to the plaintiff from both the parties (seller and purchaser)?
(2) Whether the defendant No,7 has purchased the snit property through the plaintiff?
(3) Whether the defendant No,7 paid the commission/brokerage charges to the plaintiff in respect of suit plot?
(4) Whether the defendants Nos.1 to 5 are liable to pay the commission/ brokerage charges to the plaintiff on account of sale of suit plot?
6. (5)What should the decree be?
7. An additional issue regarding maintainability of the suit was also framed.
8. In support of his case plaintiff examined himself and produced photostat copies of newspapers as Exhs.P/1 to 7, extract from register of property as Exh.P/2, site plan as Exii.P/3. He also produced photostat copy of a cheque for Rs,1,26,000 allegedly given to him by defendant No,7 as his commission/brokerage (Exh.P/4) and thereafter closed his side.
9. In rebuttal defendant No,6 Dinyar Maneck Chenoy tiled his affidavit-inevidence and produced original copy of agreement of sale executed on 13-6-1994 (Exh.D/2) between Miss Mani Dorabji.
10. Marker and Mrs. Dino Maneck Chenoy as vendors and Messrs Gani and Tayub (Private) Limited through its Director Haji Sharif Tayub- as vendee showing the sale of 2/3rd of the property for Rs,63,33,333 (Rupees sixty-three lacs thirty-three thousand three hundred thirty-three only). Para. 12 of said agreement' shows that brokerage at 2% (two per cent.) was payable by vendors to Abdullah on proportionate sale consideration. One Dhunghadilly was also examined as a Court witness at the request of the plaintiff who was cross-examined" by both sides except the counsel for defendant No,7.
11. The learned trial Court replied additional Issue No,1 in negative while holding that the suit to be maintainable according to law. Issues Nos.2 and 4 were :replied in affirmative whereas Issue No,3 in respect of payment of alleged brokerage by defendant No,7 to the plaintiff was replied as not proved and ultimately suit of the plaintiff was decreed as prayed, however, with no order as to costs. Mrs. Soonu F. Kandawalla and others filed an appeal which was heard and allowed by the learned IIIrd Additional District Judge, Karachi-South, on 6-11-2001 resulting in dismissal of the suit of the plaintiff.
12. I have heard Mr. Muhammad Zubair Qureshi, learned counsel for the applicant/plaintiff, and Mr. R.F.
13. Virjee, learned counsel for respondents Nos.1, 2 and 3. Mr. Abdul Sattar Usman Memon, Advocate, who appeared for respondent No,7, stated that since no relief has been claimed against his client hence he has nothing to say. However, he added that defendant No,7 has already filed his written statement denying to have paid any commission/brokerage to the plaintiff for the deal allegedly finalized through him.
14. Mr. Muhammad Zubair Qureshi has mainly argued that the services of the applicant/plaintiff were acquired by respondents/defendants Nos.1 to 6 for sale of the property through him and the photostat copies of the title documents viz. extract from the record of rights alongwith site plan were handed over to him by them which is the usual practice for hiring the services of a broker. The said photostat copies have been Produced in evidence by the applicant/plaintiff and this fact has not been denied by the respondents/defendants. Learned counsel has further argued that notices for sale were published in daily "The News" Karachi on seven various dates from 12-3-1993 to 24- 12-1993 which fact too has not been disputed by the respondents/ defendants. Referring to the cheque of Rs,1,26,000 allegedly being amount of commission/brokerage having been received by the applicant/plaintiff from respondent/ defendant No,7/purchaser, the learned counsel has argued that the payment made through the said cheque by respondent/ defendant No,7 clearly shows that deal was finalized between the vendors and vendees through the applicant/plaintiff.
15. Learned counsel has also argued that mere filing of written statement by respondent/defendant No,7 is not sufficient to prove his contentions and his non-appearance in support of the plea raised therein cannot be given any weight. In respect of this proposition of law the learned counsel has relied upon the case of Mst. Maryam Mirza v. M.M. Kazi and others (1988 MLD 1651). Learned counsel has further argued that Abdullah to whom the respondents/defendants claimed to be the broker in this deal was not examined and there is no proof of his death on record. In order to establish the right of a broker to receive his brokerage/commission even in the absence of contract in writing, the learned counsel has referred to the cases reported as Haji Qabool Muhammad Shah v. Pir Sarfraz Ahmed (PLD 1974 Karachi 334) and Liladhar Chatrabhuj v. Mathuradas Gokuldas (AIR 1934 Bombay 158). Learned counsel has also referred to section 70 of the Contract Act to substantiate the claim of the plaintiff even in the absence of any agreement in writing. He has also referred to the statement of Dhun Ghadially who was examined as a Court witness and according to the learned counsel the said witness has not supported the case of the respondents/ defendants. Mr. Muhammad Zubair Qureshi, therefore, vehemently urged that the judgment of the learned Appellate Court is not based on proper appreciation of law, facts and equity, hence liable to be set aside.
16. Mr. R.F. Virjee, learned counsel for the respondents Nos.1, 2 and 3, has argued that the judgment passed by the learned trial Court has been rightly set aside by the learned Appellate Court as the applicant/plaintiff failed to establish that the said deal was finalized through him and the judgment and decree passed by the learned Appellate Court are legal, based on sound reasonings and appreciation of evidence on record. In order to justify the findings of the learned Appellate Court. Mr. R.F. Virjee has pointed out that the applicant/plaintiff has miserably failed to establish through evidence that the deal was finalized through him. According to para.6 of the plaint the deal is shown to have been finalized on 12-10-1994 whereas the applicant/plaintiff claims to have received Rs,1,26,000 as his brokerage from respondent/defendant No,7 Haji Sharif through a bearer cheque dated 29-11-1994. It has been pointed out by Mr. Virjee that the said cheque dated 29-11-1994 as referred in the plaint and denied by defendant No,7 in his written statement to have been issued by him in favour of the plaintiff as his alleged ' commission/brokerage, photostat copy whereof has been produced in evidence (Exh.P/4) neither bears the signature of defendant No,7 nor it is in the name of the plaintiff. Though, in his cross-examination the applicant/plaintiff has stated that his commission was paid by the purchaser at the rate of one per cent. of the sale consideration but the amount shown in the cheque does not, reconcile with the sale consideration which is shown Rs,95,00,000 in para.4 of the plaint. In such eventuality the one per cent. of sale consideration shall come to Rs,95,000 only hence it is vehemently .urged by Mr. Virjee that the said cheque relates to some other transaction between some other parties and the applicant/plaintiff has set up a false plea which he failed to prove and substantiate. Mr. Virjee has further pointed out that according to the applicant/plaintiff, the deal was finalized on 12-10-1994 but, in fact, two different sale-deeds were executed at two different dates. The first sale-deed was executed on 25- 8-1994 showing sale of one-third undivided share of the property in favour of Messrs Gani and Tayyab (Pvt.) Limited whereas the other sale-deed was registered on 10th October. 1994 showing the sale of remaining two-third of the property in favour of the same purchaser. According to Mr. Virjee this fact clearly shows that transaction in respect of the property had taken place at two different times and through two separate . registered deeds hence the contention of the applicant/plaintiff in the plaint and in his evidence that the sale was made through his efforts on 12-10-1994 clearly shows that the applicant/plaintiff has set up a false claim. Learned counsel was also referred to the agreement dated 15th June, 1994 placed on record duly executed between the vendees and the vendor which shows name of one Abdullah as the broker through whom the deal is shown to have been finalized and his brokerage at the rate of two per cent. has been shown payable. Mr. Virjee further argued that Dinyar Maneck Chenoy in his affidavit-in-evidence has categorically stated that the deal was not finalized through the applicant/plaintiff but it was through another broker by name Abdullah to whom his brokerage at the rate of two per cent. has been paid. The said witness has further stated that the said Abdullah had expired as such he was not produced as a witness in the suit. On application filed by the applicant/plaintiff to summon and examine one Dhunghadilly as a witness in this case, the said witness was summoned and examined in Court. In his cross-examination by the learned counsel for the applicant/plaintiff he has denied to be a broker or to have worked as a broker in the transaction in dispute. He has further stated that he did not know Haji Sharif Tayyab of Messrs Gani and Tayyab (Pvt.) Limited but he has categorically stated in his cross-examination to the counsel for the applicant/plaintiff that he had brought one broker, namely, Abdullah to deal with the property. Again in his cross- examination to the learned counsel for respondents/ defendants Nos.1, 2 and 6 he has admitted and stated that he had brought Abdullah in the capacity of a broker. He has further stated that defendant Dinyar Maneck Chenoy had told him that he had paid brokerage to said Abdullah. He has also stated that he had no personal knowledge if Abdullah had received his brokerage as he was not in Karachi at that time. The plea taken by the plaintiff that he had arranged this deal between the defendants Nos.1 to 6 as vendors arid defendant No,7 as vendee has also been categorically denied by defendant No,7 in his written statement. No doubt, defendant No,7 has not examined himself during the trial but the fact remains that he was also not summoned by the plaintiff as a witness as well. Indeed, rule has been laid down in the case of Mst. Maryam Mirza (supra) cited by Mr. Muhammad Zubair Qureshi in support of his contention that written statement could not he deemed to be a substantive evidence in a suit where defendant did not appear to support the pleas raised therein to offer himself for cross-examination on facts stated in the Written statement, hence the pleas raised therein could not be relied upon. However, it has been further held in the same report that before the Court could be called upon to make any presumption of the kind, it is for the plaintiff to satisfy the Court to have made out a prima facie case. What is prima facie, it is to be seen from the evidence and the material available on record? The payment of the amount of alleged brokerage to the plaintiff has been denied by vendee/defendant No,7 and the cheque dated 29-11-1994 (Exh.4) has been disowned by him. In view of the said denial, initial burden was upon the plaintiff who has, prima facie, failed to show that it was a cheque issued by defendant No,7 towards payment of alleged amount of brokerage, because the said cheque is neither Issued in the name of the plaintiff nor signed by defendant No,7. On the contrary it appears to have been issued/signed by a person by name "M. Iqbal" and there is nothing on record 'to show any relations between defendant No,7 and said M. Iqbal. Furthermore, as observed above, the amount of Rs,1,26,000 shown in the said cheque does not reconcile with the plea that it was the amount of the commission of the plaintiff either at the rate of 1% (one per cent.) or 2% (two per cent.) of the sale consideration amounting to Rs,95,00,000. Prima facie it does not appear to have any nexus with defendant No,7, hence non-appearance of the said defendant in support of his plea taken in the written statement denying the case of the plaintiff is immaterial and shall not justify for drawing a presumption against him. Even the trial Court has held Issue No,3 as "not proved".
17. I agree with Mr. Muhammad Zubair Qureshi that it is not always necessary that an agreement should be in writing. He has rightly referred to section 70 of the Contract Act as discussed in the case of Messrs Ahmed Constructions v. Messrs Neptune Textile Mills and another (PLD 1990 Karachi 216) to B show that "even if there was no contract, then also where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore the thing so done or delivered". The cofiduct of defendants Nos.1, 2 and 6 in handing over the photostat copies of the above referred documents is sufficient to show that there was an agreement between the plaintiff and the said defendants as claimed by the plaintiff, but the fact remains that there was complete silence on the part of the plaintiff since after December, 1993 and he appears to have failed to procure any purchaser, and the deal was not finalized through him but it was through another broker by name Abdullah more than six months after the last publication which appeared in daily "The News", Karachi in the month of December, 1993.
18. Whether in such circumstances the defendants/vendors shall be held liable to pay the amount of commission/brokerage to the plaintiff.
19. In the case of Haji Qabool Muhammad Shah (supra) a Division Bench of this Court after examining a number of authorities from Indian Courts has laid down the following test in order to ascertain whether a broker/claimant for his commission/brokerage is entitled to recover the same in view of the facts of each case:-- "....The test in such cases is whether the broker, who claims brokerage, is the effective and efficient cause of the completion of the transaction---the causa causans and not the causa sine qua non of the deal. If the transaction has resulted only as a casual and C remote consequence of the broker's intervention, that would not be sufficient: Burchell v. Gowrie and another 1910 AC 614.
20. Further if the negotiations on the part of the broker have completely ceased and have been Abandoned at the time his employment as a broker has ceased, the agency of the broker ceased too, and with it the right to claim remuneration. "Laladhar Chatrabhuj v. Mathurodas Gokuldas AIR 1934 Bom. 158."
21. Thus, it will have to be seen (1) whether the plaintiff/broker was effective and efficient cause of the completion of the transaction i.e, the causa causans (the immediate cause) and not the causa sine qua non (a necessary and inevitable cause)? (2) Whether the broker shall be entitled for his commission even if the transaction had resulted only as a casual and remote consequence of the broker's intervention? (3) Whether negotiations on the part of broker had completely ceased and had been abandoned and he had ceased to be a broker.?
22. After scanning the evidence on record and applying the above referred test as laid down in Haji Qabool Muhammad Shah's case (supra) it would appear that services of the plaintiff were acquired by the defendants/vendors somewhere in March, 1993 but he failed to get the deal finalized or to introduce the defendant No,7 as a purchaser. There is complete silence on the part of the plaintiff since after 24-12-1993 when the last advertisement appeared in Daily "The News"; Karachi. It was in June, 1994 when the intending purchasers/defendant No,7 got published a public notice in Daily "Millat" (Gujrati), Karachi dated 12-6-1994 and Daily "Dawn" (English), Karachi after being introduced to the defendants/vendors by another broker Abdullah who was paid his commission/brokerage and had already expired before he could be examined in Court. An agreement executed between the parties to the sale clearly shows name of said Abdullah as a broker for the said deal alongwith the rate of his remuneration. The unawareness of the plaintiff that the transaction took place at two different times in respect of the parts of the property in question is also a relevant factor to show that he had already lost interest and abandoned the job assigned to him. There is nothing on record to show that any objection was raised by the plaintiff after publication of the notice from the intending purchaser to assert his right of alleged brokerage.
23. This fact too cannot be ignored. It is also a relevant factor that after December, 1993 the plaintiff had lost interest in the deal and had ceased to perform the duty as assigned to him by the vendors/defendants somewhere in March, 1993.
24. In view of the discussion made above, I do not find any convincing and strong grounds to exercise the revisional jurisdiction of this Court and to set aside the impugned judgment and decree passed by the learned Appellate Court. Even otherwise, no illegalities, material irregularities or jurisdictional errors have been pointed out in the judgment of the learned First Appellate Court.
25. Resultantly, this revision application has no merits and it is dismissed, however, with no order as to costs.