2009 PLP 89 (CLC)

NADEEM AZHAR SIDDIQI, J.

Plaintiff, Nasir Saleem, has filed this suit for declaration, injunction and specific performance.

2. The facts giving rise to this suit are that father of the plaintiff and defendant No.5, namely, late Haji Mazhar Hussain purchased property bearing No.43, Sector 27, Korangi Industrial Area, Karachi from defendants 1 to 3 but the agreement to sell, dated 21-10-1976 was executed in the name of his son, defendant No.5, namely, Zahid Shaukat. The entire sale consideration was paid vide two pay orders and the defendants. 1 to 3 handed over peaceful, vacant possession of the said property to the said Haji Mazhar Hussain. On 27-9-2004, the said Haji Mazhar Hussain died at Karachi and one of the legal heirs of the deceased, namely, Farrukh Saleem, filed an S.M.A. bearing No.44 of 2005, for issuance of the succession certificate. In the said S.M.A. on an application filed by the petitioner, orders were passed for opening the locker of the deceased and, accordingly, the Nazir of this Court opened the locker of the deceased wherefrom the agreement to sell dated 21-10-1976 and documents relating to other properties were found. As difference arose between the legal heirs of the deceased Haji Mazhar Hussain, therefore, the plaintiff filed Suit No.182 of 2007 wherein the parties/legal heirs of the deceased Haji Mazhar Hussain filed an application under Order XXIII, rule 3, C.P.C. along with a Family Settlement dated 8-3-2007 arrived at between the parties to the suit. The said application was allowed and Suit No.182 of 2007 was decreed in terms of the Family Settlement. Clause 2 of the Family Settlement reads as under:

"That the firm namely Messrs Lucky Industries, a sole proprietorship concern owned by the deceased Haji Mazhar Hussain who acquired the same in the name of Zahid Shaukat shall hand over business, good will and immovable property bearing No.43, Sector 27, Korangi Industrial Area, Karachi measuring 2778 square yards with construction thereon and title documents of this plot to the 1st party Nasir Saleem, who from the date of this Family Settlement Agreement shall become the absolute owner and the other parties shall have no right, title or interest in the firm Messrs Lucky Industries its business, good will and immovable property referred to the above.''

3. After passing of the decree in Suit No.182 of 2007, the plaintiff approached the defendants 1 to 3 and 5 for performing their part under the agreement to sell dated 21-10-1976 and the Family Settlement respectively, however, it seems that they were not willing to perform their respective parts and, therefore, the plaintiff filed the present suit.

4. Defendants Nos.1 to 3 were served through publication in the daily "Jang" dated 28-1-2008 and, subsequently, when they failed to file any written statement, were declared ex parte vide order, dated 31-3-2008. Service on defendant No.5 was held good vide order of the Additional Registrar dated 2-10-2007 but he also failed to file written statement and was accordingly declared ex parte vide order, dated 24-12-2007.

5. Vide order dated 31-3-2008, defendant No.4 was also declared ex parte but counsel for the said defendant stated that this is a suit for specific performance in which defendant No.4 has no part to play. Accordingly, he was allowed to move appropriate application for deletion of the name of defendant No.4 from the array of the defendants.

6. This is a suit for declaration, injunction and specific performance and the plaintiff has to establish that there exists an agreement between the parties which can be enforced, the plaintiff is also required to establish payment of part or full sale consideration to the defendants 1 to 3 in respect of the suit property and that the agreement between the parties is capable of being performed. It is also to be proved by the plaintiff that the suit property, which presently stands in the name of defendant No.5, has to transfer in his name. In order to prove his case, the plaintiff has produced sufficient material to show that his father purchased the suit-land from defendants 1 to 3 against sale consideration of Rs.90,000 and got executed the documents in the name of his son, defendant No.5 herein, that the deceased father of the plaintiff/defendant No.5 had paid the entire sale consideration to the defendants Nos. 1 to 3, that the suit property was in possession of defendant No.5 since 1976, from whom under the Family Settlement its possession was handed over to the plaintiff, and the plaintiff is running his business therein and is paying property tax and other charges in respect thereof. These claims of the plaintiff have gone unrebutted as no written statement has been filed by any of the defendants.

7. On 6th May, 2008 the plaintiff was directed to file his affidavit in ex parte proof along with relevant documents and was also directed to produce the original documents in Court for inspection. Accordingly, on 11th September, 2008 the plaintiff filed his affidavit-in-evidence/ex parte proof and produced original documents for verification which were seen and returned to the plaintiff after verification. The affidavit in ex parte proof filed by the plaintiff No.1 has also gone unrebutted as the defendants neither cross-examined the plaintiff nor produced their evidence in rebuttal.

8. In view of the above, I am of the view that the plaintiff has proved his case and is entitled to the relief of specific performance of the agreement to sell executed between the father of the plaintiff/defendant No.5 in respect of the suit property and further to transfer and mutation of the suit property in his name as per the Family Settlement, which was ratified by this Court while decreeing Suit No.182 of 2007.

9. Accordingly, the suit is decreed as prayed. The office is directed to prepare decree accordingly. M.H./N-48/K Suit decreed.