1989 PLP 1883 (CLC)

4. On 7‑4‑1981, C.M.A. 1795/1981, was submitted, supported by an affidavit of the defendant No.l, in which it was maintained that the defendant was lying sick on bed and appointed his brother‑in‑law, his Attorney, who badly let him down and did not render any assistance to his Advocate, who had to submit the written statement in time and this, in the circumstances, had to be done without the signatures of the defendant No.l. Before this application came up for consideration, the defendant No.l, died on 24‑6‑1981, leaving behind a widow, a daughter and a son C.M.A.1795/1981, however, was listed in Court on 31‑3‑1983, 24‑4‑1983, 29‑5‑1983, and on 21‑8‑1983, on which last date, it was dismissed, as infructuous, as the defendant No.l, was no. longer alive to sign the written statement. In the meantime, the legal representatives of the Defendant No.l, had been impleaded as defendants No.l(a), 1(b) and 1(c). Out of these legal representatives, two were ladies. The defendant No.l(b), Moin Ahmad Khan, son of the defendant No.l, submitted a written statement on 27‑9‑1982. On 18‑11 1982, the side of the defendant No.l, was closed on account of non‑appearance. For recalling the plaintiffs witnesses to be cross‑examined and for permission for defendant No.l to examine his evidence, by reopening of the case, on recall of Order dated 18‑11‑1982, C.M.A.1202/1983, was filed which was disposed of by an elaborate Order dated 10‑11‑1983 of Ibadatyar Khan, J., of this Court. The application was allowed but only to the extent of permitting the defendant No.1, to examine his own evidence.

5. Now, in so far as the defendant No.l, the deceased Ashfaq Ahmad Khan, is concerned, what he stated in his counter‑affidavit dated 16‑9‑1975 has been seen. On the other hand, in his un‑signed written statement submitted on 2‑2 1976, aforesaid, the defendant No.l, maintained that the plaintiff only paid sums of Rs.10,000 each on two occasions, the first at the time of the execution of the agreement in suit and the other subsequently. As the defendant No.l, did not put a date on the receipt for the sum first paid, the plaintiff, allegedly, put a date thereon of his own choice and thus came to Court with unclean hands. He denied the payment of the advance amount of Rs.1.5,000 within two weeks of the agreement, as alleged. He denied that the plaintiff had left, with his knowledge or concurrence, for U.K. and maintained that the plaintiff was negotiating for purchase for his friend, one Mumtaz, who was in U.K. and at the crucial time of payment the plaintiff made himself scarce. He also denied that it was arranged that on 26‑7‑1975, the defendant No.l, would be paid the amount of Rs.100,000 and hand over possession. He repudiated the allegation that the plaintiff got in touch with him on 26‑7‑1975. He has not denied the receipt of letter dated 11‑8‑1975, but, by then he says that he had made over the matter to his Advocate. As regards the legal notice from the plaintiffs Advocate, the same, according to him, was duly replied to. It is the plaintiff, according to him, who committed breaches. He says that through his counter‑affidavit dated 16‑9‑1975, the facts were placed before the Court and the defendant No.2, was impleaded as purchaser. Transaction between the two defendants dated 22‑8‑1975, is neither collusive nor illegal. The defendant No.2, according to him, was all along in the knowledge of the earlier agreement with the plaintiff, which had become impossible of performance due to defaults of the plaintiff. As regards, his dealings with the defendant No.2, he has stated that he was a chronic heart patient and had many strokes whereupon the defendant No.2, to whom he was indebted, was handed over possession of the restaurant, as a security for his loan and for appropriation of the profits towards such loan. The defendant No.2. however, kept pressuring for payment of the dues. In these circumstances, contract with the plaintiff was concluded for discharge of the debt owed to the defendant No.2. The plaintiff failed, with full knowledge that the defendant No.l, could not keep hiss con‑commitment obligations to the defendant No.2, and possession with the defendants No.2, which was by way of security for the debt, would not be returned. In the meantime, the defendant No.2, arranged for money and shown his own willingess to purchase. The defendant No.2 also hot addressed telegram to the defendant No.l. As the defendant No.2 was not prepared to par with possession, the contract with the plaintiff had to be cancelled and the on( dated 22‑8‑1975, with the defendant No.2, gone through. In support of the fac that the defendant No.2, had appointed an Attorney to pursue this suit ; registered Power of Attorney dated 27‑9‑1975 has been placed on record next tf the unsigned written statement in which one Altaf Hussain has been shown a appointed with full powers to deal with this suit.

6. In the written statement filed by the defendant No.l(b), as aforesaid, o; 27‑9‑1982, the pleas in the unsigned written statement of the defendant No.1 have been reproduced verbatim.

7. As regards the defendant No.2, in his written statement (Ex.4) dated 1~ 1‑1976, he maintains that he was the prior purchaser in physical possession, the, the plaintiff did not act in good faith by entering into the subsequent agreement to purchase dated 10‑4‑1975, and that plaintiff, allegedly, failed m the exercise c reasonable care by not ascertaining the title of the defendant No.2, who was i possession, nor gave any public or other notice of such agreement. He says that he was in occupation of the suit property since its inception. The property, fir used as a Zoo, was altered to be a restaurant and the defendant No.l, offered the same for sale to the defendant No.2, provided that the latter invested in the construction of the restaurant against a loan to the defendant No.l Such investment was made by the defendant No.2 on sale of his open commercial pt in North Nazimabad. Construction was raised and the. amount invested w considered as consideration for sale. Possession of defendant No.2 was converts into possession in part performance of the agreement of sale and he acted as such, owner from July 1974. The defendant No.2, allegedly, paid all taxes and ran the restaurant in ‑his own name. Formalization and completion of the sale w deferred, for one reason or the other, till issuance of legal telegraphic notice dated 15‑8‑1975, pursuant to which formal agreement dated 22‑8‑1975, w concluded on 22‑8‑1975, itself. The defendant No.2 on such date, however, car to know that the defendant No.l and the plaintiff had colluded to enter into calestentine agreement which, however, was cancelled by the defendant No.l, account of the breaches on the part of the plaintiff. It is averred that at 11 mater times, the plaintiff was aware of the prior sale and physical possession of the defendant No.2. It is said that the plaintiff failed to pay KDA dues whereas the defendant No.2, was prepared to do the same. As regards the agreement dated 22‑8‑1975, it is said that a sum of Rs.1,15,000 was adjusted towards the invested amount, as aforesaid. Out of the balance Rs.1,00,000 were paid to the defendant No.l, on 22‑8‑1975. Rs.50,000 were paid to KDA and a balance of Rs.25,000 was payable to defendant No.l, on completion of sale, thus bringing a total consideration of Rs.2,90,

000. The claim in suit, including damages, is denied and the suit is said to be non‑maintainable.

8. In the meantime, it may be instructive to point out that on 19‑8‑1978, three issues were framed by the Court and another was added on an application dated 26‑8‑1978, which was allowed on 27‑9‑1978. These 3 Issues are as under:‑ (1) Whether the defendant No.l, entered into a Contract of Sale with theplaintiff or defendant No.2, first? (2) hat damages, if any, the plaintiff is entitled to? (3) What relief, if any, the plaintiff is entitled to?" On C.MA. 3334/1978, dated 26‑8‑1978 disposed of by this Court as aforesaid, on 27‑9‑1978, the following Issue, which was incorporated in the said application under Order 14 Rule 5, C.P.C. was added, by consent:‑ "Whether the defendant No.2, was (in) actual possession of the property (in) his own rights prior to the agreement dated 10‑4‑1975, within (knowledge) of the plaintiff, if so to what effect?"

9. None has suggested at the time of arguments or otherwise that any other Issues are to be framed. As such, the controversy may be decided, broadly, on the basis of the existing Issues.

10. In the context of evidence, the plaintiff has examined three witnesses, PWs.1 to 3, the defendant No.2, has examined 5 witnesses DWs.l to 5, and the defendant No.l(a) has examined only himself DW,6.

11. Plaintiff, Syed Muhammad Saleem, PW.1 (Ex.6) has stated that he paid three sums of money of Rs.10,000 each aggregating Rs.30,000 under the agreement dated 10‑4‑1975 (Ex.6/1), the first at the time of signing of the agreement, the second on 22‑4‑1975, and the third on 3‑6‑1975. The receipts of the alleged second and third payments have been placed on record as Exs.6/2 and 6/3. Some details regarding the subsequent payment/offer to pay may now be referred to. Plaintiff has stated that time of payment and possession was extended before he left for England by mutual consent but he is not specific as to what was the duration of such extension. On 15‑7‑1975, he says that he returned from England but discovered that the defendant No.l, was al Rawalpindi and that he came to know on 25‑7‑1975 that the defendant No.l, had returned. The defendant No.], agreed to take the sum of Rs.1,00,000 from him through a Pay Order and to deliver possession of the restaurant on receipt of such money. Certificate of M/s. United Bank Limited dated 16‑9‑1975, has been produced by him. (Ex.6/4) purporting to show that a Pay Order dated 211‑7‑1975, was issued in favour of Ashfaq Ahmad Khan (defendant No.l) on account of Syed Muhammad Saleem. He says that the defendant No.l, was to come to his office on 26‑7‑1975, at 1‑00 p.m. "for collecting the Pay Order." A mutual friend, Samar Nizami was requested to come to his office on the said date and lime and was then present. One Iftikhar Siddiqui, who was appointed by him for running the restaurant, was, also present in his office. The defendant No.l, came. It was agreed that he was to hand over possession of the restaurant on receipt of the aforesaid sum of Rs.1,00,

000. They all went and reached the restaurant. Defendant No.l, informed Hamdi Bhai (defendant No.2) that he had sold the property to the plaintiff and that he should hand over the possession to the plaintiff. Thereupon the said Hamdi Bhai requested for three or four days time "in order to arrange the shifting of his articles from the Restaurant." The plaintiff, it is asserted, earlier knew that Hamdi Bhai was running the restaurant, as an employee of the defendant No.l. The plaintiff, in the then situation, told defendant No.l, that he would not hand over the Pay Order till delivery of the possession of the restaurant, to which the defendant No.l, agreed. The Plaintiff, thereafter, waited' for a few days but as he did not hear anything from defendant No.l, he thought it proper to address registered letter dated 11‑8‑1975, to the defendant No.1, in which due facts were recorded (Ex.6/5). On 21‑8‑1975, telegraphic notice of the Advocate of the defendant No.l (Ex.6/6) was received in which breaches against the plaintiff were alleged. The telegram was replied to by the Advocate of the Plaintiff vide a Notice dated 26‑8‑1975 (Ex.6/8). Reply thereof dated 10‑9‑1975, from the Advocate of the Defendant No.l, has also been produced, though intriguingly, in a different context (Ex.6/7). As a reason of failure on the part of defendant No.l to complete the sale, probable better offers are cited as the value of the property in dispute had, allegedly, appreciated 6 to 10 times. Plaintiff, PW‑1, was cross‑examined only by the defendant No.2, the other defendant, apparently, having remained absent. In such cross‑examination plaintiff maintains that terms in the agreement in suit were not altered in writing, that he had ii,! ‑ n(1. ;~..d from KDA. as to the transferability of the interest of defendant ‑o.1, that he did not pay the balance to the KDA. as the same, "was to be paid _:i the finalization of the sale transaction, which had not taken place". That he did not know that the defendant No.2, had taken steps to pay such amount to the KDA. when Injunction was issued in the case, that he did not know 11,:11 the defendant No.2, had invested on the construction of the restaurant, that he did not issue any public notice in the Newspaper regarding his intended purchase, that he did not know as to who was in possession in 1974, or that the plot was sold defendant No.2, who was holding the same in his own rights.

12. Laiq Ahmad Nizami, PW.2 (Ex.7) has stated that the transaction in suit was brought about through him. Regarding payments, :dl that he says is that the plaintiff paid "certain amount through cheque and cash". On 26‑7‑1975, he accompanied the plaintiff, the defendant No.l, and of‑10 Siddiqui to take over possession from defendant No.l. At the site the defendant No.2, requested for a few days time so that he could arrange shifting of his articles. On their second visit, defendant No.2, told them that purchased the suit property. In cross examination he says that he knew the ~1AL,ndant No.1, since childhood, as the latter was his class‑fellow but he says that he did not remember as to on what date, under the sale agreement, ,( t()(1 was to be paid but maintains that as the defendant No.l, agreed to accept the Pay Order of Rs.1,00,000", it may be within time". He came to Court to give c6dence on information received from the plaintiff. He admits that the defendant No.l put the defendant No.2, "Incharge of the restaurant and agreed i;, pay certain amount of profit as his share:' On the second visit, according to him, there were only three persons namely himself, Siddiqui and the plaintiff. On such occasion defendant No.2 told them that he had purchased the property. He says that Mr. Nizami, at the time Member (Technical) K.DA., was his real brother. He has denied that he knew that the defendant No.2, was in possession since 1974, as purchaser.

13. Iftikhar Ahmad Siddiqui, PW.3, has stated that on 26‑7‑1975, the plaintiff, Nizami .(PW.2) defendant No.l, and he went to the restaurant to take over possession. On such occasion, defendant No.2, sought three or four days' time for delivery of possession so that he could search for another place. After three or four days, he maintains, that he, the plaintiff and Nizami again visited the restaurant for taking over possession but the defendant No.2, refused and informed that he had purchased the restaurant. He states that he was appointed as Manager by the Plaintiff in respect of the disputed restaurant. In cross examination, he says that the appointment was verbal, at Rs.1,000 per month, but while such appointment lasted for six months, for which he was paid salary, he continues to be part‑time appointee of the plaintiff. Significantly, plaintiff makes no claim regarding such salary. He has admitted that he was a friend of the plaintiff and besides that he was a Director in Indus Mehran Housing Society of which the plaintiff was the Chairman.

14. Defendant No.2, Azizuddin Hamidi Ghilzai, DW.1 (Ex.9), has stated that he retired from the Air Force, on 28‑12‑1968. He belongs to the same place as the defendant No.l. He sold his plot in North Nazimabad, Karachi and with part of the proceeds constructed the restaurant. He has produced a signed copy of the agreement of sale as Exh.9/1. Such sale was made for Rs.1,38,000 out of which Rs.1,15,000 are alleged to have been spent on the construction of the restaurant. He deposes that the defendant No.l, had agreed that they would share the profit of the restaurant. He says that in the end of 1973, the restaurant was closed and the defendant No.l, told him to purchase it for Rs.2,90,000 out of which Rs.50,000 were to be paid to the K.D.A. and Rs.1,25,000 to the Defendant. His investment of Rs.1,15,000 was to be adjusted, as well. This, according to him, materialised in July, 1974. Licence from the K.M.C. dated 12‑6‑1975 was issued in his name. He recalls that in the end of 1974, or in the beginning of 1975, the plaintiff and Siddiqui were strolling on the roof of the restaurant when he woke up and on enquiry was told that they had come to see the defendant No.l, regarding which he told them that the defendant No.l, had sold the restaurant to him and if they wanted to see him, they could go and see him at his residence. He says that he pursued the matter of sale in his favour by issuing a telegram to defendant No.l, and the agreement between them was formally recorded on 22‑8‑1975 (Ex.9). He tried to deposit the K.DA. dues but could not do so because of the Court Injunction. He says that he paid Rs.1,00,000 to defendant No.l. In cross examination he admits that he is related to defendant No.l, who is one of his cousins and, besides, he is a close friend since childhood. He says that he became partner in the restaurant in 1972, after constructing the same in 1971. His share in the profit was 50 paisa in a rupee equal to that of the defendant No.l, and that such share was not on account of running the restaurant but because of his investment. He says that PW.2, Nizami, had requested him in 1974, to permit him to start selling `Chicken Tikka' on a portion of the restaurant. He avers that the defendant No.l, at the time of executing the sale agreement dated 22‑8‑1975, disclosed to him that he had entered into a sale agreement with tl‑.e plaintiff which he had cancelled and wanted to incorporate such position in the agreement, to which he objected but the defendant No.l told him that if the same was not done, he would go to prison. He has admitted that a relation of defendant No.l, was Incharge of the Counter, while the defendant No.2 was running the restaurant. The defendant No.l, and he used to collect their shares from the profits. He says that the defendant No.l defrauded him. He has denied that the plaintiff, as alleged, visited the restaurant on 26‑7‑1975, alongwith Nizami, Siddiqui, and the defendant No.l, or that the plaintiff had brought a Pav Order to be given to the defendant No.l, in return of possession or that he, the defendant No.2, had promised to give possession of the restaurant within three or four days. The correct position, according to him, is that the plaintiff and the other three persons named, never made any such visit, as alleged. He says that he came to know of the agreement from the defendant No.l on 22‑8‑1975. He is unable to say whether the then market value of the restaurant was Rs.10,00,000

15. Amanullah D.W.2, has stated that he is working in Amusement park for the last 10 years. He says that he knows the defendant No.2, as the petitioner of the disputed restaurant.The defendant No.2 was running the restaurant since 1971 and while he had seen the defendant No.1, prior to 1974, he had not seen him since. He was not cross‑examined.

16. Ghulam Muhammad, D.W.3, had a Stall in Hill Park, since 1970. He says that the defendant No.2, had constructed the restaurant, which he had himself seen. He was also not cross‑examined.

17. Muhammad Yousuf, D.W.4, is a Clerk in Health Department, K.M.C. He has admitted that the document marked X/3, (licence dated 2‑6‑1975) for the period of 1‑7‑1974 to 30‑6‑1975, in the name of Azizuddin Hamidi Khan Ghilzai, was issued by his Department but then in the Enquiry Form, Ashfaq Ahmad Khan, is shown as the owner and Azizuddin as the Manager.

18. Syed Muhammad Hadi, D.W.5, serves in the Land Department, K.DA. He has deposed regarding some disputed documents.

19. Moin Ahmad Khan, Witness No.l, for the defendant No.l(a) has confirmed the position brought out in his written statement. The defendant No.2, who is a family friend and distant relation, helped in construction of the restaurant and a sum of Rs.1,00,000 was advanced by that defendant to the witness's father. Subsequently, the defendant No.2, insisted for repayment and as such, the defendant No.l, had to enter into an agreement of sale of the restaurant with the plaintiff. The defendant No.l, it is stated, had suffered a heart attack between the time when the defendant No.2, had asked for repayment of his loan and the date when the agreement with the plaintiff was concluded. According to him, his father had only received Rs.10,000 each on two occasions, from the plaintiff: No other payment was made. The plaintiff failed to pay the sum of Rs.1,00,000 on 30‑6‑1974, "and as such the agreement with the plaintiff ‑ cancelled". Thereafter, the defendant No.2, because he could not be paid otherwise, entered into agreement of sale with the witness's father. According to him, the then market value of the property should be around Rs.20,00,

000. In cross‑examinn6on, the witness says that he was at the time of agreement 14 or 15 years of age and was a student in Cantonment Public School, Karachi. His father used to consult him about his business. He says that it was the defendant No.2, who was running the restaurant at the time of agreement in suit was concluded. He further says that the defendant No.2, was running the restaurant with a view to clear his debt and that he paid no amount to his father during such time. On the other hand, to his knowledge, no amount had either been adjusted from the earnings of the restaurant towards the loan. The witness's father had complained to him & ,, ;he conduct of defendant No.2 in not making any payment out of the earnings of the restaurant. The first demand was made by the defendant No.2, for return of his investment prior to the agreement with the plaintiff. On second such demand being made and urgency being expressed the witness's father agreed to sell the restaurant to the Plantiff. As regards the payments of Rs.10,000 each on two occasions to the defendant No.l, these were not made in the presence of the witness but his father, who subsequently died in 1981, had told him about the same. He says that the defendant No.2, had not made any payment to any member of his family since the death of his father.

20. The first question to be resolved is whether the written statement of defendant No.l, unsigned as it remains, can be accepted as a written statement in the suit. It is on record that the defendant No.l, at the interlocutory stage of the proceedings, submitted a counter‑affidavit which, substantially, records that defendant's defence in the suit. Patently, such counter‑affidavit is on solemn affirmation and oath and cannot be ignored and it is for this reason that Mr. G.H. Abbasi referred to the same, as suggestive, perhaps, of the only defence available to the defendant No.l. It is also borne out from the record, as explained by the defendant No.l in C.MA. No.1795 of 1981, supported by such defendant's own affidavit that he had appointed an attorney in 1975 (power of attorney on record) and that the attorney failed to look after his interest while he himself was not available at Karachi besides being sick: The defendant No.l, through the above C.M.A. 1795/1981, sought to sign and verify the purported written statement submitted by his counsel under his own signature, on 2‑2‑1976 but that, as reflected above could not be done since, during the pendency of C.MA. No.1795/1981, the defendant No.l breathed his last and the C.MA. had to be dismissed, having become infructuous. On the other hand, on being impleaded as defendant No.l(a) the only son of the defendant No.l submitted his written statement, reproducing verbatim the pleas advanced in the above said purported and unsigned written statement of the defendant No.l. Reliance has been placed by Mr. G.H. Abbasi on the dictum of the Supreme Court of Pakistan in Mst. Khairun Nisa and others v. Malik Muhammad Ishaque and others PLD 1972 SC 25 and the view of Ajmal Mian, J., in the case reported as Abdur Rehman v. Pervez Ahmad Butt P L D ?_982 Kar.

458. However, note may be taken of the same as augmented by other case‑law.

21. In the case of Mst. Khairunnisa and others v. Malik Muhammad Ish,1que and others P L D 1972 SC 25 Waheeduddin Ahmad, J., speaking for a Full Bench of the Supreme Court of Pakistan, inter alia, held that a written statement could not be exhibited in evidence unless the relevant defendant was examined. It was said that the statements made in the Written Statement are not on oath. They are only verified and, therefore, cannot be treated as evidence in the case. On the facts of the case the defendant though having filed a written statement, died during the pendency of the case and, thus, he could not be examined in evidence. As such, mere denial of knowledge of a prior agreement in the written statement of the deceased was found to be in‑sufficient to establish that he was a transferee for value without notice. This case is clearly distinguishable as under the present dispensation pleadings, under the amended law, are required to be on Oath.

22. Now, under the provisions, of Order VIII, Rule, 1, C.P.C. filing of written statement is discretionary with the defendant unless he is required by the Court to do so, whereas if a written statement is to be filed., it ordinarily, shall be filed within a period of 90 days under the proviso added to that rule. Even where a defendant fails to file a written statement although required by the Court to do so and a judgment is to be pronounced in terms of rule 10 of order VIII, the power to pronounce judgment does not imply decree Ruling the10suit ipsiOrddixit without any proof whatsoever. Reference in this context may be made to the judgment of Abdul Shakurul Salam, J., as he then was, in the case of Nisar Ahmad v. Habib Bank Limited 1980 CLC

981. Indeed, it will appear from a plain language of Rule 3 of Order XIV: that issues are to be framed on the basis of allegations made on oath by the parties or by any person present on their behalf or made by Pleaders of such parties or on allegations made in the pleadings or in answer to interrogatories and finally on contents of documents produced from either side. It would, thus, follow that at least the foregoing materials are to be considered v before any further action is taken by a Court in the matter even though a written statement has not been filed

23. It is to be observed that the penalty contemplated under Rule 10 of Order VIII, has, in a majority of cases, been held to be applicable for defaults in filing of written statements either under Rule 1 or Rule 9 of Order VIII which then can lead to invocation of Rule 10 of Order VIII, for pronouncing of judgment etc. Further, the direction of the Court for submission of written statement contemplated by rules 1 and 9 of Order VIII, is to be an express direction made on proper application of mind on a specific question or questions D which arise in a suit before the penal provisions of rule 10 can be visited upon the defendant and this cannot be so where it is only the defendant who had been asking for time for filing a written statement and is, ultimately, refused such time. In such cases of default, Rule 10 of Order VIII, is not attracted and the defendant is permitted to participate in the proceedings and defend himself on a matter he is capable of defending without filing a written statement. Reference in this behalf, may be made to the judgment, M.S.H. Oureshi, J., as he then was, in the case of Mst. Bilquis Khanum v. Ali Turab etc. 1980 CLC 930.

24. In a case from Karachi jurisdiction namely, Abdul Rehman v. Pervez Ahmad Butt and two others, PLD 1982 Kar. 458 a defendant who had been debarred from filing written statement in the context of rules 14, 155, 156 and 159 of the Original Side Rules of this Court was permitted to cross‑examine the witnesses of the other side following the dictum of Inamullah, J., as he then was, in the case of Laiq Ahmad Siddiqui v. Federation of Pakistan PLD 1957 Kar. 54. besides, while the defendant was not permitted to lead evidence in the absence of written statement filed by him, he was allowed to participate in the proceedings as was also warranted under the decision in the case of Ghulam Muhammad and others v. Mst. Irshad Begum and others PLD 1964 Lah. 782, and the view expressed in Habib Ismail Bajwa v. Khawaja Ghulam Mohiuddin, PLD 1970 Lah.

28. In this case, namely, Abdul Rehman v. Pervez Ahmad Butt, Ajmal Mian, J., as he then was, declined permission to lead evidence on the ground that the principle being that a party cannot be permitted to lead evidence contrary to its pleadings and there being no pleadings, the defendant having been debarred, scope for allowing evidence to such a defaulting defendant did not subsist. I have no doubt that the learned Judge was not laying down a broad proposition that even where there was other material, by way of defence, mere absence of a written statement would disqualify a defendant from leading evidence. It is to be seen that evidence is to be led in relation to Issues and Issues may be drawn from material other than pleadings, as reflected in rule 3 of order 14 C.P.C. It will, therefore, be on the facts of each case to see whether in spite of default in filing .of written statement, there is material on record of a case to permit or to decline evidence to a defendant, who has chosen not to file a written statement. Still, no undue delay is to be brooked on such score.

25. I am, therefore, of the view that no rule of thumb can be laid down as to the extent to which a defendant may participate in the proceedings in which he has failed to file a written statement or has been declared to be ex parte. Disputes are to be determined in consonance with the time honoured principle that rules of procedure are to be interpreted in such manner that no one is precluded from or denied his just rights or entitlements.

26. Now, in this case even through the defendant No.l. could not sign the written statement, he did seek to sign the same through an application supported by his own affidavit on oath and if such application had been granted he would no doubt have signed the written statement, already on record, there and then. His explanation that his attorney let him down is supported by due Power of Attorney. The document purporting to be his written statement, though unsigned by him or, on his behalf, by his attorney was submitted in time, under the signatures of his advocate, and the defendant No.l was never debarred from filing his written statement. There is another circumstances which deserves notice in such context and that consists of the defendant No.l(a) having subsequently, submitted his written statement which, in effect, is the same, as the defendant No.l proposed to do. This is not all, as has been seen above, my learned brother Ibadatyar Khan, J., re‑opened the side of defendant No.l and allowed his legal representatives to lead evidence and, in fact, in consequence, defendant No.l(a) examined himself. As such, I consider it in the interest of justice to allow the purported written statement of the defendant No.l to be read conjointly with the written statement of the defendant No.1(a) as their common defence in the case.

27. There is, however, still another matter, which though not seriously urged has, yet, to be considered. As has been seen, the plaintiff and his witnesses have not been cross‑examined by or on behalf of the defendant No.1 and this, apparently, followed upon default of appearance. Mr. Ghulam Hussain Abbasi only faintly referred to this omission. On the other hand, D.Ws 2 & 3 have not been cross‑examined by the plaintiff. Now, the rule, merging from section 138 of the Evidence Act, 1872 (since repealed) and its corresponding provisions in Article 133 of the Qanun‑e‑Shahadat, 1984, is that if a fact is alleged by a witness in his examination‑in‑chief and he is not cross‑examined on the point such fact, remaining uncontroverted, shall be deemed to be admitted. The rule, however, is not an infallible one. Exception would be a case where both parties are arrayed on the same, side. Another exception may arise in cases where because of absence or other cause a witness is not cross‑examined but in other evidence in the case the relevant position is controverted. Similar will be the case where on the basis of other material on the record or absence of it such omission as to cross examination loses weight. Phipson on Evidence, 9th Edition, page 498, also recounts some instances in which failure to cross‑examine will not always amount to an acceptance of the witness's testimony and the same will include cases where "the witness has had notice to the contrary beforehand or the story itself is of an incredible or remaining character, or the abstention arises from mere motives of delicacy, as where young children are called as witnesses for their parents in divorce cases or when counsel indicates that he is merely abstaining for convenience, e.g., to save time. And where several witnesses are called to the same point it is not always necessary to cross‑examine them all. In view of the foregoing principles, for which reference may also be made to Piroja Ghadiale v. Pestonji Ghadiale 48 BLR 36, Shah Muhammad v. Fazal Bibi 1980 CLC 1540, it would seem that on account of notice to the contrary and other material on f his case, will not lead to record failure to cross‑examine, in the context o this case, corresponding admissions.

28. This, therefore, brings me. to consider the merits of the controversy. As no issue has been framed regarding the defence of the defendants Nos.l and 1(a), in preference to framing fresh issues at this stage, it would be proper to deal with the case of such defendants in the context of the relief available to the plaintiff.

29. As regards the relief, the case of the defendants Nos.l and 1(a) is that the plaintiff paid a sum of Rs.10,000 under the agreement dated 10‑4‑1975 but that a receipt (Ex.6/2) was issued separately, which did not bear any date and in which a date namely, 22‑4‑1975, was subsequently inserted by the plaintiff to project it as an additional payment after the agreement. This receipt, on the face of it, does .not term the amount an additional payment subsequent to the agreement and purports to reflect the payment "as per agreement of sale" implying by its tenor that such payment was made at the time of the agreement. Mr. Shamsul Arfin is justified when he contends that the disputed date on such receipt i.e. 22‑4‑1975 is typed in such manner that the print is far too dimmer and fainter than that of the rest of the inscribed material. However, it is not inconceivable that the type‑writer ribbon may be changed while a document is still incomplete but then in such an event it is the later typed portion which should be clearer and firmer and not vice versa. In this case the date is the later print and dimmer at that. Patently, therefore, the date on such receipt is a subsequent interpolation and the inference is that the plaintiff alone could be interested in doing it, while it was in his possession. There is yet another reason why this must be so. In the other receipt namely, dated 3‑6‑1975 (Ex.6/3) the payment of Rs.10,000 is expressly shown as "a further advance as per agreement of sale" which is not the case in the first receipt above‑referred manifesting thereby that it was only the second receipt through which a portion of the advance of Rs.15,000, required to be paid within two weeks of the date of the agreement, was actually paid and no other sum squared up the balance of Rs.5,

000. In that the plaintiff has been at pains to assert in the plaint that he instead of making further advance payment of Rs.15,000 actually paid Rs.20,000 and that, too, within two weeks of 10‑4‑1975 furnishes sufficient motive, for he neither paid such sum of Rs.15,000 nor within such 2 weeks, as the further advance payment even of Rs.10,000 per Exh.6/3, was made on 3‑6‑1975, nearly 7 weeks beyond the agreement. Besides, in the first notice dated 11‑8‑1975 (Ex.6/5) from the plaintiff, which was expressly for the record, the plaintiff nowhere averred that he had actually paid Rs.30,000 instead of Rs.20,000 in all, as, subsequently, alleged. This was the first communication from either of the parties and it was expected that the plaintiff would indicate therein the factum of the fulfillment of the first two requirements, namely, the payment of Rs.10,000 at the time of agreement and of Rs.15,000 within two weeks thereof. Now, in‑ the plaint the plaintiff, without explaining, says that instead of Rs.15,000 advance, subsequent to the agreement, he actually paid Rs.20,

000. As to why this was so has never been explained. Neither has it ever been explained as to why the advance of Rs.15,000 to be paid within two weeks, as aforesaid, was paid in two portions and not in one go and then too a portion within time and the other belated by 5 weeks. Further, the plaintiff has made a false statement first in his advocates reply dated 26‑8‑1975 (Ex.6/8) and then in the plaint that he made the advance payment within the period prescribed in the agreement dated 10‑4‑1975, in other words within two weeks thereof. In fact even if the above receipts dated 22‑4‑1975 and 3‑6‑1975 are accepted, as they are, such payment not within two weeks as solemnly averred by the plaintiff. In these circumstances, therefore, I have no hesitation in concluding that the plaintiff paid only Rs.10,000 in terms of the agreement at the time of the agreement and just Rs.10,000 and not Rs.15,000 as further advance subsequent to the agreement and that, too, not within 2 weeks as stipulated but much beyond that period, namely, nearly seven weeks from the date of the agreement i.e. on 3‑6‑1975. As to what is the effect of this default shall have to be seen in the context of the subsequent events as would be discussed below.

30. It is the case of the plaintiff that he was to pay the balance sum of Rs.1,00,000 against exchange of possession of the disputed restaurant on 30‑6 1975. Admittedly, he did not do so as, allegedly, he had to go away on business to England and it is maintained that time for such payment of Rs.1,00,000 and corresponding delivery of possession was postponed mutually between the plaintiff and the defendant No.l.

31. Now, while the plaintiff is silent in his testimony as to the date of his departure for England the same is spelled out to be 28‑6‑1975 in the reply notice of his advocate (Ex.6/8) and in the plaint. It is incorrect when the plaintiff testifies that payment against possession was to be made on 30‑6‑1975. He is contradicted here by the agreement in suit itself which stipulates these events to take place "before 30th June, 1975." No oral evidence contrary to the written word of contract is permissible except in specified circumstances and such do not subsist here. If this were so, it remains unexplained as to why plaintiff did not make compliance prior to 28‑6‑1975 before leaving, lending credence to the defence version that he made himself scarce at the relevant time and no extension was sought or granted. It is alleged that the plaintiff returned from England on 15‑7‑1975 but in the reply notice of his advocate I find that his return is shown to be on 17‑7‑1975. This is an important consideration inasmuch as the plaintiff has to show affirmatively that he went to and returned from England, as alleged, for the rest of the averments to be qualified and considered for acceptance. It was for him to produce his passport in such context which he has failed to do.

32. Continuing with the plaintiffs version, he says that when he came to Pakistan, the defendant No.l could be contacted only on 25‑7‑1975, and that an arrangement was made to make payment to the defendant No.l through Pay Order on 26‑7‑1975 against delivery of possession. It is maintained that the plaintiff on 26‑7‑1975 alongwith the defendant No.l and PWs Nizami and Siddiqui went to the site of the restaurant with the requisite Pay Order for the payment of Rs.1,00,000 for obtaining possession. Even a copy of such Pay Order has not been produced what to say of its counter‑foil which is always attached with it, to be kept by the person who obtains the Pay Order, as evidence of such payment and such obtainance of the Pay Order. The certificate for issuance of such Pay Order has not been proved as none of its authors has been examined. As such, the dictum of the Supreme Court, in the case of Bengal Friends & Co, v. Gour Benode Shah PLD 1969 SC 447 that copies of document other than judicial record cannot be received in evidence without proof of signature or handwriting, is applicable. Even otherwise such certificate is only secondary evidence. The original evidence would have been the Pay Order itself, for the record of the bank concerned could be called to prove its issuance to the plaintiff. None of these things have been done. Waheeduddin, J., as he then was, m the case of Ebrahim Saley Mayet v. Ghulam Hussain Pakseema PLD 1960 Kar. 297 ‑held that in the absence of the original letter of the Central Government which was not I summoned, its copy was not admissible. Besides, the evidence of PW Nizami is silent about the factum of obtainance of such Pay Order. In fact the depositions of both the supporting witnesses of the plaintiff are clearly suspect as PW Nizami is an interested witness inasmuch as‑he had asked the defendant No.2 to start the business of selling Tikkas in a portion of the disputed premises which, apparently, did not come through and as P.W. Siddiqui is, admittedly, an employee of the plaintiff and an office bearer under the plaintiff or with the plaintiff in a co operative society. Furthermore, in so far as the alleged second visit to the restaurant is concerned it appears to be a figment of the imagination of these witnesses since the plaintiff rules out the possibility of any such visit by saying, after having allegedly made the first visit, as under:‑ "I waited for a few days, but when I did not hear anything from the defendant No.l, thought it proper to bring the above fact on the record, and, therefore, I sent a registered letter to the defendant No.l on 11th August, 1975, stating therein the full facts:" In fact this letter (Ex.6/5), the first from either side, does not state that the defendant No.l even agreed for extension of time beyond 30‑6‑1975, or arranged with the plaintiff to go and deliver possession on 26‑7‑1975 or went to plaintiff's office that day or accompanied the plaintiff, Nizami or Siddiqui to the restaurant. Curiously, the only person named in such letter to have, allegedly, gone to the restaurant on 26‑7‑1975 is "Samar Nizami" and not "Laiq Ahmad Nizami". Even the reply letter of the advocate or for that matter the plaint are, singularly, silent about any of the two visits. The entire story has, apparently, evolved during the evidence stage. The defendant No.2 on the other hand has categorically stated that no such visit was made to him on 30‑6‑1975 or otherwise. Thus, all in all, it is clear that the plaintiff did not arrange for Rs.1,00,000 as alleged, nor was such payment offered and as such delivery of possession or question thereof did not arise.

33. Now the agreement in suit shows that specific dates for performance were mentioned and further that there were reciprocal conditions to be performed by the parties to the agreement. If, therefore, the plaintiff failed to perform his part of the contract within the time‑frame contemplated could the contract bP ;rminated by the defendant No.l? 34 .. is clear from the over‑all evidence in the case that the defendant No.l owed Rs.1,15,000 to the defendant No.2, whose conduct, as reflected in the evidence, led by himself, is not a wholesome one and he, apparently, was insisting for payment. It was, obviously, for this reason that the defendant No.l concluded the contract in suit. It is an unusual contract. All that the defendant No.l was interested in, apart from the payment of Rs.10,000 as reflected in the agreement, was a payment of Rs.1,15,000, which is what was due to defendant No.2. It is for this reason that payment of Rs.15,000 was to be made within two weeks, from the date of the agreement, and, it is again for this reason that possession was to be delivered against a further payment of Rs.1,00,

000. These payments would have cleared the defendant No.l from liability to the defendant No.2. The rest of the matter that is to say the payment of balance amount of Rs.1,25,000 was to be made on completion of sale "before 31st August, 1975". However, the plaintiff did not perform two of his reciprocal promises i.e. payment of Rs.15,000 within two weeks of the agreement, and further payment of Rs.1,00,000 against delivery of possession. Such possession could not be obtained to be delivered to the plaintiff. From 3‑6‑1975, the date of the advance payment of Rs.10,000 the first time the plaintiff seems to have been heard, of, is through his so‑called equivocal letter "(for the record)" dated 11‑8‑1975 but by then the defendant, who was a sick and ailing man, with a creditor pestering him had given up and treated the contract as abandoned and, as such on 21‑8‑1975 telegraphic legal notice is received by the plaintiff.

35. This is not the end of the matter. The defendant No.l did not have a complete title. He was, admittedly, only authorised under the then relationship between him and K.D.A. to enter into possession and to raise construction on the disputed property. He had no power to transfer. Such power would have ensured to him had a lease been executed in his favour which could not be done, as the plaintiff, whose obligation it was to pay over a sum of Rs.50,000 to the K.D.A. for clearance of dues, did not move on a distorted version of the matter that such payment was to be made "on the finalisation of the sale transaction, which had not taken place." Such, is a fallacious plea. Unless due payment was made and unless the K.D.A. had granted a lease to the defendant No.l that defendant had no transferable title to execute a deed of sale under clause 7 of the agreement. Thus unless the plaintiff had cleared the K.DA. dues the matter could not proceed to sale and, as such, this is yet another default and a crucial one on the part of the plaintiff. On account of such default the defendant No.l never came to have transferable title.

36. Indeed the plaintiff has admitted that the entitlement of the defendant extended only to entering possession of the property and raising construction thereon and power of disposition would have flowed only from a lease for which K.DA. dues were to be paid, which payment was the responsibility of the plaintiff. Plaintiff thus never enable the defendant No.l to transfer and in these circumstances, taken as a whole, the defendant No.l was justified in concluding that the plaintiff had abandoned the contract which died its "own death". Under section 54 of the Contract Act, 1872, when a contract consists of reciprocal promises, such that one of them cannot be performed or that its performance cannot be claimed till the other has been performed and the promisor of the last mentioned promise fails to perform it such promisor, not only that he cannot N claim specific performance but, must pay compensation for the resulting loss. Likewise, under section 67 of the Contract Act, if a promisee neglect or refuses to afford the promisor reasonable facilities for the performance of his promise, the promisor is excused as to any non‑performance caused thereby. Thus the plaintiff, 0 not having performed his reciprocal promises or having provided reasonable facilities for the performance of the obligations of the seller, must forfeit his right to claim specific performance. On these questions some references may, now, conveniently, be adverted to.

37. Inamullah, J, as he then was, in the case of Sardar Gul Muhammad Khan v. Khawaja Shamsuddin PLD 1956 Kar. 514 held that where the plaintiff agreed to transfer leasehold rights in a plot held under the Corporation Jong with construction thereon but did not have any leasehold rights in his favour, he was not entitled to specific performance for selling such property.

38. In a Division Bench case from Indian jurisdiction namely Shamji Bhoy v. Jagoo Hemchand Shah and others 1949 LL.R. 1949 NagS81 the various stages of a contract namely negotiations, recording the arrangement in some form of writing and final execution of a formal document are referred to. It has then been opined that under section 24(b) of the Specific Relief Act the plaintiff must first allege and then, if it is traversed, prove that he had performed all the conditions which he was bound to perform and that he had been ready and willing at all times to perform his part of the contract and a repudiation by the plaintiff need not be express and it may be inferred from his conduct which, may include, his insisting on a condition, to which he is not entitled under the contract.

39. The Judicial Committee in the case of Israel Magolis v. Sarkir Izmirilian PLD 1948 PC 56 lays down that a party, on whose performance depends the discharge of the obligation of the other side, must exercise due diligence and in default is liable for breach.

40. In the case of Abdul Lateef Dar v. District Allotment Committee, 1980 SCMR 322 the Supreme Court of Pakistan on facts which showed that 20% of the price of the plot had to pay before allotment and possession and such payment was defaulted, held that relief of allotment and possession could not be granted.

41. The principle, emerging, therefore, is that where a contract of sale involves reciprocal promises, as contemplated by Section 54 of the Contract Act and one of these comprises of perfecting the title of the seller it is for the plaintiff, as a condition precedent to show and, if contradicted, to prove that he was, at all material times, ready and willing to perform his part of the obligations and that by his conduct, express or implied, he did not lead the other contracting party to believe that he had abandoned the contract, for repudiation need not always be express. In the case in hand not only that the plaintiff miserably failed in honouring the letter and word of the contract he, through his consistent acts, of commission and omission, pushed the defendant No.l into a less beneficial contract as the agreement dated 22‑8‑1975, in terms of net valuation, is worth less than Rs.2,40,000, specific performance, therefore, does not seem to arise.

42. As regards the contract being one where time could be reckoned of essence the position is clear enough in that specific periods of payment were provided in order to enable the defendant No.l to perform his part of the contract by obtaining possession and redeeming the property from a third party who admittedly, was in possession. Such third party, the defendant No.2, was a creditor and, at the minimum, even entertained notions of having a lien on the property and was, admittedly, sharing profits with the defendant No.l. These stipulations as to time were cognate to delivery of possession and that was known to the plaintiff. In this context, the under-noted case‑law may, here be examined.

43. In the case of Soori Chetty Ranga Nathan v. G. Partha Sarathy Chety AIR 1921 Mad. 141 Wallis, C.J. and Odgers, J. were of the view that in contracts for the sale of land time is not, ordinarily, considered to be of the essence of contract within the meanings of section 55 of the Contract Act, if there is nothing in the express stipulations between the parties, the nature of the property, from the surrounding circumstances which would make it inequitable to apply the rule. It was further held that even where time is not of essence yet the postponement of performance to a unreasonable extent by the Vendee will entitle the Vendor to terminate the contract.

44. The decision of the Calcutta High Court in Mahadeo Prosed Agarwala v. Narain Chander Chakrabarti 57 Indian Cases 121 lays down that in a suit for land and machinery, based on a contract, required to be completed within three weeks, the contract did not involve time as of essence of the contract merely because a date was mentioned for performance, which by itself was not conclusive proof that time was of essence.

45. In the case of Ebrahim Saley Mayet v. Ghulam Hussain Pakseema PLD 1960 Kar. 297 Waheeduddin Ahmad, J., while in this Court, held that in contracts for sale of land time, ordinarily, was not of essence, there being a presumption that parties did not intend it, to be so but that such presumption was rebuttable. However, if parties intend otherwise, time can be essential and such intention may be gathered from the nature of the property or object of the agreement or terms thereof. In that case sale being of a running factory and the plaintiff being anxious to enter into other commitments, time was found to be of essence. Waheeduddin Ahmad, J., in the subsequent case of Malik Ghulam.Iilam v. Malik Munir Ahmad Khan and others PLD 1960 Kar. 517 re‑affirmed the foregoing view adding however that surrounding circumstance was another factor to be kept in consideration in determining whether time was of essence. On appeal taken in the case of Ebrahim Saley Mayet and reported as Ghulam Hussain Pakseema v. Ebrahim Saley Mayet PLD 1964 Kar. 388 a Division Bench of this Court disagreed on points of fact but affirmed that the intention of the parties regarding time being of essence may prevail even over written word of the contract, which expressly spells out time to be of essence, for it is intention alone which material in the context of Section 55 of the Contract Act. It was further held that even where sale of real estate is involved time may yet be of essence if such estate constitutes business premises or is to be used for trade purposes or as a public house for in such context considerations were different as business needs are ordinarily subject to quick changes. Satisfaction of closely connected needs, if any, was also added as another factor reflecting upon the intention of the parties.

46. The Supreme Court of Pakistan in the case of Abdul Hameed v. Abbas Bhoy Abdul Hussain Soda Water‑Wala PLD 1962 SC 1 has laid down that specific performance of a contract may be allowed, although, there has been a failure to keep the dates assigned in the contract if justice can be done between the parties and if there be nothing in the express stipulations of the parties and the surrounding circumstances making it inequitable to grant relief. It is further opined that an intention to make time of the essence of the contract must be expressed in unmistakable language and that equity will not assist where there has been undue delay can the part of one party and the other has given reasonable notice that he must complete within a definite time. It has further been held that even where time is not of essence it may be made such by serving a notice and by allowing reasonable time for performance.

47. The case of Seth Essa‑Bhoy v. Saboor Ahmad PLD 1973 SC 39 lays down that normally, time is not of the essence of contract in respect of sales of immovable property. In this case a notice for performance within three days was not proved and, even if it was proved, it was declared that the time allowed was not reasonable.

48. Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344 is again a case from the Supreme Court jurisdiction in which it has been declared that contracts of sale of immovable property do not, ordinarily, involve time to be of essence but intention of the parties in such behalf can be gathered from terms of contract and facts and circumstances of the case but mere mention of time in contract for its performance does not necessarily mean that time was of essence. It has also been held that specific performance under section 22 of the Specific Relief Act, falls within the discretionary jurisdiction of a Court and cannot be claimed as a matter of right. Yet such jurisdiction is not arbitrary but sound and reasonable guided by the judicial principles and relief depends upon circumstances of each case and conduct of parties.

49. In this case I find that the specifications as to time were not without meaning. How and why observance of time in the context of the reciprocal promises of the plaintiff was relevant has been adverted to already. It is true that the‑agreement does not in so many words speak of time being of essence but that is not necessary. The various steps contemplated in detail, within express time limits, when seen in the overall context of the transaction, as brought out in evidence, shows time to be of essence. Under section 55 of the Contract Act, it is the intention of the parties alone which is material and such intention can be deduced from their conduct, the nature of the transaction or from the overall circumstances of the case. On such last basis time was of essence here.

50. Now, emphasis has been laid on the crucial dates of payment and possession being 30‑6‑1975 and completion of sale being 31‑8‑1975. This is not so as these dates, per agreement, indicate the outer limits of time. Mr. Shamsul Arfin and Mr. Afzal Mehmood rely on the opinion of the Priw Council in Horic Edridge and others v. Rustomji Danibhoy Sethna AIR 1933 PC 233 to contend that the agreement is to be construed in accordance with its terms and in the light of facts known to both parties when it was concluded and further that the plaintiff in order to succeed must prove performance of the conditions precedent. They appear to be right. As a results, abandonment of contract could be prior to such dates.

51. While on the question of time of the essence of contract and the ordinary rule being that in contracts for immovable property presumption, though rebuttable, is a negative one, it will not be irrelevant to state that the basis of such rule, as regards transactions touching immovable property, is that prices of real estate do not ordinarily fluctuate nor does real estate deteriorate within a few days and hence the English principle in Equity, to which the rule owes its origin. If, therefore, it is shown that the economy was ridden with inflation and the legal tender was subject to serious erosion or that values of real estate, at a given time, were rising steeply and that, in such circumstances, stipulations as to time were made, surely, the equitable doctrine of relieving the purchaser beyond the limits of the time prescribed would not operate and the paramount rule of the intention of parties, as codified in Section 55 of the Contract Act, shall have full effect. In this case plaintiff's own case is one, which involves alleged steep rise in price and thus, also, it can be inferred that time was of essence.

52. It will be appropriate now to deal with the issues pertaining to the plaintiff and the defendant No.'‑ These consist of Issue No.l framed on 19‑R‑1979 and the additional Issue framed on 27‑9‑1978. On these Issues my finding is that though the defendant No.2 was in possession of the suit property prior to 10‑4 1975 such possession was only as a creditor, in exercise of lien as such creditor and as a sharer in business but not as prior purchaser. The plaintiff failed in the exercise of reasonable care by neither notifying the defendant No.2 personally nor by issuing due public notice, which later omission may even imply plaintiffs studious avoidance to let due information to filter to the defendant No.2, who was, admittedly, in possession.

53. It will be inappropriate to part with this controversy without dilating on the conduct of the defendant No.2. He says that there was a contract between him and the defendant No.l prior to the contract between the plaintiff and the defendant No.l. Evidence on such question is not only wanting but absolutely untrustworthy. The upshot of the evidence is that the defendant No.2 had loaned out a sum of Rs.1,15,000 to the defendant No.]. The defendant No.2 says that he became a sharer in profit with the defendant No.2 pursuant to such arrangement. He further says that the two of them, at one time, were sharing 50% profit each. However, elsewhere he says that the business never became profitable and no profits were paid and the defendant No.l had to sell out to him. Defendant No.l(a) has deposed that, while the defendant No.2 was appropriating profits of her restaurant towards his debt, no payments, whatever were made by the defendant No.2 to the defendant No.l P.W. Nizami has also admitted that the defendant No.2 was sharing in profits. It is thus established that while the defendant No .2 shared in profits no payments were made by that defendant to the defendant No.l nor did his debt got depleted. As such, he had a free ride, on the one hand in enjoying full possession and benefits of the restaurant and on the other pushing the defendant No.l first into entering an agreement with the plaintiff and then on plaintiff's failure, hounding that defendant to conclude another one with himself. The whole transaction between the defendants Nos.l and .2 appears to be unconscionable, absolutely one sided and even fraught with undue influence‑ inasmuch as a sick man was pressurized into a situation to the entire liking of the defendant No.2. At any event, this is a controversy, which may have to be dealt with between the defendant No.2 and the legal heirs of defendant No.l, as and when, it arises. For the present, all that I can repeat is that the transaction between the defendant No.2 and the defendant No.l is wholly unsatisfactory and it is difficult to see as to how it can be saved from its own infirmities. As regards the plaintiff, however, he was put on notice of such rights as the defendant No.2 may have had in the restaurant and his contract was subject to the same but in that he did not pay the defendant No.l to clear the property of the defendant No.2, his own contract, ultimately, collapsed.

54. In the final analysis specific performance is a discretionary relief and note a right of any party. In the totality of the circumstances of this case, I am of the view that the requisite discretion cannot be exercised in favour of the plaintiff,

55. On the question of damages the plaintiff has led no evidence. Even otherwise, the plaintiff having himself been found to be in breach no case for; I damages could be made out.

56. In fairness to all, I would still pass a decree in this case and direct that a sum of Rs.20,000 be paid back to the plaintiff but the same would be so paid back not by the defendant No.1 (or his heirs) but by the defendant No.2, who has, throughout, been in enjoyment of the property and that such return shall be made, effective from the date of suit, with 15% per annum towards anticipated profits, with yearly rests, that such money would have earned, if it had been profitably employed by the plaintiff. Costs of the suit are also. allowed to the plaintiff but the same again would be payable by the defendant No.2 alone. M.B.A./M‑827/K Order accordingly