1989 PLP 348 (CLC)

Defendants (called absent). Date of hearing: 8th August, 1988. This is a suit for specific performance of contract or in the alternative for recovery of Rs.2,50,

000. Case of the plaintiff, Province of Sind is that by virtue of MLR 118 of 1972 privately owned school namely Taleemgah Secondary School housed in a building situated on Plot No.NP2/54, 55, Bhaghari Street. Jodia Bazar, Karachi was nationalised and taken over by the plaintiff, with effect from 1‑10‑1972. Thereafter the school was run by the plaintiff through Director of School Education, Defendant No.l is the owner/landlord of the said building whereas defendant No.2 is his legally constituted attorney. The building was in a dilapidated condition. The plaintiff had to incur huge amount on its repairs. Dispute also arose between the parties which led to litigation and the parties compromised outside the Court. By and under an agreement dated 18‑4‑1984 executed between the parties the plaintiff vacated the premises and handed over its possession to the defendants who demolished the said building to construct a new building on the said plot in accordance with the plan approved by the concerned authorities. It was also agreed in the said agreement that the landlord shall construct a new building in place of the old building, since demolished, within a period of two years from the date of the agreement and report the completion of the new building to the plaintiff within 15 days thereof. The landlord shall, within a period of one month of the construction of the new building; lease out to the Government 4 rooms of its choice at the 4th floor of the building constructed with a separate entrance and hand over vacant possession thereof to the plaintiff. The rent for the lease of the aforesaid 4 rooms shall be mutually determined by the parties, failing which it shall be determined by the Rent Controller. The defendants also executed an agreement to pay a sum of Rs.2,50,000 on failure to perform the agreement. The period of two years has lapsed on 17‑3‑1986. The defendants did not perform the contract and therefore the plaintiff sent a notice calling upon them to hand over vacant possession of 4 rooms or to pay Rs.2,50,000 The defendant No.2 gave an evasive reply to the said notice. Hence the necessity arose for filing the suit.

3. The defendants were served with summons of this suit. Defendant No.2 had engaged an Advocate who actually appeared in the Court but did not file any written statement within the statutory period. Defendant No.l has chosen to remain absent. Hence the suit has been ordered to proceed ex parte against him. Today it is fixed for final disposal.

4. The plaint is verified on oath. Photo copies of the agreement as well as bond were filed with the plaint. The original agreement and the photo copies have been produced by the plaintiff s counsel before the Court which have been returned to him after inspecting the same. Since this agreement and the bond were entered into without the intervention of and outside the Court of the Rent Controller, therefore, the same can be specifically enforced through a Civil Court and the plaintiff is not required to file application before the Rent Controller.

5. The above evidence of the plaintiff has gone unchallenged and unrebutted: I, therefore, decree the suit of the plaintiff for specific performance and direct the defendant No.l to execute the lease deed as prayed and hand over the vacant possession of 4 rooms of plaintiff s choice on the 4th floor of the building within a period of two months from today, failing which it will be presumed that he has no intention of obeying the orders of the Court and in that case the plaintiff shall be entitled to get the lease deed executed by the Nazir of this Court and to obtain possession by means of execution of this decree. The costs of the suit shall be borne by the defendant No.l. M.Y.H./P‑81/K Suit decreed.