1990 PLP 1758 (MLD)

Yes. Issue No.8 No. Issue No.9 Suit decreed with costs. REASONS. Issues No. 1 to

9. Since all these issues are inter connected, I have decided to discuss all these issues together. Plaintiff has examined her husband Haseenuddin Khan Ex.‑

5. Haseenuddin Khan is Attorney of the Plaintiff. He has repeated whatever the plaintiff has stated in the plaint. Hence the same need not to be reproduced. He has produced the following documents:‑ (1) General Power of Attorney Ex.‑5/1. (2) Counterfoil of the cheque dated 23‑6‑1977 for Rs.50,000 bearing No. 464179 of U.B.L,,. Elphinstone Street, Karachi. Ex.‑5/2. (3) Registered General Power of Attorney executed by Defendant in favour of Jamil Ahmad Khan. Ex.‑5/3. (4) Agreement of Sale executed by the Defendant through his Attorney in favour of the plaintiff. Ex.‑5/4. (5) Receipt of Rs. 5,000 executed by the Attorney of Defendant Ex.‑5/5. (6) Newspaper advertisement on behalf of Plaintiff. Ex.‑5/6. (7) Newspaper advertisements given by Estate Agent on behalf of the Defendant. Ex.‑5/7. & Ex.‑5/8. (8) Notice given by Plaintiff's Advocate to Defendant. Ex.‑5/9. (9) Registered Receipts. Ex.‑5/10, 5/11 and 5/12. (10) A/D. Receipt. Ex.‑5/13. (11) Receipts for Rs.30,000 and Rs.15 000, executed by Maizanul Haq Exs‑5/14& 5/15. (12) Treasury Challxns of is.1,5552 and Rs.776 deposited by the Plaintiff in the name of Defendant in the account of House Building Finance Corporation. Exs. 5/16 & 5/17. The plaintiffs next witness is Muhammad Wasiullah Qazi Ex.6. He is the attesting witness of Power of Attorney given by the Defendant m favour of Jamil Ahmad Kh;ln and the Sale‑Agreement executed by Jamil Ahmed Khan in favour of the Plaintiff. Through his evidence the execution of both these documents and the payment of consideration is sought to be proved. The third and the last witness of the Plaintiff is Jamil Ahmad Khan Attorney of Defendant Ex.‑

7. He has also supported the Plaintiff and has given evidence as shown in the plaint and therefore, his evidence need not to be reproduced. He has produced the notice of Defendant revoking of his General Power of Attorney Ex.‑7/1, office copy of his reply to the Defendant Ex.‑7/2 and A.D. Receipt Ex.‑7/3. As against this the Defendant has examined himself and has repeated whatever was stated in the written statement. He has examined a Clerk from House Building Finance Corporation, who has stated that the Defendant had taken a loan of Rs 40,000 on this house. He has further stated that the Defendant has not taken any permission to sell this house to Plaintiff or any body else. From the evidence and the documents the execution of General Power of Attorney by the Defendant in favour of Jamil Ahmad Khan is not only proved by the Plaintiffs husband Haseenuddin Khan and attesting witness Muhammad Waseeullah Khan, but is also admitted by the Defendant. The existence of the initial oral contract for the sale of the house is also not denied. Even the payment of Rs.50,000 by means of cheque is admitted, though it is alleged that it was on behalf of the Plaintiffs husband with whom transaction was entered into. It is alleged by the Defendant that the General Attorney was nephew of the Plaintiff and the Power of Attorney was executed only to safeguard the property in the absence of the Defendant, who was going abroad. The relationship of Attorney with the Plaintiff is not denied. It is a common knowledge that it is usual practice that when sale documents are to be executed on behalf of the seller in favour of the purchaser, then General Power of Attorney is executed in favour of the purchaser himself or in favour of a nominee of the purchaser. Since Rs.50,000 were already paid to the Defendant and the bulk of the remaining amount was to be paid to the House Building Finance Corporation and only a meagre amount of Rs.7.000 was remaining to be paid to the Defendant, there does not appear to be anything unusual in the Defendant's executing General Power of Attorney in favour of nephew of the Plaintiff. The notice of revocation of General Power of Attorney Ex.‑ 7/1 does not disclose those reasons therein, which have been for the first time alleged by the Defendant in the written statement. The allegation of the Defendant in the written statement is that the plaintiffs husband had agreed to purchase the house for a sum of Rs.2,50,000 and paid Rs.50,

000. It was after the execution of General Power of Attorney in favour of his nephew that the Plaintiff became dishonest and got a Sale‑Agreement of Rs.97,000 only executed in his favour, which led to the termination of the contract, and revocation of General Power of Attorney. This allegation does not appear to be convincing, for the reason, inter alia that if Rs.2,00,000 were still to be paid to the Defendant, then a man of ordinary prudence would not have executed a Registered General Power of Attorney in favour of the nephew of the purchaser. Moreover m the year 1977 a house built on 200 sq. yds. in Federal `B' Area ordinarily would be sold for a sum of Rs.90.000 to Rs.1.00,000 and it is not believable that it would have been sold for Rs.2,50,

000. The Defendant had not alleged in his notice. revoking the Power of Attorney that the Plaintiff had to pay Rs.2,00,000 (Rupees two lacs) as balance of sale consideration and that the Attorney in collusion with the plaintiff executed Sale‑Agreement for Rs.97,000 only and therefore, he cancelled the General Power of Attorney. Had it been so, the Defendant would have certainly mentioned this fact into the said notice. The Power of Attorney does not show that it was given to safeguard the property in the absence of the Defendant, who was going abroad, but the terms and conditions mentioned therein clearly reflect that the same had been given in order to complete the contract of sale of the house by executing proper formal document on behalf of the Defendant. The Defendant has admitted in his deposition that Manzoorul Haq is his brother and is living with him. The Plaintiff has produced two receipts Exs. 5/14 and 5/15, whereby Rs.45,000 was paid by the Plaintiff to Manzoorul Haq. The Defendant has admitted these receipts. The question was disallowed on the ground that this fact was not mentioned in the plaint. The question of admission of the receipts was, however, left to be decided at the time of final arguments. Since the signatures on these receipts are admitted by the Plaintiff, I allow these receipts to be admitted and considered in evidence. In view of the above facts and circumstances, I am fully satisfied that the Defendant had contracted to sell the house in suit to the Plaintiff for a consideration of Rs.97,000, out of which he had received Rs.50,000 on 23‑6‑1977. I am also satisfied that the Defendant had executed Registered General Power of Attorney on 3‑10‑1977 in favour of Jamil Ahmad Khan for empowering him to execute Sale.‑Agreement and Registered sale‑deed in respect of the said house in favour of the Plaintiff. I am also satisfied that the plaintiff had to pay Rs.40,000 to the House Building Finance Corporation towards the loan instalments of the suit house and to pay Rs.2,000 to the Defendant at the time of registration of sale deed and that the plaintiff had paid Rs.2,328 to the House Building Finance Corporation towards the loan instalments. I am further satisfied that the Defendant's Attorney had executed Sale‑Agreement in favour of the Plaintiff on 5‑10‑1977 and received Rs.5,000 on his behalf. Jamil Ahmad Khan has stated on oath that he had received Rs.5,000 from the Plaintiff and had tried to pay the same to the Defendant, but he did not accept the amount, as he wanted to cancel the General Power of Attorney. Hence it is clear that this amount was tendered by the Attorney, to the Defendant and that the Defendant having become dishonest on account of greed in view of the increase in the prices of the immovable property in the market, wanted to wriggle out of the contract. By now it is settled law that where the vendee is ready and willing to perform the contract, the specific performance of the contract is not to be refused. Reference in this connection may be made to P L D 1975 Kar. 608, Mst. Nasira Sultana v. Habib Bank Ltd., P L D 1964 S C 381 Maksood Ali v. Eskandar Ali and the English decision of Privy Council reported in 1961 (1) All England Reports P‑737, Australian Hardwoods Pty Ltd. v. The Commissioner for Railways. The ratio decidendi of these three cases is that if the plaintiff in a suit for specific performance is throughout ready and willing to perform his part of contract, then the discretionary relief of specific performance is to be granted. Similar view has also been taken in the latest ruling of Lahore High Court reported in P L D 1988 Lahore 680, Bilal Ahmad Malik v. Mst. Amtul Haseen and others and P L D 1988 Lah. 717, Aman Enterprises Kotli Loharan Sialkot v. Rahim Industries Pakistan Ltd. and another. Hence I am of the clear view that the Defendant is bound under the law to specifically perform the contract and to transfer and convey the suit house to the Plaintiff by executing necessary sale deed on receipt of the balance amount of Rs.2,000 and the amount of Rs.5,000 which the Attorney had tendered to the Defendant, but he had not accepted the same. Jamil Ahmad Khan was only an Attorney of the Defendant appointed at the choice of the plaintiff and therefore, it was not necessary to join him as a party. For these reasons I decree the Plaintiff's suit and direct the Defendant to execute a Registered sale‑deed in favour of the plaintiff with respect to the house in suit and delivery vacant possession of the house to her on receipt of Rs.7,000 from her. The Plaintiff is at liberty to deposit the amount of Rs.7,000 with the Nazir of this Court, the notice whereof shall be given to the Defendant. If the Defendant does not deliver the possession of the house to the plaintiff and does not execute Registered sale‑deed in his favour within one month of the deposit of the balance amount, it shall be presumed that he is not willing to do the same and in that case the plaintiff will be at liberty to get the sale‑deed executed from an Officer/Commissioner appointed by this Court and get delivery of vacant possession of the house through the Court. I also grant injunction restraining the Defendant from leasing out the house or parting with its possession to any body else. It is clarified that the dues of the House Building Finance Corporation, if any, including the interest thereon with respect to this house, shall be the liability of the Plaintiff and shall be paid by her. The costs of the Suit shall be borne by the Defendant. M.B.A./1‑119/K. Suit decreed.