1989 PLP 1217 (CLC)

This is a suit for specific performance and in the alternative prayer for return of the amount of consideration is made.

2. Case of the plaintiff is that defendant No.l had agreed to supply gloves according to sample and agreed export quality to Saudi Arabia and France in pursuance of three orders placed by the plaintiff between 17‑2‑1980 and 19‑3‑1980. Defendant No.l supplied the gloves of inferior quality and the plaintiff thus suffered a loss of Rs.2,17,588 and filed a Suit bearing No.433/1980 before this Court for recovery of that amount. Defendant No.l had entered into a contract for purchase of property bearing No.2/CB/74 measuring 104 sq. yds. situated in Falah Society, Karachi in December 1979 with defendant No.2 for a total consideration of Rs.1,34,

000. Out of the said consideration a sum of Rs.1,24,000 was paid by defendant No.l to defendant No.2 and it was agreed that the balance shall be paid at the time of execution and registration of sale‑deed. The defendant No.l agreed to settle the claim of the plaintiff in Suit No.433/1980 and executed such an agreement. It was further agreed that defendant No.l shall pay Rs.500 per month as rent for 6 months. He also promised to vacate and hand over the possession by 30‑9‑1981. Thereafter he is holding over the possession and is liable to pay mesne profit at the same rate. Such compromise agreement was filed in this Court in Suit No.433/1980 and the decree followed the same. In the said compromise decree it was agreed that the above immovable property will be transferred by defendant No.l in favour of the plaintiff for a sum of Rs.1,34,000 and the remaining amount was to be paid in cash. The defendant No.l was called upon a number of times to execute the agreement of sale as agreed in the compromise but he has failed to do so.

3. The defendants were served. The defendant No.l filed written statement, in which he admitted certain averments made in the plaint and denied the others. He admitted that the plaintiff had placed an order for supply of gloves. He, however, denied rest of allegations. He then admitted that the plaintiff had filed a Suit bearing No.433/1980 against him in this Court. He has, however, avoided to give any clear reply regarding the compromise and has stated that the same was an erroneous act of his Advocate. He has also stated a number of other facts which are not relevant for the purpose of this suit.

4. On the pleadings of the parties following issues were framed:‑ (1) Whether the plaintiff is entitled to a decree for specific performance of the contract /agreement dated 8‑3‑1981 and if not then to what damages plaintiff is entitled ? (2) Whether the plaintiff is entitled rent/mesne profit; if so to what amount ? (3) What should the decree be ? My findings on these issues are as follows:‑ ISSUES Nos.l to 3 The suit was fixed for recording of evidence on 21‑5‑1987. Mr. Arif Hussain appeared for the plaintiff while there was no appearance for the defendant. Mr. Arif Hussain made a statement that he had come to know that the immovable property for which he had sought specific performance of contract stands disposed of. He, therefore, took an adjournment to seek instructions from his client. The case was adjourned to 10‑9‑1987. On this date again he took another adjournment. The case was then adjourned to 19‑8‑1987. Mr. Arif Hussain appeared for plaintiff but still there was no appearance for the defendant. Mr. Arif Hussain was called upon to file affidavit of plaintiff and documents, if any, by next date, which he has done. Mr. Arif Hussain has stated that the immovable property for which he has prayed for specific performance has been sold in execution of decree in Suit No.433/1980 in Execution No.82/1982 and has been A purchased by somebody else during the auction proceedings. He has, therefore, pressed his alternate prayer for return of the sale consideration. Plaintiff Abdul Rasheed has filed his own affidavit along with certified copy of the compromise application and the certified copy of the order of this Court regarding the same as well as certified copy of the decree in Suit No.433/1980. The above evidence of the plaintiff has gone unchallenged and un rebutted.

5. I, therefore, decree the plaintiff's suit for a sum of Rs.1,84,

000. I also grant a decree for rent/mesne profits amounting to Rs.18,000 up to the date of the filing of the suit. I further direct that the mesne profits/damages at the rate of Rs.500 per month be paid to the plaintiff by the defendant No.1 from the date of the filing of this suit till the date of this decree which comes to Rs.24,000 as calculated by plaintiff's Advocate. The costs of the suit shall be borne by the defendant No.l. M.Y.H./A‑458/K Suit decreed.