1999 PLP 1574 (CLC)

This is a suit for specific performance of a contract, dated 14‑5‑1996 as well as for the perpetual in injunction and in alternate monetary compensation is also claimed by the plaintiff at the rate of Rs.12,000 (Rupees twelve thousand) per month from 16th September, 1997.

2. The facts as stated in the plaint are that the defendant is the owner of double storey building bearing No.B‑81, Block‑L, North Nazimabad, Karachi measuring 400 square yards (hereinafter referred to as the suit property): that on 14th May, 1996 parties entered into an agreement to sell the suit property at the total' consideration of Rs.3 millions; that the plaintiffs paid total sum of Rs.9,50,000 (Rupees nine lacs and fifty thousand) as advance to the defendants that on 4th August, 1996 supplementary sale agreement was executed between the parties through which it was agreed that the sale transaction will be completed on or before 14th September, 1996; that the defendant expressed his inability to perform his contractual obligations despite all possible efforts of the plaintiffs who were always willing and ready to perform their contractual obligations; that the plaintiffs approached the defendant, after expiry of the target date i.e. 16th September, 1996 but the defendant failed to perform his contractual obligation. As a result the plaintiffs have filed the instant suit for following reliefs:‑‑

(a) A decree for specific performance of the contract be passed in favour of the plaintiffs and against the defendant with direction to him to execute sale‑deed/transfer documents in respect of double storeyed Bungalow on plot of land bearing No.B‑81, Block‑L, North Nazimabad, Karachi m favour of plaintiffs as was agreed between the plaintiffs and the defendant and on his failure in doing so the Nazir of this Honourable Court be authorised to execute these documents and ultimately transfer the property aforesaid in the name of the plaintiffs from the name of defendant and he be directed to get the said property vacated from the defendant and deliver its possession to the plaintiffs and do all other acts, deeds and things which may be necessary for better assuring and perfectly transferring the property aforesaid in favour of the plaintiffs. (b) The defendant, his employees, agents, previse etc., be permanently restrained from transferring the property in suit in favour of any other person and/or from changing status of the building aforesaid in any way or manner and also from delivering its possession of the same to any other person except the plaintiffs. If it is found that the defendant has entered into any transaction in respect of this property with any other person after agreeing to sell this property to the plaintiffs the same be declared as illegal, ineffective and of no consequence and the documents so executed be filed in Court and be ordered to be cancelled. (c) A decree for a sum of Rs,1,44,000 be passed against the defendant as compensation for not delivering the possession of the property subject matter of the suit to the plaintiff from 16‑9‑1996 to 15‑9‑1997. (d) A decree for recovery of Rs.12,000 per month with mark‑up thereon at 18% per annum from 17th September, 1997 till the, delivery of possession of the property aforesaid be passed against the defendant in favour of the plaintiffs as compensation on account of loss or income from the said property during the pendency of the suit till its realization. (e) Any other relief or reliefs which this Honourable Court may deem fit and proper under the circumstances of this case be granted to the plaintiffs against the defendant. (f) Cost of the suit be allowed.

3. Defendant was served in the instant suit and was required to file his written statement within four weeks from the date 4‑11‑1997. On 20th January, 1998, by the order of Additional Registrar (O.S.) the defendant was debarred from filing written statement. However, perusal of file indicates that he filed his written statement but on 22nd January, 1998 without obtaining leave of the Court. Till this date (24‑3‑1998) defendant has not filed any application for setting aside the order, 20‑1‑1998 through which he was debarred from filing written statement. Therefore, this written statement cannot be considered and is liable to be ignored. On 11th March, 1998 when this matter came up for hearing, plaintiffs were directed to deposit the balance sale consideration of Rs.20,50,000 (Rupees twenty lacs and fifty thousand) in order to ascertain whether they are ready and willing to perform their contractual obligations. In addition, they were further directed to file their affidavit‑in‑evidence ex parte proof alongwith original documents. In compliance of the same the balance sale consideration was deposited on 18th March, 1998 with the Nazir of this Court and as required, two affidavits alongwith original documents have also been filed.

4. I have heard Ms. Rashida Siddiqua, Advocate for the plaintiff and have perused the plaint, both the affidavits and the original documents. Ms. Rashida has contended that in addition to the relief for specific performance of the contract, the plaintiffs are also entitled for monetary compensation. She has placed reliance on section 19 of the Specific Relief Act and on the cases Danishmand v. Syed Rashid Afzal 1986 MLD 141 and Muhammad Sharif v. National Motors Ltd. 1989 CLC

916. In both cases the rule laid down is that section 19 of the Specific Relief Act intends to prevent multiplicity of suits and to do complete and substantial justice between the parties; that in a suit for specific performance, the plaintiff is not obliged to specifically seek relief of damages and that the Court has ample discretion to grant damages provided foundation for such relief has been laid and relief for specific performance is not abounded or disclaimed by such plaintiff. In the case of Muhammad Sharif (ibid) reference was made to the cases Kr. Kaitash Chand Bhargawa AIR 1945 All. 395, Arya Pradishak Prilimidh; Sbha v. Lahori Mal AIR 1924 Lah. 713 and Satyafaran Chaudhry v. Jyoti Prasad AIR 1923 Pat. 386.

5. The above rule is further supported by the second illustration given under section 19 of the Specific Relief Act which reads as follows:‑‑ "A contracts with B to sell him a house for Rs.1,000 the price to be paid and the possession given on the 1st January, 1877. A fails to perform his part of the contract, and B brings his suit for specific performance and compensation, which is decided in his favour on the 1st January, 1878. The decree may, besides ordering specific performance, award to B compensation for any loss which has sustained by A's refusal."

6. In para. 11 of the plaint, it is claimed that the plaintiffs were deprived from earning of Rs.12,000 p.m. from 15th September, 1996 uptil 15th March, 1998. It was argued that the defendant has intentionally avoided to deliver the physical possession of the suit property to the plaintiff. There is no opposition or rebuttal to the contents of the plaint or to the contents of the two affidavits filed by the plaintiff and his witness. In absence of any rebuttal, I am left with no option but accept the contents of the plaint and the affidavits to be admitted. Accordingly, the above suit is decreed in the following manner:‑‑

(1) Defendant is directed to execute transfer documents/sale‑deed in respect of the suit property within a period of 30 days from the date of judgment. All the expenses of such registration shall be borne by the plaintiffs. (2) In the case of defendant's failure to execute conveyance‑deed/sale‑deed within the period as specified above, the Nazir is directed to execute the same, subject to his fee which is fixed, at the rate of Rs.5,000 (Rupees five thousand). (3) Defendant is directed to deliver physical possession of the suit property to the plaintiff within 30 days. (4) Defendant is further directed to pay compensation for the breach of contract as the total amount of Rs.1,50,000. (5) Perpetual injunction as prayed is also granted. (6) Costs of the suit. C.M.A./M.A.K./I‑63/K Suit decreed‑