1997 PLP 549 (MLD)

Date of hearing: 16th November, 1995. This is a suit for specific performance of "agreement to sell" dated 26‑1‑1992 for the immovable property measuring 4 acres situated in Nai Malir, Deh Dih, Tehsil and District Karachi, East (hereinafter referred to as the suit land) originally allotted to the defendant who is the sole proprietor of M/s Siddiqui and Company. This suit land was allotted on 26‑6‑1991 in favour of the defendant by the Government of Sindh for the purpose of petrol pump in relaxation of condition No.14 of the Statement of Conditions as notified on 12‑5‑1975. A copy of the allotment letter has been filed a Annexure ' A' to the plaint.

2. The case of the plaintiff is that on 26‑1‑1992 he entered into a written agreement with the defendant for the sale and purchase of the said plot against a total sale consideration of Rs.11,000,000 rupees eleven million. Prior to this written agreement, as stated by Mrs. Ismat Mehdi, there was an oral agreement against which the plaintiffs have paid a sum of Rs.1,000,000 (rupees one million) to the defendant who has acknowledged the same in writing through a separate receipt which has been filed as Annexure ' D' to the plaint. Subsequently, on the day of execution of the abovementioned written agreement a further sum of Rs.2,500,000 (rupees two million and five hundred thousand) was paid by the plaintiffs to the defendant through a receipt filed as Annexure ' E' to the plaint.

3. At this stage Mr. Raja Qureshi, Advocate for the defendant has appeared and states that he has filed a separate suit for cancellation of the said agreement to sell as involved .in this case. According to the learned counsel for the defendant on injunction has been granted in the said suit. Mrs, Ismat Mehdi has filed originals of Annexures 'A' to 'G'. I have heard Mrs. Ismat Mehdi and Mr. Raja Qureshi. Service of summons on the defendant was held good on 10‑11‑1994 since Miss Masooda Siraj, Advocate on behalf of the defendant undertook to file Vakalatnama/power. Thereafter, the defendant failed to file any written statement or counter‑affidavit and the case was fixed for the final disposal. It is now more than a year. Mr. Raja Qureshi had also filed two applications, one, under Rule 159 Sindh Chief Court Rules (O.S) bearing No‑CMA‑4133/95 and, second, under rule 49 Sindh Chief Court Rules (O.S) bearing No.CMA‑4134/95. Both these applications were struck off by the learned Additional Registrar (O.S) on 3‑10‑1995 as the defendant has failed to supply copies and to deposit the cost. No application or petition was filed against the said order which has attained finality after expiry of 30 days. In absence of any rebuttal to the contents of the plaint which is no solemn affirmation, I am constrained to accept the same as correct and therefore, the suit of the plaintiffs is decreed with cost in the following manner: (i) The plaintiff shall deposit the balance sale consideration of Rs.45,00,000 (rupees forty five lac) within four weeks after this judgment with the Nazir of this Court. (ii) After depositing of this amount as mentioned above the defendant is directed to execute a legal and proper sale‑deed in favour of the plaintiffs for the suit land. (iii) In case if the defendant fails to execute the sale‑deed in favour of the plaintiffs as ordered above within one month after deposit of the balance sale consideration, Nazir of this Court is directed to execute a sale‑deed for the suit land in favour of the plaintiff. (iv) All the expenses of sale‑deed and other Government dues shall be borne by the plaintiffs. (v) The plaintiff shall also pay Rs.5,000 as Nazir's fee before execution of the sale‑deed as provided in para (iii) above. Decree accordingly. A.A./Y‑1/K Suit decreed.