1986 PLP 323 (MLD)

This is a suit for specific performance of a contract in respect of an immovable property and in the alternative for an amount of Rs.1,00,000 with interest.

2. The plaintiff on 6‑1‑1982 entered into an agreement with defendant No.1, whereunder the said defendant agreed to let out three rooms, bathroom, latrine and kitchen on the road side of the building, under construction over the Hayat Hotel, Soldier Bazar, Karachi, on a monthly rent of Rs.100. The plaintiff paid to defendant No.1 a sum of Rs.1,00,000 as Pagri for which' the said defendant issued a receipt. The said defendant, however, failed to hand over the possession of the said premises within the period stipulated in the said agreement. Defendant No.1, however, entered into another agreement dated 21‑6‑1983 to let out one big room and small room with kitchen, bathroom on the ground floor on the rear side of the building. It was further agreed that out of the said sum of Rs.1,00,000, defendant No.1 would keep with him a sum of Rs.65,000 as Pagri, and would refund Rs.35,000 to the plaintiff. Defendant No.1 also kept with the plaintiff his passport as satisfaction and security for the fulfilment of the said agreement, but he failed to fulfil that agreement.

3. The defendant No.1 went to India on a fresh passport which was obtained by him on the false representation that the previous passport was missing or last, though, in fact, the passport had been kept with the plaintiff as security. After defendant No.1 came back from India, he promised hat he will lit out the premises of Hayat Hotel against the amount of Rs.1,00,000 lying with him, at the monthly rent of Rs.300. But, contrary to the said promise, he came to the plaintiff alongwith defendant No.2 and a Police Officer on 26‑1‑1985 and pressed the plaintiff very hard to return the passport. The plaintiff, then, was compelled to return the said passport to defendant No.1. He thus immediately filed this Suit on 20‑2‑1985. 4. 'Defendant No.1 failed to file his written statement within the statutory period and thus on 28‑10‑1985 he was debarred from filing written statement. Defendant No.2, though served, remained absent and thus the suit was ordered to proceed ex parte against him. The suit is, therefore, fixed today for final disposal.

5. The plaintiff has examined himself and produced 4 documents in original including agreement dated 6‑11‑1982, and receipt of payment of Rs.1,00,000 in support of his claim in the suit. Learned counsel for defendant No.1 cross‑examined him. The case of defendant No.1, as it appears from the cross‑examination seems ‑to be that the defendant took from plaintiff a sum of Rs.40,000 on two occasions which were, however, repaid by him to the plaintiff. It was also suggested in the cross‑examination that after taking the money the passport was returned, but all these suggestions/ allegations have been denied by the plaintiff.

6. From the evidence produced by the plaintiff, I am satisfied that defendant No.1 and the plaintiff entered into the agreement dated 6‑11‑1982 for letting out the premises comprising of 3 rooms with bathroom, latrine and kitchen of the second floor on the front side of the building in question, which was subsequently modified by another writing dated 21‑6‑1983 executed by defendant No.1, whereby he agreed to let out one big room and a small room with kitchen, bathroom, latrine and space for motorcycle on the ground floor on the rear side of the building. I am also satisfied that a sum of Rs.1,00,000 was paid to defendant No.1 on 6‑11‑1982 which is still due from him. There is, however, no evidence to prove that defendant No.1 ever agreed to let out the premises named Hayat Hotel to the plaintiff.

7. The plaintiff has prayed for the following reliefs:‑

"(a) for handing over the possession of the Hotel premises named Hayat Hotel at Soldier Bazar No.3, to this plaintiff as a tenant who will be liable to pay 88.300 per month to the defendant No. l as a tenant; (b) in the alternative, to a judgment/decree against both the defendants to pay Rs.1,31,500 with future interest @ 14% per annum till the entire decretal amount is paid." There is no evidence on record except the bare word of plaintiff that defendant had agreed to hand over the possession of the hotel premises named Hayat Hotel at Soldier Bazar No.3, Karachi to the plaintiff as tenant on monthly rent of Rs.300.

8. I, therefore, grant alternative prayer and decree the suit against defendant No.1 for the refund of Rs.1,00,000 with an amount of interest of Rs.31,500 upto the date of filing the suit as claimed and future interest from the date of filing of the suit till payment at the rate of 14% per annum with cost against the defendant No.1 only. M. Y. H Suit decreed.