1986 PLP 243 (MLD)

Any other relief or reliefs which this Hon'ble Court deems fit and proper under the circumstances of the cases be awarded to the plaintiff."

1. The facts briefly stated in the plaint verified on oath are that the defendant No.1 by the agreement of sale, dated 25th March, 1968 agreed to sell and transfer in favour of the plaintiff property bearing No.5, Row. No.8, Sub‑Block G, Block No.4, Nazimabad, Karachi measuring about 423 sq. yards for a lump sum consideration of Rs.60,

000. At the time of execution of the said agreement the plaintiff paid a sum of Rs.15,000 to the defendant No.1 as advance, The entire sale consideration was agreed to be paid in the following manner:‑ "(a) Rs.40,816.75 in cash. (b) Rs.19,183.25 being the amount of loan' of House Building Finance Corporation payable by the plaintiff /purchaser, w . e. f . 1st July, 1968 under the Agreement and to be transferred in the name of plaintiff in place of defendant."

2. The earlier agreement made on 25‑3‑1968 was; however, partially modified on 14‑6‑1968 whereby it was agreed that "he plaintiff would make total payment of Rs.39,759.40 in cash to the defendant No.1 and the remaining amount of sale consideration, namely, Rs.20,240.60 shall be paid to the House Building Finance Corporation, as the loan outstanding on 30‑6‑1968. It would be noticed that the total sale consideration earlier agreed between the parties, continued to be abovementioned supplementary agreement plaintiff paid a further' sum of Rs.15,000 in cash to the defendant No.1 and thus the defendant No. l received a total sum of Rs.30,000 and accordingly the advance received by the defendant No.1 towards the sale consideration became Rs.30,

000. In part performance of the agreement of sale the defendant No.1 delivered vacant possession of the property in suit to the plaintiff, who, according to the averments made in the plaint, still continues to be in possession of the same.

3. The facts pleaded in the plaint further show that in spite of the fact that the plaintiff required the defendant No.1 do complete the sale transaction after complying with all the legal formalities he avoided to do so whereupon the plaintiff served legal notice, dated 6‑9‑1968 on the defendant No‑1 calling upon him to complete all the formalities and get the sale‑deed registered in the office of the Sub‑Registrar; Karachi. The defendant No.1 raised certain objections but ultimately conceded to the claim of the plaintiff and on 13‑3‑1971 executed a fresh agreement of sale wherein after confirming the earlier agreement of sale, dated 25‑3‑1968 made with the plaintiff for the sale of the property in suit to the plaintiff for Rs.60,000 and the supplementary agreement of sale, dated 14‑6‑1968, the defendant No.1 acknowledged that he had been paid a sum of Rs.36,563 upto, the date of the signing of this last mentioned agreement towards the sale consideration and that the vendee/ the plaintiff having been put in possession had carried out additions, alterations and renovations in the property in suit including installation of Sui Gas, power pumping machine, investing a sum of Rs.15,000 in the improvement of the suit property with the knowledge and the consent of the vendor the defendant No.1. The defendant No.1 also acknowledged that the plaintiff under compulsion had paid taxes and dues which otherwise were his liabilities and that such payments of taxes and dues were adjustable in the balance sale consideration. Having narrated these facts the defendant No.1 further stated that till the signing of this fresh agreement the loan payable to the House Building Finance Corpora tion the defendant No.2, increased to Rs.21,040.60 and that the same shall be transferred in the name of the plaintiff who shall pay the loan instalments directly to the said Corporation and the payments of such instalments shall be adjustable towards the sale consideration of Rs.60,

000. It was further agreed that in the circumstances the agreed sale consideration (Rs.60,000) stood divided as under:‑ (1)" Rs.21,040.60: Loan of the House Building Finance Corporation payable by the plaintiff after transfer of name. (2) Rs.38,959.40: The cash amount payable to the seller/the defendant No.1 out of which Rs.38,563 had already been paid by the plaintiff to the said defendant No.1 and that there remained a balance of Rs.2,396.40 which shall be payable by the plaintiff /the vendee to the vendor/the defendant No.1 at the time of registration of the sale deed." All the three abovementioned agreements have been produced by the plaintiff in Court.

4. The plaintiff has also produced the receipts for the payments made by her to the defendant No.1. It may also be mentioned that by the last receipt, which was executed by the defendant No.1 on 31‑12‑1969 which was described as "consolidated receipt" he acknowledged the receipt of Rs.35,150 from the plaintiff towards the sale price of the house which is the subject‑matter of the 'suit. The plaintiff in paragraph 10 of the plaint has further stated on oath that besides the amounts mentioned above subsequent to the last agreement of sale, dated 13‑3-1971, the plaintiff paid a sum of Rs.1,000 to the defendant No.1 in 1972 in cash and that she further paid a total sum of Rs.837 towards taxes and charges of K . M . C . , K . D . A . and K . E. S . C . which were toe liabilities of the defendant No. l . Taking into consideration all the payments thus made to the defendant No.1 and or on his behalf it stands proved that now the plaintiff remains liable to pay Rs.559 only to the said defendant No.1 towards the amount agreed to be paid cash.

5. The plaintiff in para. 8 of the plaint has also pleaded that towards the loan of Rs.21,040.60, upto the date of filing of the suit she has paid more than Rs.16,000 to the House Building Finance Corporation in the name of the defendant No.1. Today in the Court she produced counter‑foils of the receipts showing payments made by her towards the loan to the House Building Finance Corporation in respect of the property in suit. The learned counsel for the plaintiff states that the entire loan, amount stands cleared and nothing now remains payable to the said Corporation/the defendant No.2 towards the loan amount in respect of the property in suit.

6. As already noted above, the averments made on oath by the plaintiff in the plaint are fully supported by affidavit as well as by documentary evidence of unimpeachable character. The defendants have chosen to remain absent and have led no evidence in rebuttal. For the reasons discussed above, being satisfied that the plaintiff has proved her case as set up in the plaint, I hold that she is entitled to the relief of specific performance claimed by her as prayed in the suit. Accordingly the plaintiff's suit is decreed as prayed. The defendant No.1 shall also pay the cost of the suit to the plaintiff. A.A. Suit decreed.