1987 PLP 280 (MLD)

In the following paras. of the written statement the defendant has denied that any approach was made to her or any offer for payment of Rs.60,000 was ever made. She has also denied execution of the declaration Exh. 5/5 dated 7-12-1980.

5. On these pleadings the following issues were framed:- "

1. Whether the defendant No.1 agreed to sell plot No.25-16 Picture Road, Kalakot Lyari Quarters, Karachi to the plaintiff with construction thereon for a total consideration of Rs.1,00,000 and received Rs 40,000 from the plaintiff as per agreement of sale dated 9th June, 1979. If so, what is its effect.

2. Whether the defendant No.1 on account of dispute with her husband defendant No.2 refused to accept from the plaintiff the balance of Rs.60,000 in December, 1979 and thereafter deferred the matter till 7th December, 1980 when she executed another Agreement /declaration?

3. Whether the defendants Nos.l and 2 ultimately refused and avoided to register the sale-deed before the Sub-Registrar concerned in favour of the plaintiff in respect of the aforesaid property? 4 .What should the decree bell.

6. The case came up for evidence and Pir Bux Attorney and son-in-law of the plaintiff was examined. He produced the power of attorney executed by the plaintiff in his favour Exh. 5/1. He has supported the allegations in the plaint. He has explained how the original documents have been lost. According to him, the documents were stolen from the Car of the Advocate of the plaintiff and a F.I.R, was lodged in the police station reporting the loss. The report is Exh. 5/3. He has produced the photo copy of the original agreement dated 8-6-1979 Exh. 5/2 and also the Lease Deed executed in favour of the defendant No.1 by the K.M.C. on 13-12-1977 which, according to the plaint, was handed over to the plaintiff by the defendant. It is Exh. 5/4. He has produced a photostat copy of the declaration dated 7-12-1980 in which the defendant No.1 has accepted the receipt of Rs.40,

000. He has also produced the copy of the telegram which was sent to the defendant calling upon her to execute the sale-deed. This witness was cross-examined by the Advocate of the defendant. The trend of the cross-examination shows that the agreement substantially admitted. Receipt of Rs. 40,000 is also admitted.

7. It appears that according to the defendant the execution was not avoided by the defendant, but it was the plaintiff who was not forthcoming with the offer .to pay the balance of Rs. 60,000 by December, 1979.

8. The other witness produced by t a plaintiff is Haji Muhammad Ramzan, who is the attesting witness of the Declaration Exh. 5/5. He has supported the story of the plaintiff and I would quote a passage from his statement which runs as follows: "Long time ago Ghulam Akbar, who is a friend of Muhammad Ismail brought a typed agreement 'and asked me to accompany him to defendant No.1. On reaching there he read out the agreement and in my presence that the defendant No.1 pointing to the Holy Qur'an promised to deliver the possession of the plot to the plaintiff and acknowledged the receipt of money which was paid to her earlier. She felt out assurances that she never misappropriates the money which she had received. Thereafter she signed the agreement and I also signed at the same time the photostat copy shown to me Exh. 5/5 bears .the signatures of Rabia as well as my signature. I had put these signatures on the Original after Rabia had signed." It appears that this gentleman who was 70 years of age when his statement was recorded, due to his old age and loss of memory, has confused in re-construction the events that happened. But in my opinion he has said what was necessary to be said by an attesting witness. But even if we eliminate Exh. 5/5 which is a Declaration by the defendant No.1, the original agreement of sale remains unaffected. The only defence which is taken up by the defendant No.1 in her written statement is that because the plaintiff had not paid the balance of Rs. 60,000 to the defendant by December, 1979, the agreement was cancelled. The contents of the written statement are not substantive evidence and the defendant should have produced evidence in support of this defence which she has failed to do.

9. No evidence has been offered on behalf of the defendant, in spite of several opportunities. The statements of Pir Bux and Haji Muhammad Ramzan were recorded on 1-4-1986 and the side of the plaintiff was closed. The case was fixed for the evidence of the defendant. But on 20-8-1986, the defendant and her counsel remained absent and the side of the defendant was closed. The case was fixed for arguments. On 23-9-1986 when the case came up for arguments, the defendant's Advocate sent an application for adjournment on the ground that he was attending a training course on prevention of drugs. The case was, therefore, adjourned. Again the case was fixed for arguments on 20-10-1986, but it was adjournment at the request of the defendant's Advocate. The case was again fixed on 18-11-1986, but by this time the defendant had changed the Advocate and another Advocate was engaged, who moved an application being C.M.A. No. 6044 of 1986 on 13-11-1986 praying that the side of the defendant should be reopened. On this application an order was passed that the Advocate, who was conducting this case should personally appear to explain the default and to meet the allegations made by the defendant in her application C.M.A. No.6044 of 1986. The allegations against the defendant were that she was a Pardahnasheen lady. Her husband was in Dubai and the ex parte orders were passed on account of lack of information and lack of interest shown by her counsel. The case was adjourned for appearance of the Advocate and for final order on this application, because the defendant was a Pardahnasheen lady. After this order the case was fixed on 1-2-1987, but the new Advocate Mr. Suleman was called absent and there was no appearance till 11-45 a.m. Application C.M.A. No.6044/86, was, therefore, dismissed for non-prosecution and the case was adjourned. Today the case was fixed for arguments and even upto the closing hours of the Court there was no appearance on behalf of defendant No.1.

10. I have heard the arguments of the learned counsel for the plaintiff and feel that this case should now be disposed of and it would not be worthwhile to allow any further adjournment. From the perusal of the material on the record, it is evident that an agreement of sale has been executed by the defendant, that she has received Rs. 40,000 advance and Rs. 60,000 remain in balance which the; plaintiff is ready and willing to pay. I would, therefore, decree the suit for specific performance. The plaintiff should deposit the entire amount of the balance of' Rs.60,000 with the Nazir within 15 days. The defendant should execute the sale-deed in terms of the agreement dated 8-6-1979 Exh. 5/2 and should also deliver vacant possession of the house on plot No.2526 situated at Picture Road, Kalakot, Karachi. In the event of failure of the defendant No.1 to execute the sale-deed, the Nazir should prepare a sale-deed and execute the same on behalf of the defendant No.1. Suit decreed as prayed with costs. S.Q./M-63/K Suit decreed.