2009 PLP 1311 (YLR)

AMER RAZA NAQVI, J.

The suit has been filed for specific performance, permanent injunction and possession in respect of Plot No.188 (measuring 1000 square yards) situated at Street No.34, Khayaban-e-Qasim, Phase VIII, Defence Housing Authority, Karachi. Defendant No.1 is owner allottee of said plot whereas defendant No.2 is the authority who allotted the said plot. The matter was contested between plaintiff and defendant No.1 and defendant No.2 opted to remain absent and was debarred from filing written statement on 6-4-2004. The case of the plaintiff is based on a document, dated 8th February, 2003 titled as receipt/confirmation through this document plaintiff agreed to purchase and defendant No.1 agreed to sell the above mentioned suit property for a total sale consideration of Rs.6500,000 only. An amount of Rs.400,000 was paid in form of draft No.00206/46, dated 1st February, 2003 drawn on Habib Bank AG Zurich, I.I. Chundrigar Road, Karachi. Remaining amount of Rs.61,00,000 was to be paid on or before 28-2-2003. Plaintiff claimed that he approached defendant No.1 to get the Sale-deed registered and transferred by Registrar but said defendant was not prepared to do the same and has threatened the plaintiff to dispose of the said plot to someone else. It was also stated in the plaint that plaintiff has learnt from the reliable sources that defendant No.1 has approached to several estate agents/brokers for the sale of the property. It is claimed in the plaint that defendant No.1 is bound and liable under the law to complete the said transaction. As such it was prayed that a judgment and decree be passed against defendant No.1 for specific performance in respect of the suit property directing the defendant No.1 to get the Sale-deed registered in favour of plaintiff. In the alternative it was prayed that defendant be directed to refund a sum of Rs.4,00,000 and also difference between market value and the greed sale consideration and interest thereon at the rate of 14% per annum till final disposal of the case. Notices were issued and served, defendant No.1 filed written statement and admitted to have executed document, dated 3rd February, 2003 and also acknowledged receipt of Rs.4,00,000 as mentioned in the said document. However said defendant stated in the written statement that he had accepted the amount and entered into such deal strictly on the condition that whole amount will be paid by 28th February, 2003. It was also stated in the written statement that plaintiff received fax copy of the allotment letter of the said plot and verified the fact that plot was free from any defect. It was further stated that plaintiff is in business of property investment and registered as such with defendant No.2. Defendant also submitted that payment of balance amount of Rs.6,10,000, was pre-requisite of the agreement which plaintiff failed to fulfil and instead of making the payment by due date plaintiff kept trying to sell the said plot to some other party. In the written statement defendant No.1 also raised the preliminary legal objections inter alia that plaintiff has filed suit bearing No.969 of 2003 which according to defendant was pending in the Court of VIIth Senior Civil Judge, Karachi, South for adjudication in respect of the same property. Such fact was concealed and was not mentioned in the memo. of plaint. Along with the written statement defendant No.1 has filed certified copy of memo. of such plaint. The following issues were proposed by the plaintiff and vide order, dated 14-11-2005 the same issues were adopted:-- (1) Whether the defendant No.1 entered into an agreement to sell of the suit premises with the plaintiff for a total sale consideration of Rs.65,00,000 (Rupees sixty Five Lacs)? (2) Whether the defendant had received an amount of Rs.4,00,000 (Rupees Four Lacs) towards the sale consideration from the plaintiff? (2) Whether the defendant had duly acknowledged the receipt of an amount of Rs.4,00,000 through Bank Draft as advance in respect of the sale consideration of the suit premises? (4) Whether the plaintiff is entitled for the transfer of the suit premises in his name and the defendant is liable to transfer the suit premises in the name of the plaintiff after receiving the balance amount of Rs.61,00,000 from the plaintiff? (5) What should the decree be? My findings on the above issues are as under:-- Issues Nos. 1 to 3 In affirmative Issue No.4 In negative Issue No.5 Suit is dismissed. Reasons of above findings are as under:-- Issues Nos. 1 to 3 The execution of the document, dated 8-2-2003 is not denied by the parties. The part payment mentioned in the document was also received by the defendant and as such there is no dispute in respect of these facts and as such my findings in this regard is in affirmative. Issue No.4 In order to prove his case plaintiff has examined himself and was also cross examined. He produced receipt confirmation, dated 8th February, 2003, the copy of the pay order and allotment order. The plaintiff stated that he had paid Rs.4,00,000 to the defendant No.1 which fact the said defendant admits and the remaining amount of Rs.61,00,000 was offered but defendant tolerated to receive the remaining amount. He also stated that on refusal from the execution of the sale of the suit premises he filed a suit for recovery before VIIth Senior Civil Judge, Karachi, South which was later on withdrawn. The plaintiff was cross-examined by the defendant. Defendant also examined himself and stated that plaintiff has failed to pay balance of sale consideration of Rs.61,00,000 and inspite of demand from him remaining amount was not paid. He further stated that instead of making payment of remaining sale consideration plaintiff terminated the sale and filed suit bearing No.969 of 2003 for cancellation of sale agreement and recovery of token money. In the said suit he mentioned that suit plot is not suitable for him. Defendant further submitted that he filed written statement and stated therein that he was ready to refund the token money subject to deduction of amount so incurred for the defence of said suit. He further submitted that during pendency of the case plaintiff filed the present suit in this Court and did not mention pendency of suit in the Lower Court and as such he prayed for dismissal of the suit. I have heard Mr. 'Badar Munir learned counsel for the plaintiff and Mr. Aftab A. Jafri learned counsel for defendant. Mr. Badar Munir learned counsel for plaintiff submitted that agreement of sale and payment of amount is not disputed and the remaining amount was to be paid after verification. He referred 2005 SCMR 977 and also referred few lines in the end of cross-examination of defendant No.1 which is as under:-- "It is correct to suggest that the part payment was subject to verification of property documents which I have not done so far." Mr. Badar Munir submitted that in presence of this portion of evidence the suit of the plaintiff has to be decreed. On the other hand learned counsel for defendant No.1 submitted that plaintiff is a property dealer and in fact attempted to sell the property and in this respect gave an advertisement in Daily Dawn on 23rd February, 2003 admitted this fact in his cross-examination and since he could not find a buyer instantly he did not complete the sale and as a matter of fact cancelled the same by filing Suit No.696 of 2003 in the Court of VIIth Senior Civil Judge, Karachi, South. He has also referred the cross-examination of plaintiff in which he has admitted filing of suit bearing No.969 of 2003 in the Court of VIIth Senior Civil Judge Karachi, South. He referred memo. of plaint of such suit filed along with written statement and drew my attention to the prayer clause in which cancellation of deal subject matter of the suit was sought. I have heard learned counsel for the parties and examined the record with their able assistance. No doubt the execution of receipt/confirmation is admitted by the parties and also the receipt. of the amount mentioned in the said receipt. It is mentioned in the said document that the remaining amount was to be paid on or before 28-3-2003 after verification and acceptance of transfer documents. In my, humble view this verification was to be done by the plaintiff himself. He was already provided with the copy of allotment order and he had no doubt in his mind that the property belongs to defendant as he got published advertisement for sale of property on 23-3-2003. Record clearly shows that plaintiff filed the suit before VIIth Senior Civil Judge, Karachi, South on 24-3-2003 and. withdrew the same on 14-11-2003 whereas this suit was filed on 11-8-2003 during the pendency of the suit before the lower Court and nothing was mentioned in the memo. of plaint of this suit regarding this fact. Plaintiff referred the suit in his examination-in-chief only after when the fact for filing the suit before the lower Court was brought on the record by the defendant No.1 in his pleadings and placing on record the certified copy of memo. of plaint. In my view this was highly in-appropriated and besides the merits of the case plaintiff has disentitled himself from any relief from this Court by concealing the material fact. The said suit was between the same parties and in respect of the same property. Once the plaintiff himself cancelled the deal by way of praying the same relief before a Court of law he is stopped from changing the stand and claiming the enforcement of the documents which he sought to be cancelled before a Court of Law. I have no hesitation to hold that if equity demands the matter to be decided in one way and there is no legal impediment in doing so and no bar exists under the law in deciding the matter in equitable manner it has to be decided in that way. It was the duty of the plaintiff himself to make inquiry and satisfy himself about the ownership of the property in question and if there was any doubt in this respect or any contrary information was received he had to lodge a protest which he failed to do. Moreover, plaintiff has not produced any evidence that at the relevant time he had sufficient amount to fulfil his commitment as mentioned in document, dated 8th February, 2003 Exh.P/2. In view of the above discussion my reply to issue No.4 is in negative and I hold that plaintiff is not entitled to the relief claimed in the suit. Issue No.5. In view of above discussion the suit of the plaintiff is dismissed. M.H./G-10/K Suit dismissed.