1984 PLP 1122 (MLD)

Date of hearing: 5th September, 1984. This is a suit filed by the plaintiff for the recovery of Rs.95,

000. Defendant No. 4 is a partnership firm, M/s. Muslim National Construction Company, and defendants Nos. 1, 2 & 3 are the partners of defendant No. 4 firm. The case of the plaintiff is that the defendants were going to construct shops, flats and offices on properties No. MR 4/25, Ali Akbar Street, Bombay Bazar Mithadar, Karachi, for which they entered into an agreement of booking on commission with the Plaintiff. The agreement was for booking of premises on the second floor of the proposed building. According to the agreement, the plaintiff had booked the entire second floor for interested parties for a sum of Rs.1,80,000 and from time to time a sum of Rs.90,500 was paid by the plaintiff to the defendants but the defendants, after completing the second floor of the building in question (lid not hand over possession of the second floor premises to the plaintiff but became dishonest as the market value of the property had increased and the defendants started booking the premises in the building directly The plaintiff asked for refund of the amount but the amount advanced by the plaintiff was not refunded by the defendants. Defendants appeared in the suit after service of summons/notices had been served upon them. In fact defendants Nos. 1, 2 & 4 have also filed a written statement, in which they have acknowledged that a sum of Rs. 58,000,00 had been received by them. They have averred that the amount, which had been paid by the plaintiff to the defendants, has been forfeited. However, they have neither engaged an Advocate nor appeared today when the case was called. All the four defendants were called absent.

2. The following issues were adopted by this Court on 14-2-1982:- (1) Whether the agreement dated 10'-2-1980 was executed by the defendants Nos. 1, 2 & 4 under undue influence and pressure? (2) Whether the defendants have received Rs. 58,000 and not Rs.90,500? (3) Whether the plaintiff is entitled to the relief, claimed? (4) What should the decree be? I have heard Mr. B.M. Bangsh, learned counsel for the plaintiff. As observed earlier, neither the defendants nor anyone on their behalf appeared.

3. Issue No. (1) is whether the agreement, dated 10-2-1980 was executed by the defendants under undue influence and pressure. The burden of this issue is on the defendants. However, the agreement (Exh. 6/6) has been produced by P.W. 2, Yousuf Qureshi, who stated that the agreement had been written in his own handwriting and that all the parties had signed the agreement in his presence. The signatures of the parties have been proved by Yousuf Qureshi as well as by the plaintiff. As observed earlier, no one has appeared on behalf of the defendants, and the evidence of Yousuf Qureshi and the plaintiff has gone uncontroverted. The burden of this issue was on the defendants and it has not been discharged. Issue Nos. (1) is decided against the defendants in the negative.

4. Issue No. (2) is whether the defendants have received a sum of Rs. 58,000 and not Rs.90,

500. In the written statement filed by the defendants Nos. 1, 2 and 4 the defendants have taken up a plea that they had only received Rs. 58,000 from the plaintiff. However, the evidence on behalf of the plaintiff, which includes the depositions of a bank witness, Yousuf Qureshi and the plaintiff, has gone uncontroverted, as there was no cross-examination, the defendants being absent. The oral evidence of the plaintiff that he had paid a sum of Rs. 90,500 to the defendants, is supported by the documentary evidence produced by the bank witness and by the receipts produced by the plaintiff himself. The evidence on record, oral as well as documentary has established that a sum of Rs.90,500 had been paid by the plaintiff to the defendants and not merely Rs. 58,000 as alleged in the written statement filed by defendants Nos.1, 2 and

4. Issue No. (2) is decided accordingly.

5. The plaintiff has established his case for the recovery of Rs.90,

500. Suit No. 691 of 1980 is decreed in favour of the plaintiff and as against the defendants jointly and severally in the sum of Rs.90,500 with interest at the rate of 14 per cent per annum from the date of filing of suit till realization with proportional costs. M.I. Order accordingly.