2017 PLP 140 (YLRN)

RASHEED AHMED SOOMRO, J.

This 2nd appeal is directed against the judgment and decree dated 03-05-2012 and 16-07-2012 passed by learned V-Addl. District Judge Karachi (East) in Civil Appeal No. 46/11, whereby the learned Judge has maintained the judgment and decree passed by learned trial Court passed in Suit No.686/06 filed by Habib Akhtar.

2. Briefly the Facts giving rise to this appeal are that the respondent No. 1 filed suit against appellant and respondent No.2 for Specific Performance of Contract, Permanent Injunction and mesne profit. It was stated in the plaint that the plaintiff / respondent No. 1 in the year 1987 had purchased residential plot No. L-45 admeasuring 80 square yards located in Block-A of Respondent No. l's Housing Project known as "Gulshan-e-Millat" against a total sale consideration of Rs.40,000/-, which was to be paid in installments as per schedule of payment shown in the advertisement. According to respondent No. 1, the respondent No. 2 has specifically mentioned in schedule that the service charges such as water and sewerage are included in the sale consideration and that the respondent No. 2 also assured that no further amount will be charged. It was the case of respondent No. 1 that he paid installments in time as per schedule and the respondent No. 2 also issued allotment letter to him. It was stated by respondent No. 1/ plaintiff in his plaint that he paid the entire sale consideration to the respondent No. 2 in the month of January 1994 and had also paid a sum of Rs.100/- towards possession fee. The respondent No. 1 then asked the respondent No. 2 to hand over physical possession of plot in question to him and to execute sub-lease in his favour. It was also case of respondent No.1 that as per agreement the respondent No. 2 / defendant No. 1 was liable to complete the transaction in the year 1994 but he avoided to deliver possession of suit plot on one pretext or other and had illegally started demanding Rs.8000/- toward service charges. It was stated that there was exchange of letters between respondents Nos. 1 and 2 and lastly the respondent No. 2 served a notice dated 22-04-2006 upon the respondent No. 1, cancelling his allotment. The respondent No. 1 on 17-05-2006 had replied said notice asking the respondent No. 2 to withdraw their notice dated 22-04-2006, hand over physical possession of suit plot and to execute proper sub-lease in Favour of respondent No. 1 / plaintiff as per terms of advertisement. The respondent No. 1, therefore, filed suit before learned trial Court against respondents Nos. 1 and

2. The respondent No. 1 also claimed mesne profit @ Rs.100/- per day.

3. The Respondent No. 2/defendant No. 1 in his written statement has denied the allegations of respondent No. 1 / plaintiff and has stated that the respondent No. 1 has failed to pay service charges of Rs.8000/- as per application/booking form, therefore, his allotment was cancelled and the suit plot was allotted to appellant named above. It was further stated that the suit is also time barred, therefore, liable to be dismissed.

4. Whereas, the appellant in his written statement has supported the version of respondent No. 2 and stated that he has no concern, with dispute between respondents Nos. 1 and 2 and that he is the lawful allottee of suit plot and that he is in possession of suit plot as its lawful owner, therefore, the suit is liable to be dismissed.

5. The learned trial Court framed the issues and after recording evidence of parties decreed the suit of respondent No.1.

6. The appellant filed Civil Appeal No. 46/11 but it was dismissed and the decree of learned trial Court was maintained, hence this 2nd appeal.

7. I have heard both the learned counsel for the parties. It was argued by learned appellant's counsel that the findings of both the Courts below are contrary to law and against the evidence on record learned. According to him the learned trial Court has totally ignored the terms and conditions of booking. He next submitted that the learned trial Court also failed to consider that the plaintiff/ respondent No. 1 remained silent after receiving notice from the respondent No. 2/defendant No.1, therefore, the impugned judgments are liable to be set aside and the suit of respondent No. 1 may be dismissed.

8. Conversely, learned counsel for the respondent No. 1 has supported the findings of Courts below and prayed for dismissal of appeal by arguing that the appellant has failed to point out any illegality in impugned judgment and / or any misreading or non-reading of evidence. He argued that there was no terms and condition of allotment that after making full payment no any other extra amount was to be paid by the respondent No.

1. He submitted that it is an afterthought plea of appellant and respondent No. 2, which was rightly turned down by Courts below. He next argued that the respondent No. 2 during the course of his cross-examination has admitted this fact and they failed to produce on record any such understanding. He argued that the appellant has nothing to do, with the suit plot and the respondent No. 2, with mala fide intentions and to create complication and delay the execution of lease, has falsely introduced the appellant as defendant No. 2 in the suit though he not have any document in his possession to claim the ownership of suit plot. He argued that the respondent No. 2 has illegally cancelled the allotment of respondent No. 1 and has issued double allotment of suit plot. According to learned counsel, the learned trial Court has rightly decreed the suit of respondent No. 1 in his favour, which findings do not call for any interference by this Hon'ble Court. According to learned counsel, the learned trial Court after carefully discussing the evidence on record has passed the impugned judgment, which was later on also upheld by 1st appellate Court thus the same do not call for any interference by this Hon'ble Court except to maintain the same. The appellant has admitted in evidence that he did not pay sale consideration to the respondent No. 2 nor he is in possession of suit plot and that the documents produced by respondent No.2 are all forged. The counsel for respondent No. 1 has relied on case law reported in 1996 SCMR 1729, 2005 MLD 364, 2010 MLD 486 and 2012 SCMR 983.

9. I have carefully considered the arguments advanced by both the learned counsel for parties and have also perused the impugned judgments and the entire material available, with me.

10. In this matter the main issue is whether there was any term of allotment that apart from sale consideration the other charges such as water and sewerage charges were also liable to be paid by the purchaser/allottee (respondent No.1)?

11. Perusal of record shows that admittedly the respondent No. 1 has paid the entire sale consideration to the respondent No. 2, therefore, the burden of payment of the charges lies upon the respondent No. 2, who miserably failed to bring on record any such evidence or document, which may support such contentions of appellant and respondent No.

2. Further the appellant has admittedly failed to produce any document showing his ownership over suit plot.

12. On the contrary he admitted the statement of respondent No. 1 during the course of his cross-examination, which fact has also been admitted by the respondent No.

2. Thus the impugned judgment of learned trial Court is comprehensive in nature and has covered all important aspects of the case, therefore, his findings do not call for any interference by this Court rather the same are appreciable.

13. According to respondent No. 1/plaintiff, the service charges were mentioned in the total sale consideration and he proved this fact through evidence. The respondent No. 2 in his evidence has admitted that nothing is mentioned about payment of service charges in their advertisement and schedule of payment produced by respondent No. 1 as Ex.P-1/A. The respondent No. 2 has further admitted that in their letters dated 13-01-1994 and 17-05-1994 it is not specifically mentioned about service charges of Rs.8000/-. The respondent No. 2 also admitted that even in provisional allotment produced by respondent No. 1 / plaintiff as Ex.P-1/C nothing mentioned about service charges. It is important factor of the case that the respondent No. 2 has also failed to produce any document on record showing that in past they ever received such service charges from any other allottee, which shows their mala fide and collusion, with the present appellant. The respondent No. 2 has also did not mention this fact in his written statement or in his examination-in-chief.

14. The appellant's admission is on record that the respondent No. 1 never signed any terms and condition regarding payment of water and sewerage charges of Rs.8000/-.

15. It is also a matter of record that the respondent No. 2 never served any notice upon the respondent No. 1 to the effect that if he failed to pay such services charges, his allotment shall be cancelled. The evidence of respondent No. 2 is not trust worthy as they have deposed that after cancelling the allotment of respondent No. 1 suit plot was allotted to the appellant and also handed over possession to him, whereas appellant himself has admitted that he was never handed over possession of suit plot by the respondent No

2. However, in his written statement the appellant has stated that the possession of suit plot was handed over to him by the respondent No.

2. His evidence is also not trust worthy and cannot be relied on. The appellant also did not produce any receipt of payment of services charges of Rs.8000/-, therefore, question arises, when appellant did not pay those charges then as to why and how, the respondent No. 2 has issued allotment, with possession to him.

16. The conclusion of above discussion is that the respondent No. 1 booked the suit plot and according to terms, he paid the entire sale consideration of Rs.40,000/- in time. The demand of service charges of Rs.8000/- by respondent No. 2 is not proved through evidence; therefore, the impugned judgments dated 13.12.2010 and 03.05.2012 are on merit and are hereby maintained.

17. The upshot of above discussion is that the appeal merits no consideration and the same is hereby dismissed, with no order as to the costs. MQ/J-3/Sindh Appeal dismissed.