1990 PLP 645 (CLC)

(2) Whether the defendant No.l. executed the agreement to sell dated 27‑10‑1977 through defendant No.2? (3) Whether in part performance of the agreement to sell, the plaintiff was put in possession of the suit property? (4) Relief."

4. Parties have submitted Affidavits‑in‑Evidence in the context of examinations‑in‑Chief of their witnesses and cross‑examination on such Affidavits has been conducted in Court. Thus, Plaintiff has examined himself, Mst. Bilqis Jamal Rana his sister, Mrs. Nasim Begum, an Oath Commissioner/Advocate Karachi, Mst. Razia Begum and one Shaikh Muhammad Ibrahim. The Defendant No.1, has only examined herself.

5. Issues Nos.1 and 2‑‑On these issues, which are taken up together, plaintiff Ziauddin Siddiqui has produced the disputed agreement as, Ex.5/1, stating that the Defendant No.2, signed the same as vendor. According to him, A. Saeed Khawaja, brother‑in‑law of the Defendants, signed such agreement as witness from the side of the seller whereas Shaikh Muhammad Ibrahim witnessed the same for the purchaser. Ex.5/1 is shown to be attested by Miss Nasim Begum, Advocate and Oath Commissioner, who in her own evidence confirmed such attestation. Plaintiff says that, at the time of execution of the said agreement Shah Sawar, husband of the Defendant No.1, handed over key of the portion on the second floor while the first floor was already in possession of Bilqis Jamal Rana, Advocate sister of the Plaintiff. Ground floor was said to be in possession of a tenant against whom the Defendant No.1, is alleged to have already filed a Rent Case bearing No.473/74. Power of Attorney Ex.5/2, has been produced by him which, according to him, was not acceptable to the Sub‑Registrar for registering the Deed of Sale. On Plaintiffs alleged insistence, a Special Power of Attorney dated 20‑7‑1978, Ex.5/3, was issued at Karachi by the Defendant No.1, in favour of the Defendant No.2. This also was, allegedly, not acceptable as a registered Power of Attorney was required. He has produced copy of letter dated 3‑2‑1978, purportedly, written by his sister Mst. Bilqis Jamal Rana, who was allegedly negotiating the matter on his behalf, at the Karachi address to the Defendant No.2, wherein registration is sought so that the writer is saved from mental pressure and apprehensions, which speaks of a loan, apparently, taken by the Defendant No.2, on the property resulting, perhaps, in some family disputes and which, lastly, mentions of some tidings about Saeed Bhai (likely to be A. Saeed Khawaja) and people being happy of and on account of his ill prayers and such having succeeded. He has also produced a purported letter dated 27‑7‑1978, Ex.5/5, from the defendant No.2 in which he acknowledges a letter from Plaintiff's sister, says that he has no intention of making any people quarrel and that the matter is of principle namely, that the addressee had promised to give him Rs.20,000 which .promise she did not fulfil and was, instead, offering Malik Punoon Rs.10,

000. He suggests that the entire amount of Rs.70,000 be paid and registration be got done through Malik Punoon. He assures to abide by his promise to sell to the addressee and hopes that the latter would also stick to her promise and make a satisfactory reply. He further says that he would take the next step only after receiving reply of Mst. Bilqis~ as he also had many other purchasers. Public Notice in Daily `Aghaz' dated 17‑1‑1978, is produced by the plaintiff as Ex.5/6‑1, and a Search Certificate dated 15‑4‑1978, as Ex.5/6‑

2. Since, allegedly, the defendants were expected to come to Pakistan in August 1978, he cleared the tax dues of K.M.C. upto 30‑6‑1978. He has produced a Receipt dated 7‑9‑1978, purportedly, from Mst. Nasima Sultana, sister of the defendant No.1, as Ex.5/8, for securing possession of a cupboard, which she had, allegedly, purchased from Shah Bhai (apparently, Shah Sawar) which she maintained to be taking away on 7‑9‑1978, "after Bilqis Jamal's opening the house". Ex.5/9, is an application of Plaintiff's sister dated 19‑9‑1978, to the Sub‑Registrar on which date for registration 5‑10‑1978, was given. Subsequent tax payments Exs.5/10‑1, etc. are also produced by the plaintiff. Rs.12,000 are said to be spent by him on maintenance, repairs, gas connection, electric wiring etc., on the property. He has expressed his willingness to complete the transaction in suit. In cross‑examination plaintiff denies that no talks regarding the sale agreement took place between him and the Defendant No.1, and asserts that the same took place in 1977, but was not able to give the date or month. On the date of agreement, according to him, Rana Sultana, the defendant was also present but had not signed the agreement as she mostly used to reside in England. He admitted that the Defendant No.2, also permanently resided in England. The alleged agreement was transcribed by one Khawaja Saeed brother‑in‑law of the Defendant No.1, and it was so transcribed at the Plaintiff's house. At the time of attestation by the Oath Commissioner, the Defendant No.1, was admitted, not to be present. He did not remember whether he had taken any Receipt for the payment of Rs.5,

000. He admitted that Ex.5/1, did not recite that possession was given to him. Khawaja Saeed, at the time, according to him, was residing on the second floor of the property whereas his sister was putting up on the first floor. Such second floor was under seal of the S.D.M. at the time of his cross‑examination. He denies that his sister broke open the first floor premises or that she manipulated the allegedly forged agreement. He admitted that after the sale agreement, her sister had constructed two rooms, a Shed on a portion of the land but stated that such portion was not part of the property. He has denied that the Power of Attorney, Ex.5/2, was given relating to the Rent Case against tenant Ghulam Ali. He has admitted that Ex.5/3, the 2nd Power of Attorney, was not executed in his presence. He has admitted that he had not paid the amount of Rs.5,000 to Defendant, Rana Sultana but had paid the same to her husband before the Oath Commissioner.

6. In her Affidavit‑in‑Evidence, Mst. Bilqis Jamal Rana has reiterated what the plaintiff has said in his deposition with minor variations.In her cross -examination she has produced as Ex.6/1, the agreement of tenancy between herself and the Defendant No.1, acting through Mrs. Aisha Begum defendant's mother. The witness, however, has disowned the first page of such agreement, claiming it to have been subsequently substituted. She says that she had taken the tenant‑hold in her possession on the first floor from the husband of the Defendant No.1 However, according to her, she was not given a copy of the same. She has denied that she broke open the lock of the first floor and shifted into that floor from the second floor tenement in her occupation.

7. Plaintiffs witness, Shaikh Muhammad Ibrahim, has deposed that he attested the alleged agreement as a witness. Payment of advance money was made and key of the second floor was handed over in his presence whereas the sister of the plaintiff was already in possession of the first floor, the ground floor being in possession of tenant Ghulam Ali. In cross‑examination, the witness admitted that he was, at the time, residing in a portion on the disputed plot where he was inducted by Mst. Bilqis Jamal Rana, who is a sister‑in‑law, being sister of his wife.

8. Mst. Razia Begum has deposed that the agreement dated 27‑10‑1977, was signed by the parties and the witnesses in her presence and advance of Rs.5,000 as well as the key of the premises in part performance were given in her presence. In cross‑examination, she has admitted that she was a friend of Mst. Bilqis Jamal Rana for the last 20 years.

9. Witness, M. Sana‑ul‑Haq Usmani was given up by the plaintiff on account of his non‑availability for cross‑examination.

10. In her Affidavit‑in‑Evidence, Rana Sultana, Defendant No.1, maintains that she was the owner of the disputed property, that ground floor was in the tenancy of one Ghulam Ali, that on the first floor, she used to live herself with her husband when she visited Pakistan as she was a permanent resident in the United Kingdom and the second floor was let out by her mother Mst. Aisha, to Mst. Bilqis Jamal. On 18‑10‑1978, she filed a Rent Case No.4874/78, in the Ilnd Court of Controller at Karachi against Bilqis Jamal on account of default of rent for a period of nine months. She says that in her absence, Mst. Bilqis Jamal broke open the lock of the first floor premises in order to defend the Rent Case aforesaid. On 26‑9‑1978, Bi1qis Jamal had filed this case in the name of her brother. The Rent Case was allowed to be dismissed for default as the Rent Controller could not decide the question of title and, further, as it pertained to the second floor while Bilqis Jamal, in the meantime, had inducted herself in the first floor. She has produced copy of her Passport. She says that the Power of Attorney of 1975, was given in respect of the proceedings against tenant, Ghulam Ali. She says that the subsequent alleged Power of Attorney of 1978, is a forged and fabricated document. She denies her signatures thereon. She maintains that while since 1977, she came to Pakistan twice or thrice, her husband did not come to Pakistan at all after 1977, and that because of the acts of commission and omission of Mst. Bilqis Jamal, her relations with her husband had become strained and they were living separately so much so that her husband did not care even to defend this suit. She says that if, as alleged, she had visited the office of the Registrar, there was no reason why she could not execute the so‑called sale -deed herself. She refers to a number of proceedings which had cropped up in respect of the property. In cross‑examination she was confronted with Ex.10/15, certified copy of application under section 10 of Ordinance VI of 1959 (RC 508/74) by Ghulam Ali against herself and Ahmad Saeed and has denied that Ahmad Saeed, her brother‑in‑law, was her attorney while maintaining that her mother was such attorney. She has admitted that Abdul Aziz Butt is her relative and that she had given a Power of Attorney to him as well. She also admitted that she had given a power of attorney to her sister, Nasima Sultana. Apart from these Powers of Attorney, the only power of attorney that she recollected was the one given to her husband in 1975. She said that she did not recognize the signatures of Saeed Khawaja her brother‑in‑law, as she had remained away from Pakistan for the last 20 years. She, in regard to the disputed agreement, denied that the same was executed by her husband, at her instance. She denied that her relations with her husband have not become strained. She denied that her husband had not deposed in the case because he had in fact executed the alleged agreement. She says that, at the relevant time, she was in Pakistan and that even a naive purchaser would have been interested in the owner herself signing such agreement while Mst. Bilqis Jamal was an Advocate. She has denied that the adjoining space is not hers.

11. The plaintiff, having discharged his initial burden regarding execution of the Agreement in suit by the husband of the defendant No.1 and its attestation by her brother‑in‑law, the defendant No.1 in rebuttal, maintains that there were no negotiations with her for the sale of the property in dispute, and that she herself being in Pakistan, there was no occasion for anyone to conclude an agreement of sale on her behalf. She did not, however, in her Affidavit‑in‑Evidence, expressly deny her husband executing the agreement of sale or her brother‑in‑law, A. Saeed Khawaja, attesting the same, as a witness. Earlier on, the cross examination of plaintiff's witnesses is also, singularly, wanting on these matters. Such omissions, by themselves, may have been sufficient for the agreement in suit to go unrebutted, in so far as its execution and attestation is concerned. But this is not all. Even otherwise, in the face of special relationship, in order to establish non‑execution of the agreement in suit by defendant's husband, it appears to be necessary that such husband, himself Defendant No.2 in the case, should have been examined. Strained relations between the spouses, if any, are hardly of substance, since, merely because of strained relationship, a person cannot be assumed to be likely to make a false statement. If need be, he could have been declared hostile. Similarly, he could be examined on commission if he was not availale in Pakistan. None of this has been done. Likewise, A. Saeed Khawaja, the purported attesting witness of the agreement in suit, admittedly, brother‑in‑law of the defendant No.1, has not been examined. Both of these persons were alleged by the plaintiff to have acted for the defendant No.1, one, as her husband and attorney and the other, as her brother‑in‑law and attesting witness and the relationship, being admitted, they were, properly, defendant's witnesses to examine. On failure so to examine either of them the presumption contemplated by Article 129, illustration (g) of Oanun‑e‑Shahadat, 1984, arises and it must be presumed that such evidence, had it been examined, would have gone against the v. Defendant No.1. Added strength to this presumption emerges on the basis of the language of undelivered letter dated 3‑2‑1978. (Ex.5/4‑1) which is confirmed by Ex‑5/5, a letter dated 27‑7‑78, undeniably, written by the husband of Defendant No.l to Mst. Bilqis Jamal, which implies the existence of an agreement in the nature of one in the suit. On evidence, therefore, it is established that the agreement in suit was executed by the defendant No.2 and attested by Ahmad Saeed Khawaja, brother‑in‑law of the defendant No.1. How far does the same bind the Defendant No.l is another matter and shall have to be examined separately.

12. It is not without some plausibility that the Defendant No.1 asserts that she, being herself available at Karachi, it was logical that the plaintiff should have dealt with her alone and that since this did not transpire casts a serious doubt on the entire transaction. This may be so. Ordinarily, if a person is herself/himself available, it is to be expected that a serious transaction, such as an agreement to sell, is personally executed. Recourse to agency, however, even in such circumstances is not prohibited. Conveniences, for example, occasioned on account of permanent residence abroad or the fact of the owner being a lady, riddled by customs of non‑appearance in public, can be factors providing motivation to act through an agent or attorney, all the more so when the agent is none other than the owner's husband. It is on these premises that the two powers of attorney are to be examined and it is to be seen whether the act(s) fall within the ambit of authority, if any.

13. In such context the purported power of attorney dated 20‑7‑1978, Ex.5/3, may first be examined. Defendant No.1 denies having executed any such power. The stamp paper in relation to it, is purported to have been purchased by her husband, when he, according to the defendant No.1, did not come to Pakistan after 1977. Besides, if the defendant No.2 had been addressed a letter by Mst. Bilqis Jamal and replied to the same on 27‑7‑1978 vide Ex.5/5, he more likely than not, was not in Pakistan on 20‑7‑1978. His specimen signature at the bottom of the document, therefore, also become highly doubtful. The signature of A. Saeed Khawaja, occurring on such power of attorney, as an attesting witness, also stands disproved as such signature, on comparison, does not tally with his signature, as an attesting witness on Ex.5/1, the agreement in suit. The Notary Public whose attestation figures on the power has also not been examined. This power of attoreny, accordingly, has not been proved.

14. Taking up the power of attorney dated 3‑11‑1975, Ex. 5/2, it is to be seen that the defendant No.1 admits execution thereof but maintains that it had a different object namely, to prosecute a rent case against tenant, Ghulam Ali. While the number of the Rent case is mentioned in the written statement by the defendant No. as R.C. 473/1974, its year of institution is not clearly indicated, which has been shown by the plaintiff to be 1974, that is to say, of a date earlier than that of the power of attorney. Even so,. a power of attorney could be given during the pendency of such case but then its number should have been mentioned in the power of attorney itself, if that was all that was intended to be covered by it. Not only that such case is not indicated therein, the defendant No.1, throughout these proceedings themseleves, has not cared even to provide the date of its institution. In these circumstances, it cannot be accepted that the power of attorney dated 3‑11‑1975, Ex.5/2, had a limited object namely, to pursue the Rent case bearing No. 473 of 1974.

15. The question which next arises is whether such power included an authority to sell and whether the holder could enter into a contract of sale. Here, two aspects of the matter stand out for reference. Firstly, the power is in favour of the husband of the defendant No.l, who is shown to be on the disputed property, number whereof is mentioned. Secondly, the power is one which is covered by section 10 of the Powers of Attorney Act, 1971, of the United Kingdom. I have, on my own, adverted to the provisions of Section 10, ibid, and the same are reproduced hereunder:‑‑ "

10. Effect of general power of attorney in specified form.‑‑ (i) Subject to subsection (2) of this section, a general power of attorney in the form set out in Schedule I to this Act, or in a form to the like effect but expressed to be made under this Act, shall operate to confer‑‑ (a) on the donee of the power; or (b) if there is more than one donee, on the donees acting jointly or acting jointly or severally, as the case may be, authority to do on behalf of the donor anything which he can lawfully do by an attorney. (2) This section does not apply to functions which the donor has as a trustee or personal representative or as a tenant for life or statutory owner within the meaning of the Settled Lands Act 1925."

16. The power of attorney is substantially in terms of Schedule I of such Act and, as reflected above, operates to confer on the donee of the power authority to do, on behalf of the donor, anything which he can lawfully do by an attorney. In order to exclude the possibility of limits being imposed on such power under the Settled Lands Act, 1925, 1 have also referred to the provisions of that Act and relevantly reproduce hereunder the provisions of Section 117 (xxiv) and (xxvi): (xxiv) "Settled land" includes land which is deemed to be settled land; `Settlement' includes an instrument or instruments which under this Act or the Acts which it replaces is or are deemed to be or which together constitute a settlement, and a settlement which is deemed to have been made by any person or to be subsisting for the purposes of this Act; `a Settlement subsisting at the commencement of this Act' includes a settlement created by virtue of this Act immediately on the commencement thereof: and "trustees of the settlement" mean the trustees thereof for the purposes of this Act howsoever appointed or constituted; (xxvi) `Statutory owner' means the trustees of the settlement of other persons who, during a minority, or at any other time when there is no tenant for life, have the powers of a tenant for life under this Act, but does not include the trustees of the settlement, where by virtue of an order of the Court or otherwise the trustees have power to convey the settled land in the name of the tenant for life;"

17. On examination of the foregoing provisions, it is abundantly clear that the power given, per Ex. 5/2, was a power which included a power of sale of a property belonging to the donor of the power and, therefore, if an agreement of sale of any such property was concluded, in pursuance, it was a valid agreement. It, however, remains to be seen whether such power could validly be acted upon in Pakistan under the laws in force here.

18. It can hardly be disputed that a power of attorney in order to raise and sustain a presumption, under Article 95 of Qanun‑e‑Shahadat, 1984, of its execution before and authentication by inter alia, a Pakistan Consul or Vice Consul has to be so executed or authenticated. For a person executing such power in order to qualify for the referred presumption, under Pakistan Law, the exercise is required to have been gone into at the Pakistan Embassy in the United Kingdom. This, obviously, is not the position here and, therefore, no such presumption as referred arises. Mr. Zia Oureshi, for the defendant No.l, has, on the point referred me to the cases of S.M. Khaleel v. Biswanath Basak (1971 D.L.C. (Rev) 62) and Ourban Hussain and others v. Hukumdad (P L D 1984 A J K 157), in the first of which, a power of attorney executed before a Notary public in India was treated to be a worthless document and devoid of any validity, whereas in the second, it was held to require registration in order to qualify as a power under sections 32 and 33 of the Registration Act, 1908. Now, as has been seen above, if a power of attorney is not executed before and authenticated by one of the persons named in Article 95 of the Oanun‑e‑Shahadat, and the list includes Notaries Public, all that happens in that the presumption under that Article does not arise and an authority, acting under Pakistan Law, may decline to act upon it. The object of section 32 of the Registration Act, 1908, is somewhat different. Under that provisions in order that an agent should qualify to present for registration and admit execution of a document by another, the document being compulsorily or otherwise registrable, such agent has to be given requisite power by the executant, inter alia, through a registered power of attorney. No other power of attorney is compulsorily registrable under the Registration Act. In effect, and on the other hand, the holder of a simple but clear power may effect, execute and register sales of the donor's properties to which the power may extend. This last is the effect of Sections 32 and 33 of the Registration Act, 1908, read together.

19. If, therefore, the presumption fails in respect of Ex. 5/2, can it be considered to be a worthless document, as contended? It would seem that where a purported power of attorney has actually been acted upon but does not qualify for the presumption under Article 95 of the Qanun‑e‑Shahadat 1984, those who seek to rely upon it or are, allegedly, effected thereby may resort to due modes of its proof, which may include examination of its attesting witnesses. None of this, however, would be necessary if the donor of the power or its executant himself or herself admits its execution. In such an event the principle underlying Article 81 of the Qanun‑e‑Shahadat, 1984, would become applicable and the admission of the executant shall be sufficient proof of execution as against himself or herself. This is exactly the situation here, as the defendant No.1 admits the document, Ex.5/2, as a power of attorney but not for sale and only for pursuing a case pertaining to the property, last of which restriction she is unable to establish and cannot Tetract from the wide powers connotated in the document. It follows that if such power was utilised and commitments were made pursuant to it, these commitments have to be honoured. I am cognizant of the fact that a power of attorney is to be strictly construed but such construction is to be based on its terms and under the law it operates but, on the foregoing analysis, I am of the view that the purpose for which it was, apparently, used was not foreign to its terms. The cases reported as Janki Prasad Singh v. Yahya Hussain (13 Cal. 637), Lakhnath Prasad Singh v. Sh. Wahib Hussain (A I R 1930 Patna 181) and Fida Mohd. v. Mohd. Khan (P L D 1985 SC 341) cited by Mr. Zia Oureshi are distinguishable, as the same lay down that a power to sell does not include a power to agree to sell and a sale by an attorney without a power in that behalf would be invalid. In the instant case as has seen, the power includes authority for the donee to do everything which the donor could do. It may be added here that the plaintiff avers that the power under reference was sent by the defendant No.1 from the United Kingdom after the agreement of sale had been executed. This, however, does not detract from the plaintiff's case as the defendant No.2 had acted as his wife's attorney and he has been proved to be such attorney on the basis of the referred power, which was subsisting on the crucial date of the agreement. The version of defendant No.1 that the power of attorney was secured by Mst. Bilqis, on breaking open the first floor of the building, even if true, is, for the same reason, equally irrelevant. Under the Powers of Attorney Act, 1882, if within the scope of authority, the defendant No. l is bound by the acts of her attorney. Issues 1 and 2 are answered in the affirmative.

20. Issue No. 3.‑‑How and why the sale could not be completed is yet another matter. As evidenced in letter dated 27‑7‑1978, there appear to have been disputes as to terms of payment between the parties. Such letter has not been denied by the defendant No.1 The disputes in question may or may not have been of substance. However, time is not claimed to be of the essence of contract even though it is specified. It would, therefore, seem that irrespective of such disputes, as aforesaid, the agreement in suit does not come to lose force. Disputes as to possession and part performance have to be seen in this perspective. Criminal proceedings have also gone on. A number of proceedings have been initiated by the sister of the plaintiff. All this, to say the least, was avoidable but that it was not avoided can only be termed as unfortunate. The consequences of the situation, however, fall to be considered. The first question is as to what was the subject‑matter of the tenancy in favour of plaintiff's sister, Mst. Bilqis Rana. With it is the connected question whether any part of the property was passed on in part performance of the contract. Last, but not the least, is the residue question whether the plaintiff, or any other person on his behalf, has dealt with the property in derogation of or beyond the terms of the contract. These matters unescapably, arise under Issue No.3. As to the first question, Ex.6/1, the tenancy agreement, is specific and the tenancy is shown to pertain to the 2nd floor of the building @ Rs.175 per month. Mst. Bilqis, disowning the first page of such agreement, says that the tenancy relates to the first floor and that it was created by defendant No.2, husband of the defendant No.1, and not be the latter's mother. Such evidence, being contrary to the terms of tenancy, reduced to writing, is not admissible under Articles 158 and 159 of the Qanun‑e‑Shahadat, 1984. Even otherwise, Ex. 6/1, is transcribed on two leaves both on stamp papers of Rs.2 each, bearing the same serial number and issued in the name of the tenant and the document is signed by the mother of the defendant No.1, the tenant, quite unaccountably, saying that she did not even get a copy thereof. The typed version, on both leaves, is also, apparently, relatable to the same typewriter. It, thus, stands proved that the tenancy pertained to the 2nd floor. As to the question of part performance, the agreement of sale Ex.5/1, is specific that the property will be sold with tenants and on "as it is basis" and makes no mention of any delivery of part possession. On the other hand, receipt dated 7‑9‑1978, Ex. 5/8, issued by the sister of the defendant No.1, speaks of "after Bilquis Jamal's opening the house". Plaintiff is bound by Ex. 5/8, he himself having produced it. Oral evidence on the question of part performance, apart from being non -entertainable under Articles 158 and 159 of Oanun‑e‑Shahadat, 1984, stands more than effectively contradicted by Ex.5/8 and it is established that no delivery of part possession was made puruance to the agreement of sale and that, in fact, the house was opened by Mst. Bilquis Jamal subsequent to such agreement, on her own. On this and the residue question, above referred, the further evidence is that Mst. Bilquis Jamal raised constructions on the open space of the property and housed her brother‑in‑law Shaikh Mohammad Ibrahim, therein. Added to it is unrebutted evidence of the defendant No.1 that the plaintiff party made life of tenant Ghulam Ali, on the ground floor, difficult and he stopped coming to the same. In the result, while answering Issue No.3 in the negative, it will have to be determined in the context of relief (below) as to what redress can be allowed to the defendant No.1, if any, for the foregoing transgressions of the agreement of sale, before the sale, at all, proceeded to completion.

21. Issue No.4.‑‑The next question is of relief. Can the relief of Specific Performance, which is discretionary under section 12 of the Specific Relief Act, be allowed in this case, and, if so, on what terms. Wherever, law vests discretion in a Court it is never arbitrary and has always to be exercised along sound judicial lines. It seems to me that the plaintiff concluded the contract in suit in a manner which leaves something to be desired, the basic indiscretion being the non conclusion of the agreement with the Defendant No.1 herself, even though she was present in Pakistan. This, however, has not affected contractual obligations. Subsequent disputes also do not seem to have been entirely of the making of the Defendant No.1. In fact, it appears that a good deal in the nature of disputes, which have transpired, has to be laid at the doors of the plaintiff and his sister who, according to plaintiff's case, was acting on his behalf. Still the defendant No.1 has neither owned the contract nor has she taken a fair or honest stand about it, projecting, what has been established to be, a sham defence. Clearly, both the parties are at fault. Litigations have gone on all these years. On balance, it seems fairer to enforce the contract than to decline the exercise of discretion. However, the Defendant No.1, has to be relieved of the difficulties which have arisen in this case, many of which do not seem to be of her seeking. For one thing, no part performance arose in the case and yet the defendant No.1 stands deprived of possession. This may have directly resulted from an unwarranted disowning of the contract. Yet, it was an excess. Complete justice calls for compensation to the defendant No.1 and some yardstick for so doing is available. The first and second floor compensations are assessed at the rate of Rs.175 each per month and that of the unauthorisedly converted open space, admitted by S. Md. Ibrahim to be part of the property, @ Rs.400 p.m. for the duration of 11 years total damages are assessed @ Rs.99,

000. Besides, since specific relief is being allowed, belatedly, largely due to the proverbial delays at law, the prevailing value of the legal tender has to be taken into account. The balance amount of the consideration money was made payable, at the latest, by mid‑1978, but as payment shall have to be made now, the resulting situation cannot be overlooked. It is an officially acknowledged position that, in the wake of persistent inflationary trends, the Pakistan Currency has been subject to serious erosion and the buying power of money as of 1978, is no longer the same in 1989, and, in fact, is substantially less. I have already held in the case of Ajjaz Haroon v. Inam Durrani (P L D 1989 Kar 304) and yet in an another case viz. PICK v. Habib Enterprises Ltd. (Suit No. 275/73) that, in the interest of justice, such inflationary trends in the legal tender can be taken judicial notice of and either a tenative valuation is to be arrived at or proper figures can be worked out, on the basis of official data, as be available. There is no reason why, with a view to accord prompt relief, both such courses cannot be adopted. 1 would, therefore, pass a Preliminary Decree holding that the tentative value of R s. 70,000, which is what was payable in mid 1978, should, on the basis of an approximate 10% per annum erosion, be treated as Rs.2,(0,000, in present monetary terms, and such amount of Rs.2,0n,000 be deposited in Court by the plaintiff within one month from the date hereof. The same is to be withdrawn by the defendant No.1 on completion of sale. As to the actual figures and equivalent Mr. A.K.M. Adrees, who was appointed Commissioner in the case of Aijaz Haroon v. Inam Durrani, is appointed as Commissioner in this case, as well. His Tentative fees of Rs.5,000 shall be payable by the plaintiff. Such Commission would be returnable within 4 months. If any amount in excess of Rs.2,00,000 is worked out, the same shall also be payable by the plaintiff on the basis of the Final Decree that would follow but if the figure worked out is less, the plaintiff would be entitled to refund to that extent. These adjustments, if any, would be made from the damages of Rs.99,000, as above granted. Such sum shall also be deposited by the plaintiff within a similar period of one month which on being deposited shall, initially, be invested by the Nazir in N.I.T. Units to be ultimately, disbursed in accordance with the Final Decree that may be passed in the case. In the event plaintiff fails in compliance, the suit shall stand dismissed on. expiry of the period(s) of one month as aforesaid but, if the defendant No.1, fails Nazir shall specifically perform the contract in terms herein ordered. In the circumstances of this case, costs shall not follow the decree. Preliminary decree, in terms, to follow accordingly. AA./Z‑106/K Order accordingly.