Order Sheet

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

Second Appeal No.25 of 2018

 

Date

                                Order with signature of Judge

 

Hearing Case (Priority) :

1. For orders on office objection :

2. For hearing of CMA No.1633/2018 (Stay) :

3. For hearing of Main Case :

 

06.08.2019 :      Syed Ashfaque Hussain Rizvi, advocate for the appellant.

 

                            Raja Basantani, advocate for respondent No.1.

…………

 

            Suit No.233/2012 for declaration, cancellation and injunction filed by the appellants against respondent No.1 was dismissed by the learned trial Court vide judgment and decree dated 26.05.2017, and Civil Appeal No.236/2017 filed by the appellants against dismissal of their above Suit was also dismissed by the learned appellate Court vide judgment dated 20.01.2018. This second appeal has been filed by the appellants against the above concurrent findings of the learned Courts below. It may be noted that the decree drawn by the learned appellate Court has not been filed by the appellants.

 

            It was the case of the appellants before the trial Court that the appellants / plaintiffs, through their attorney, and respondent No.1 / defendant entered into a Sale-cum-Exchange Agreement whereby it was agreed that two plots bearing Nos. 1-D/7 and 1-D/6 will be sold to respondent No.1 in consideration of Rs.30,000,000.00 which amount will be paid by respondent No.1 by transferring his flat No.A-4, Noman Grand City, Gulistan-e-Jauhar, Karachi, two compressors and one commercial building No.245/C-2, PECHS, Block 2, Karachi. The approximate market value of the above mentioned immovable properties and compressors were assessed at Rs.11,500,000.00. The balance sale consideration was to be paid by respondent No.1 to the appellants within one year. In pursuance of the above agreement, the appellants transferred their plot No.1-D/7 in favour of respondent No.1 through a registered sale deed, however, respondent No.1 failed in performing his agreed part of the contract and did not transfer or hand over any of the above properties to the appellants. In this background, the above Suit for declaration, cancellation and injunction was filed by the appellants against respondent No.1. The Suit was contested by respondent No.1 by filing written statement wherein by admitting execution of the sale deed in his favour, it was pleaded, inter alia, by him that the said sale was an independent transaction and had nothing to do with the agreement alleged by the appellants.

 

After settlement of issues, the appellants examined their attorney as their sole witness, and respondent No.1 did not lead any evidence. It was noticed by the learned trial Court that the witness / attorney of the appellants had stated in his cross-examination that he did not remember the date of the Sale-cum-Exchange Agreement and it was admitted by him that there was no power-of-attorney in his favour from the appellants at the time of execution of the said agreement. In view of the above admission by the appellants’ witness / attorney, it was held by the learned trial Court that the said attorney did not have authority to execute the said agreement. The Suit was dismissed by the learned trial Court on this ground and also on the ground that the appellants had not produced the attesting witnesses of the said agreement in terms of Article 17 of the Qanoon-e-Shahadat Order, 1984. In the appeal filed by the appellants, the learned appellate Court also came to the conclusion that the Suit was liable to be dismissed, but on the ground that the appellants did not produce the Sale-cum-Exchange Agreement on which they were relying and on the basis of which the Suit was filed. In view of the above, it was held by the learned appellate Court that the appellants had failed in proving their claim the burden whereof was on them.

 

After carefully examining the material available on record, particularly the impugned judgments of both the learned Courts below, I am of the considered view that the findings contained therein are well-reasoned and based on proper appreciation of evidence. In addition to the above, it may be noted that if for any reason the appellants were unable to produce the Sale-cum-Exchange Agreement at the time of trial before the learned trial Court, they still had the opportunity to file an application before the learned appellate Court for producing the same as additional evidence. However, they did not avail such opportunity. Learned counsel for the appellants has not been able to point out any illegality or infirmity in the impugned judgments. Accordingly, this appeal and listed application are dismissed with no order as to costs.

 

 

     J U D G E