IN
THE HIGH COURT OF SINDH AT KARACHI
II
Appeal No.106 of 2024
|
DATE |
ORDER
WITH SIGNATUREs OF JUDGEs |
1.
For orders on office objection as at
“A”
2.
For hearing of CMA No.3493/2024
3.
For hearing of main case
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20.11.2024
Mr. Abdul Razzak, advocate for
appellants a/w appellant No.2
Respondent Muhammad Danish Ali
present
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Syed
Sikandar Ali, advocate, files power on behalf of respondent Muhammad Danish
Ali, it is taken on record.
Application
under Order XXIII, Rule 3, read with Section 151, CPC is moved by the parties.
It is submitted that the instant II Appeal is filed against the judgment dated
31.07.2023, passed by learned II Senior Civil Judge, Karachi West in Civil Suit
No.762/2021. It is submitted in the compromise application that judgment and
decree passed in the aforesaid suit were upheld by the Appellate Court/IX
Additional District Judge, Karachi West in Civil Appeal No.152/2023, vide
judgment dated 19.02.2024. Thereafter, II Appeal No.106/2024 is filed. Notices
were issued to the respondents. It appears that in Civil Suit No.762/2021,
filed by plaintiff Muhammad Danish Ali against 8 defendants for specific
performance, declaration, possession, permanent and mandatory injunctions,
following prayers were made:
(i)
Decree for specific performance
directing the defendants No.1 to 8 to perform their part under the said sale
agreement dated 01.03.2021 by executing the required transfer of the suit
property viz. open residential Plot No.24, Sector 5A, admeasuring 400 Square
Yards, situated at Aligarh Muslim University Old Boys Co-Operative Housing
Society Limited, KDA Scheme No.33, Gulzar-e-Hijri, Karachi, by complied with
necessary requirements and to handover the physical possession of the suit
property alongwith original documents of it to the plaintiff, on receiving the
balance price of the said property which the plaintiff is and has always ready
to pay the same and the plaintiff is also prepared to bear all the required
expenses of stamp duty and registration fee of such sale deed in his favour.
Alternatively on failure of the defendants No.1 to 8 to perform their said
legal obligation, directing the Nazir of this Hon'ble Court to do the needful
on behalf of the said defendants on the above terms in favour of the plaintiff.
(ii)
To declare that the plaintiff is the
bonafide and lawful purchaser of suit property open Residential Plot No.24,
Sector 5A, admeasuring 400 Square Yards, situated at Aligarh Muslim University
Old Boys Co-Operative Housing Society Limited, KDA Scheme No.3.3,
Gulzar-e-Hijri, Karachi, under the said sale agreement dated 01.03.2021.
(iii)
Permanent Injunction restraining the
defendants No.1 to 8, their agents, attorneys, servants, employees,
representatives, and/or anybody else from creating any third party interest in
the suit property.
(iv)
Mandatory Injunction restraining the
defendant No.9 from effecting/allowing any sale/transfer, mutation or any
transaction in respect of the suit Property, in favour of any other person or
persons except the plaintiff.
(v)
Cost of the suit.
(vi)
Any other relief or reliefs which
this Hon'ble Court may deem fit and proper in the circumstances of the case.
Counsel
appearing for the appellants submits that during pendency of instant appeal,
parties have settled their dispute out of the Court in the following terms:
(i)
That the sale agreement dated
01-03-2021 executed between the Appellants and Respondent No.1 stand cancelled
with immediate effect.
(ii)
That in consequence thereof the
appellants are returning the advance payment made to them by the Respondent
No.1 in the sum of Rs.1,020,000/- (Rupees One Million and Twenty Thousand)
through Cheque No. 00161136 dated 19th November 2024, drawn on Bank Islami.
(iii)
That the balance amount of
Rs.9,180,000/- (Rupees Nine Million and Eighteen Thousand Only) deposited by
the Respondent No.1 before the Nazir District West in Execution Application
No.12 of 2023 be returned to the Respondent No.1 along with profit if any.
(iv)
That upon acceptance of compromise
by the Hon'ble Court the dispute between the parties stands resolved and the
subject property shall be free from litigation. The appellants shall be at
liberty to exercise their right to sale or dispose of the said property as per
their wish and will.
(v)
The above settlement is full and
final between the parties and the same has been agreed/entered upon without any
coercion, misrepresentation and undue influence. Hence, in consequence of this
compromise the suit No.762 of 2021 (as referred above) filed by respondent
No.1, stand decreed in terms of compromise.
(vi)
Prayer is made for disposal of this
Second Appeal in terms of para 3(i) to (v) above.
Appellant
No.2 Khurram Matin, who is also attorney of other appellants, is present before
the Court. Respondent Muhammad Danish Ali is also present before the Court.
Both the parties have been identified by their respective counsel. Both parties
submit that they have settled the dispute in the above terms. It appears that
compromise is genuine and according to law. Therefore, application under Order
XXIII, Rule 3, read with Section 151, CPC is allowed and II Appeal No.106/2024
is disposed of in terms of compromise, accordingly.
J U D G E
Gulsher/PS