Judgment Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

 

Civil Revision No.107 of 2025

( Farida Farhan v. Muhammad Amjad & others]

 

 

Applicant:

Through Mr. Abdul Naeem A. Qureshi, Advocate

 

Respondent No.1

Through Ms. Kausar Amin Advocate

 

Date of Hearing & order

28-08-2025

 

 

O R D E R

 

 

ARSHAD HUSSAIN KHAN, J.- Through the instant Civil Revision, the Applicant has assailed the judgment and decree dated 11.03.2025 passed by the learned IXth Additional District Judge, Karachi-West (MCAC) in Civil Appeal No.268 of 2024, whereby the appeal was allowed. Consequently, the judgment and decree dated 05.10.2024 rendered by the learned XIth Senior Civil Judge, Karachi-West in Civil Suit No.548 of 2023 was set aside, and the suit was decreed in terms of prayer clauses (i) and (ii). The learned appellate Court further directed respondent No.1 / plaintiff to deposit the balance sale consideration before the Nazir of the Court, whereafter the Nazir was ordered to execute the sale deed in respect of the suit properties in favour of respondent No.1, strictly in accordance with law

 

2.         Brief facts giving rise to the filing of the present revision application are that respondent No.1 / plaintiff instituted a suit for Specific Performance, Possession, and Permanent Injunction against the applicant / defendant No.1 before the learned XIth Senior Civil Judge, Karachi-West. It was averred therein that respondent No.1 is the bona fide and lawful purchaser of Residential Plots Nos. L-7 and L-8, ST-21, Block 4-A, KDA Scheme No.41, Surjani Town, Karachi, each admeasuring 97.22 square yards, having purchased the same from the applicant / defendant No.1. It was further pleaded that the applicant had acquired the said property by virtue of a Registered Sale Deed duly executed in her favour on 17.03.2011. The total sale consideration was mutually agreed at Rs.56,50,000/-, out of which respondent No.1 had already paid a sum of Rs.46,50,000/-. Upon receipt of such payment, the applicant delivered possession of the first floor together with three shops on the ground floor to respondent No.1, while retaining a small portion of the ground floor in her own occupation. The applicant undertook to vacate the retained portion upon receipt of the remaining balance sale consideration and to execute the sale deed of the subject property in favour of respondent No.1. However, upon the applicant’s failure to perform her part of the contract, respondent No.1 instituted Civil Suit No.548 of 2023 seeking specific performance, possession, and permanent injunction with, inter alia, the following reliefs: 

 

“i)       Decree for Specific Performance that the plaintiff is the bonafide purchaser of Plot No. L-7, L-8, ST-21, Block 4-A, KDA Scheme No. 41, Surjani Town Karachi measuring 97.22 Sq yards each by virtue of Sale Agreement dated 24-4-2017 and defendant no.1 be directed to execute Sale Deeds in favour of plaintiff or in the alternative/Nazir of this Honourable Court may be appointed to execute Sale Deeds of plot in question in favour of plaintiff.

 

ii)         Decree for Physical Possession of Portion of Ground Floor of Residential Plot No. L-7, L-8, ST-21, Block 4-A, KDA Scheme No. 41, Surjani Town Karachi measuring 97.22 Sq yards each from defendant No.1 or in the alternative Nazir will be appointed to deliver physical possession in occupation of plaintiff of the plot in question to the plaintiff.

 

iii)        To grant Permanent Injunction restrain the defendant No.1 her agent, servant, attorney, representatives anybody on or under her behalf from creating third party interest on plot No. Plot No. L-7, L-8, ST-21, Block 4-A, KDA Scheme No. 41, Surjani Town Karachi measuring 97.22 Sq yards each till the final disposal of the suit.

 

iv)        Cost of the suit.

v)         Any other relief which this Honourable Court may deem, fit and proper under the circumstances of the case.”

 

3.         Upon issuance of notice in the above-mentioned suit, the applicant / defendant No.1 filed her written statement, whereas defendants No.2 and 3 were debarred from filing the same. Through her written statement, the applicant / defendant No.1 categorically denied the averments of respondent No.1 / plaintiff as contained in the plaint. She contended that the plaintiff’s case is premised upon a fake, forged, and fabricated sale agreement dated 20.04.2017, whereas the stamp paper of the said document was admittedly issued on 28.04.2017. It was further asserted that respondent No.1 failed to produce any proof of payment through valid banking transactions. The applicant / defendant No.1 maintained that the suit properties stand in the name of her husband; hence, she herself had no authority to alienate or transfer the same. It was argued that no prudent person would pay such a substantial amount without first verifying the title and ownership status of the property. The applicant / defendant No.1 further pleaded that respondent No.1 is, in fact, her tenant, and with the mala fide intention of usurping her properties, he concocted and fabricated the alleged sale agreement in her name, despite the property being duly registered with the concerned authority in the name of her husband, who presently resides abroad. On account of this, the applicant / defendant No.1 had demanded monthly rent from respondent No.1, whereupon she also instituted Rent Case No.38 of 2023 against him. It was reiterated in the written statement that the entire claim of respondent No.1 is based upon a fake, fabricated, and self-serving document, which carries no sanctity or evidentiary value in the eyes of law 

4.         The learned trial court on the pleadings of the parties framed following issues:-

“1.       Whether suit is not maintainable under the law? OPP

2.         Whether the agreement of sale dated 20.04.2017 was executed between the Plaintiff and Defendant No.1? OPP

3.         Whether the Defendant No.1 was legally entitled to sale suit properties? OPP

4.         Whether the plaintiff has paid Rs.46,50,000/- out of total sale consideration Rs 56.50.000/- to Defendant No1? OPP

5.         Whether Defendant No. 1 handed over original documents and physical possession of first floor and three shop at Ground floor to Plaintiff and a small portion and ground floor was detained by defendant No 1.OPP

6.         Whether the Plaintiff was ready to perform his part of the contract all the time? OPP

7.         Whether the Plaintiff is entitle for the relief plaint? OPP

8.         What should the decree be?”

 

5.         The learned Trial Court recorded the evidence of Respondent No.1 / Plaintiff as well as his witnesses, who appeared as PW-1 and PW-2. However, despite being afforded opportunities, learned counsel for the Defendants failed to cross-examine the Plaintiff and his witnesses. Consequently, the right of the Defendants to cross-examine was closed, and Defendant No.1 / Applicant was further debarred from leading evidence. Thereafter, while learned counsel for the Plaintiff advanced arguments, counsel for Defendant No.1 failed to address the Court. Ultimately, the suit filed by the Plaintiff was dismissed by the Trial Court vide judgment and decree dated 05.10.2024, with no order as to costs. Aggrieved, Respondent No.1 / Plaintiff preferred Civil Appeal No.268 of 2024, wherein the impugned judgment and decree were set aside. The Appellate Court without providing sufficient opportunities, decreed the suit in favour of Respondent No.1 in terms of prayer clauses (i) and (ii), directing the Plaintiff to deposit the remaining balance sale consideration before the Nazir of the Court. The Nazir was further mandated to execute the sale deed of the suit property in favour of Respondent No.1 in accordance with law. The Applicant has now assailed the judgment and decree of the Appellate Court through the instant Civil Revision.  

 

6.         Learned counsel for the Applicant contends that the judgment and decree rendered by the Appellate Court are untenable in law, being based on surmises, conjectures, and presumptions, and therefore not sustainable. It is argued that Respondent No.1 / Plaintiff failed to adduce any conclusive evidence to establish payment, and that the testimony of the Plaintiff and his witnesses, though unchallenged owing to the Applicant / Defendant No.1 being debarred from cross-examination and from leading her own evidence, could not be deemed sufficient for decree. Counsel further submits that the learned Appellate Court failed to properly appreciate the averments contained in the written statement as well as the documents annexed thereto by the Applicant / Defendant No.1. He submits that the impugned judgment and decree suffer from material irregularities and a failure to apply judicial mind to the facts of the case. He, therefore, prays that the instant Revision Application be allowed and the impugned judgment and decree be set aside.

7.         Conversely, learned counsel for Respondent No.1 / Plaintiff, while supporting the judgment and decree of the Appellate Court impugned herein, has vehemently controverted the stance of the Applicant. Counsel submits that the impugned judgment and decree are well-reasoned, rendered strictly in accordance with law and equity, and thus do not warrant interference by this Court in the exercise of revisional jurisdiction. It is further contended that the present Revision Application has been filed by the Applicant only to prolong litigation. Counsel argues that the impugned judgment and decree were passed by the Appellate Court after due appreciation of law and evidence, including documents produced by Respondent No.1, duly corroborated by strong testimony of material witnesses, which remained unrebutted despite repeated opportunities afforded to the Applicant. She further contends that Respondent No.1 has fully proved his case and remains in possession of the suit properties, along with the original title documents, which substantiate his claim of purchase from the Applicant. Lastly, it is argued that the instant Revision Application is devoid of merits and is liable to be dismissed. 

8.         I have heard the arguments of the learned counsel for the parties and with their assistance have perused the material available on record.

 

9.         A perusal of the record reveals that the Applicant has consistently disputed the alleged sale agreement said to have been executed between the parties concerning the subject properties. In the suit, Respondent No.1 / Plaintiff recorded his own evidence along with that of two supporting witnesses. However, these witnesses were not subjected to cross-examination by learned counsel for Defendant No.1 / Applicant. Moreover, the Applicant was also debarred from producing her own evidence. Nonetheless, the learned Trial Court dismissed the suit. Yet, on the very same evidence and material, which had earlier been discarded by the Trial Court, the learned Appellate Court proceeded to allow the appeal and decreed the suit in favour of the Plaintiff, without affording the Applicant a fair opportunity of hearing.

10.       In the circumstances, since the Applicant was denied the right of fair hearing both before the Trial Court and subsequently before the Appellate Court, and as substantial rights of the parties are involved, the doctrine of fair trial demands intervention. To meet the ends of justice, it would be just and proper to remand the matter to the Trial Court for a de novo trial. Accordingly, the impugned judgment and decree passed by the learned Appellate Court in Civil Appeal No. 268 of 2024, as well as the judgment and decree rendered in Civil Suit No. 548 of 2023, are hereby set aside. The matter is remanded to the learned Trial Court for de novo proceedings strictly in accordance with law from the stage of recording evidence, after affording fair and adequate opportunity to both parties to adduce their evidence. There shall, however, be no order as to costs.

            Instant Revision Application stands disposed of in the above terms.

                                                                                                     JUDGE