Suit No. 914 of 2004
Present:
Mr. Justice Irfan Saadat Khan
Plaintiff, Pervez Iqbal, through Mr. Arshad Iqbal, advocate.
Defendant, Mrs. Rana/Nadia Iqbal Siddiqui, through Mr. Muhammad Aquil, advocate.
Date of Hearing: 25.8.2010.
JUDGMENT
IRFAN SAADAT KHAN, J: - The plaintiff has filed this suit against the defendant for declaration, specific performance, permanent injunction and in the alternative for compensation and damages.
2. Brief facts of the case, as per the plaint, are that the defendant through her representative/relative Mr. Kamran Waheed, offered her house bearing No.28/II, Main-Khayaban-e-Shamsheer, measuring 500 sq. yards, situated at Phase V, DHA, Karchi, (“the suit property”) to the plaintiff for total sale consideration of Rs.7,800,000/- and the plaintiff agreed to purchase the same and paid Rs.100,000 as advance/part payment to Mr. Kamran Waheed. Thereafter, a further sum of Rs.100,000 was paid to the defendant through Mr. Roshan Ali of Roshan Estates, DHA, Karachi. The balance sale consideration was payable to the defendant on execution of the sale deed in favour of the plaintiff before the concerned Sub-Registrar. That in spite of several reminders to the defendant for execution of the sale deed in favour of the plaintiff the defendant did not come forward to execute the same. Accordingly, the plaintiff served a legal notice on the defendant to comply with the agreed terms and conditions of the sale of the suit property but the defendant flatly refused to honour her promise. Therefore, the plaintiff has filed this suit.
3. Summons was issued to the defendant in response to which Mr. Muhammad Aquil, advocate filed his power on behalf of the defendant and also filed written statement wherein, apart from taking a number of preliminary objections, denied the averments made in the plaint. It was specifically denied that the defendant had offered the suit property for sale or had given any authority to offer the same for sale to anybody.
4. On the basis of the pleadings of the parties the following issues were framed:
1. Whether the plaintiff is entitled for relief claimed in the plaint?
2. Whether the suit is maintainable in law?
3. Whether the defendant had given any authority/power to sell her bungalow to anybody at any time in any manner whatsoever?
4. Whether the receipts dated 11.11.2003 and 14.12.2003 are binding upon the defendant?
5. Whether the defendant had not paid to the plaintiff the expenses of completion of fee/charges of Rs.59,760 and Rs.22,000 on account of stamp duty affixed on “B” lease and Ground Rent upto 2005 through Mr. Kamran?
6. What should the decree be?”
5. The plaintiff in support of his case examined himself and was cross examined by the counsel for the defendant. He also produced some documents as exhibits while some documents were marked as “X”. He also examined Roshan Ali son of Gul Muhammad, an estate agent. The defendant, who lives in UAE, was examined on Commission. Mr. Kaman Waheed was also shown as a witness of the plaintiff but he was not examined and was dropped by the plaintiff.
6. Mr. Arshad Iqbal, advocate for the plaintiff submitted that as the representative of the defendant, namely, Kamran Waheed, has received a sum of Rs.100,000 as token/advance on behalf of the defendant hence the defendant is bound to perform her duty by selling the suit property to the plaintiff for a sum of Rs.7,800,000 as duly agreed by the attorney. As per the learned counsel, the plaintiff is ready to pay the balance outstanding amount to the defendant and the defendant may be directed to perform her part of promise by selling the suit property to the plaintiff. It is further submitted that the plaintiff, in order to help execute the sale deed, has even helped the defendant in fulfilling certain legal formalities required in this regard. In the end the learned counsel submitted that as in spite of hectic efforts of the plaintiff, the defendant has failed to perform her part of the promise the suit be decreed in favour of the plaintiff as prayed.
7. On the other hand, Mr. Muhammad Aquil, advocate for the defendant submitted that there is no agreement between the parties in respect of the suit property. He also submitted that there is no offer, acceptance and sale consideration as contemplated under the Contract Act as admittedly the plaintiff never met the defendant. He denied that the defendant has appointed any Mr.Kamran Waheed as her attorney for the sale of the suit property. He relied on the following cases:
1. 1990 MLD 1129,
2. 1996 MLD 562,
3. 1994 MLD 1275, and
4. 1989 SCMR 1292.
8. I have heard the learned counsel for the parties and have gone through the record as well as the case law cited before me.
9. Issue No.1 goes to the root of the matter and can only be decided after decision on the other issues otherwise the remaining issues framed in this case would become redundant. Therefore, I propose to answer this issue together with issue No.6.
10. Issue No.2 is with regard to maintainability of the suit. Since the parties have led their evidence and have argued their respective cases, therefore, I propose to decide the suit on merits. Even otherwise, vide order dated 24.8.2004, it was held that there is no statement in the plaint calling for rejection of the plaint.
11. Issue No.3 is whether the defendant had given any authority/power to sell her bungalow to anybody at any time in any manner whatsoever? The onus to prove this issue lies on the plaintiff. The plaintiff in his cross-examination has admitted that he had never met the defendant. Although he has voluntarily stated that he had talked to the defendant on telephone but this fact has not been asserted in his plaint or affidavit-in-affidavit. The plaintiff has clearly stated in his cross examination that he has no documentary evidence to show that the defendant has given any power/authority to anybody for the sale of the property in question i.e. the suit property. Although the plaintiff in his cross examination has stated that he had seen an advertisement in the daily “DAWN” for the sale of the suit property but this, in no way, proves that Mr. Kamran Waheed was appointed as attorney by the defendant for the sale of the suit property. Even if it is stated in such an advertisement that Mr. Kamran Waheed was the attorney of the defendant even then a prudent person, before entering into any transaction, will first see the relevant documents and then enter into negotiations for the sale/purchase of the property. Although Mr. Kamran Waheed was shown as one of the witnesses of the plaintiff but subsequently, for the reasons best known to the plaintiff, he was dropped. Thus, the presumption would arise that had he been examined he would have deposed against the interest of the plaintiff. Therefore, I answer issue No.3 in the negative.
12. Issue No.4 is whether the receipts dated 11.11.2003 and 14.12.2003 are binding on the defendant? Receipt dated 11.11.2003 was admittedly issued by Mr. Kamran Waheed. Although the name of defendant Mrs. Rana/Nadia Iqbal Siddiqui is shown underneath the signature on this receipt but in the cross examination the plaintiff has admitted that Ex. P/2 i.e. the receipt dated 11.11.2003 does not bear the signature of the defendant. Furthermore, in the cross examination the plaintiff has also admitted that “I have not made any direct payment to the Defendant.” The plaintiff in paragraph 1 of the plaint has stated that he paid a sum of Rs.100,000 to Mr. Kamran Waheed “who on behalf of defendant passed a valid receipt for the said amount.” Thus, admittedly neither this amount of Rs.100,000, as shown in receipt dated 11.11.2003, was paid to the defendant nor any receipt was obtained from her in respect thereof. As I have already held in issue No.3 above that Kamran Waheed was not a duly appointed attorney of the defendant, therefore, any receipt issued by the said Kamran Waheed would not be binding on the defendant. So far as receipt dated 14.12.2003 is concerned, the plaintiff in paragraph 1 of the plaint has stated that “on 14.12.2003 defendant received further advance of Rs.100,000 (Rupees One Lac only) through Mr. Roshan Ali of Roshan Estates, DHA, Karachi.” Although in respect of receipt dated 11.11.2003 it was alleged that it was issued by representative of the defendant, which the plaintiff has not been able to prove, but in respect of Mr. Roshan Ali he has not stated that he was also representative of the defendant. Therefore, it is strange that the plaintiff had paid Rs.100,000 to Mr. Roshan Ali and the said Mr. Roshan Ali had issued receipt in respect thereof and then the plaintiff alleges that “the defendant received a further sum of Rs.100,000”. Neither the plaintiff has alleged any nexus between the defendant and Mr. Roshan Ali nor he has proved such nexus. Thus, the receipt dated 14.12.2003 for Rs.100,000/- issued by Roshan Ali of Roshan Estates, DHA, Karachi is also not binding on the defendant. Accordingly, this issue is answered in the negative.
13. Issue No.5 is with regard to payment of the expenses to the plaintiff of the expenses incurred on acquiring the “B” lease and completion fee, etc. This issue is not at all relevant for deciding a suit for specific performance. Even otherwise the plaintiff in his cross examination has admitted that he has received a sum of Rs.59,760 towards the completion charges. As regard the sum of Rs.22,000/- being the stamp duty there is contradiction in the statement of the plaintiff in his cross examination. However, as stated above, this issue is not relevant to the controversy and, therefore, is not answered.
14. In the present case the defendant had denied having entered into any agreement for sale of the suit property with the defendant. The defendant has also denied having received any sum from the plaintiff in this regard.
15. In the case reported as Nawab Din v. Ghulam Qadir and others (1994 MLD 1275), the position was somewhat similar as the plaintiff was asserting that the defendant had entered into a sale agreement with him in respect of his land and the defendant was denying the same. A learned single Judge of the Lahore High Court held as under:
“Written statement was submitted by him. He had denied execution of agreement to sell his land by him. He also controverted receipt of any consideration under the alleged agreement for the sale of his land. In face of clear denial by him, it was bounden duty of the plaintiff to affirmatively prove the existence of sale agreement in his favour. In my opinion, he failed to discharge the heavy burden of proof lying upon him. Evidence led by him was slim and meagre. Upon scanning it, the lower Courts did not rely on it and in my view rightly so.”
In the case of Abdul Hameed v. Muhammad Zaki and others a learned single of this Court has held as under:
“2. In a suit for specific performance, the burden of proof of the agreement of sale is, initially, that of the plaintiff. In the event of denial of such agreement, as in this case, it is for the plaintiff to show, through convincing evidence, that, in fact, such agreement subsisted between the parties. If execution is not admitted, signatures of the opposite party are to be proved by comparison thereof with admitted specimen or through other recognized modes. Collaterally, attesting witnesses, scribe, if any, and, if the pertinent stamp paper is controversial, the stamp vendor, alongwith supporting documentary material, are to be examined and produced. None of this was done in the instant case.”
In the case of Muhammad Khan and others v. Muhammad Boota and another (1996 MLD 562), on the question of existence of any agreement between the parties, it was held as under:
“Prime point for decision was the execution of Exh.Pl by the owner of the land in favour of the promisee for sale of his land on terms stated in it. Upon careful scrutiny of record and its sifting analysis, it was evident that the plaintiffs had signally failed to establish execution of agreement for sale of his land by Muhammad Iqbal leading to an inevitable consequence that Exh.Pl was not a document beyond clear doubts and suspicions. As observed above, Exh.PI was scribed on a plain paper by a boy Zafar Ali. It was not scribed by a licenced deed‑writer on a proper stamp paper. The facility of both the deed‑writer and stamp paper were available at a nearby place in Sialkot City. It was hardly at a distance of five to six miles. Reason for bypassing the deed‑writer and scribing the deed on stamp paper were not visible on the present record. It may have its own meaning to convey. Furthermore, scribe of the agreement and an important marginal witness were not produced in evidence to remove all possible doubts about its execution.”
16. In the present case for the alleged sale of property worth millions of rupees there is neither any agreement to sell nor there is any receipt in respect of the token/advance money from the owner of the property herself. Even it is not alleged in the plaint that at any point of time the plaintiff met with the defendant and reached an agreement in respect the suit property. Everything was negotiated with said Kamran Waheed who had neither been examined in Court nor was a duly authorized representative of the defendant to have undertaken such a transaction. Learned counsel for the plaintiff took pains to explain that in transactions before the DHA no sale agreement is required but for sale of such a valuable property at least some agreement between the parties, oral or written, is required to be established/produced. The plaintiff in his plaint as well as in his cross examination has categorically admitted that he had not paid any sum to the defendant. In the cross examination the plaintiff admits that he has no documentary evidence to show that the defendant has given any power/authority to anybody for the sale of the property in question i.e. the suit property. This clearly belies the statement of the plaintiff made in paragraph 1 of the plaint to the effect that on 11.11.2003 the defendant offered for sale the suit property through her Representative, namely, Kamran Waheed, for a sale consideration of Rs.7,800,000/-. When the plaintiff has not seen, or has not been provided, any documentary proof to the effect that the said Kamran Waheed is a duly constituted attorney of the defendant in respect of the suit property, how and why he entered into negotiations with Kamran Waheed for the purchase of the suit property is a question which remained unanswered. Therefore, in my opinion, the plaintiff is not entitled to any relief.
17. In view of the above discussion I find no merit in this suit and the same is accordingly dismissed with costs.
Karachi, the ______________, Judge