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Petitioner: Cdr. (Retd.) Muhammad Sharif VS Respondent: Lt. Col. (Retd.) Ghulam Farid & PDOHA
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title: Cdr. (Retd.) Muhammad Sharif vs Lt. Col. (Retd.) Ghulam Farid & PDOHA Case No.: Suit No. 733 of 2003 Date of Judgment:2020-05-29 Reported As: 2021 P C T L R 452, 2020 SHC 382 Result: N/A
Judgment ARSHAD HUSSAIN KHAN, J. This suit was filed on 25.06.2003 against the Defendants for Specific Performance , Possession, Damages and Injunction with the following prayers:- a. To direct defendant No.1, to perform his part of contract/agreement dated 12.5.2003 regarding the sale of plot of land bearing No.338-A, 38 Street, Phase-8, measuring 1000 Sq. Yds., DHA, Karachi, and transfer this plot in favour of the plaintif f or his nominee by executing and signing the necessary documents before the concerned officer of defendant No.2, and in the event defendant No.1 fails to execute the requisite documents as prayed, learned Nazir of this Court may be appointed with the directions to complete neces sary documents and or register sale deed of said plot in the name of plaintif f and or his nominee as agreed by defendant No.1 subject to allowing the plaintif f to deposit the balance sale consideration of Rs.35,00,000/- with the Nazir of this Court. b. To restrain the defendants permanently , their representatives, attorneys, workers , employees, agents and or any person acting under them or on their behalf from selling, transferring, handing over possession or creating a third party interest in the suit plot in any manner whatsoever except the plaintif f or his nominee. c. Award a sum of Rs.25,00,000/- as damages as defendant No.1 has given mental torture, stress, agony and financial loss to the plaintif f by refusing the completion of transaction of sale of the suit plot in favour of the plaintif f or his nominee. d. To award cost of the suit. e. Any other relief which this Court deems fit and proper under the circumstances of the case may also be granted in the interest of justice. 2. Briefly stated the facts of the presen t case as narrated in the plaint are that the plaintif f entered into an agreement to sell for plot No.338-A, 38 Street, Phase-VIII, measuring 1000 Sq. Yds., or thereabout situated in Pakistan Defence Officers Housing Authority , Karachi, [suit property] with defendant No.1 for a total sale consideration of Rs.40,00,000/- on 12.05.2003, at Karachi. The plaintif f paid to defendant No.1 a sum ofth
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Rs.5,00,000/- by way of advance part-pay ment towards sale consideration of the aforesaid plot for which defendant No.1 also issue separate payment receipt dated 12.05.2003. The balance sale consideration was to be paid by the plaintif f to defendant No.1 on or before 13.06.2003 at the time of execution of requisite documents before the concerned officer of defendant No.2 Pakistan Defence Officers Housing Authority Karachi (PDOHA) for transfer of the suit property in favour of the plaintif f or his nominee. It is stated that a set of documents for transfer of suit plot was submitted in DHA office in favour of the plaintif f's nominee Mr. Muhammad Ishaque Subhani son of Abdul Rehman Subhani, which was given serial No.52 for signing before the concerned officer of defendant No.2 on 12.06.2003 and the balance sale consideration in the shape of demand drafts were presented to him, however , defendant No.1 refused to accept deman d drafts of the balance sale consideration and so also to sign the transfer papers. He demanded more money from the plaintif f as according to him the price of the suit property had been increased considerably since signing of the sale agreement. The plaintif f requested him to honour his written commitment as per terms of the sale agreement but he refused to hear anything and left the DHA office in utter disregard of his contractual obligations and moral responsibility . The plaintif f has called upon defendant No.1, through legal notice dated 14.06.2003 to fulfill his commitment and execute transfer documents of suit property in favour of the Plaintif f's nominee but he failed to do so. Hence this suit. 3. Upon notice of the present suit, defen dant No.1 has filed his written statement and has taken the preliminary legal objections viz. That there is no lawfu l and concluded agreement of sale between defendant No.1 and plaintif f or between defendant No.1 and Muhammad Ishaque Subhani in respect of suit property and so-called agreement is not enforceable as such the suit as framed and filed is not maintainable in law; That the suit is bad for non joinder / misjoinder of necessary and proper parties as such the suit is liable to be dismissed; That the plaintif f has not come with clean hands and has concealed the material facts from this Court hence he is not entitled for any relief. Apart from the above objections, defendant No.1 in his written statement has stated that the so-called agreement to sell is a forged, fabricated as neither defendant No.1 has entered into any sale agreement with the plaintiff or his nominee Mr. Muhammad Ishaque Subhani, nor he has received any amount from the plaintiff as advance payment towards the so-called sale consideration of suit property. It has been specifically denied that any sale agreement in respect of suit property has been signed or executed by defendant No.1 at Karachi. It has been stated that on 12.05.2003, when the purported sale agreement was executed defendant No.1 was not present in Karachi and he was in Rawalpindi on the said date. It has been further stated that the alleged sale agreement does not show the stamp of stamp vendor on first page of said stamp papers from whom the said stamp papers have been purchased. As a matter of fact, one Muhammad Aslam, who is an estate agent having office at Chaklala Scheme No.3 Rawalpindi, had promised with defendant No.1 to get the suit property sold at a maximum high price of Rs.70,00,000/-. However, said Muhammad Aslam has obtained the signatures of defendant No.1 in his office at Rawalpindi on two stamp papers of Rs.50/- each on a printed "Agreement to sell a plot" wherein no name of the purchaser was mentioned, no name of any vendee or witnesses was mentioned and on the second page of the said so-called sale agreement, no signatures of any vendee or the witnesses were there on the said stamp papers. The said draft agreement was a stereotype document, various columns thereof were blank. This was merely a formality and a draft agreement to show the buyer that he was holding a document duly signed by the seller and after agreeing to the proposed sale price of the plot at Rs.70,00,000/-, a proper sale agreement will be signed by both the parties in presence of the witnesses. It is further stated that the said Muhammad Aslam in collusion with the plaintiff and Muhammad Ishaque Subhani has cheated and de- frauded defendant No.1 and they have obtained his signatures on the said document by inducement and on false promises. Moreover, the said blank document has subsequently been filled in by the persons named above unauthorisedly, illegally and without the consent of defendant No.1. Hence, the said document is liable to be cancelled. It has been stated that the defendant was supposed to arrive at Karachi for completion of the formalities for transfer of the suit property if there has been a lawful concluded agreement of sale between the parties. It was only an incomplete draft agreement signed by the defendant at Rawalpindi containing no name of vendee or the witnesses or even the terms for sale of the suit property. It has been stated that the defendant had
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visited Karachi at the instance of the above named Muhammad Aslam, who accompanied answering defendant from Rawalpindi to Karachi. However, the terms of sale were not finalized due to the reason that said Muhammad Aslam insisted upon the answering defendant to sell the suit property at the price of Rs.40,00,000/- instead of price of Rs.70,00,000/- as offered by him on 12 May, 2003 at Rawalpindi. It has been denied that the plaintiff or Muhammad Ishaque Subhani had offered to make payment of the so-called balance sale consideration to the defendant and further that any breach of terms of contract has been committed by the defendant. It has been stated that insofar as receipt of Rs.5,00,000/- is concerned, the same has been paid to the defendant by Muhammad Aslam on the assurance that he will get the suit property sold at the price of Rs.70,00,000/- to a prospective buyer and that too with written consent of defendant. It has been further stated that due to any act of the answering defendant the plaintiff has suffered any loss. On the contrary, the plaintiff and above named Muhammad Aslam and Muhammad Ishaque Subhani in collusion with each other have caused mental torture and financial loss to the answering defendant, which torture and financial loss is continuous. Besides causing loss to the reputation of the answering defendant, who is a retired Colonel of Pakistan Army having good reputation and self-respect in the eyes of his family members, friends and colleagues and as such the defendant is entitled to claim compensation and damages at least Rs.50,00,000/-. 4. On 31.10.2005 out of the pleadings of the parties following issues were settled by the Court: 1. Whether there is lawfully concluded and binding agreement of sale between the plaintif f and defendant No.1 in respect of the property in question ? 2. Whether defendant No.1 has committed any breach of said agreement, if so, to what extent ? 3. Whether certain blanks were left in the agreement which were lawfully and actually filled in by the estate agent of defendant No.1 ? 4. So what relief, if any , the plaintif f is entitled to ? 5. What should the decree be ? Then on 27.02.2008 , commissioner was appointed to record evidence of the parties, who after completing the commission submitted his report, which was taken on the record on 21.09.2009. From the perusal of the commissioner's report, it appears that the Plaintiff in support of his case besides himself he examined Khawaja Maqsood Aslam (PW-2), Muhammad Aslam (PW-3), Muhammad Siddik (PW-4) and Major R. Sajjad Sipra (PW-5). The plaintiff during his deposition [Exh.P] has produced the following documents: DESCRIPTIONS EXHIBITS Affidavit in evidence P/1 Original Agreement to Sell dated 12.03.2003P/2 Original Receipt / Acknowledgement dated 12.5.2003P/3 Photocopy of Demand Draft 7.6.2003 X/1 Under objection Photocopy of Demand Draft of Rs.14,50,000/-X/2 Under objection Photocopy of Demand Draft of Rs.10,00,000/-X/3 Under objection Photocopy of legal notice dated 14.6.2003X/4 Under objection Affidavit (Biyan Halafi ) of Khawaja Maqsood attested on 06.05.2004P/4 Affidavit (Biyan Halafi) of Muhammad Aslam attested on 6.5.2004P/5th
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Affidavit ( Biyan Halafi ) of Hafiz Hussain attested on 29.03.2004P/6
Whereas Khawaja Maqsood Aslam as Exh.P/7 produced his affidavit-in-evidence as Exh P/8. Muhammad Aslam as Exh.P/10, produced his Affidavit in evidence as Exh.P/1 1. Muhammad Siddique was exhibited as P/12, who produced his af fidavit-in-evidence as Exh. P/13, hotel bills in original in the name of Khawaja Maqsood as Exh. P/14, publication bill as Exh P/15 and two publications as Exh. P/16 and P/17. Lastly , Major (Retd.) Sajid Sipra was exhibited as P/18, who produced his affidavit in evidence as Exh P/19. All the witnesses were cross-examined by the defendant's counsel. 5. On the other hand, Defendant No.1, Col. (Retd.) Ghulam Fareed was examined as Exh.D before the Commissioner , who produced the following documents:- DESCRIPTIONS EXHIBITS Affidavit in evidence D/1 Photocopy Agreement to Sell dated 12.05.2003X Photocopy of Receipt dated 12.05.2003 X-1 Photocopy of Affidavit dated 20.08.2003 of Hafiz AzmatD/2 Photocopy of Reply dated 25.06.2003 to legal noticeD/3 Photocopy of TCS Receipt D/4
The Defendant No.1 was cross-examined by the plaintif f's counsel. Defendant No.1 in support of his stance also examined Hafiz Azmat Hussain (DW-2) as Exh.D/5, who during his examination produced his affidavit-in-evidence as Exh.D/6, copy of CNIC as Exh.D/7, receipt showing the deposit of register relating to business as stamp vendor as Exh.D/8. Photocopy of licence dated 09.09.1999 for selling the stamps Exh.D/9 and pages of register maintained for selling the stamp papers as Exh.D/10 & D/11. The said witness was cross- examined by the plaintif f's counsel. After conclusion of the evidence the matter has come up for arguments. 6. During the course of arguments, learned counsel for the Plaintif f while reiterating the contents of the Plaint has argued that the plaintif f, vide agreement to sell [Exh. P/2], entered into sale transaction with defendant No.1 to purchase the suit property for a total sale consideration of Rs.40,00,000/- out of which he paid to defendant No.1 a sum of Rs.5,00,000/- being advance part payment towards sale consideration of the suit property for which a separate payment receipt [Exh.P/3] was also issued and whereas the balance sale consideration was to be paid to defendant No.1 on or before 13.06.2003 at the time of execution of the requisite documents before defendant No.2 for transfer of the suit property in favour of the plaintiff or his nominee. The plaintiff in order to fulfill his part of obligation under the terms of the agreement got prepared transfer documents for execution of the same before the concerned officer in DHA office and had also prepared demand drafts [X/1, X/2 and X/3] of the balance sale consideration in the name of defendant No.1. However, on 12.06.2003 when the demand drafts of balance sale consideration were presented to defendant No.1 in DHA Office, he refused to accept the same and to sign the transfer documents. He demanded more money as according to him the price of the suit property had been increased considerably. The plaintiff though requested the defendant to honour his commitment under the terms of the agreement of sale, however, he did not pay any heed to such request and left the DHA office. Consequently, legal notice dated 14.06.2003 [X/4] was sent to the defendant whereby he was called upon to fulfill his part of obligation under the agreement and execute transfer documents in favour of the plaintiff but no response was received. Resultantly, the plaintiff filed the present case on 25.06.2003. It has been further argued that the willingness and readiness of the plaintiff to fulfill his part of obligation under the terms of agreement can
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be gauged from the fact that he had not only prepared the demand draft of the balance sale consideration within the time stipulated in the agreement but after filing of the present case he had deposited the entire balance sale consideration in this Court. It has been contended that the defendant upon receiving advance part payment towards sale consideration and execution of the sale agreement cannot resile from his commitment by claiming the agreement as forged and fabricated document. It has been contended that the defendant did not dispute his signature and thumb impression on the agreement of sale [Exh.P/2] and as such the agreement cannot be termed as forged, fabricated. Conversely, for all practical and legal purposes the agreement of sale is a concluded contract and its terms are binding upon the parties. It has been further argued that if the agreement was a forged and fabricated document, the defendant was required to file a suit for cancellation of agreement against the plaintiff but he did not file the same which action on the part of defendant clearly reflects that he had admitted the contents of the sale agreement. Learned counsel also argued that defendant No.1 has not only signed the sale agreement and receipt but he had also affixed his thumb impression on each and every page of the sale agreement and on the receipt and the witnesses in whose presence the sale agreement was executed have also sworn their respective affidavits for the execution of the sale agreement and transaction of sale between the plaintiff and defendant No.1 which is sufficient proof of the execution of the sale agreement. It is also argued that due to the defendants? non-fulfillment of his part of obligation under the terms of agreement to sell, the plaintiff suffered losses and as such the plaintiff is also entitled to the damages of Rs.25,00,000/-. It is also argued that the plaintiff through evidence has substantiated his claim hence the suit may be decreed as prayed. In support of his stance, learned counsel has relied upon the cases of Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh [1998 SCMR 760], Muhammad Yaqub v. Muhammad Nasrullah and others [PLD 1986 SC 497], and Mst. Mushraf Begum and another v. Abdul Wahab [1997 MLD 1975]. 7. On the other hand, learned counsel for defendant No.1 while reiterating the contents of the written statement and the affidavit-in- evidence of defendant No.1 has argued that Muhammad Aslam, property dealer at Rawalpindi to whom the defendant assigned the task to sell the suit property has got the stamp paper and payment receipt, which though were typed but there was no name and signature of the purchaser , signed from him in his office on the assurance that the agreement will be concluded on the prevailing market rate. However , when the defendant reached at DHA on 12.06.2003, he was told by Mr. Aslam that earlier the purchaser was Cdr. Sharif and now the purchaser is some other party , who is not ready to conclude agreement on the prevailing market rate. Hence, the defendant returned back to Rawalpindi without concluding or entering into any agreement, though the other property dealers were ready to purchase the suit property at the prevailing market rate. It has been argued that the so-called agreement to sell is a forged, fabricated and illegal document and it is not a concluded agreement and as such the same is not enforceable in law. It is also argued that neither the defendant entered into any sale agreement with the plaintif f nor he had received any amount from the plaintif f as advance money towards the so- called sale consideration in respect of the suit property . Even, no sale agreement in respect of the suit property had ever been signed or executed by the defendant at Karachi. Learned counsel emphasized that on 12.05.2003, which is the date of so-called agreement, the defendant was not present in Karachi and he was in Rawalpindi. Learned counsel further argued that the photocopy of the alleged sale agreement shows that there is no stamp of stamp-vendor on the first page of the said stamp paper from whom the said stamp paper has been purchased, which amounts to fraud being committed by the plaintif f. Even otherwise, it is not attested by any of the Notary Public or by any other competent authority . It is further argued that, in fact, said Muhammad Aslam had obtained the signatures of defendant No.1 in his office in Rawalpindi on two stamp papers of Rs.50/- each on a printed agreement to sell wherein no name of the purchaser was mentioned as well as on the second page of the said agreement no signatures of any vendee or the witnesses were there on the said stamp papers; it was just a stereotype document and the said Muhammad Aslam informed the defendant that it was merely a formality and a draft document to show the buyer that he was holding a document duly signed by the seller and after agreeing to the maximum market sale price of the suit property a proper sale agreement will be signed by both the parties in presence of the witnesses, hence the defendant was cheated at the hands of the said Muhammad Aslam in collusion with the plaintif f. It has been further argued that defendant upon receipt of the plaintif f?s legal notice
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immediately replied the same through reply legal notice dated 25.06.2003 [Exh.D/3] and as such the plaintif f cannot claim alleged losses besides the plaintif f has also failed to place on record any proof regarding his alleged claim of losses. On the contrary , it is the defendan t who suffered losses as his valuable property has been stuck-up due to the present case and as such the defendant is entitled to claim damages of Rs.50,00,000/-. Learned counsel further argued that the alleged agreement is liable to be cancelled in the facts and circumstances of the case and the suit is liable to be dismissed. In support of his stance, learned counsel has relied upon the cases of Sher Shah v. Muhammad Suleman and 2 others [2013 YLR 1017 ], Mst. Gulshan Hamid v. Kh. Abdul Rehman and others [2010 SCMR 334], Rashid Ahmed Khokhar and 2 others v. Sana Ullah and another [1997 CLC 1159], Abdul Hameed v. Mst. Aisha Bibi and another [2007 SCMR 1808 ], Hafiz Tassaduq v. Muhammad Din through legal heirs and others [ PLD 201 1 SC 241 ] and Shaukat Ali v. Muhammad Razzaq [ 2018 CLC 1624 ]. 8. I have heard the learned counsel for the parties, perused the record minutely and have also gone through the relevant law as well as the case law relied upon by the learned counsel for the parties and my findings on the above issues are as follows :- ISSUE NO. 1 From the perusal of the record, it appears that the stance of the plaintif f case is that he entered into a transaction with defendant No.1 to purchase the suit property , vide an agreement to sell dated 12.05.2003 [Exh.P/2] and total sale consideration was fixed at Rs.40,00,000/- out of which he paid Rs.500,000/- as advance part payment towards sale consideration for which a separate receipt [Exh.P/3] was also issued, and whereas the balance sale consideration was to be paid on or before 13.06.2003 at the time of execution of transfer documents in presence of the concerned officer of DHA, Karachi. However , on 12.06.2003, a date fixed for execution of the documents, defendant No.1, though appeared in DHA office yet he refused to accept the balance payment and to sign the transfer documents. Thereafter , the plaintif f addressed a legal notice dated 14.06.2003 to defendant No.1 whereby he was called upon to fulfill his part of obligation under the agreement dated 12.05.2003 within seven (7) days? time, however , when the plaintif f did not receive any response to the said legal notice he filed the instant case. Conversely, the plea of defendant No.1 case is that the agreement [Exh.P/2] is a forged and fabricated document as he neither entered into any agreement nor received any payment towards sale consideration from the plaintiff. The stance of defendant No.1 is that one Muhammad Aslam, an estate agent based at Rawalpindi, had promised with him to get the suit property sold at a maximum price of Rs.70,00,000/-, the said estate agent, however, obtained the signatures of defendant No.1 in his office at Rawalpindi on two stamp papers of Rs.50/- each on a printed agreement to sell wherein neither name of the purchaser/vendee, nor witnesses were mentioned. The agreement was a stereotype document having various blank columns, which columns were subsequently filled illegally and without the consent of defendant No.1 and as such the agreement [Exh.P/2] having no legal sanctity cannot be legally enforceable. As regards the receipt of part payment [Exh.P/3] is concerned, the plea of defendant No.1, is that the same was issued upon receiving payment from the estate agent Muhammad Aslam on the assurance that he will get the suit property sold at the above referred maximum price. Before going into any further discussion, it would be imperative to discuss the agreement to sell [Exh.P/2] consisting of two pages, which is reproduced as under for the sake of ready reference. "AGREEMENT TO SALE A PLOT By this deed of agreement is made on this 12 day of May 2003 Between Sqn Ldr Ghulam Fareed son of Raja Mansub Dar Khan R/o 207, Street 10, Valley Road Westridge Rawalpindi Holding NIC No. 210 48-147790 Old 37405-7884132-7 New (hereinafter called the VENDOR?) of the One Part. And Cmd (R) Muhammad Sharif son of Jalal Din R/o 58/3, LANE # 14, Phase VII, D.H.A. KARACHI Holding NIC No. 514-70-147674 (hereinafter called the VENDEE?) of the other part, (express Vendor? and the Vendee? wherever the context so permit shall always mean and include their respective heirs, successors, executors, administrators, legal representatives and or assigns.)th
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WHEREAS the Vendor above named is seized, possessed of and is otherwise well and sufficiently entitled to all that PLOT OF LAND BEARING NO. 338-A, 38 STREET, PHASE-VIII, MEASURING 1000 SQ, YARDS OR THEREABOUT SITUATED IN PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI, hereinafter referred to as the SAID PROPERTY AND WHEREAS the Vendor has agreed to sell and the Vendee has agreed to purchase the said property for a lump sum price of Rs.40,00,000/- (Rupees Forty Lacs only) free from all claims, liens, charges, burdens, disputes, suites, liabilities, encumbrances of whatsoever…
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