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Petitioner: AZIZ AHMAD SIDDIQUI VS Respondent: MUHAMMAD IQBAL, and another
Court Name: Sindh High Court Judge(s): k.A Ghani Title: AZIZ AHMAD SIDDIQUI vs MUHAMMAD IQBAL, and another Case No.: Suit No, 829 of 1978 Date of Judgment:1984-05-07 Reported As: 1984 MLD 872 Result: Suit decreed
JUDGMENT
JUDGMENT ' The plaintiff has brought the suit for specific performance of the contract of sale of immovable property. In the alternative he has claimed decree for the amount advanced by him and damages besides praying for grant of consequential reliefs. ' The plaintiff's case as disclosed in the plaint is based on the following averments:- ' The defendant No,1 is the owner of the property being plot of land bearing No, 333/A, Block No, 1 measuring about 249 sq. yards or thereabout situated in K .D.A .'s Town Expansion Scheme No,24 Ghulshan-e-lqbal, Karachi with construction thereof (hereinafter referred to as the sale property). The construction on the aforementioned plot was made by the defendant No,l by investing his own money and also by taking loan of Rs,38,000 from the House Building Finance Corporation, Karachi which was secured by executing a mortgage deed in favour of the said corporation. According to the plaintiff he being in need of accommodation for his family was induced by the defendant No,2 who is the father of the defendant No,1 to purchase the said property and it was represented by the defendant No,2 that he was the lawful attorney of the defendant No,1 his son, by virtue of a registered instrument executed on 6-2-1975. According to the plaintiff against the receipt, dated 4th April, 1978 a sum of Its.5,000 was paid as advance to the defendant No,2 received the same from the plaintiff, wherein the total sale consideration was shown Its .1,175,000 but subsequently in agreement of sale which was executed on 25-5-1978 by the plaintiff and the defendant No,2 the bargain was struck at Rs,1,50,000 for the sale and purchase of the said property. A photo stat copy of the said agreement was filed along with the plaint marked 'A' which during the evidence was subsequently marked Exh. 5/2.
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' It was also pleaded that besides payment of Rs,5,000 under the receipt dated 24th April, 1978 but before the execution of the said agreement of sale (Exh. 5/2) the plaintiff paid a further sum of Rs,50,000 by means of Cheque No, SCG 058730, dated 21st May. It was also pleaded that under the said agreement, the defendant No,1 acting through his father/attorney namely the defendant No,2 was under an obligation to hand over vacant possession of the said property to the plaintiff by 7th June, 1978. ' A joint application, dated 25th May, 1978 for the transfer of loan in favour of the plaintiff was made to the House Building Finance Corporation at Karachi. A photo stat copy of the said application was filed with the plaint as Annexure 'B' (subsequently marked Exh. 5/4). In the meantime in order to expedite the transfer of the loan in his favour the plaintiff paid sum of Rs,13,000 to the House Building Finance Corporation at Karachi towards the outstanding installments as the mortgagor/defendant No,1 had not paid a single installment. ' At the request of defendant No,2, the plaintiff paid a further sum of Rs,25,000 in addition to the payments of Rs,5,000 and Rs,50,000 already made to the defendants mentioned vide receipt, dated 8th August, 1978 executed by defendant No,2 vide annexure 'C' (Exh.5/8). ' The plaintiff further pleaded that having paid the various amounts mentioned above to the defendant No,2 he now had to pay only Rs,19,000 to the defendants besides Rs,38,000 to the House Building Finance Corporation. According to the plaintiff Rs,13,000 on loan account he had already paid to the said Corporation which had transferred the loan in the circumstances in the name of the plaintiff. The plaintiff also pleaded that he of and on, contacted the defendant No,2 and requested him to hand over peaceful vacant possession of the said property before and after the 7th June, 1978 but the defendant No,2 made lame excuses, avoided to complete the transaction and thus the plaintiff got pay order for Rs,19,000 prepared on 15th August, 1978 which he dispatched under registered insurance cover to the defendant No,2 through postal service but it was not taken delivery of intentionally. In the circumstances the plaintiff after notice filed the present suit. 2.Both the defendants made appearance in the suit and filed a joint written statement wherein inter alia it was pleased that the defendant No,2 is the owner of the property in the suit and that the defendant No,1 wasmerely Benamidar and that the same in the document of title and House Building Finance Corporation was mentioned as a more formality and for the same reason the defendant No,2 acted as a general attorney of the defendant No,1 in whose name the lease of the plot of land was made by the Karachi Development Authority. According to the defendants the bargain was settled at Rs, 1,75,000 and that the defendant No,1 had never participated in the said bargain also for the reason that defendant No,1 had no concern with the ownership of the house which fact according to the defendants had already been disclosed to the plaintiff. According to the plea in the written statement the plaintiff has unnecessarily dragged the defendant No,1 in the Court. It was further pleaded that sale consideration was agreed and settled at Rs, 1,75,000 and this fact was admitted on 24th April, 1978 in the receipt drawn by the defendant No,2 and which had been relied upon in the plaint. It was further pleaded that the plaintiff on 13th May, 1978 had brought draft of the proposed agreement which he handed over to the defendant No,2 for approval wherein also sale consideration settled between the parties was shown to be Rs,1,75,000 a copy of the said draft agreement was produced along with the written statement as Annexure 'A'. The defendant further pleaded that fraud and misrepresentation was committed by the plaintiff. Since this plea 6.-f fraud and misrepresentation alleged by the defendant in para. 5 of the written statement is the foundation of the defense, it would be relevant to reproduce the same in extensor here:- 'That the contents of para. 5 are denied and not admitted. The plaintiff to be put to strict proof thereof. As a matter of fact the bargain of sale, as stated in para. 4 above, was settled at Rs,1,75,000 which is admitted on 24-4-1978 on a receipt drawn by the defendant No,2 and has been relied
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upon in the plaint with the no objection to it that the sale consideration for Rs,1,75,000 is incorrect. The plaintiff on 13-5-1978 brought a specimen "draft of agreement and placed the same in the hand of defendant No,2 for approval in which draft also the sale consideration was enumerated that the sale consideration settled between the parties is to be Rs,1,75,000. The plaintiff left the carbon copy of the specimen draft with the defendant. A copy of the same is filed and marked 'A'. ' In the night of 15-5-1978 the plaintiff brought at agreement duly typed on a stamp paper and asked the defendant to sign it. The plaintiff did not disclose to the defendant that the sale consideration has been changed in the agreement to the tune of Rs,1,50,000 instead of the amount Rs,1,75,000. ' The defendant' in good faith signed the agreement as the defendant had no reason in the mind that a fraud is being perpetrated with him. The plaintiff put the defendant entirely in a dark in respect of the change of the amount of consideration. The plaintiff paid another sum of Rs,50,000 and brought a receipt duly stamped and got the signature of defendant thereon. Since the plaintiff had an ulterior motive in his mind and was playing fraud therefore, he did not mention the amount of sale consideration as he had already done in the receipt for Its.5,000 on 24-4-1978. Again the plaintiff brought a 3rd receipt duly stamped and dated 8-8-1978 for obtaining signature of the defendant, this receipt was for Rs,13,000 in which also the amount of sale consideration was not shown. The omission of mentioning of sale consideration was not accidental but purposely the mention of sale consideration was omitted with the sale object "to keep the defendant in a dark of plaintiff's fraud which he has played by reducing the amount of sale consideration to Rs,1,50,000 instead of Rs,1,75,000. ' The defendant served the plaintiff with a notice, dated 24-9-1978 that sale consideration in full was not paid the question of putting the plaintiff in possession of the property does not arise. The plaintiff did not reply the defendants notice and in answer of the defendants notice filed the present suit and after filing of the suit sent a letter dated 3-10-1978. In this letter also the plaintiff did not disclose that the sale consideration has been altered or that what amount of sale consideration was settled between the parties which was also an attempt to keep the defendant in a dark in respect of plaintiffs fraud. That all the time after 24-4-1978 up to the date when the defendant was served with a Court notice of the present suit the defendant have been kept purposely and fraudulently in a dark in respect of plaintiff's fraud made by the plaintiff in the agreement of sale and the plaintiff had been obtaining advantage of defendants No, 2's old age and feeble plight of health. It is surprising that according to the plaintiff stamp paper of the agreement of sale was purchased by the plaintiff on 24th May, 1978 and the impugned agreement of sale was typed thereon 9 days prior to the purchase of it i.e, 15th day of May, 1978. The date purchase has been put by a dating machine and the machine has been put again to change the date of actual purchase which was apparently 4th May, 1978 afterwards to support the bears double impression of the dating machine in respect of month and the year. The figure "2" has been prefixed to figure "4". As a matter of fact this stamp was purchased on 4th May, 1978 and typed on 15th May, 1978 honestly mentioning the sale consideration to be Rs,1,75,000 afterwards when ulterior motive of fraud did ripe in the mind of the plaintiff the date of the stamp was changed and the date of execution of agreement, dated 15-5-1978 had been scored out and another date of 25th day of May, 1978 had been overwritten. This was not a mistake of accidental character but with the intention to conceal fraud page No,2 or the agreement was separately typed and inserted In the agreement. This fact finds support with the very important factor that the 2nd page of the agreement had been typed on a different machine. The pages Nos. 1, 3 and 4 had been typed on a typing machine different from that page No,2. ' The last attempt of concealing fraud from the eye of the defendant is borne out from the joint application in which the plaintiff did not mention the amount of sale consideration and thus kept
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the defendant in a dark. The fraud came to the knowledge of the defendant when a copy of the plaint was handed over to him with the summons of this llon'ble Court. In this application also the actual date 15th May, 1978 was changed by over writing to 25th May, 1978 which is apparent of the facts of the paper. A copy of the notice, dated 24-9-1978 is filed and marked "B". ' The defendants denied that they were under obligation to deliver vacant possession of the house in question to the plaintiff by 7th June, 1978. They also pleaded that the joint application mentioned in para. 7 of the plaint which was made to the House Building Finance Corporation for transfer the loan was in fact moved on 15th May, 1978. It was pleased that the date 15-5-1978 in the said application was subsequently changed. It was admitted that the sum of Rs,13,000 were paid by the plaintiff to the House Building Finance Corporation. 3. On the pleadings of the parties the Court framed the following issues by consent of the parties:- "(1) Is the suit not maintainable as framed? (2) Whether the defendant No,1 could lawfully transfer the Benami property in dispute as an ostensible owner? (3) Whether the bargain was settled at the reduced consideration on price of Rs,1,51,000 for the registration of a conveyance deed? (4) Whether the defendants as Mortgagors approached the House Building Finance Corporation, Karachi as mortgagees to augment the excellence of the sale of the said property for a consideration price of Rs,1,50,000? (5) Whether a fraud was committed by the plaintiff on the defendants in the instant transaction? (6) Whether the defendants wilfully committed a breach of the agreement? (7) Is the loan of the House Building Finance Corporation still subsisting in the name of the defendant No,1? (8) Did the defendants decline to accord physical possession of the property in dispute by 7-6- 1978 on receipt of the balance consideration price? (9) What should the decree be? (10) General and costs." 4. At the trial the plaintiff examined himself as Exh. 5. Both the defendants examined themselves, their depositions have been as marked Exh. 7 and Exh. 8. They also produced Noor Muhammad (Exh. 6) and Zahid Hussain (Exh. 7) two officers from House Building Finance Corporation. It may be mentioned here that deposition of Mr. Zahid Hussain has also been marked Exh. 7 though deposition earlier made by Muhammad lqbal Qureshi the defendant No,1 had already been marked Exh. 7 which is a minor discrepancy having no bearing un the merits. The last witness examined by the defendant was one Muhammad Ibrahim Exh. 9. ' After hearing the learned Advocate for the parties who had taken me through the record my M/I findings on the issues are as follows:- " Issue No,1. This issue was not pressed by the learned Advocate for the defendants. Issues Nos. 2 & 2-A.were also not pressed by the learned Advocate for the defendants." 5. No arguments were advanced either by Mr. Faizuddin or Mr. A.S. Pingar under Issues Nos. 4, 6, 7 and 8. These issues are accordingly treated as not pressed by any of the learned Advocates for the parties. 6. Issues Nos. 3 and 5 were taken together and the learned Advocates addressed the Court on these issues as the main issues in the suit. ' The issue No,3 is answered in the affirmative while the issue No,5 in the negative. ' My reasons for the conclusions reached as above are as follows!
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' Mr. A. Sattar Pingar, Advocate for the defendants argued on behalf of the defendants that the plaintiff cannot claim the specific performance of the agreement of sale (Exh. 5/2) for the following reasons:- (i) That the dates mentioned in the agreement (Exh. 5/2) of which specific performance is sought have been changed by scoring off "15th" and writing "25th" so as to read "nth day of May, 1978" instead of "15th day of May, 1978" on pages 1 and 4 of the agreement (Exh. 5/2). (ii) The page No,2 of the agreement (EXh. 5/2) was removed and a new page in its place as page No,2 now appears as if this new page is the part of the said agreement. According to the learned counsel this was done with the intention to show that the lump sum price of the house agreed upon is Rs, 1,50,000 as against Rs, 1,75,000 which was original sale consideration agreed upon between the defendant No,2 and the plaintiff. In support of his contention the learned counsel submitted that color of the page No,2 which appears in Exh. 5/2 is different from the following pages 3 and 4 of the said document Exh. 5/2. (iii) The first page stamp paper was purchased and bore stamped date "4th May, 1978" but subsequently it was converted to read as "24th May, 1978." ' In order to appreciate the points raised as above in the arguments by the learned Advocate for the defendants I may first refer here to the case of Eshenchunder Singh v. Shamachurn Bhutto and others 11 M.I.A. 7, wherein as to the rule of pleadings and proof it was pointed out as absolute necessity that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made, that each proposition of fact set up is a statement which it is incumbent on the part to have distinctly alleged in order that it might be the subject-matter of direct testimony. It was further held:- "It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and by joining issue in the cause has undertaken to prove." ' Reference may also be made to the case of Siddik Muhammad Shah v. Mst. Saran and others AIR 1980 P C 57(1) wherein the principle was laid down that a claim which was never made in the defence presented no amount of evidence can be looked into upon that plea which was never put forward. The principle laid down about pleadings and proof stated above, by the authoritative rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469 (473), as follows:- "It is a well-established rule that if a plea of fact is not pleaded no case can be founded upon it." ' The rule laid down as above has to be strictly applied in cases where a party in his pleadings makes allegations of miss presentation, fraud breach of trust or undue influence and in all other cases in which particulars may be necessary beyond such are exemplified in the forms in Appendix 'A' to the Civil Procedure Code with dates and items if necessary as are required to be stated in the pleadings (Order VI, rule 4, C.P.C.). 7. I would deal with the above rule with reference to the principles of law laid down by the Superior Courts, further hereinafter, after dealing with the averments made in the pleadings, the case set up therein by the parties and the evidence led in the case. ' The plaintiff in his deposition (Exh.5/1) produced receipt, dated 24th April, 1978 in which the consideration for the sale is shown as Rs,1,75,000 out of which Rs,5,000 was paid. ' The plaintiff further stated that he purchased the stamp paper on 24th May, 1978. As to the corrections made in the typed date "15th day of May, 1978" to read "25th day of May, 1978", the plaintiff deposed:- "The agreement was prepared in draft form on 15th May, 1978. This date was mentioned in the draft. I purchased the stamp paper on 25th May, 1978 and the agreement was typed out on the stamp
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paper from the draft prepared earlier. The date namely 15th May, 1978 was also typed on this agreement." ' The plaintiff then explained in his deposition:- "This was a mistake because the typist had typed the same date was borne out by the draft. I, therefore, pointed it out to the defendant No,2 and as the agreement was executed on 25th May, 1978 the typed date was corrected to 25th May, 1978 and on all such corrections the signatures of defendant No,2 (was) were obtained. 1 produce the original agreement which is marked Exh. 5/2. Each page of the agreement bears my signature and the signature of defendant No,2". ' In cross-examination the plaintiff while admitting that colour of page 2 of Exh.5/2 is different from pages 2 and 3 of Exh.5/2, stated that the colour of pages 3 and 4 is same. He further stated:- "All the pages of Exh.5/2 bear signatures of both the parties." ' As regards changes made in the dates and signatures made on such alterations the plaintiff in cross-examination replied:- "In Exh.5/2 the date was typed as 15th May but it was scored off and instead 25th May was written by Yousuf Qureshi. He had changed the date himself. The cutting has been initialled by him. It is incorrect to suggest that I had scored off the date and changed it to 25th. It was done by Yousuf Qureshi and initialled by him. On the last page also the date has been changed by Yousuf Qureshi. It is incorrect to suggest that the date of purchase of stamp was changed by me." ' Denying the suggestion made the plaintiff expressly stated that it was incorrect to suggest that the dates were changed by him or that he forged the signatures of the defendant Yousuf Qureshi. When asked about copy which it was suggested was a copy of the draft agreement the plaintiff replied that it .was not the draft agreement which had been prepared by the parties. He further stated that the alleged draft does not bear his signature. The discussion as above would show that the evidence given by the plaintiff is consistent with the case pleaded in the plaint as to the agreement of sale Exh.5/2 made between the parties, signed and executed by the plaintiff and the defendant No,2 and that it bears the date 25th May, 1978. ' The agreement has been made in the name of the defendant No,1 for whom defendant No,2 acted as the attorney. This gentleman, the defendant No,1 namely Muhammad Iqbal Qureshi has been examined as Exh.7 (D.W.2). He, in examination-in-chief admitted the agreement Exh.5/2 without any reservation or making any allegation of fraud, forgery or alleging any change in the said agreement. In his examination-in-chief in reply to the question put by his counsel Mr. A.S. Pingar, he deposed:- "I am defendant No,1 in this case. Defendant No,2 is my father. I see Exh.5/2 which was executed between the plaintiff and defendant No,2 at Karachi in May, 1978. I was not present at time of execution of the agreement which is Exh..5/2. I had authorised my lathy]. the defendant No,2 through a Power-of Attorney to execute the alLrecinciit which is Exh.5T2 on my behalf. I was not present during negotiation orihe sale of property in dispute at any lilac." (The underlines have been made by me.) ' The defendant No,1 (D.W.2) (Exh.7) admitted that he was aware of the handwriting and signature of the defendant No,2 his father and then a further question put as to Exh.6/2 (the agreement) he replied in cross-examination as follows:- ' I see Exh.5/2. The signature pn the 1st line of page No,1 signature in the margin on the same page, the three signatures on page No,2 in the margin and one signature in the margin on page No,3, one signature on page No,4 in the last line and one signature over the word Vendor (Attorney) appear to be that of my father but they were not done in my presence I have got good relations with my father." The above evidence of the defendant No,.1 completely knocks out the new case set up by the defendant No,2 in evidence that the signatures on each page or on the alterations in the dates
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changing "15th May" to "25th May" are forged. I have no hesitation in observing that the evidence given by the defendant No,2 is false to set up vexatious defence. 8.I now revert to the written statement in which the following pleas of fraud and misrepresentation have been pleaded. ' The sale consideration was not disclosed or shown in some of the documents and letter, dated 3rd October, 1978 sent by the plaintiff and the defendant No,2 was kept in dark in respect of plaintiffs fraud committed in the agreement of sale and the plaintiff had been obtaining advantage of defendant No,2's old age and feeble plight of health. 2. That the stamp paper was purchased on 4th May, 1978 by a dating machine but the machine has been put again to change the date to read 24th May, 1978 instead of 4th May, 1978 by prefixing figure "2" to figure "4". 3. This was not a mistake of accidental character but with the intention to conceal fraud whereby page No,2 of the agreement was separately typed and inserted in the agreement so that sale consideration may be read as Rs,1,50,000 instead of Rs,1,75,000. This fact according to defendants in written statement finds support with an important factor that the 2nd page of the agreement had been typed on a typing machine different from page No,3. 4. The last attempt of concealing fraud from the eye of the defendant is borne out of the joint application in which the plaintiff did not mention the amount of sale consideration and thus kept the defendant in a dark. The fraud came to the knowledge of the defendant when a copy of the plaint was handed over to him with the summons of this Honorable Court. In this application also actual date 15th May, 1978 was changed by over writing to 25th May, 1978." ' The written statement was filed by the defendants after service of summons accompanied by copies of the plaint and the annexures thereto. These annexures included photo stat copy of the agreement of sale Annexure 'A'. This photo stat copy of the agreement was produced by Mr. A.S. Pindar, Advocate for the defendants during his argument in the Court, which according to him is marked 'A' on the first page in his own hand i.e, in the handwriting of Mr. Pingar, Advocate. This copy has been kept by me on the record of this case. ' An important factor to be taken note of in the case is that both these copies which are copies of the original agreement (Exh.5/2 show that wherever the date "15th has been scored off" and 25t written to…
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