2024 C L C 914
[Sindh]
Before Zulfiqar Ahmad Khan, J
Mrs. SHAHINA SHAHID----Appellant
Versus
Messrs QAMRAN CONSTRUCTION (PVT.) LTD and another----Respondents
2nd Appeal No.28 of 2007, decided on 27th November, 2023.
(a) Specific Relief Act (I of 1877)---
----S.12---Specific performance of agreement to sell---Cancellation of allotment---Subsequent vendee---Bona fide purchase---Proof---Appellant / plaintiff got an apartment booked with respondent / defendant who despite receiving a substantial amount had cancelled the booking---Contention of respondent / defendant was that the apartment had further been sold to a third party---Trial Court decreed the suit in favour of appellant / plaintiff but Lower Appellate Court dismissed the same---Validity---Person seeking specific performance has to establish that he is enthusiastic and vehement to act upon his obligations as per the contract whereas the opponent is refusing or delaying its execution---Valid contract between the parties has an essential condition of consensus ad idem for settling all the terms of contract---Both the parties had consented to the terms and conditions of application form---Witness produced by respondent / defendant admitted to have not exhibited any original document regarding allotment of apartment in question to third party---Respondent / defendant did not receive any payment from third party in installment, whereas third party admitted to have paid price in lump sum---Such fact created serious doubts in the version of respondent / defendant and Trial Court considered such fact but Lower Appellate Court ignored the same---Subsequent vendee avowing bona fide intention could not be absolved from the duty of making investigations as to title of vendor, which inquiries included but were not limited to inviting objections through public notices in order to determine that there was no deception or foul intentions in transactions and he / she acted in good faith and with bona fide intention without knowledge or notice of earlier sale agreement at the time of his transaction and proceeded in the matter as a person of ordinary prudence before signing on the dotted line---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed accordingly.
Hafiz Tassaduq Hussain v. Lal Khatoon PLD 2011 SC 296 rel.
(b) Civil Procedure Code (V of 1908)---
----O. VI, Rr. 1 & 2---Pleadings---Scope---Written statement by itself has no evidentiary value unless deponent of pleadings (plaint or written statement) enters into witness box to lead evidence.
Abdul Succor Shaikh v. Adeel Zohoor Malik 2020 CLC 984 rel.
Muhammad Jamil and Sarosh Jamil for Appellant.
Mian Mushtaq Ahmed for Respondent No.1.
Nemo for Respondent No.2.
یہ فیصلہ اس اصول کو مزید مستحکم کرتا ہے کہ اگر کوئی شخص جائیداد کی خریداری میں نیک نیتی (bona fide) کا دعویٰ کرتا ہے، تو اس پر لازم ہے کہ وہ تمام ضروری تحقیقات کرے تاکہ دھوکہ دہی کے امکان کو ختم کیا جا سکے۔
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