MASOOD AHMED KHAN vs KHALID ANWAR KHAN arts — 2023 CLC 176 KARACHI-HIGH-COURT-SINDH

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MASOOD AHMED KHAN VS KHALID ANWAR KHAN arts. 30, 79, 95, 117 & 118---Specific Relief act (I of 1877), S.12---Suit for specific performance was filed by appellant/plaintiff claiming that he purchased the land from respondent No. 1 "a" vide agreement to sell; that out of total consideration, i.e. Rs.23,375,000/- appellant had paid amount of Rs.20,875,000/- and only Rs.2,500,000/- was remaining; that he approached several times to "a" but he did not execute the agreement; that "a" was trying to further sale the subject property---Respondent "B" being private limited company filed written statement admitting that it had sold the land including the subject property to "a" through sale agreement and execution of two General Powers of attorney whereafter, "a" became the sole owner of the land---appellant further asserted that after filing of the present suit, "a" admitted the appellant's claim and had executed a General Sub-Power of attorney duly attested by foreign embassy---Suit was dismissed by the Trial Court---appellant contended that in ex-parte proceedings, contents of the plaint were to be treated as true/correct; that in suits of specific performance attestation by two witnesses was not required; that no issue of fact/law was framed by the Trial Court, hence the appellant was not required to give evidence regarding existence/non-existence of execution of sale agreement---Validity---Proposition that in suit for specific performance burden would always lie upon the plaintiff to prove the factum of the sale agreement---Documents filed by the appellant remained un-rebutted/unchallenged as "a" chose to remain absent hence no denial/dispute regarding execution of sale agreement had been brought on record---article 79 of Qanun-e-Shahadat, 1984 was not applicable in the present case---Findings of Trial Court that Sub-Power of attorney which was executed by "a" was not brought to the notice of "a" were not tenable---Sub-Power of attorney was properly executed by "a" before Consulate and the same was an undisputed document and could be relied upon even if it was not brought on file---appellant was holding original document, i.e. sale agreement, payment receipts and sub-power of attorney---appeal was allowed accordingly.

MASOOD AHMED KHAN vs KHALID ANWAR KHAN arts — 2023 CLC 176 KARACHI-HIGH-COURT-SINDH

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