MUHAMMAD NOOR ALAM Versus ZAIR HUSSAIN

AJMAL MIAN, J.‑‑ This High Court Appeal is directed against the judgment/decree dated 6‑2‑1984 passed by a learned Single Judge of this Court in Suit No.462 of 1976, decreeing the Respondent No.l's suit for specific performance against the appellant. The appellant had entered into an agreement with Respondent No.3 for purchase of house NoA‑652, situated in Block 'H' K.D.A. Scheme No.2. Nazimabad, Karachi, constructed on a plot of about 225 Sq. Yds. (hereinafter referred to as the house vide Agreement of Sale dated 23‑11‑1978, hereinafter referred to as the Agreement. The appellant being aggrieved by the above judgment and decree has filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that on 6‑4‑1974 respondent No.l/plaintiff entered into an agreement for purchase of a house from respondent No.3/defendant No.2 through her Attorney respondent No.2/defendant No.1 (Ex.7/1) for a consideration of Rs.90,000 out of which a sum of Rs.25,000 were paid m advance by the above respondent No.l. Since the respondent No.3 had not completed the agreement, the respondent No.l filed the aforesaid suit on 10‑8‑1976 for specific performance. It may be observed that during the pendency of the above suit, upon respondent No.1 s application under Order XXXIX, Rules 1 and 2, C.P.C. an ad interim injunction was granted on 13‑9‑1976 against respondents 2 and 3 for restraining them from transferring the same to any one else. The above suit was resisted by respondent No.3, whereas respondent No.2 supported the suit. On the basis of the pleadings of the parties, the following issues were framed on 4‑9‑1977.

"(1) Whether the agreement of sale of the house between defendant No.1 and the plaintiff is binding upon defendant 2?

(2) To what relief, if any, the plaintiff is entitled to?"

3. It may be stated that respondent No.3 had filed suit No.262 of _t 9 78 against the respondent No.1 and respondent No.2 for cancellation of the Agreement. On 2‑9‑1978 it was ordered that the above suit would be fixed alongwith respondent No. 1's above suit. It appears that the above suit No 262 of 1978 was dismissed in default on 15‑1Q‑1983. No application for restoration of the above suit was filed. Consequently the same stood disposed of as dismissed. It appears that the plaintiffs evidence was completed by 23‑8‑1978 and of defendant No.1 by 9‑i1‑1978. It may be stated that on 24‑10‑1979 the Advocate for respondents 1 and 2 stated before the Court that they had come to know that respondent No.3 ins violation of the injunction order had sold the property in sulk and had also parted with the possession. A contempt of Court application was moved. After that on 29-10-1979 notices to purchaser Muhammad Noor Alam i.e. the appellant was issued who had put in appearance on t 7‑11‑19?9 through Mr.Sher Ali Advocate, who stated no objection to the above application. Consequently the appellant was impleaded as defendant No.3. After that M/s.Habib Bank Limited were impleaded as defendant No.4 being the mortgagee of the house from the appellant by an order dated 2'3‑8‑1980. An ex parte order was passed against the defendant No.4 oh 10‑3‑1982. After that the following additional issue was framed on 3‑10‑1982.

"Whether the transfer of suit property by way of said‑deed dated 17‑5‑1979 executed by the defendant No.2 in favour of defendant No.3 and subsequent mortgage deed dated 14‑10‑1979 executed by the defendant No.3 in favour of defendant No.4 are mala fide, illegal, having no legal effect and liable to be cancelled?"

It may also be observed that by an order dated 18‑10‑1983 respondent No.1 was directed to deposit the balance of the consideration of Rs.65,000 out of which a sum of Rs.51,40752 was paid to defendant No.4 M./s, Habib Bank Ltd. by an order dated 15‑11‑1983 and consequently they gave discharge. frown the mortgage. It also appears that the appellant had filed a written statement averring therein that he had purchased the house bona fide without notice in consideration of Rs.2,00,000 and that he had mortgaged the house by mortgage deed dated 14‑10‑1979 for a sum of Rs.60,000/in favour of M/s.Habib Bank Ltd. as he was working in the said bank and had obtained ‑the above amount of loan. He had filed the photostat copies of the registered sale‑deed and the Mortgage deed. However, it appears that he did not file any application for recalling of the witnesses who were already examined by the parties by the tune the appellant was impleaded as defendant No.3 nor he participated in the proceedings after the filing of the written statement. The Learned Single Judge after hearing the parties who participated in the proceedings, passed the above judgment and decree The being aggrieved by the above order has filed the above appeal.

4. In support of the above appeal Mr.Habibur Rehman learned counsel for the appellant has urged as follows:‑

(i) That the learned Single Judge has erred in holding that the doctrine of pendente life recognised by Section 52 of the Transfer of Property Act, 1882 (IV of 1882), hereinafter referred to as the Act, is applicable to the present case.

(ii) That the operation of an ad interim injunction order dated 13‑9‑1976 against respondent No.3 did not invalidate the sale‑deed for the house duly registered by above respondent No.3 in favour of the appellant.

(iii) That since the written statement of the appellant was on record with the photostat copies of the Registered sale‑deed and mortgage deed, the Court should have itself examined the question whether section 52 of the Act was applicable or not, in view of the amendment in law that in the absence of any registration of the Sale Agreement with the District Registrar's Office, the above section was not applicable.

5. We may take up the last submission of the learned counsel that since the written statement of the appellant was on record with the photostat copies of the registered sale‑deed and mortgage deed, the Court should have itself examined the question whether section 52 of the Act was applicable or not. In view of the amendment in law that in the absence of any registration of the sale agreement with the District Registrar's Office the above section was not applicable, it may be observed that a written statement or the copies of Annexures thereto cannot be treated as substantive piece of evidence. A written statement contains averments of a party which are to be proved through cogent evidence. If a party does not produce any evidence to support of the contents of its written statement, in the absence of any admission on the part of a plaintiff the averments contained in the, written statement cannot be treated as evidence.

In our view the burden to prove that the appellant was a bona fide 0 purchaser for consideration without notice was on him, which he could not have discharged without leading any evidence or coming himself into the witness‑box. In the absence of any evidence on the above question the above first two submissions are academic. A subsequent purchaser cannot defeat the right of a prior purchaser, particularly in a case where a suit for specific performance was pending and an ad interim injunction was granted against the owner of the house without first proving the above question of fact.

Then it was contended by Mr.Habibur Rehman that the appellant has paid a sum of Rs.2,00,000 whereas the respondent No.1 under the Agreement had merely paid a sum of Rs.25,000 and, therefore, the equity is in favour of the appe114 it. In this behalf it may be pointed out that equity cannot defeat the law. Furthermore, in the present case the equity is more in favour of respondent No.1 than the appellant, inasmuch as respondent No.1 entered into an Agreement for purchase in 1974, filed a suit for specific performances in 1976, continued to prosecute the suit diligently till the time he obtained the judgment and decree under appeal, whereas the appellant purchased the house in 1979 and did not bother even to defend the suit diligently. We cannot make any observation as to why Mr.Sher Ali Advocate who had appeared on behalf of the appellant in the in suit discontinued to appear, in the absence of any evidence on record. In any case it was the duty of the appellant to have ensured that the above suit was not decided in his absence as he knew that the suit was at a very advanced stage.

6. We find no merits in the above appeal and, therefore, the same is dismissed, but there will be no order as to costs.

These are the reasons in pursuance of a short order of even date.

AA./M‑417/K Appeal dismissed.