IN THE HIGH COURT OF SINDH AT KARACHI

Civil Appeal No. /2018

Shariq (correct Shaiq) Ahmed Chishty
S/o Muhammad Shafiq Chishti
Muslim, adult, resident of
Flat No.A-13, 3rd Floor,
Al-Rehman Premier Apartments,
On Sub Plot No.FL/A/1 of FL-17-A,
Block-16, KDA Scheme No.24,
Gulshan-e-Iqbal,
Karachi ………..……………… APPELLANT

VERSUS

Muhammad Siddiq
S/o Abdul Ghani
Muslim, adult, resident of
House No.B-15, Block No.8,
Gulshan-e-Iqbal,
Karachi ........................…….. RESPONDENT

CIVIL APPEAL UNDER SECTION 100 C.P.C.

Being aggrieved and dissatisfied by the

judgement and Decree dated 11-07-2017 passed by
the Court of X Sr. Civil Judge, Karachi East, in Suit
No.311 of 2014, decreeing the suit as prayed by the
Respondent with no order as to cost against the
Appellant and judgement dated 07-02-2018 passed
by the VIII ADJ Karachi East. The Appellant begs to
prefer the appeal to this Hon'ble Court to call for the
record of the case and after hearing parties set aside
the judgement and decrees of both the learned trial
court below, with costs against the Appellant.

(Certified True Copies of impugned judgement

and Decree are annexed and marked as annexure
“A” & “B” respectively.)
Contd…
 (2)
1. The Respondent instituted a Suit for Declaration and
Injunction against the Appellant stating that the Appellant is
the owner of a Flat No.A-13, 3rd floor, measuring 185.78
square yards situated in building project namely Al Rehman
Premier Apartment on Sub Plot No.FL-17/A, Block-16, KDA
Scheme No.24, Gulshan-e-Iqbal, Karachi , which the
Appellant was willing to sell and the same was needed by
the Respondent.

2. The Respondent showed his willingness to purchase

the suit property and hence executed a Sale Agreement
dated 05-12-2013 between the Respondent and the
Appellant in which sale consideration of Rs.77,25,000/- was
settled and the Respondent paid Rs.750,000/- as earnest
money, the Respondent alleged that vacant possession of the
suit property to the Respondent was to be given. The
Appellant was asked by the Respondent to execute the Sale
Deed, but it was neither executed nor gave any reply
regarding the suit property. Thereafter the Respondent
served legal notice in this regard through his counsel to the
Appellant calling upon the Appellant to get the suit property
vacated in terms of the Sale Agreement and complete the
transaction within 07 days from the date of receipt of legal
notice but the Appellant failed to give any reply, having
exhausted all remedies the Respondent alleged that he had
no other option but to approach the court for justice hence
instituted the suit with the prayer seeking judgement and
decree in his favour and against the Appellant to perform
his part of deal and execute Sale Deed / transfer documents
in his favour. The Respondent further prayed to be declared
the bonafide purchaser by virtue of the Sale Agreement
dated 05-12-2013.

(Copy of alleged Sale Agreement is annexed

herewith and marked “C”)
Continued…….
 [3]
3. That the Appellant filed his written statement
and vehemently denied all allegations of the
Respondent. The Appellant averred that the
Respondent has not stated true and correct facts as
time was the essence of the agreement, therefore
specific period was incorporated in the agreement to
sell. The Sale Agreement produced by the
Respondent is forged, fabricated and manipulated.
The Respondent had produced a manufactured
documents with the forged signatures and the
contents are also fabricated and the learned trial
court may be pleased to refer the documents to a
hand writing expert to reveal the gross act of
misdemeanour on the part of the Respondent. It
was further submitted in the written statement that
the Appellant is a duel national and permanently
resides and carries on business in United States
since the last 22 years or so, therefore the Appellant
specifically contracted with the Respondent to
complete the sale by 2nd January, 2014 as the
Appellant was due in United States shortly after
completion of sale. It was also submitted that the
Appellant was only visiting Pakistan after 22 years
to meet with his family for a few weeks and in the
same period decided to dispose off the suit property
within a specific time frame. The Respondent was
fully apprised of the above facts and he also
acknowledged that no further time would be
extended after 2nd January, 2014.

4. That the Respondent produced three witnesses

namely (1) Mohammad Riaz Plaintiffs’ attorney (2)
Mohammad Javed and (3) Kamran Siddique.

Continued…….
 [4]
In cross examination the attorney of the Plaintiff
admitted that “it is correct to suggest that as per
Exh. P/4 it is mentioned that Sale Deed will be
executed on 02-01-2014 as per terms and
conditions of Sale Agreement................it is correct
to suggest that I have not produced any
documentary proof to show my will to execute Sale
Deed on 02-01-2014................it is correct to
suggest that I have not produced any pay order
from filing of this suit till 27-11-2014 to show that I
was ready to pay outstanding amount.................”

That witness No.1 Mohammad Javed in cross

examination stated that “it is correct to suggest that
it was within my knowledge that the Sale Deed was
to be executed between the parties on 02-1-
2014........”

That the witness No.2 Kamran Siddiqui in his cross

examination admitted that “it is correct to suggest
that I am not witness in the Sale Agreement Exhibit
P/2, it is correct to suggest that it was within my
knowledge that the Sale Deed was to be executed
between the parties on 02-01-2014, it is correct to
suggest that the time was essence as per the
agreement ...................”

5. That as per agreement dated 05-12-2013 in

Para 2 it is specifically mentioned “that the balance
sale consideration amounting to Rs.69,75,000/-
shall be paid by the Vendee to the Vendor within 30
days from the date of signing of this
agreement.........”

Continued…….
 [5]
6. That all the utilities charges i.e. Property Tax,
KMC Services charges as well as deed of
Redemption for all cleared before the Deed line of
execution of Sale Deed on 02-01-2014 and the
appellant was ready to perform his part of the
contract on stipulated date and time.

(Photocopies of Challan are annexed herewith

and marked as annexure D to D-2 respectively.)

7. That the learned trial court as well as the

Appellate court failed and misread the evidence and
failed to apply its mind and the decision of the
learned trial court below was contrary to the law or
usage having the force of law.

8. That the decision having failed to determine the

material issues of law or usage having the force of
law.

9. That Para 2 of the agreement dated 05-12-2013

also specifically mentioned that the balance sale
consideration amounting to Rs.69,75,000/- shall be
paid by the Vendee to the Vendor within 30 days
from the date of signing of the agreement. The 30
days period is the essence of the agreement which
expires almost on 02-01-2014.

10. That the Respondent has to pay all the

expenses to be incurred in connection with the
Execution of Sale Deed / General Power of Attorney
of the said property which shall be paid or borne by
the Vendee.

11. That the Respondent failed to take any step

with regard to the preparation of Sale Deed nor
Continued…….
 [6]
gave the draft of the Sale Deed to the Appellant and
also did not prepare the pay order / cheque / cash
in order to show that he was willing to fulfil his part
of the contract within the specified period i.e. 02-
01-2014 and the Respondent admitted as follows.

“it is correct to suggest that I have not

produced any documentary proof to show my will to
execute on 02-01-2014......................it is correct to
suggest that I have not produced any pay order for
filing this suit till 27-11-2014 to show that I was
ready to pay outstanding amount.”

12. That the learned trial court again misread the

cross examination of the Appellant that the “balance
amount of agreement was required to be paid by
the Plaintiff to the defendant before the sub
Registrar at the time of Execution of Sale Deed in
respect of the suit property”. Infact it was the duty
of the Respondent to prepare the Sale Deed duly
stamped but he failed to fulfil this condition as well
as vacant possession of the property was to be given
to the Respondent at the time Execution of Sale
Deed and the payment of the remaining amount
and possession of the property was to be given to
the Respondent as soon as the balance of sale
consideration was paid.

13. That the Appellant being aggrieved with the

judgement and decree dated 11-01-2017 passed by
the X Sr. Civil Judge (East) at Karachi and the
judgement and decree dated 07-02-2018 passed by
the VIII Additional District Judge (East) at Karachi
are assailed on the following amongst other
ground:-
Continued…….
 [7]

GROUNDS
a. That the learned trial court’s decisions are on
contrary to law or usage having any force of
law.
b. That time was essence of the contract as
admitted by all the 3 witnesses of the
Respondent and the learned trial court failed
to give its findings on this important point of
law.

c. That the learned trial court wrongly held that

no specific dated i.e. 02-01-2014 is mentioned
in the alleged agreement produced by the
Respondent. Suffice it to say that the
agreement of sale mentioned 30 days specific
period which almost falls on 2-01-2014.

d. That the property in question in which the

Appellant late brother’s wife are residing and it
was ready to be handed over on 02-01-2014 in
vacant possession to the Respondent.

e. That since the respondent was not ready to

take peaceful vacant possession on the
requisite date nor the pay order and Sale Deed
was were prepared, resultantly the original
agreement stood cancelled.

f. That the learned trial court did not minutely

perused the evidence but deviated from the
real issue regarding the terms of the
agreement wherein the time was essence of the
contract i.e. 02-01-2014 or within 30 days
from the date of execution.
Continued…….
 [8]
g. That the learned trial court in all fairness
ought to have confined itself to issue Nos.7 &
8. The issue No.7 is whether the Plaintiff is
ready and willing at all time to perform his
part of the contract? And Issue No.8 Whether
the time was the essence of the said
agreement?
h.

i. That there was a gross error of law on the part

of the learned lower court when all the 3
witnesses of the Respondent admitted that
time was essence of the agreement but the
respondent neither prepared the Sale Deed or
stamped it nor the Pay order / cheques / Cash
amount was presented anywhere.

j. That the learned Lower Court further erred in

holding that the Respondent could not fulfil
the part of the performance as the property
was not vacated when in fact the property was
in possession of the appellant and was to be
handed over to the respondent in vacant
condition.
k.

l. That the learned Lower court failed to here

peruse the evidence of Appellant with regard to
the property which was in his possession.

m. That the learned Lower Court ought to have

seen that it was the Respondent who violated
the terms and conditions of Sale Agreement
dated 05-12-2013 as he was not ready with
the draft of the Sale Deed duly stamped nor he
prepared the balance amount of the sale
consideration by way of pay order / cheque /
cash.
Continued…….
 [9]

n. That the learned Lower Courts judgement

failed that the show the Respondent was not
willing nor was ready on 02-01-2014 and the
judgements were based on conjectures and
surmises.

o. That the findings of the courts below are based

on misreading of the evidence and wrong
application of law and the learned trial court
below findings are not based on cogent
reasons.

p. That judgements passed and ambiguous.

q. That the learned Lower court passed the

judgements & Decrees in total disregard of
judgements of the superior courts which are
produced as follows:

2016 SCMR 986, 1995 SCMR 1431, PLD 1996

SC 256, PLD 1996 LAH 367, PLD 1995 LAH
395, 200 YLR 1983, PLD 2007 LAH 254, 2003
YLR 1866 KAR, 2007 MLD 1554 LAH, 2001
YLR 1967 LAH, 2006 MLD 238, LAH, 2007
CLC 1884 LAH, 2014 MLD 715 LAH, Order
dated 27.05.2016 High Court of Sindh, PLD
2014 SC 506, 2016 YLR-668 LAH 51 and 2016
SCMR 986.

r. That the above authorities were cited by the

appellant and the learned Lower Court failed to
take into consideration judgment of Apex
Court which resulted in the miscarriage of
justice.

Continued…….
 [10]

s. That the learned lower court wrongly relied

upon 2001 YLR Lahore 2634, and 2015 SCMR
21 , which were quite distinguished and
inapplicable to the appellant’s case.

t. That the learned Lower Court judgement are

not based on proper appreciation of law and
facts which resulted in wrongful decision.

u. That the Appellant craves leave to advance

further arguments at the time of hearing.

v. That the Appellant has a good prima facie case

and the judgement and Decree passed by the
lower Courts are liable to be set aside.

PRAYER

It is therefore prayed that this Hon'ble Court

may be pleased to:-

i) To set aside the impugned judgement dated

11-07-2017 and 07-02-2018 passed by the
X-TH Sr. Civil Judge (East) and VIII ADJ
East, Karachi

ii) Grant any other relief / reliefs which may

deem and fit and proper under the
circumstance of the appeal.

iii) Cost of the appeal, to the appellant.

APPELLANT

Karachi.
Dated: ADVOCATE FOR THE APPELLANT
IN THE HIGH COURT OF SINDH AT KARACHI

Civil Appeal No. /2018

Shariq (correct Shaiq)
Ahmed Chishty..……..……………… APPELLANT

VERSUS

Muhammad Siddiq.................…….. RESPONDENT

APPLICATION U/O 41 RULE 5 CPC

It is respectfully prayed on behalf of the
appellant above named that this Hon’ble Court may
graciously be pleased suspend / stay the order
dated 11-07-2017 passed by the X Sr. Civil Judge
(East) and Judgement / Decree dated 07-02-2018
passed by the VIIITH ADJ East, Karachi and call the
R&P of Case till the final decision of the case.

Prayer is made in the larger interest of justice.

Karachi:
Dated: -03-2018 Advocate for the Appellant
IN THE HIGH COURT OF SINDH AT KARACHI

Civil Appeal No. /2018

Shariq (correct Shaiq)
Ahmed Chishty..……..……………… APPELLANT

VERSUS

Muhammad Siddiq.................…….. RESPONDENT

AFFIDAVIT
I, Shariq (correct Shaiq) Ahmed Chishty S/o
Muhammad Shafiq Chishti Muslim, adult, resident
of Flat No.A-13, 3rd Floor, Al-Rehman Premier
Apartments, On Sub Plot No.FL/A/1 of FL-17-A,
Block-16, KDA Scheme No.24, Gulshan-e-Iqbal,
Karachi do hereby state on Oath as under:-

1. That I am appellant in the above matter as

well as deponent of this affidavit as such am
fully conversant with the facts of this
affidavit.

2. That the accom panying Application U/o 41

Rule 5 CPC for suspend / stay Judgem ent /
Decree dated 11-07-2017 & 07-02-2018 have
been drafted and filed under my specifi c
instructions and contents thereof may be
treated as integral part of this affidavit for the
sake of brevity of the pleadings.

3. That until and unless the accom panying

application is allowed I shall be seriously
prejudiced.

4. That whatsoever stated above is true and

correct to the best of my knowledg e and beli ef.

Karachi
Dated DEPONENT
CNIC No.
IN THE HIGH COURT OF SINDH AT KARACHI

Civil Appeal No. /2018

Shariq (correct Shaiq)
Ahmed Chishty..……..……………… APPELLANT

VERSUS

Muhammad Siddiq.................…….. RESPONDENT

AFFIDAVIT
I, Shariq (correct Shaiq) Ahmed Chishty S/o
Muhammad Shafiq Chishti Muslim, adult, resident
of Flat No.A-13, 3rd Floor, Al-Rehman Premier
Apartments, On Sub Plot No.FL/A/1 of FL-17-A,
Block-16, KDA Scheme No.24, Gulshan-e-Iqbal,
Karachi do hereby state on Oath as under:-

1. That I am appellant in the above matter as

well as deponent of this affidavit as such am fully
conver sant with the facts of this affidavit.

2. That the accom panying Appeal U/s 100 CPC

has been drafted and filed under my speci fic
instructions and contents thereof may be treated as
integral part of this affidavit for the sake of brevity
of the pleadings.

3. That until and unless the accom panying

appeal is allowed I shall be seriously prejudiced.

4. That whatsoever stated above is true and

correct to the best of my knowledg e and belief.

Karachi
Dated DEPONENT
CNIC No.
IN THE HIGH COURT OF SINDH AT KARACHI

Civil Appeal No. /2018

Shariq (correct Shaiq)
Ahmed Chishty..……..……………… APPELLANT

VERSUS

Muhammad Siddiq.............…….. RESPONDENT

APPLICATION UNDER SECTION 151 C.P.C.

It is respectfully prayed on behalf of the appellant above

named that this Honourable Court may be pleased to exempt

the appellant from filing the original documents of the same as

presently not readily available with the appellant

Prayed accordingly.

Karachi.
Dated: ADVOCATE FOR APPELLANT
IN THE HIGH COURT OF SINDH AT KARACHI

Civil Appeal No. /2018

Shariq (correct Shaiq)
Ahmed Chishty..……..……………… APPELLANT

VERSUS

Muhammad Siddiq.................…….. RESPONDENT

AFFIDAVIT
I, Shariq (correct Shaiq) Ahmed Chishty S/o
Muhammad Shafiq Chishti Muslim, adult, resident
of Flat No.A-13, 3rd Floor, Al-Rehman Premier
Apartments, On Sub Plot No.FL/A/1 of FL-17-A,
Block-16, KDA Scheme No.24, Gulshan-e-Iqbal,
Karachi do hereby state on Oath as under:-

1. That I am appellant in the above matter as

well as deponent of this affidavit as such am fully
conver sant with the facts of this affidavit.

2. That the accom panying application U/s 151

CPC has been drafted and filed under my specifi c
instructions and contents thereof may be treated as
integral part of this affidavit for the sake of brevity
of the pleadings.

3. That until and unless the accom panying

appeal is allowed I shall be seriously prejudiced.

4. That whatsoever stated above is true and

correct to the best of my knowledg e and belief.

Karachi
Dated DEPONENT
CNIC No.
 BEFORE THE HON'BLE HIGH COURT OF
SINDH AT KARACHI

SMA No. /2017

Abdul Rasheed Hassan ………….
Petitioner

Abdul Kadir Hassan ………. Deceased

INDEX
S.NO
DESCRIPTION ANNEX NO. PAGE NO.
.
01. Memo of Petition with affidavit 1-7
02. Death Registration certificate “A” 9
03. Family Registration Certificate A-1 to A-2 11-13
04. Support of Schedule of Property “B” 15-17
05. Schedule B Loan 19
06. Valuation of Immovable property
21-23
alongwith affidavit (property)
07. Declaration and confirmation of oral
B-1 TO B-10 25-43
Gift (Phase-V, DHA, Karachi)
08. Conveyance Deed (Phase-V, DHA,
B-4 TO B-19 45-61
Karachi)
09. New Murree Garden (Property)
B-20 63
Rawalpindi
10. Kalian Rawalpindi (Property) B-21 TO B-22 65-67
11. Allotment Order (Hyderabad) B-23 69
12. Sale Deed Soldier Bazar (property) B-24 TO B-30 71-83
13. Special Power of Attorneys all legal
C-1 TO C-20 85-123
heirrs
14 Mst. Zainab Kadir
125-127
(Affidavit of No Objection)
15 Abdul Rasheed Hassan
129-131
(Affidavit of No Objection)

Continued…….P/2
[2]

16. Abdul Aleem

133-135
(Affidavit of No Objection)
17. Muhammad Saleem Kadir
137-139
(Affidavit of No Objection)
18. Ayesha Shoukat
141-143
(Affidavit of No Objection)
19. Shakeel Ahmed Kadir
145-147
(Affidavit of No Objection)
20 Zubaida Asif
149-151
(Affidavit of No Objection)
21. Saeed Ahmed
153-155
(Affidavit of No Objection)
22. Jamil Ahmed Kadiq
157-159
(Affidavit of No Objection)
23 Farah Abdul Samad
(Affidavit of No Objection) 161-163
.
24 Aftab Ahmed
(Affidavit of Witness No.1) 165
.
25 Badshah Gul
(Affidavit of Witness No.2) F 167-169
.
26 List of Legal Heirs of deceased
171
.
27 Urgent hearing Application
173-175
. alongwith affidavit
28 Exemption Application alongwith
177-179
. affidavit
16 Vakalatnama
181
.

Karachi.
Dated: -2017 ADVOCATE FOR THE
PETITIONER