2017 C L C 305
2017 C L C 305
[Lahore (Multan Bench)]
Before Shahid Karim, J
MUHAMMAD HAYAT----Petitioner
Versus
Raja GHULAM MUSTAFA and others----Respondents
Writ Petition No.2257 of 2007, decided on 25th May, 2015.
(a) Specific Relief Act (I of 1877)---
----S. 12---Suit for specific performance of contract to sell immovable property---Role of attorney---Scope---In matters relating to sale and purchase of immovable property, role of an attorney had always been looked upon with suspicion and skepticism by courts and it was obligatory upon courts below to have made fuller inquiry regarding authenticity of attorney---High Court observed that it was beyond comprehension as to why a decree was necessary to be passed in haste upon statement of an attorney when attendance of original allottee could easily be procured.
(b) Power of attorney---
----Construction by court---Scope---Duty of court in construction of power of attorney granting power to concede and compromise a suit, to alienate a property and recitals to that effect contained in that power of attorney.
Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 and Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs. and others PLD 2005 SC 705 rel.
(c) Civil Procedure Code (V of 1908)---
----O. I, R. 10 & S.12(2)---lmpleadment as party---Filing of application to be impleaded as party or its rejection did not preclude the petitioner to file an application under S.12(2), C.P.C. nor did it take away his right to pursue the remedy which was available to him under law.
Eden Developers Ltd. v. NAB and others PLD 2011 Lah. 48; Dilawar Ali Khan through his legal heirs and others v. Mrs. Zohra Javed and others 1997 CLC 152; Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65; Sher Muhammad and others v. Khawaja Mazhar 2009 YLR 1609; Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Muhammad Abdullah v. Muhammad Aslam 2014 CLC 1205 and Dilawar Khan v. Mst. Badshah Zadi and another PLD 2011 Pesh. 208 ref.
Kafayat Hussain Khan Daha and Ch. Muhammad Zulfiqar Chheena for Petitioner.
Sardar Sher Khan for Respondents.
Date of hearing: 21st May, 2015.
JUDGMENT
SHAHID KARIM, J.--- This Constitutional petition lays a challenge to the judgment dated 16.01.2007 passed by the Addl. District Judge, Lodhran as also the judgment dated 17.5.2005 passed by the Civil Judge, Lodhran. By the judgments of the courts below, an application under section 12(2) of the Code of Civil Procedure (C.P.C.) filed by the petitioner was dismissed.
2. The learned counsel for the petitioner submits that the courts below have proceeded to render the impugned judgments without taking into account the documents which were produced in evidence by the parties and have not resolved the controversy by appreciating the real issue which formed the nub in the application under section 12(2), C.P.C. brought by the petitioner herein.
3. The historical facts are that the petitioner and respondent No.1 entered into an agreement to sell dated 07.01.1989. This agreement to sell was with regard to proprietary rights which were acquired by Raja Ghulam Mustafa, respondent No.1 vide document No.478 and registered in his name on 29.4.1992. In pursuance of this agreement to sell dated 7.1.1989, registered sale-deed No.448 dated 02.05.1992 was registered in the name of the petitioner herein and a mutation No.121 dated 13.5.1992 was also sanctioned in pursuance thereof. Parallel to these events, there were certain other events taking place between the respondent No.1 and respondents No.3. Purportedly an agreement was entered into between respondents Nos.1 and 3 on 11.03.1989. On 18.11.1990 a suit for specific performance was filed by the respondent No.3. On 15.12.1990 the said suit was decreed on the statement of an alleged attorney of respondent No.1. It has been brought forth that as a result of this statement, a judgment and decree was passed by the civil court on 15.12.1990. As a result of this decree, mutation in the name of the petitioner was cancelled but the registered sale deed No.448 dated 02.05.1992 is still intact to this day. To complete the narration of facts, as a consequence of the decree passed on 15.12.1990, registered sale deed No.280 dated 23.7.1993 was executed in favour of the respondents, which, too, was sought to be set aside.
4. The respondents have been served according to the report of the process server. Sardar Tariq Sher Khan has filed his power of attorney on behalf of the respondents Nos.2, 3, 3-A to 3-I. The rest of the respondents are proceeded against ex-parte. Respondent No.1 is the original owner of this property and has chosen not to appear and defend the instant petition.
5. It is pertinent to mention that the respondent No.1 Raja Ghulam Mustafa who was the original owner of the property has, in the written reply submitted to the application under section 12(2), C.P.C., admitted to the claim made in the said application and agreed that the impugned decree dated 15.12.1990 had been procured fraudulently and by misrepresentation. He denied that he had ever appointed any one as his attorney to make the said statement, which formed the basis of the decree. In his evidence as AW.3, the respondent No.1 reiterated his stance taken in the reply to the application and further stated that he had, upon coming to know about the decree, filed an application to have it set aside as having been procured fraudulently. Subsequently, respondent No.1 absented himself from the proceedings before the trial court and was proceeded against ex-parte.
6. The following issues were framed by the trial court out of the pleadings of the parties:
(1) Whether the petition is not competent in the present form? OPR-3.
(2) Whether the impugned decree dated 15.12.1990 was obtained by fraud and misrepresentation and is to be cancelled? OPA.
(3) Relief.
7. On behalf of the petitioner/applicant, Muhammad Hayat appeared as AW.1, Muhammad Younis and Ghulam Mustafa appeared as AW.2 and AW.3 respectively. Documentary evidence was also produced by the applicant in the form of agreement to sell Ex.A.1, registered sale deed Ex.A.2, copy of decree Ex.A.3, copy of statement of Makhnan Ex.A.4, copy of the judgment/order Ex.A.5 and lastly the copy of the grant of proprietary rights Ex.A.6. The respondents, on the other hand, did not produce any evidence and appeared himself as RW.1. By way of documentary evidence, he produced copy of Register Haqdaran Zamin as Ex.R.1, copy of sale deed Ex.R.2 and copy of mutation No.15 Ex.R.4.
8. Issue No.2 was the pivotal issue between the parties and both the courts below have returned a finding in favour of the respondents on the said issue.
9. I have gone through the impugned judgments and it can at once be discerned from a reading of the impugned judgments that the courts below have proceeded on the basis that there was only an agreement to sell dated 07.01.1989 between the petitioner and the respondent No.1 and which formed the basis for the claim in the instant application under section 12(2), C.P.C. to have the judgment and decree dated 15.12.1990 set aside. Clearly, the courts below have fallen in palpable error while relying upon Ex.A.1 only. The finding on this aspect of the courts below is fallacious and is without lawful authority. By doing so, the courts below have completely ignored the document of registered sale deed dated 02.05.1992 brought on record as Ex.A.2 which is a registered sale deed in favour of the petitioner. Not a word has been said in the impugned judgments regarding this document which has been conveniently ignored by the courts below. Therefore, the entire basis of the impugned judgments which proceeded on the ground that a claim on the basis of an agreement to sell was not sustainable, falls to the grounds.
10. Another important fact which ought to have weighed with the courts below that the original allottee of the proprietary rights Raja Ghulam Mustafa respondent No.1 had clearly filed a reply and made a statement endorsed and supporting the case of the petitioner. This has been, in my opinion, was a substantial one and due weight ought to have been given to the fact that Raja Ghulam Mustafa had not supported the impugned judgment and decree which was sought to be set aside. The courts below further did not advert to another important aspect viz. the speed and alacrity with which the suit was conceded and a decree was passed should have been a cause of concern for the courts below and should have compelled them to look at the application under section 12(2), C.P.C. with more care. This unfortunately was not done by the courts below. It will be noticed that the suit was filed on 18.11.1990 and was decreed on 15.12.1990 and that too on the statement of a purported power of attorney holder for respondent No.1 which attorney was denounced by the respondent No.1 in his reply filed and statement made as AW.3. In matters relating to sale and purchase of immovable property, the role of an attorney has always been looked upon with suspicion and skepticism by the courts. It was obligatory upon the courts below to have made fuller enquiry regarding the authenticity of the alleged attorney. It is beyond comprehension as to why a decree was necessary to be passed in haste upon statement of an attorney when the attendance of the original allottee, Raja Ghulam Mustafa could easily be procured. Even at the subsequent stage while adjudicating application under section 12(2), C.P.C., the courts below dealt with the matter cursorily and without regard to factors which cast a shadow on the bona fide of the decree dated 15.12.1990. The duty cast upon courts in the construction of the power of attorney granting power to concede and compromise a suit and to alienate a property and the recitals to that effect contained in that power of attorney, in particular, have been summarized in the following words in Fida Muhammad v. Pir Muhammad Khan and others (PLD 1985 SC 341):
"It is wrong to assume that every "general" Power-of-Attorney on account of the said description, means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation.
The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others:--
--- firstly, in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation ) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and
--- secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he, in his own interest, should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."
These views have been affirmed and reiterated in Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811 and Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs. and others (PLD 2005 SC 705).
11. The courts below have, in fact, been swayed by the fact that upon coming to know regarding the filing of the suit, the petitioner had made an application for being impleaded as a party which was rejected and the appeal against that order was also dismissed. However, no application to this effect has been brought on record. It is highly improbable that such an application could have been made since the period between the institution of the suit and this decree was very short. Moreover, the filing of such an application or its rejection (to which no proof has been adduced) does not preclude the petitioner to file an application under section 12(2), C.P.C. nor does it take away his right to pursue the remedy which is available to him under law.
12. The learned counsel for the petitioner has relied upon a number of judgments viz. Eden Developers Ltd. v. NAB and others (PLD 2011 Lahore 48), Dilawar Ali Khan through his legal heirs and others v. Mrs. Zohra Javed and others (1997 CLC 152), Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65), Sher Muhammad and others v. Khawaja Mazhar (2009 YLR 1609), Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 Supreme Court 730), Muhammad Abdullah v. Muhammad Aslam (2014 CLC 1205) and Dilawar Khan v. Mst. Badshah Zadi and another (PLD 2011 Peshawar 208). However, it is not necessary to deal with these judgments since they are not related to the controversy in hand.
13. For what has been stated above, the instant petition is allowed and the judgments of the courts below are set aside and as a consequence thereof the judgment and decree dated 15.12.1990 is also set aside. The civil suit shall be deemed pending and decided within six months from the receipt of this judgment.
RR/M-222/L Petition allowed.
[Lahore (Multan Bench)]
Before Shahid Karim, J
MUHAMMAD HAYAT----Petitioner
Versus
Raja GHULAM MUSTAFA and others----Respondents
Writ Petition No.2257 of 2007, decided on 25th May, 2015.
(a) Specific Relief Act (I of 1877)---
----S. 12---Suit for specific performance of contract to sell immovable property---Role of attorney---Scope---In matters relating to sale and purchase of immovable property, role of an attorney had always been looked upon with suspicion and skepticism by courts and it was obligatory upon courts below to have made fuller inquiry regarding authenticity of attorney---High Court observed that it was beyond comprehension as to why a decree was necessary to be passed in haste upon statement of an attorney when attendance of original allottee could easily be procured.
(b) Power of attorney---
----Construction by court---Scope---Duty of court in construction of power of attorney granting power to concede and compromise a suit, to alienate a property and recitals to that effect contained in that power of attorney.
Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811 and Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs. and others PLD 2005 SC 705 rel.
(c) Civil Procedure Code (V of 1908)---
----O. I, R. 10 & S.12(2)---lmpleadment as party---Filing of application to be impleaded as party or its rejection did not preclude the petitioner to file an application under S.12(2), C.P.C. nor did it take away his right to pursue the remedy which was available to him under law.
Eden Developers Ltd. v. NAB and others PLD 2011 Lah. 48; Dilawar Ali Khan through his legal heirs and others v. Mrs. Zohra Javed and others 1997 CLC 152; Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65; Sher Muhammad and others v. Khawaja Mazhar 2009 YLR 1609; Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Muhammad Abdullah v. Muhammad Aslam 2014 CLC 1205 and Dilawar Khan v. Mst. Badshah Zadi and another PLD 2011 Pesh. 208 ref.
Kafayat Hussain Khan Daha and Ch. Muhammad Zulfiqar Chheena for Petitioner.
Sardar Sher Khan for Respondents.
Date of hearing: 21st May, 2015.
JUDGMENT
SHAHID KARIM, J.--- This Constitutional petition lays a challenge to the judgment dated 16.01.2007 passed by the Addl. District Judge, Lodhran as also the judgment dated 17.5.2005 passed by the Civil Judge, Lodhran. By the judgments of the courts below, an application under section 12(2) of the Code of Civil Procedure (C.P.C.) filed by the petitioner was dismissed.
2. The learned counsel for the petitioner submits that the courts below have proceeded to render the impugned judgments without taking into account the documents which were produced in evidence by the parties and have not resolved the controversy by appreciating the real issue which formed the nub in the application under section 12(2), C.P.C. brought by the petitioner herein.
3. The historical facts are that the petitioner and respondent No.1 entered into an agreement to sell dated 07.01.1989. This agreement to sell was with regard to proprietary rights which were acquired by Raja Ghulam Mustafa, respondent No.1 vide document No.478 and registered in his name on 29.4.1992. In pursuance of this agreement to sell dated 7.1.1989, registered sale-deed No.448 dated 02.05.1992 was registered in the name of the petitioner herein and a mutation No.121 dated 13.5.1992 was also sanctioned in pursuance thereof. Parallel to these events, there were certain other events taking place between the respondent No.1 and respondents No.3. Purportedly an agreement was entered into between respondents Nos.1 and 3 on 11.03.1989. On 18.11.1990 a suit for specific performance was filed by the respondent No.3. On 15.12.1990 the said suit was decreed on the statement of an alleged attorney of respondent No.1. It has been brought forth that as a result of this statement, a judgment and decree was passed by the civil court on 15.12.1990. As a result of this decree, mutation in the name of the petitioner was cancelled but the registered sale deed No.448 dated 02.05.1992 is still intact to this day. To complete the narration of facts, as a consequence of the decree passed on 15.12.1990, registered sale deed No.280 dated 23.7.1993 was executed in favour of the respondents, which, too, was sought to be set aside.
4. The respondents have been served according to the report of the process server. Sardar Tariq Sher Khan has filed his power of attorney on behalf of the respondents Nos.2, 3, 3-A to 3-I. The rest of the respondents are proceeded against ex-parte. Respondent No.1 is the original owner of this property and has chosen not to appear and defend the instant petition.
5. It is pertinent to mention that the respondent No.1 Raja Ghulam Mustafa who was the original owner of the property has, in the written reply submitted to the application under section 12(2), C.P.C., admitted to the claim made in the said application and agreed that the impugned decree dated 15.12.1990 had been procured fraudulently and by misrepresentation. He denied that he had ever appointed any one as his attorney to make the said statement, which formed the basis of the decree. In his evidence as AW.3, the respondent No.1 reiterated his stance taken in the reply to the application and further stated that he had, upon coming to know about the decree, filed an application to have it set aside as having been procured fraudulently. Subsequently, respondent No.1 absented himself from the proceedings before the trial court and was proceeded against ex-parte.
6. The following issues were framed by the trial court out of the pleadings of the parties:
(1) Whether the petition is not competent in the present form? OPR-3.
(2) Whether the impugned decree dated 15.12.1990 was obtained by fraud and misrepresentation and is to be cancelled? OPA.
(3) Relief.
7. On behalf of the petitioner/applicant, Muhammad Hayat appeared as AW.1, Muhammad Younis and Ghulam Mustafa appeared as AW.2 and AW.3 respectively. Documentary evidence was also produced by the applicant in the form of agreement to sell Ex.A.1, registered sale deed Ex.A.2, copy of decree Ex.A.3, copy of statement of Makhnan Ex.A.4, copy of the judgment/order Ex.A.5 and lastly the copy of the grant of proprietary rights Ex.A.6. The respondents, on the other hand, did not produce any evidence and appeared himself as RW.1. By way of documentary evidence, he produced copy of Register Haqdaran Zamin as Ex.R.1, copy of sale deed Ex.R.2 and copy of mutation No.15 Ex.R.4.
8. Issue No.2 was the pivotal issue between the parties and both the courts below have returned a finding in favour of the respondents on the said issue.
9. I have gone through the impugned judgments and it can at once be discerned from a reading of the impugned judgments that the courts below have proceeded on the basis that there was only an agreement to sell dated 07.01.1989 between the petitioner and the respondent No.1 and which formed the basis for the claim in the instant application under section 12(2), C.P.C. to have the judgment and decree dated 15.12.1990 set aside. Clearly, the courts below have fallen in palpable error while relying upon Ex.A.1 only. The finding on this aspect of the courts below is fallacious and is without lawful authority. By doing so, the courts below have completely ignored the document of registered sale deed dated 02.05.1992 brought on record as Ex.A.2 which is a registered sale deed in favour of the petitioner. Not a word has been said in the impugned judgments regarding this document which has been conveniently ignored by the courts below. Therefore, the entire basis of the impugned judgments which proceeded on the ground that a claim on the basis of an agreement to sell was not sustainable, falls to the grounds.
10. Another important fact which ought to have weighed with the courts below that the original allottee of the proprietary rights Raja Ghulam Mustafa respondent No.1 had clearly filed a reply and made a statement endorsed and supporting the case of the petitioner. This has been, in my opinion, was a substantial one and due weight ought to have been given to the fact that Raja Ghulam Mustafa had not supported the impugned judgment and decree which was sought to be set aside. The courts below further did not advert to another important aspect viz. the speed and alacrity with which the suit was conceded and a decree was passed should have been a cause of concern for the courts below and should have compelled them to look at the application under section 12(2), C.P.C. with more care. This unfortunately was not done by the courts below. It will be noticed that the suit was filed on 18.11.1990 and was decreed on 15.12.1990 and that too on the statement of a purported power of attorney holder for respondent No.1 which attorney was denounced by the respondent No.1 in his reply filed and statement made as AW.3. In matters relating to sale and purchase of immovable property, the role of an attorney has always been looked upon with suspicion and skepticism by the courts. It was obligatory upon the courts below to have made fuller enquiry regarding the authenticity of the alleged attorney. It is beyond comprehension as to why a decree was necessary to be passed in haste upon statement of an attorney when the attendance of the original allottee, Raja Ghulam Mustafa could easily be procured. Even at the subsequent stage while adjudicating application under section 12(2), C.P.C., the courts below dealt with the matter cursorily and without regard to factors which cast a shadow on the bona fide of the decree dated 15.12.1990. The duty cast upon courts in the construction of the power of attorney granting power to concede and compromise a suit and to alienate a property and the recitals to that effect contained in that power of attorney, in particular, have been summarized in the following words in Fida Muhammad v. Pir Muhammad Khan and others (PLD 1985 SC 341):
"It is wrong to assume that every "general" Power-of-Attorney on account of the said description, means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation.
The second aspect which needs caution on question of validity of acts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others:--
--- firstly, in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation ) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and
--- secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he, in his own interest, should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."
These views have been affirmed and reiterated in Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811 and Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs. and others (PLD 2005 SC 705).
11. The courts below have, in fact, been swayed by the fact that upon coming to know regarding the filing of the suit, the petitioner had made an application for being impleaded as a party which was rejected and the appeal against that order was also dismissed. However, no application to this effect has been brought on record. It is highly improbable that such an application could have been made since the period between the institution of the suit and this decree was very short. Moreover, the filing of such an application or its rejection (to which no proof has been adduced) does not preclude the petitioner to file an application under section 12(2), C.P.C. nor does it take away his right to pursue the remedy which is available to him under law.
12. The learned counsel for the petitioner has relied upon a number of judgments viz. Eden Developers Ltd. v. NAB and others (PLD 2011 Lahore 48), Dilawar Ali Khan through his legal heirs and others v. Mrs. Zohra Javed and others (1997 CLC 152), Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65), Sher Muhammad and others v. Khawaja Mazhar (2009 YLR 1609), Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 Supreme Court 730), Muhammad Abdullah v. Muhammad Aslam (2014 CLC 1205) and Dilawar Khan v. Mst. Badshah Zadi and another (PLD 2011 Peshawar 208). However, it is not necessary to deal with these judgments since they are not related to the controversy in hand.
13. For what has been stated above, the instant petition is allowed and the judgments of the courts below are set aside and as a consequence thereof the judgment and decree dated 15.12.1990 is also set aside. The civil suit shall be deemed pending and decided within six months from the receipt of this judgment.
RR/M-222/L Petition allowed.
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