Legal talk

18/03/2023

With Adv Ali Gohar Mallah at district bar Badin

14/05/2022

2013 Y L R 2011



[Sindh]



Before Sadiq Hussain Bhatti, J



MUHAMMAD ALI and 10 others---Petitioners



Versus



DISTRICT AND SESSIONS JUDGE and 2 others---Respondents



Constitutional Petition No.S-118 of 2007, decided on 28th May, 2013.



(a) Transfer of Property Act (IV of 1882)---



----S. 54---Agreement to sell property---Evidentiary value---Such agreement would not create any right/title/ownership in favour of purchaser except to file suit for its specific performance or till finalization of deal by paying entire sale price and mutating property in his name---Purchaser only in case of payment of entire sale price could assert his right to property, but he could not assert such right in case of part payment of sale price---Principles.



Messrs Sattar Brothers v. Messrs Hanif Jee and Sons 2005 CLC 1696; Mst. Aisha and another v. Mrs. Samar Afroze 2008 YLR 24; Mst. Mobin Fatima v. Muhammad Yamin and others PLD 2006 SC 214; Hafeezuddin and others v. Badaruddin and others PLD 2003 Kar. 444; Saifullah v. Muhammad Bux and others 2003 MLD 480 and Muhammad Anwar Khan v. Mian Ashgar Ali 1988 CLC 402 ref.



Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320; Shameem Akhtar v. Muhammad Rashid PLD 1989 SC 575; Mst. Azeemun Nisa Begum v. Mst. Rabia Bibi PLD 1991 SC 242; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012 and Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877 rel.



(b) Civil Procedure Code (V of 1908)---



----O. XX, R. 1 & O. XLI, R. 32---Judgments of Trial Court and Appellate Court being at variance---Effect---Judgment of Appellate Court in such case would be preferred---High Court could correct judgment of Appellate Court, if its findings were either suffering from misreading or non-reading of evidence or its conclusions drawn were against law.



Irfan Ahmed Qureshi for Petitioner.



Ejaz Ali Hakro for Respondent No.3.



Faheem Ahmed Panhwar, State Counsel.



Date of hearing: 22nd May, 2013.



JUDGMENT



SADIQ HUSSAIN BHATTI, J.---The petitioners are aggrieved by the Judgment dated 28-2-2007 passed by learned District Judge, Badin in First Rent Appeal No.6 of 2005 whereby the appeal was allowed and the ejectment order passed by the Rent Controller in Rent Case No.2 of 2004 was set aside.



2. The brief facts of the case are that the petitioners are owners of one shop on ground floor, measuring 41.5 sq. yards, situated in Anaj Mandi, Matli Town, Taluka Matli, District Badin (the shop) which was let out to respondent No. 3 (the respondent) at a monthly rent of Rs.3000. Vide an agreement dated 20-3-2007, the petitioner entered into an agreement with the respondent for the sale of the shop at a total sale consideration of Rs.725,000 out of which an amount of Rs.325,000 was paid by the respondent at the time of ex*****on of the agreement to sell and the remaining amount was to be paid after the shop was mutated in the name of the L.Rs. of the deceased owner of the shop by way foti khata badal and ex*****on of sale-deed by the L.Rs. with the respondent. Possession of the shop was already with respondent and one of the conditions was that till ex*****on of the registry of the shop in the name of the respondent by the L.Rs. of the deceased owner with the respondent, respondent will not pay rent. The registry was to be done upto 15 March, 2004. As the terms and conditions of the said sale agreement were violated by the respondent, therefore, the petitioners gave legal notice dated 22-9-2004 to the respondent dissolving the agreement. This legal notice was not replied by the respondent. The petitioners issued another legal notice calling upon the respondent to pay rent at the rate of Rs.3000 per month from 15-3-2004 till date as after dissolution of the agreement the respondent had reverted back to his position as tenant of the petitioners. Since the respondent failed to pay the rent the petitioner filed rent case for payment of the rent as above and for ejectment of the respondent from the shop on the ground of default in payment of rent. In response to the summons issued to the respondent, he appeared and filed written statement wherein the averments made by the petitioners in the rent case were denied. On the basis of the pleadings of the parties, the following issues were framed by the learned Rent Controller for determination:



"(1) Whether the relationship of landlord and tenant exists between the applicants and the Opponent?



(2) Whether the Opponent has committed wilful default?



(3) Whether the Opponent is liable to be ejected?



(4) What should the Order be?



3. After recording evidence and hearing learned counsel for the parties, the Rent Controller allowed the rent case in the following terms vide his order dated 31-5-2005:



"in view of the facts and circumstances the opponent is directed to pay monthly rent at the rate of Rs.3000 per month from 15-3-2004 upto filing of this rent application. The opponent is also directed to eject(vacate) the case premises viz. one shop of C.S. No.348, Ward B, Annaj Mandi, Matli Town, Ground Floor, District Badin and hand over the physical possession to the applicant within thirty days. The opponent has made any agreement of sale with regard to demised shop he should seek the legal remedy by filing the suit."



4. The respondent challenged the said order dated 31-5-2005 by filing First Rent Appeal No.6 of 2005 before the District Judge, Badin, who allowed the same vide his judgment 28-2-2007 and reversed the findings of the Rent Controller. Hence, this petition.



5. Mr. Irfan Ahmed Qureshi, learned counsel for the petitioners, submitted that the order of eviction passed by the learned Rent Controller was just and correct and called for no interference by the appellate Court. He stated that the judgment of the appellate Court is result of non-reading and misreading of the evidence and the law on the point. He stated that the respondent, after making of the foti badal khata never performed his part of the agreement and never turned up to finalize the sale. He referred to the written statement of the respondent to show that the respondent was tenant of the shop. He finally argued that agreement to sell does not create any legal right in the shop in favour of the respondent unless the same is converted into a registered sale deed by payment of full price and mutation in favour of the respondent in the record of rights. Learned counsel for the petitioner relied on the case of Messrs Sattar Brothers v. Messrs Hanif Jee and Sons (2005 CLC 1696).



6. On the other hand, Mr. Ejaz Ali Hakro, learned counsel for the respondent, submitted that the impugned judgment passed by the learned Appellate Court does not call for any interference by this Court as the same is based on cogent reasons and this Court, while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot sit as a Court of appeal on a question of fact and this Court cannot, in exercise of its constitutional jurisdiction, interfere merely on the ground that a different view on the basis of same evidence was possible. He also stated that mere ownership of a property is not sufficient to establish relationship of landlord and tenant. The learned counsel also contended that this Court will only entertain a petition if a case is made out to the effect that the Rent Controller and the First Appellate Court have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse that it is not sustainable on the established principles of appreciation of evidence or any specific provision of law has been violated.



7. In support of his contentions the learned counsel relied on the following cases:--



(1) Mst. Aisha and another v. Mrs. Samar Afroze (2008 YLR 24),



(2) Mst. Mobin Fatima v. Muhammad Yamin and others (PLD 2006 SC 214),



(3) Hafeezuddin and others v. Badaruddin and others (PLD 2003 Kar. 444),



(4) Saifullah v. Muhammad Bux and others (2003 MLD 480), and



(5) Muhammad Anwar Khan v. Mian Ashgar Ali (1988 CLC 402).



8. I have heard the learned counsel for the parties, perused the record and have gone through the case-law cited before me.



9. The admitted facts in this case are that the petitioners are owners of the shop while the respondent was their tenant in respect thereof. On 20-7-2003, the parties entered into an agreement for the sale of the said shop by the owners/petitioners for a total sale consideration of Rs.725,000 out of which Rs.325,000 were paid by the respondent to the owners/petitioners while the balance sale consideration of Rs.400,000 was to be paid in future. It is an admitted position that such amount, till date, has not been paid by the respondent to the owners/petitioners. The first point for consideration formulated by the learned Rent Controller was whether there exists any relationship of landlord and tenant between the parties. This point was answered in the affirmative by the Rent Controller, however, this point was not discussed by the learned Appellate Court. This issue is very much dependent on the fate of the agreement executed between the parties for the sale of the shop.



10. It is a trite law that an agreement to sell does not give any right to the prospective purchaser except that he can file a suit for specific performance. In a recent case of Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320) the honourable Supreme Court while dealing with the above point held that it is the settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of the sale agreement whereafter he would be given easy access to the premises in case he prevails. In the above case the apex Court also referred cases of Shameem Akhtar v. Muhammad Rashid (PLD 1989 SC 575), Mst.Azeemun Nisar Begum v. Mst.Rabia Bibi, (PLD 1991 SC 242), Muhammad Rafique v. Messrs Habib Bank Ltd. (1994 SCMR 1012) and Mst. Bor Bibi v. Abdul Qadir (1996 SCMR 877). Even otherwise it is now well-settled that the sale agreement does not create any title/ownership in favour of the purchaser until the deal is finalized, entire payment is made and the property is mutated in the name of the purchaser. If the entire sale consideration is paid by the purchaser to the seller, which is admitted by the seller, the purchaser can assert his right as only the formality of the mutation remains in such case. But, where only a part payment bas been made and the balance sale consideration, which is a substantial amount, is still to be paid by the purchaser to the seller, no right can be asserted by the purchaser.



11. Thus the question which arises in this case is as to in what capacity the respondent is occupying the shop as neither he has paid the entire sale consideration nor is he making endeavour to get the specific performance of the agreement. If he is not the owner of the shop then, of course, he is tenant of the petitioners.



12. A perusal of the written statement of the respondent before the trial Court reveals that he is asserting that neither he nor the petitioners are the owners of the shop. It would be advantageous if para 6 of the WS is produced, which reads as under:



"6. That the contents of para No.6 of the application is partly admitted and partly denied, it is submitted that at the time of ex*****on of sale agreement the opponent was paying shop rent at the rate of Rs.600 per month, no fresh agreement after owner of shop was executed as such the tenancy is denied, it is submitted that an amount of Rs.325,000 as earnest money is already with the applicants which they have admitted in para No.3 of the application, it is further submitted that after the purchase of shop neither the opponent of the applicant, nor the applicants are owners of the demised shop, nor any rent is liable against the opponent after the ex*****on of sale agreement."



13. This assertion, to say the least, is absurd as no property can be said to be ownerless. The correct legal position is that the petitioners are owners of the shop until and unless the same is purchased by the respondent after paying the entire sale consideration and executing the necessary documents in this regard. It is an admitted position that presently the shop is in the name of the petitioners therefore they are the real owners of the shop.



14. Further perusal of the WS shows that the respondent himself asserted that "neither the opponent have violated the terms and conditions of the agreement, in fact the applicants have violated the terms and conditions of agreement." Thus, on the one hand the petitioners are asserting that the respondent has violated the terms and conditions of the agreement while the respondent is asserting that the terms and conditions of the agreement were violated by the petitioners. Thus, the parties are in agreement that the terms and conditions of the agreement have been violated, by whom, it is to be decided by a competent court. The consequence of violation of the terms and conditions has been given in the agreement itself as under:--



"If I will deviate from this deal/Transaction 1 will be liable to pay the amount and double of it as fine i.e. total Rs.6,50,000. If purchaser will deviate/revoke then he will not be able to get back the given amount by him."



15. The learned Appellate Court lost sight of the fact that after paying of the sum of Rs.325,000 neither the respondent became owner of the shop nor he can be allowed to enjoy the possession of the shop for indefinite period without payment of any rent and without completing his part of the agreement by paying full sale consideration. In case the respondent is of the opinion that the petitioners have violated the terms and conditions of the agreement then he can approach a civil Court for redressal of his grievance and if he proves that he is correct and the only relief which he can claim is that he will seek repayment of the amount paid by him as well an equal amount to the amount paid by him as fine. However, by no stretch of imagination he can be allowed to keep the shop in perpetuity or that the shop has become ownerless.



16. I am mindful of the fact that when there is conflict of judgment between the trial Court and the appellate Court, the judgment of the appellate Court is to be preferred. However, if it is shown from the record that such findings are not supported by evidence or that the conclusions drawn by the appellate Court are against the record or the judgment of the appellate Court suffers from non-reading or misreading of evidence then this Court can correct the wrong. In my view, the learned Appellate Court was not justified to ignore the important issue of the existence or otherwise of the relationship of landlord and tenant. It was only upto 15 March, 2004 that the respondent was not required to pay the rent or thereafter till the petitioners were not ready to perform their part of the agreement. Thereafter, either the agreement was to be performed or the parties were to revert to their original position of landlord and tenant.



17. I am mindful of the observation made in the case of Hafeezuddin (supra) that mere ownership of property was not sufficient to establish relationship of landlord and tenant but in the present case it is an admitted fact that the respondent was tenant of the petitioners and it was only the agreement executed between the parties that he was allowed not to pay rent upto the ex*****on of the registry. It would have been entirely different scenario if the respondent has filed a case for specific performance as in that case it would have been established that the petitioners were avoiding to perform their part of the agreement and thus would have been able to ask for rent even after the expiry of the period fixed for ex*****on of registry as in that case the petitioners would have been the defaulters.



18. In view of the above, I am of the opinion that the impugned judgment suffers from non-reading and misreading of the evidence and is against the law laid down by the superior courts, therefore, the same is set aside and the order of the Rent Controller is upheld. However, the rent would be payable with effect from July, 2004 as till June, 2004 the foti Khata badal was not made by the petitioners. The respondent, however, would be at liberty to approach the competent court having jurisdiction to agitate his case that the petitioners violated the terms and conditions of the agreement therefore exposing them to consequence of such violation.



19. The petition stands disposed of in the above terms.



SAK/M-97/K Petition disposed of.

legal talk

14/05/2022

2014 M L D 342



[Sindh]



Before Syed Hasan Azhar Rizvi, J



Syed ADNAN ASHRAF---Plaintiff



Versus



Syed AZHAR-UD-DIN through Attorney---Defendant



Civil Suit No.831 of 2005, decided on 13th November, 2012.



(a) Qanun-e-Shahadat (10 of 1984)---



----Arts.75 & 76---Document, proof of---Procedure---If validity of existence of document is disputed and original is not produced, certified copy is not admissible in evidence without proving non-availability of original and taking permission of court.



(b) Power of attorney---



----Object, purpose and scope---Power of attorney is written authorization by virtue of which principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf---Primary purpose of instrument of such nature is to assign authority of principal to another person as his agent.



(c) Contract Act (IX of 1872)---



---Ss.2(e) & 10---Agreement to sell property---Necessary ingredients---Four components to form an agreement to sell a property:- (i) identification of seller and purchaser, (ii) sale consideration amount, (iii) identification of property to be sold and (iv) parties to agreement to sell property at consensus ad idem.



(d) Specific Relief Act (I of 1877)---



----Ss.12 & 54---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for specific performance of agreement to sell---Execution of agreement---Proof---Plaintiff claimed that defendant who was owner of suit property entered into agreement to sell and had received part payment against receipt, through his brother, in whose favour he had executed irrevocable general power of attorney---Plaintiff did not implead the attorney as defendant while the owner of property declined to have executed any agreement to sell as well as receipt of part payment---Validity---Both parties i.e. plaintiff and general attorney of defendant, were to contemplate sale agreement, after issuance of receipt dated 19-4-2004, which had not been admittedly executed between the parties---Relief in suit for specific performance was discretionary relief and could only be granted to party which had approached court with clean hands and had placed material on record to show bona fides on his part to perform contract---Plaintiff failed to establish that irrevocable general power of attorney was executed by defendant in favour of his brother, so also the defendant denied issuance of any receipt in favour of plaintiff---Suit was dismissed in circumstances.



Ahmed Zaman Khan v. Ch. Nazeer Ahmed 2005 MLD 190; Abdul Ghafoor v. Muhammad Rafique 2006 CLC 1796; Abdul Ghaffar v. Faisalabad Development Authority 2006 CLC 1802; Raja Yusuf v. Sharifan Bibi 2006 MLD 1829 and Imam Din v. Bashir Ahmed PLD 2005 SC 418 ref.



Abdullah Balouch for Plaintiff.



Wafi Khan for Defendant.



Date of hearing: 28th May, 2012.



JUDGMENT



SYED HASAN AZHAR RIZVI, J.---The plaintiff has filed the instant Suit for Specific Performance and Permanent Injunction against the defendant with the following prayers:--



(1) Directing the defendant No.1 to perform his part of contract by executing requisite Sale Deed in respect of plot of land bearing No.B-107, measuring 400 sq. yards situated at KDA Scheme No.36, Gulistan-e-Jauhar, Karachi before the concerned Registrar, in case the defendant No.1 is failed to execute his part of contract, Nazir of this honourable Court may be directed to execute the Sale Deed in respect of the above said property according to law.



(2) Restrained the defendants, their servants, agents, nominees, person or persons who are acting on their behalf, not to sell, transfer, mutate, mortgage the property bearing No. B-107, measuring 400 sq. yards situated at KDA Scheme No.36, Gulistan-e-Jauhar, Karachi till the final decision of this Suit without due course of law.



(3) Cost of the Suit.



(4) Any other relief which this honourable Court may deem fit and proper in view of the circumstances of the case.



Brief facts of the case, according to the plaintiff, are that he made a deal for purchasing of an open Plot bearing No.B-107, measuring 400 sq. yards situated at KDA Scheme No.36, Gulistan-e-Jauhar, Karachi with one Syed Mazharuddin Bashir, who is stated to be brother as well as lawful Attorney of the defendant and has been authorized by his brother (defendant) to sell and transfer of his property which is the subject matter of the instant Suit. The said deal was done and the said plot was sold by the brother of the defendant to the plaintiff in the agreed sum of Rs.38,00,000. The plaintiff made payment of Rs.40,000 as token money to Syed Mazharuddin Bashir and Rs.10,000 to meet the expenses of processing of transfer of the said land in the name of plaintiff, in respect thereof Syed Mazharuddin Bashir issued a Receipt dated 19-4-2004 in favour of the plaintiff. Syed Mazharuddin Bashir promised to the plaintiff that he would transfer the said land in the name of the plaintiff within 15 days and the remaining balance amount will be paid by the plaintiff to Syed Mazharuddin Bashir at the time of transfer and mutation of the subject plot in favour of the plaintiff. According to the plaintiff, he made request several times to the defendant's Attorney to fulfil his obligation, but Syed Mazharuddin Bashir kept on hopes to the plaintiff that the transfer would be done. Finally the plaintiff came to know that Syed Mazharuddin Bashir Attorney of the defendant is going to sell the said land to some other person. Hence, Syed Mazharuddin Bashir Attorney of the defendant was served with a legal notice directed him to restrain from taking any step for sale and/or transfer of the subject plot to any other person.



It is inter alia, contended by the learned counsel for the plaintiff that Syed Mazharuddin Bashir, Attorney of the defendant shown an Irrevocable General Power of Attorney (available on record as Annexure "A") executed by the defendant in favour of Syed Mazharuddin Bashir whereby he was in a position to sell the subject land. According to the learned counsel for the plaintiff, Syed Mazharuddin Bashir issued a Receipt dated 19-4-2004 to the plaintiff after receipt of token money of Rs.40,000 in respect of sale of the subject plot. Learned counsel further argued that legal notice issued to the defendant, was not responded, which amounts to admission of the plaintiff's claim.



On the other hand, Mr. Wafi Khan, learned counsel appearing on behalf of the defendant, has argued that the defendant is residing in USA and the defendant has not executed any Irrevocable General Power of Attorney in favour of his brother Syed Mazharuddin Bashir and the said Irrevocable General Power of Attorney is bogus and a fake document. The entire case is not maintainable as the case is based on a fake and fabricated photocopy of Irrevocable General Power of Attorney. Learned counsel further argued that the original Irrevocable General Power of Attorney has not been produced by the plaintiff at the time of recording of evidence or at anytime before this Court. According to the learned counsel, the defendant has not permitted his brother Syed Mazharuddin Bashir to sell his plot to anyone. Even there is no Sale Agreement between the plaintiff and the brother of the defendant available on record. Learned counsel next argued that the Receipt issued by the brother Syed Mazharuddin Bashir is also a fake document, which is not admissible under the law. Learned counsel further urged that the Irrevocable General Power of Attorney does not contain signatures of the defendant. According to the learned counsel, there was no Sale Agreement between the parties and only Receipt is on record containing an amount Rs.40,000 as token money out of total sale consideration of Rs.38,00,000, which does not amount to an agreement. In support of his case, learned counsel has placed reliance upon the case of Ahmed Zaman Khan v. Ch. Nazeer Ahmed (2005 MLD 190), Abdul Ghafoor v. Muhammad Rafique (2006 CLC 1796), Abdul Ghaffar v. Faisalabad Development Authority (2006 CLC 1802), Raja Yusuf v. Sharifan Bibi (2006 MLD 1829) and Imam Din v. Bashir Ahmed (PLD 2005 SC 418).



I have heard the learned counsel for the plaintiff, learned counsel for the defendant as well as perused the entire record available and the case-law cited by the learned counsel for the parties in their favour.



Prima facie, it appears from the record that on 23-1-2006 passed an order by Single Bench of this Court, wherein Mr. Khizer Askar Zaidi, advocate was appointed as Commissioner to record the evidence of the parties to the proceedings. The plaintiff provided the list of witnesses to the learned Commissioner for recording of evidence wherein the plaintiff was examined himself as PW-1, Abdul Khalique as PW-2 and Saadat Ali as PW-3. From the defendant's side, the defendant Syed Azharuddin was examined through Attorney namely Javed Khan, as PW-1, Mir Basit Ahmed, as PW-2 and Naeem Ahmed as PW-3. All the witnesses produced by the respective parties, were cross-examined.



Perusal of the cross-examination of the witness namely Saadat Ali (PW-3) recorded by the learned Commissioner, operative part of the same is reproduced herein below:--



"It is correct that only receipt there is no Sale Agreement has been executed, and there is no witness of the receipt, and there is no term and condition of sale contract. I know that Mr. Khaliq is the Estate Agent of Mr. Mazharuddin and he deals all property matters, according to Mr. Khaliq. It is incorrect to suggest that money was given forcibly in term when Mr. Azhar will come back and complete the sale transaction. It is not in my knowledge about the conversation of Mr. Khaliq and Azhar. I am not giving this statement falsely."



The Commissioner submitted his report along with copies of the evidence led by the witnesses of the respective parties. After the case was reserved for judgment, it transpired that the issues were not formed/settled and evidence of the witnesses of the parties was recorded by the learned Commissioner, upon which an application was moved for settlement of issues, which was allowed by consent of Counsel for the Parties. Consequently, on 30-8-2010 following consent issues were adopted by the Court:--



(1) Whether the suit is maintainable under the law?



(2) Whether the plaintiff is entitled to the relief claimed?



(3) What should the decree be?



ISSUES NOS. 1 TO 3. I will take up all these issues together as they are interconnected and can conveniently be disposed of together. The plaintiff's contention is that he made a contract (not in writing) with one Syed Mazharuddin Bashir, who was stated to be brother as well as lawful Attorney of the defendant and has been authorized by this brother (defendant) to sell the land which is the subject matter of the instant Suit being property bearing No.B-107, measuring 400 sq. yards situated at KDA Scheme No.36, Gulistan-e-Jauhar, Karachi. The said plot was agreed to be purchased by the plaintiff from the defendant in the sum of Rs.38,00,000, out of which, the plaintiff made payment of Rs.40,000 as token money to Syed Mazharuddin Bashir (brother of the defendant) and Rs.10,000 to meet the expenses of processing of transfer of the said land in the name of plaintiff, in respect thereof Syed Mazharuddin Bashir (brother of the defendant) issued a Receipt dated 19-4-2004 in favour of the plaintiff. The Receipt dated 19-4-2004 (Annexure "A") filed and relied by the plaintiff reads as under:--



"RECEIPT"



Received a sum of Rs.40,000 (Rupees Forty Thousand only) through Cash/Pay Order/Cheque No.0196177 dated 20-4-2004 drawn on Saudi Pak Bank, Main Rashid Minhas Road and Rs.10,000- cash from Syed Adnan Ashraf son of Pervez Ashraf as a PART PAYMENT towards total consideration of Rs.38,00,000 (Rupees Thirty Eight Lac only) in respect of my Open Plot of land bearing No.B-107, measuring 400.00 sq. yds, in Block No.13, Situated at KDA, Scheme No.36, namely Gulistan-e-Jauhar, Karachi, as per Agreement of Sale dated.________



Karachi,

Dated 19-4-2004



Sd/-

Signature of Vendor

SYED MAZHAR UDDIN BASHIR

NIC. No.502-92-429059.



On perusal of the Receipt dated 19-4-2004 reproduced herein above, it transpired that the essential terms of the sale i.e. date of Sale Agreement was not mentioned and even no Sale Agreement has been produced during the case proceedings. The aforesaid document does not contain the date and time for payment of balance of sale consideration to the defendant by the plaintiff as well as delivery of possession of the subject plot to the plaintiff and even plaintiff has failed to produce any documentary evidence in respect of the Sale Agreement, executed between the parties in respect thereof. Even otherwise if it is presumed that a sum of Rs.40,000 was paid by the plaintiff and a Receipt dated 19-4-2004 has been issued by the defendant's Attorney as token money to the plaintiff, but the defendant in his written statement has categorically denied ex*****on of Irrevocable General Power of Attorney in favour of Syed Mazharuddin Bashir. Even in the Receipt dated 19-4-2004 it is not mentioned that Syed Mazharuddin Bashir received the amount from the plaintiff as an Attorney of the defendant. In the evidence produced by the defendant, there was an admission for acceptance of Rs.40,000 through cheque and cash Rs.10,000 from the plaintiff by Syed Mazharuddin Bashir. According to plaintiff, whenever he met Syed Mazharuddin Bashir and asked him for transfer of the land in question in the name of plaintiff, he did not deny it but not obligated the same. The plaintiff did not pay the balance consideration to Syed Mazharuddin Bashir, which was to be paid after transfer of the land in his name.



Perusal of the list of witnesses produced by the plaintiff before the learned Commissioner, it transpired that the plaintiff did not care to call Syed Mazharuddin Bashir as Court witness, who had issued the Receipt to the plaintiff and took money from the plaintiff. The plaintiff could have either voluntarily produced the Attorney or obtained his production through Court to seek original Irrevocable General Power of Attorney on record. Secondary evidence of General Power of Attorney could not be produced without permission of Court. Non-cancellation of General Power of Attorney by denying defendant was irrelevant fact. Denying defendant did not make Power of Attorney in favour of the Attorney, who had no power to make agreement to sell in favour of the plaintiff. Even the plaintiff had not produced copy of Cheque of Rs.40,000, which is alleged to have been given to Syed Mazharuddin Bashir as Part Payment of total sale consideration of the subject plot, as on whose name the Cheque was issued either in the name of defendant (Syed Azharuddin) or Syed Mazharuddin Bashir being an Attorney of the defendant.



In the light of the entire record and the evidence produced by the respective parties, it is crystal clear that all the transaction was made between the plaintiff and Syed Mazharuddin Bashir, who was alleged to be the Attorney of the defendant, and not with the defendant (Syed Azharuddin).



The basic and fundamental document was the Irrevocable General Power of Attorney alleged to have been executed by the defendant in favour of Syed Mazharuddin Bashir, existence and ex*****on of the same has been categorically denied by the defendant. The defendant in his written statement specifically denied having made and executed the said Irrevocable General Power of Attorney in favour of his brother Syed Mazharuddin Bashir and also denied the validity of Receipt issued by Syed Mazharuddin Bashir being his lawful Attorney. As such the only vital question in the present controversy is as to whether the plaintiff successfully proved the existence and ex*****on of the Irrevocable General Power of Attorney executed by the defendant in favour of Syed Mazharuddin Bashir. In the present case neither the original nor certified photocopy of the said Irrevocable General Power of Attorney allegedly executed by the defendant in favour of Mazharuddin has been produced before this Court as well as before the learned Commissioner at the time of recording of evidence of the witnesses of the respective parties. The case of the defendant is that he was the owner of the land, which is the subject matter of the case, and had never entered into any agreement to sell the same with the plaintiff through his alleged Attorney Syed Mazharuddin Bashir.



A bare perusal of the photocopy of Irrevocable General Power of Attorney (available on record), which, is alleged to have been executed by the defendant in favour of Syed Mazharuddin Bashir, it transpired that the same does not contain a proper signature of the defendant as compared to the signature available on the Special Power of Attorney executed by the defendant in favour of one Javed Khan son of Abdul Majid Khan. An agreement is always bilateral in nature and cannot be unilateral.



It is well settled principle of law that if the validity of the existence of the document is disputed and original is not produced certified copy would not be admissible in evidence unless proving the non-availability of the original and taking permission of the Court.



The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent.



The Argument is devoid of any force inasmuch as it was for the plaintiff to prove his case and he could not take advantage of any shortcomings in the defendant's evidence. Said argument is also misconceived because the agreement to sell was not allegedly made in between the parties and the alleged token money was received by Syed Mazharuddin Bashir claiming himself as the Attorney of the defendant but in the Receipt dated 19-4-2004 however, it is mentioned that Syed Mazharuddin Bashir had received the amount as Attorney of the defendant. In the Court Fee Stamps in the title of the Memo of Plaint, the plaintiff has shown Syed Mazharuddin Bashir and others as defendants in the present Suit, but the plaintiff has neither impleaded Syed Mazharuddin Bashir as defendant in the present Suit nor produced him as a witness in order to prove that he is the Attorney of the defendant and received the amount from the plaintiff and issued Receipt. The said defendant had specifically denied the aforesaid allegation in his written statement.



In the present case there arises a question as to whether Receipt, issued by Syed Mazharuddin Bashir in favour of the plaintiff, can be termed as a valid contract. On going through the contents of Receipt, it transpired that four components have to form an agreement can be spelt out without any ambiguity i.e. (i) identification of seller and purchaser (ii) sale consideration amount, (iii) identification of property to be sold and (iv) parties to agreement to sell property in question are at consensus ad idem. But in the very case, two essential ingredients out of four mentioned above, do not meet the requirements of ex*****on of an agreement between the parties.



From the above detailed discussion, it is quite clear that both the parties i.e. the plaintiff and Syed Mazharuddin Bashir were to contemplate the Sale Agreement, after issuance of Receipt dated 19-4-2004, as per the contents of Receipt which has not been admittedly executed between the said Parties.



The relief in the suit of specific performance is a discretionary relief and could only be granted to a party which has approached the Court with clean hands and has placed material on record to show bona fide on his part to perform the contract.



In view of the above discussion, I am of the view that the plaintiff has failed to establish that Irrevocable General Power of Attorney (available on record as Annexure "A") alleged to have been executed by the defendant in favour of Syed Mazharuddin Bashir, so also the defendant has denied issuance of any Receipt (which is Annexure "A" to the plaint) in favour of the plaintiff.



In the facts and circumstances of the case, the Issue No.1 in respect of maintainability of the Suit is answered in negative. Since the Issue No.1 is answered in negative, therefore, the question of relief claimed by the plaintiff in the Issue No.2 does not arise. The same is also answered in negative as well. Accordingly, on the basis of facts, circumstances, evidence of the Parties and legal questions discussed herein above in detail, I dismiss the present Suit with no order as to costs.



MH/A-163/K Suit dismissed.

legal talk