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Official Citation: 2023 SHC 1002
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-08-03
Parties: Tahir Raza Qadri vs Mrs. Tanveer Amna
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-08-03, officially reported as 2023 SHC 1002. In this matter between Tahir Raza Qadri and Mrs. Tanveer Amna, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023SHC1002
Court Name: Sindh High Court Judge(s): Muhammad Abdur Rahman Title: Tahir Raza Qadri vs Mrs. Tanveer Amna Case No.: IInd Appeal No.10 of 2008 Date of Judgment:2023-08-03 Reported As: 2023 SHC 1002 Result: Appeal Dismissed
Judgment JUDGEMENT MOHAMMAD ABDUR RAHMAN, J. - This is a Second Appeal that has been maintained under Section 100 of the Code of Civil Procedure, 1908 against the Judgement and Decree dated 27 October 2007 passed by Vth Additional District Judge Karachi (East) in Civil Appeal No.14 of 2005, upholding the dismissal of Suit No.1165 of 1994 by a Judgement dated 23 December 2004 and Decree dated 4 January 2005 passed by VIIIth Senior Civil Judge Karachi (East). 2. Suit No.1165 of 1994 was instituted by the Appellant claiming Specific Performance of a contract for the purchase of an industrial Plot bearing Plot No.2/14 and Plot 2/15, Sector 21 Korangi Industrial Area admeasuring 1200 square yards (hereinafter referred to as the "Said Property)". The Appellants basis for maintaining Suit No. 1165 of 1994 was that: (i) the Respondent had entered into an oral Agreement of Sale for the transfer of the Said Property on 29 September 1987 against a sale consideration of Rs. 300,000 (Rupees Three Hundred Thousand); (ii) on 29 September 1987 the Appellant paid a sum of Rs.100,000 (Rupees One Hundred Thousand) to the Respondent and a further sum of Rs. 200,000 (Rupees Two Hundred Thousand) was paid on 3 October 1987 each against receipts issued the Respondent and each confirming that the amounts were received by the Appellant through a Mr. Bahauddin Sarhandi who at that time was her husband; (iii) on account of the purported impending departure of the Respondent to the United States of America, the Respondent executed an unregistered General Power of Attorney dated 4 October 1987 attested by a "Assistant Commissioner and Additional City Magistrate First Class Court No. VIII
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Karachi East" in favour of Mr. Bahauddin Sarhandi to allow him to complete the transfer of the Said Property on behalf of the Respondent to the Appellant; (iv) in his capacity as an attorney of the Respondent Mr. Bahauddin Sarhandi on 12 October 1987 reduced the oral agreement into a written Agreement of Sale for the Said Property in favour of the Appellant enhancing the price to Rs, 400,000 (Rupees Four Hundred Thousand), obliging the Respondent to have a registered Indenture of Lease executed in her favour for the Said Property from the Karachi Development Authority (who is the lessor of the Said Property) and thereafter to receive the balance sale consideration of Rs.100,000 (Rupees One Hundred Thousand) against the registration of a Sale Deed; all of which was to be happen within a period of 4 years from the execution of the written Agreement of Sale i.e. by 11 October 1991; (v) that through an amendment to the Plaint on 29 July 1998 the Appellant brought onto the record of Suit No. 1165 of 1994, that he was put into possession of the Said Property by the Respondent through her attorney i.e. Mr. Bahauddin Sarhandi; 3. On 1 September 1988 Mr. Bahauddin Sarhandi divorced the Respondent and on account of which there was apparently an impasse as between the Respondent and Mr. Bahauddin Sarhandi caused by the Respondent not cooperating in having the Said Property leased into her name by the Karachi Development Authorityand which she was unable to achieve herself as the original title documents of the Said Property were in the custody of Mr. Bahauddin Sarhandi. This compelled the Respondent to institute Suit No. 1579 of 1988 as against Mr. Bahauddin Sarhandi before the VIIth Senior Civil Judge Karachi (East) for the recovery of the title documents of the Said Property from the Respondent and which apparently was dismissed for non prosecution. 4. This impasse apparently continued until the year 1994 when the Appellant was informed that the Respondent was purportedly in Karachi and approached her to receive the balance sale consideration and to finalize the transaction. It is contended that at this time the Respondent demanded an extra amount of Rs. 200,000 (Rupees Two Hundred Thousand) which the Appellant refused to pay and which compelled him to institute Suit No.1165 of 1994 before the VIIIth Senior Civil Judge Karachi (East) on 19 September 1994. 5. The Respondent in her Written Statement has submitted that: (i) neither had she in her individual capacity entered into any Agreement of Sale for the transfer of the Said Property to the Appellant nor had she authorised Mr. Bahuddin Sarhandi to enter into any Agreement of Sale for the transfer of the Said Property to the Appellant; (ii) without denying the receipts dated 29 September 1987 she "acknowledges the signature" of the Respondent on those documents; (iii) she denied that she ever entered into an Agreement of Sale with the Appellant for the transfer of the Said Property and contends that the document was executed to frustrate her entitlement to the Said Property by Mr. Bahauddin Sarhandi post their divorce; (iv) this Suit was part of a series of events which are ancillary to the divorce of the Respondent from the said Mr. Bahauddin Sarhandi and who has had Suit No. 1165 of 1994 instituted after a period of seven years through a third party to deprive the Respondent of her title to the Said Property; (v) Suit No. 1165 of 1994 was barred under Article 113 of the First Schedule read with Section 3 of the Limitation Act, 1908; (vi) that the General Power of Attorney dated 4 October 1987 was fraudulently executed and also was not admissible in evidence as having not been properly stamped nor was it notarized and hence the same could not be relied on by the Appellant as the instrument on the basis of which he could claim specific performance for the transfer of the Said Property; (vii) that the possession that had purportedly been given by Mr. Bahauddin Sarhandi to the Appellant was managed to strengthen the Appellants contentions as to his claim to the title of the Said Property.
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6. From the pleadings, the VIIIth Senior Civil Judge Karachi (East) framed the following issues: 1. Whether the suit is time barred under the Limitation Act? 2. Whether Respondent has executed Power of Attorney in favour of her ex-husband? 3. Whether the suit is under valued? 4. Whether possession of property had been handed over to Plaintiff by the Respondent? 5. Whether any contract was performed between Plaintiff and Respondent and Respondent is liable to perform her contractual liability? 6. Whether the advance earnest money was paid to the Respondent through her husband? 7. Whether the plaintiff is entitled for the relief of specific performance of contract regarding execution of registered sale deed in respect of suit property? 8. What should the decree be? 7. The matter was heard by VIIIth Senior Civil Judge Karachi (East) and was initially dismissed as being barred under Article 113 of the First Schedule read with Section 3 of the Limitation Act 1908 by a Judgement dated 24 December 2002. Against that Judgement, Civil Appeal No.42 of 2003 was preferred before IVth Additional District Judge Karachi (East), who on 4 May 2004 was pleased to hold that Suit No. 1165 of 1994 was filed within time and remanded the matter to the VIIIth Senior Civil Judge Karachi (East) to decide the same afresh. No appeal was apparently preferred by the Respondent as against the Judgement dated 4 May 2004 passed by the IVth Additional District Judge Karachi (East) in Civil Appeal No.42 of 2003 and which issue, as to whether or not Suit No. 1165 of 1994 was instituted after the period mentioned in Article 113 of the Fist Schedule of the Limitation Act, 1908 had expired, had therefore attained finality and therefore should not have been considered any further. 8. Suit No.1165 of 1994 was reheard by the VIIIth Senior Civil Judge Karachi (East), who vide Judgement dated 23 December 2004 was once again pleased to dismiss the Suit holding that: (i) the General Power of Attorney dated 4 October 1987 issued by the Respondent in favour of her husband was not valid as: (a) it had not been registered under Section 17 of the Registration Act 1908 and was fraudulently executed as it failed to disclose the relationship as between the Respondent and Mr. Bahuddin Sarhandi. (b) Mr. Bahuddin Sarhandi and the Respondent admittedly had a strained relationship, the General Power of Attorney dated 4 October 1987 ipso facto was to be considered as not being "genuine". (c) the General Power of Attorney fails to indicate that Mr. Bahuddin Sarhandi is the husband of the executant of the Power of Attorney indicating that the document was not executed by the Respondent in favour of Mr. Bahuddin Sarhandi. (ii) the General Power of Attorney dated 4 October 1987 was not proved by the Appellant as he failed to examine the attesting witnesses to that document to prove that document and the document remaining unproved could not be relied on to prove the execution of the Agreement of Sale dated 12 October 1987; (iii) the possession of the Said Property had been delivered to the Appellant by Mr. Bahudddin Sarhandi in breach of his fiduciary obligation to the Respondent in her capacity as her husband and for which, on account of the relationship as between the Appellant and Mr. Bahuddin Sarhandi, required the Respondents consent and which not having been provided vitiated such an action; (iv) the fact as to whether possession of the Said Property had been delivered to the Appellant was not proved through independent witnesses and the evidence between the Appellant and Mr. Bahuddin Sarhandi being collusive could not treated as being credible; (v) the payments of the amount of Rs. 300,000 (Rupees Three Hundred Thousand) pursuant to an Oral Agreement could not be believed as the signature was apparently forged by Mr. Bahuddin Sarhandi;
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(vi) that the payment of the sum of Rs. 300,000 (Rupees Three Hundred Thousand) having been made in cash could not be believed and therefore remained unproved; (vii) that no rights under Section 53 A of the Transfer of Property Act, 1882 could have been deemed to have been created in favour of the Appellant, as the requirements of that section were not met; (viii) that the suit was barred under Article 113 of the First Schedule of the Limitation Act, 1908 as the Appellant had admitted that the Respondent had refused to perform on the contract in 1989; (ix) that Mr. Bahuddin Sarhandi should have been impleaded as a defendant and the suit was therefore barred for misjoinder; (x) that the Suit had been incorrectly valued under the Suits Valuation Act, 1887. 9. The Appellant preferred Civil Appeal No.14 of 2005 against the Judgement dated 23 December 2004 and Decree dated 4 January 2005 before the Vth Additional District Judge Karachi (East) and who was pleased to hold that: (i) the issue as to whether or not Suit No. 1165 of 1994 was instituted after the period mentioned in Article 113 of the Fist Schedule of the Limitation Act, 1908 had expired had been settled in the Judgement dated 4 May 2004 passed by the IVth Additional District Judge Karachi (East) in Civil Appeal No.42 of 2003 and had actually not been decided by the VIIIth Senior Civil Judge Karachi (East) in the Judgement dated 23 December 2004; (ii) the version of the events as stated by the Appellant in respect of the transaction of sale, execution of power of attorney and receipts of payment, acknowledging the sale consideration paid was full of contradictions and did not inspire confidence; (iii) That the Agreement of Sale dated 12 October 1987 was based on a General Power of Attorney dated 4 October 1987 and two receipts which were not proved as: (a) the payment of Rs. 100,000 (Rupees One Hundred Thousand and Rs. 200,000 (Rupees Town Hundred Thousand) had been noted on the receipts as having been made to Mr. Bahuddin Sarhandi was in conflict with the pleadings and evidence wherein it had been stated that the payment had been made directly to the Respondent and which contradiction created a doubt on the credibility of the Appellants case; (b) the receipts were prepared on the same day as the interpolations that existed on both the documents were identical in nature giving an indicating that the receipts were "manufactured" by the Appellants and Mr. Bahuddin Sarhandi; (c) the receipts indicate the total sale consideration payable to be Rs. 300,000 (Rupees Three Hundred Thousand) while the Agreement indicated that a total amount of Rs. 400,000 (Rupees Four Hundred Thousand) was payable by the Appellants and which could not be reconciled by Mr. Bahuddin Sarhandi during cross examination; (d) as no registered Indenture of Lease had been issued by the Karachi Development Authority in respect of the Said Property, the General Power of Attorney dated 4 October 1987 could not and did not require to be registered under Section 17 of the Registration Act, 1908; (e) the General Power of Attorney dated 4 October 1987 was not notarized and not executed on a stamp paper of proper value and therefore inadmissible; (f) the General Power of Attorney dated 4 October 1987 had a clause authorizing Mr. Bahuddin Sarhandi to take possession of the Said Property which could not be reconciled against the fact that possession of the Said Property had been handed over by the Karachi Development Authority to the Respondent on 15 September 1987 and the possession having been handed over by the Karachi Development Authority to the Respondent prior to the execution of the General Power of Attorney dated 4 October 1987 would cast doubt as to the need to mention such a clause in the power of attorney thereby questioning the veracity of the execution of the General Power of Attorney dated 4 October 1987;
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(g) that the attesting witnesses to the General Power of Attorney dated 4 October 1987 having not been called to verify the contents of that document rendered it as not being proved and consequentially the capacity of Mr. Bahuddin Sarhandi to execute the Agreement of Sale dated 12 October 1987 on the basis of a General Power of Attorney dated 4 October 1987 had not been established vitiating that document, (iv) the fact that the Respondent did not adduce evidence personally and that the evidence that was adduced by her attorney having not been adduced in accordance with law was inconsequential as the burden fell on the Appellants to prove all the issues that had been settled by the VIIIth Senior Civil Judge Karachi (East) in Suit No.1165 of 1994 and not the Respondent. (v) the valuation of the Suit had not been made in accordance with the market valued as required by the Suits Valuation Act, 1877. 10. That being aggrieved and dissatisfied by the judgment dated 27 October 2007 passed by the Vth Additional District Judge Karachi (East) in Civil Appeal No.14 of 2005 Mr. Basim Raza, on behalf of the Appellant contended that the entire case of the Appellant rested on proving the General Power of Attorney dated 4 October 1987. He stated that the attorney of the Appellant was not able to produce the original of the General Power of Attorney dated 4 October 1987 in the evidence as it had been lost and therefore he had produced a photocopy. He further contended that no objection was raised as to the production as to the photocopy of the General Power of Attorney dated 4 October 1987 and as such it was correctly admitted in evidence. He further contended that as per the terms of the General Power of Attorney dated 4 October 1987 the following clauses indicated the capacity of Bahauddin Sarhandi to sell and hand over possession of the Said Property: "... (i) To receive possession of my property i.e. industrial plots 2/14 & 2/15 in Korangi Industrial Area and to enter on this property. (ii) To sale the above property and for that purpose to execute a sale agreement dated 12 October 1987 and receive payment for it and pass on a valid receipt thereof." 11. He contended that on the basis of such power the said Bahauddin Sarhandi was able to sell the Said Property to the Appellant and had received good consideration on behalf of the Respondent from the Appellant in this regard. He relied on the judgment reported as Sahibzada Anwar Hamid vs. Messrs Topworth Investments (Mascau) Ltd.[1] in support of his contention that once a Power of Attorney is authenticated in accordance with the provisions of Article 95 of the Qanun e Shahdat Order, 1984 a presumption of validity is to be attached to that document no further attesting witness would be required to prove that document. In that decision it was held that: "...25. As far as Contentions Nos.13 and 14 are concerned, power of attorney is not a document required by law to be attested by two witnesses and, therefore, Article 17 of the Qanun-e- Shahadat Order, 1984 was not applicable. As far as applicability of Article 95 is concerned it only raises a presumption if attested in accordance with the provisions of the said Article, but it does not require that a power of attorney to be valid must be attested by the persons mentioned in the said section. The powers of attorney of behalf of respondents Nos. 1, 3, 4 and 5 bear a notarial stamp but it is not the language which is not understandable because these were attested in a foreign country in a language other than English. In any case unless respondents Nos.1, 3 to 5 had disputed the authority of their counsel to represent them, the objection of the learned counsel for the petition eased on Article 95 is not sustainable. As observed above, since respondent No.1 was being duly represented by a recognized agent, and basically the claim of the petitioner-plaintiff was against respondents Nos.1 and 2, application for leave to appear and defend could be validly considered on behalf of respondents Nos.3 to 5. 25-A As far as Contention No.15 is concerned, merely because the powers of attorney did not bear the stamp, these4 were not invalid and the defect was curable under section 35 of the Stamp Act as observed by the Honourable Supreme Court in the case of Sirbuland, supra
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26. As far as Contentions Nos.16 and 18 are concerned, the question whether respondents Nos.1 to 6 had duly been served is not relevant because of my findings that the application for leave to appear and defend was competently filed on their behalf." 12. He also relied upon a decision reported as Saifullah Khan vs. Javed Icgbal[2] to support his conteion that a Power of Attorney is not a document that is required to be attested. The Supreme Court of Pakistan in that decision has held that: "... 5. We have gone through the provisions of Article 79 of the Qanun-e-Shahadat. It says that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at lease have been called for the purpose of proving its execution, that also if they are alive. In the instant case, no material was produced before us by the learned counsel for the petitioners showing that the powers of attorney compulsorily needed attestation of two witnesses at least. In such view of the fact the ground taken by the learned counsel for the petitioners also fails. 13. Finally, regarding the objection as to Suit valuation that had been taken by both the Courts, while admitting the deficiency in the Court Fees, relied upon the judgment titled Anjuman-E- Khuddam-Ul-Qur'an vs. Lt. Col. (R) Najam Hameed[3] in which it was held that an opportunity can be given at any stage to remedy the deficiency the Judgement stating that : " ... 8. The learned Trial Court also gave its findings on Issue No.4 with regard to the objection of the Court Fee where it was held that since it was not pressed therefore it was decided against the particular Defendants/Appellant. We find these observations of the learned Trial Court to be erroneous. It has been observed by this Court in the case reported as Allah Yar v. Muhammad Riaz and others (PLD 1984 SC4 489) wherein it has been held as under: "6 The mere fact that at the trial the defendant had not pressed the question of deficiency in the court-fee, does not relieve the Court of the obligation of looking into the matter, determining the correct amount of the court-fee and seeing that the deficiency is made up. In any case, the petitioner had the knowledge that he had grossly undervalued his plaint for purpose of court-fee and yet he did not make up the deficiency within time or even up to the date of final decision of the case, nor did he ever apply for extension of time under section 149 C.P.C. As such it is evident that he was not only negligent but also contumacious and his omission to make up the deficiency in the court-fee was deliberate and mala fide..." In the instant case, the value for the purpose of Court Fee was fixed by the Plaintiff/Respondent No.1 himself as rupees two crore in Paragraph No.13 of the plaint where it was mentioned that the Court Fee will be paid; which he was also bound to pay under Section 7(iv)(c) of the Court Fees Act, 1870. But contumaciously the Plaintiff/respondent No.1 never paid the Court Fee before the learned Trial Court; before the First Appellant Court he paid Rs.15/- only; and in the learned Lahore High Court he also paid Rs.15/- only. Instead of paying Rs.15,000/- before the First Appellate Court as well as before the learned High Court, he cleverly managed to avoid the payment of Court Fee while wrongly relying upon the decision of the learned Trial Court on Issue No.4. However, we are conscious of the fact that for dismissal of the Suit on the basis of non-payment or deficiency of Court Fee, Plaintiff/Respondent No.1 was entitled to be granted at least one opportunity by the Trial Court as well as the First Appellate Court and the High Court, which opportunity never extended. Plaintiff/Respondent No.1 was bound to pay Rs.15,000/- Court fee before each Court, therefore, he is directed to pay the Court Fee of Rs.15,000/- before the Trial Court and make up the deficiency of Court Fee before the First Appellate Court and the High Court within two months from today, otherwise, if the Court Fee is not paid or deficiency is not made good within stipulated time his Suit, Appeal and Revision will be deemed to have been dismissed for non-payment of Court Fee." 14. I have heard the Counsel for the appellant and have perused the record. The Issues that required determination in this second appeal are as under:
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(i) As to whether the General Power of Attorney dated 4 October 1987 can be adduced in evidence on behalf of the Appellant so as to prove the capacity of Mr. Bahauddin Sarhandi to execute the Agreement of Sale dated 12 October 1987 on behalf of the respondent? (ii) As to whether the Agreement of Sale dated 12 October 1987 could have been executed by Mr. Bahauddin Sarhandi on the basis of the General Power of Attorney dated 4 October 1987? (ii) Whether the appellant is entitled to Specific Performance on the Agreement of Sale dated 12 October 1987? A. Whether the General Power of Attorney dated 4 October 1987 can be adduced in evidence on behalf of the Appellant so as to prove the capacity of Mr. Bahauddin Sarhandi to execute the Agreement of Sale dated 12 October 1987 on behalf of the Respondent? 15. The General Power of Attorney that is being relied on by the Appellant was purportedly executed by the Respondent in favour of the Appellant on 4 October 1987. It is noted that a photocopy of the document was adduced in evidence by the Appellant as secondary evidence on the ground that the original had been lost. No objection seems to have been taken to it being adduced in evidence by the Respondent. I am in agreement with Mr. Basim Raza that as no objection was taken to the secondary evidence being adduced by the Appellant, it can be considered as having validly been adduced in evidence. Reliance in this regard may be made to the decision of the Supreme court of Pakistan reported as Muhammad Aslam vs. Mst. Gulraj Begum[4] wherein it was held that:
" ... He submitted that since the power of attorney (Ex. P/7) was not executed before a Notary Public or Court, therefore, no judicial notice could be taken thereof. It is correct that the Court could not take judicial notice of the power of attorney as it did not bear the seal of Notary Public or Court. It is also correct that under the provisions of section 67 of the Evidence Act, the power of attorney was required to be proved to be signed by the respondent without which it was inadmissible in evidence but the mode of proof of a document is a question of procedure and is capable of being waived. (See Principles and Digest of the Law of Evidence, by M. Munir, Pakistan Edition, page 740). Further, where the objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is…
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