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Official Citation: 2024 LHC 1561
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-04-18
Parties: Abdul Ghafoor and another vs Babar Sultan Jadoon and 3 others
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-04-18, officially reported as 2024 LHC 1561. In this matter between Abdul Ghafoor and another and Babar Sultan Jadoon and 3 others, 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 2024LHC1561
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf, Jawad Hassan Title: Abdul Ghafoor and another vs Babar Sultan Jadoon and 3 others Case No.: Regular First Appeal No.71 of 2021 Date of Judgment:2024-04-18 Reported As: 2024 LHC 1561, 2024 CLC 1415 Result: Appeal Dismissed
JUDGMENT
JUDGMENT MIRZA VIOAS RAUF, J. This regular first appeal under Section 96 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "C.P.C.") stems from the judgment and decree dated 06th March, 2021, whereby the learned Civil Judge Class-I, Rawalpindi proceeded to dismiss the suit instituted by appellant No.1 namely Abdul Ghafoor (hereinafter referred to as "appellant"). 2. Facts forming background of this appeal are that "appellant" executed general attorney in favour of respondent No.1 namely Babar Sultan Jadoon (hereinafter referred to as "respondent") on 12th December, 2005 alongwith an agreement to sell of same date. In furtherance of the general attorney "respondent" executed registered sale deeds No.5041 & 5042 dated 15th July, 2006 in favour of respondents No.2 & 3, who are his real brothers. Being offended with the execution of sale deeds, the "appellant" instituted a suit seeking cancellation of sale deeds and revocation of general power of attorney alongwith recovery of an amount of rupees four crore coupled with damages amounting to rupees two crore and possession of plot. Suit was resisted by respondents No.1 to 3, who submitted their written statement wherein they asserted that in pursuance to the general attorney executed in favour of "respondent" by the "appellant" coupled with agreement to sell dated 12th December, 2005, he was left with no right to suit property and as such "respondent" rightly executed the registered sale deeds in favour of his brothers. On the other hand, appellant No.2 and respondent No.4 being defendants were proceeded against ex-parte vide order dated 02nd December, 2010. In the light of divergent pleadings of the contesting parties following multiple issues were framed :- ISSUES
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Whether the registered sale deeds Nos.5041 & 5042 dated 15.07.2006 are result of fraud and misrepresentation and are liable to be cancelled, if so its effect? OPP Whether registered general power of attorney No.2936 dated 12.12.2005 is liable to be cancelled, if so its effect? OPP Whether plaintiff is entitled for an amount of Rs.2 Crore as damages from the defendants No.1 to 3, if so its effect? OPP Whether plaintiff is entitled for a decree of mesne profit at the rate of 14% per annum, if so its effect? OPP Whether plaintiff is entitled to receive Rs.04 crore from defendants No.1 to 3 as an alternative relief? OPP Whether plaintiff is entitled for a decree of declaration, recovery of physical possession alongwith consequential relief as prayed for? OPP Whether defendant No.1 executed disputed registered sale deed in favour of defendant No.2 and 3 being lawful attorney with consideration, if so its effect? OPD 1 to 3 Whether plaintiff alongwith proforma defendants entered into an agreement to sell with defendant No.1 on 12.12.2005 against consideration of Rs.07 million which were paid, if so its effect? OPD 1 to 39. Whether the suit is hopelessly time barred by limitation? OPD 1 to 3 Whether plaintiff has got no cause of action to file the instant suit? OPD 1 to 3 Whether plaint is liable to be rejected under Order VII rule 11 CPC? OPD Whether plaintiff has filed false, frivolous and vexatious suit against defendants, hence defendants are entitled for special costs under section 35-A CPC? OPD Relief. After framing of issues both the sides produced their respective evidence on completion whereof, suit was dismissed through impugned judgment and decree. 3. Learned counsel for the appellants contended that in pursuance to the general power of attorney "respondent" got executed agreement to sell in his favour while practicing fraud and misrepresentation. He added that on the basis thereof, "respondent" though claimed protection of Section 202 of the Contract Act, 1882 that the attorney has become irrevocable but it is not so. Learned counsel argued with vehemence that the "appellant" has been non-suited on extraneous reasons. It is contended that execution of sale deeds in favour of his own brothers without seeking independent advice from the "appellant" being principal rendering the sale deeds invalid. Learned counsel submitted that though suit was well within time but it has been adjudged otherwise without adverting to the material pieces of evidence. It is emphatically contended that in the circumstances the limitation would be governed under Article 120 of the Limitation Act, 1908 and as such suit was well within time. In order to supplement his contentions, learned counsel placed reliance on Mst. IZZAT versus ALLAH DITTA (PLD 1981 Supreme Court 165), FIDA MUHAMMAD versus Pir MUHAMMAD KHAN (DECEASED) THROUGH LEGAL HEIRS AND OTHERS (PLD 1985 Supreme Court 341), MUHAMMAD AJAIB versus MUGHAL HUSSAIN and 2 others (2004 YLR 690) and MEDIA MAX (PVT) LTD. through Chief Executive versus ARMY COMMUNICATION PVT. LTD. through Chief Executive and another (PLD 2013 Sindh 555). Conversely, learned counsel for respondents No.1 to 3 submitted that suit was covered under Article 91 of the Limitation Act, 1908 and it was clearly barred by time. Learned counsel argued that suit instituted by the "appellant" was in terms of Section 39 of the Specific Relief Act, 1877 and it is not to be governed under Article 120 of the Act ibid at all. Learned counsel contended that overwhelming evidence is available on the record with regard to the execution of agreement to sell in favour of "respondent" by "appellant". It is maintained that after the creation of interest in the suit property, power of attorney which is even otherwise is admitted became irrevocable. Learned counsel contended that possession of the suit property lies with respondents No.1 to 3 and the "appellant"
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has concealed material facts, while instituting the suit. Learned counsel further contended that suit was rightly dismissed by the trial court and as such impugned judgment is unexceptionable. It is also one of the arguments of learned counsel for respondents No.1 to 3 that documents were produced by the "appellant" in the statement of his counsel, which is not permissible at all. Placed reliance on Dr. MUHAMMAD JAVAID SHAFI versus Syed RASHID ARSHAD and others (PLD 2015 Supreme Court 212), IMAM DIN and 4 others versus BASHIR AHMED and 10 others (PLD 2005 Supreme Court 418), S.K. SHAH through LRs versus JAMALUDDIN and others (2017 SCMR 626), MUHAMMAD ASLAM versus Mst. FEROZI and others (PLD 2001 Supreme Court 213) and MANZOOR HUSSAIN (deceased) through L.Rs. versus MISRI KHAN (PLD 2020 Supreme Court 749). Heard. Record perused. The property in dispute is a commercial plot measuring 26 Marla situated at near Tipu Road, revenue estate of Mareer Hassan, Qasbati, within the area of Tehsil Municipal Authority, Rawalpindi (hereinafter referred to as "suit property"), which was jointly owned by the appellants and respondent No.4. Being the owners of the "suit property", the appellants as well as respondent No.4 executed a general power of attorney bearing No.2936 dated 12th December, 2005 in favour of "respondent", who in furtherance thereof executed registered sale deed bearing No.5041 and 5042 dated 15th July, 2006 in favour of respondents No.2 and 3, who are his brothers, which became the root cause of litigation interse parties. Being offended with the registered sale deeds, the "appellant" instituted the suit seeking cancellation of sale deeds as well as general power of attorney, recovery of amount of rupees four crore or the market value of the "suit property" alongwith possession. The validity of the sale deeds is questioned by "appellant" on two fold grounds; firstly, that the same were executed by the "respondent" in violation of the general power of attorney and agreement to sell dated 12th December, 2005 executed by him in favour of "appellant" and secondly the sale deeds are the product of fraud. Contrary to this, while submitting joint written statement it was pleaded by the respondents No.1 to 3 that general power of attorney executed in favour of "respondent" was with consideration as it was coupled with an agreement to sell of even date. From the pleadings of the parties there emerges some undisputed facts which are as follows :- Suit property was originally owned by the appellants and respondent No.4. All the owners executed general power of attorney in favour of "respondent". "Respondent" while acting upon general power of attorney executed sale deeds No.5041 and 5042 dated 15th July, 2006 in favour of his brothers i.e. respondents No.2 & 3. Parties are, however, at poles apart with regard to following aspects:- 7. As per claim of the "appellant" after execution of general attorney the "respondent" executed an agreement to sell in his favour of even date whereunder he bound himself to pay the sale proceeds as per terms settled therein. on the contrary, "respondent" denied execution of any such agreement in favour of "appellant". Similarly, agreement to sell pleaded by "respondent" being executed in furtherance of general power of attorney in his favour was seriously disputed by "appellant". The factum of possession is also in dispute amongst the parties as per respective pleadings. In this backdrop, the appellants assert that the general power of attorney was not coupled with any interest and as such the registered sale deeds executed in favour of respondents No. 2 and 3 are without any lawful authority unless the "respondent" being the attorney sought a permission from his principal i.e. "appellant". On the contrary, claim of respondents No.1 to 3 is that general power of attorney was since coupled with agreement to sell and the principal has also received the sale consideration, so it was irrevocable and there was no need to seek permission from the "appellant" being principal. In addition suit was also resisted on the ground of limitation. From the respective pleadings of the parties and contentions of their counsel, following points for determination emerge :-
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i. Distinction between a suit for cancellation and suit for declaration. ii. Applicability of Articles 91 and 120 of the Limitation Act, 1908 (hereinafter referred to as "Act 1908") iii. Scope and import of Section 202 of the Contract Act, 1872 (hereinafter referred to as "Act, 1872"). 8. Before delving into the moot points, it would not be out of context to mention here that points No. (i) & (ii) are interconnected and dependent to each other. The applicability of Articles 91 and 120 of the "Act 1908" is dependent upon the actual nature of the suit. From the perusal of plaint, it is apparent that it was captioned as suit for cancellation. Though learned counsel for the appellants while making reference to MUHAMMAD AJAIB versus MUGHAL HUSSAIN and 2 others (2004 YLR 690) submitted that nature of the suit is not dependent on its caption, rather it is to be gathered from its contents. In order to address this issue, it would be advantageous to have a comparative analysis of Sections 39 and 42 of the Specific Relief Act, 1877 (hereinafter referred to as "Act 1877"). Both the provisions are reproduced below for the purpose of comparative analysis:- "39. When cancellation may be ordered. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. If the instrument has been registered under the Indian Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." "42. Discretion of Court as to declaration of status or right. Any person entitled to any character, or any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. (2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under sub-section (1) shall be decided by the Court within six months and the appellate court shall decide the appeal not later than ninety days, as the case may be." Section 39 is part of Chapter V which deals with the cancellation of instruments whereas Chapter VI relates to declaratory decrees and Section 42 forms part of the same. In terms of former provision any person having reasonable apprehension that a written instrument being void or voidable to his extent, if left outstanding, may cause him serious injury can sue to have it adjudged void or voidable and the court may in its discretion, so adjudge it and order it to be delivered up and cancelled whereas in terms of latter any person entitled to any character, or any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled and such person need not in such suit to ask for any other relief. 10. The notable distinction between the above two provisions of the "Act 1877" is that Section 39 presupposes that the document whose cancellation is sought through the suit is void or voidable qua the plaintiff whereas in terms of Section 42 a person entitled to any character or to any right to any property being offended from the denial of such character or right or title from any other person, seeks a declaration of his status or right without asking for cancellation in furtherance of such declaration. 11. In the case of KHALID HUSSAIN and others versus NAZIR AHMAD and others (2021 SCMR 1986), the Supreme Court of Pakistan outlined the distinctive features of Sections 39 & 42 of the "Act 1877" in the following words:-
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"4. There is a marked yet subtle distinction between a suit for cancellation of a document under section 39 of the Act of 1877, and a suit for declaration of a document under section 42 of the Act of 1877. The crucial feature determining which remedy the aggrieved person is to adopt, is: whether the document is void or voidable. In case of a voidable document, for instance, where the document is admitted to have been executed by the executant, but is challenged for his consent having been obtained by coercion, fraud, misrepresentation or undue influence, then the person aggrieved only has the remedy of instituting a suit for cancellation of that document under section 39 of the Act of 1877, and a suit for declaration regarding the said document under section 42 is not maintainable. On the other hand, in respect of a void document, for instance, when the execution of the document is denied as being forged or procured through deceit about the very nature of the document, then the person aggrieved has the option to institute a suit, either for cancellation of that instrument under section 39 of the Act of 1877, or for declaration of his right not to be affected by that document under section 42 of the Act of 1877; it is not necessary for him to file a suit for cancellation of the void document." 12. To the above effect, reference can also be made to Mst. HALIMAN BIBI versus MUHAMMAD BASHIR and 2 others (1989 CLC 1588). The relevant extract from the same is reproduced below:- "5. Both the contentions of the learned counsel are well founded. As regards the first contention, from the perusal of the plaint it is apparent that the petitioner had sought a declaration that the gift deed in question was illegal, unlawful, void and not binding on her. The plaint did not contain any prayer that she be declared as owner of the suit land and no declaration was asked for with regard to her title. On a bare reading of the plaint it appears that the suit was governed by section 39 of the Specific Relief Act and not by section 42 thereof. The distinction between a suit under section 39 of the Act and a suit under section 42 is quite obvious. In the former case the plaintiff does not seek a declaration regarding his title but only about invalidity of a deed while in the latter case relief asked for is regarding the title of the plaintiff or right in any property or status. In Bahadurmull Chawdhury and others v. Nagarmull Madangopal and others AIR 1941 Calcutta 534 it was observed that though the Court's power to make declaratory decrees are limited by section 42 which apply only to cases in which the plaintiff, being entitled to any legal character or to any right to any property, brings a suit against a person denying his title to such character or right; but a suit to adjudge and declare that a contract is void and order it to be delivered up and cancelled is competent by reason of section 39. Similarly in Maneshier Gir v. Rehmatullah and others AIR 1936 Allahabad 710 it was held that where the plaintiff sought to have two deeds in question adjudged void, section 39 and not section 42 of the Specific Relief Act, 1877 applied. 6. In order to determine whether a suit falls under section 39 or section 42 of the Act, it is the plaint as a whole which is to be considered. Even if, like the present case, the petitioner only prays for a declaration that the deed is void or invalid without asking for further relief of cancellation of the document, still the suit falls within section 39 of the Specific Relief Act, for, it is well settled that the prayer for cancellation need not be specifically made but is inherent and flows from the relief regarding the prayer for adjudging the document void. A Division Bench of Allahabad High Court in Akhlaq Ahmad and others v. Mst. Karam Elahi AIR 1935 Allahabad 207 was of the view that a suit under section 39, Specific Relief Act, for avoiding an instrument, even if there be no prayer for cancellation carries with it by implication a prayer that the Court may further use the discretion given to it by section 39 so as to order the said instrument to be delivered up and cancelled. Similarly in Bulakram and another v. Ganga Bishum Chaudhury AIR 1940 Patna 133 it was observed that it is open to the Court though there is no prayer for it to order the document to be delivered up and cancelled in a suit brought by the plaintiff for a declaration that the document is void. It thus
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becomes clear that even in the absence of prayer for cancellation, the suit of the petitioner was governed by section 39 of the Specific Relief Act and not section 42 thereof. Under the law it is not necessary that in a suit governed by section 39 of the Specific Relief Act the plaintiff should in addition to a prayer for having the document adjudged void claim any further relief available to him. Section 39 of the Act does not contain provision similar to the proviso to section 42 of the Act which bars the Court from granting a declaration if the plaintiff being entitled to further relief, omits to do so. This question was examined by a Division Bench of this Court in Nur Muhammad v. Mst. Karim Bibi PLD 1959 Lah. 932 wherein it was observed that a suit under section 39 of the Specific Relief Act cannot be held to be non-maintainable on account of the omission of the plaintiff to sue for further relief even if such a relief is available to him. The learned District Judge did not advert to this aspect of the case." 13. On the above laid analogy when the suit at hand is examined, it is quite obvious therefrom that the appellants did not deny the execution of general power of attorney and while admitting its execution are seeking cancellation. The registered sale deeds are clearly offshoot of general power of attorney. Moreover, the appellants are not seeking a declaration regarding their title but their concern is with regard to the validity of the deeds in question. In this background, suit was in the nature of cancellation and that's why it was also captioned so, falling within the domain of Section 39 of the "Act 1877". 14. After having an answer with regard to the nature of the suit, it became very easy to hold that the suit would be governed under Article 91 of the "Act 1908". Needless to observe that had it been a suit under Section 42 of the "Act 1877" it would certainly be governed by Article 120 of the "Act 1908". Article 91 provides limitation of three years from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. It is asserted by "appellant" in the plaint that cause of action, firstly accrued to him on 12th December, 2005 on the execution of general power of attorney and it remained operative till the execution of sale deeds by the "respondent" in favour of respondents No. 2 and 3 on 15th July, 2006, which stance is even evident from his statement, when he appeared as PW.1. The relevant extract is reproduced below:- {{URDU TEX}} Suit was admittedly instituted on 31st May, 2010, which was thus clearly barred by time. Reliance in this respect can be placed on Mst. HAMIDA BEGUM versus Mst. MURAD BEGUM AND OTHERS (PLD 1975 Supreme Court 624). The relevant extract from the same is reproduced below:- "Learned counsel for the appellant is right in contending that Article 91 does not apply to a suit where the cancellation of the instrument is merely incidental or ancillary to the substantial relief claimed by the plaintiff, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiff's rights. This proposition finds support from a number of precedent cases, namely, Bachchan Singh v. Kamta Prasad (I L R 32 All. 392), Mt. Bageshra v. Shoo Nath (AIR 1916 All. 339), Chhaju Mal v. Multan Singh (AIR 1936 Lah. 996), Unni v. Kunchi Amma (I L R 14 Mad. 26) and Rampal Singh v. Balbhaddar Singh (I L R 25 All. 1). In all these cases the principle enunciated is that if the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91. Applying this principle to the case before us, we find that the plaintiff, claiming, as she does, through the executor of the impugned instruments cannot succeed in recovering her share in the inheritance unless she prays for the cancellation or setting aside of these documents. As a successor-in-interest of Sh. Mehar Din she is bound by these instruments as long as they remain operative, with the result that the property in dispute would not be available for her to inherit. It follows from what we have said in the preceding paragraphs that the appellant's suit was indeed governed by Article 91 of the Limitation Act. The question, however, is regarding the starting point of
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limitation. The learned Judge in the High Court has taken the view that the right to sue had accrued to the plaintiff during the lifetime of her father, Sh. Mehar Din; that time started to run against her from the date of the execution of the deeds; and that in any case she had come to know about these instruments on or about the 14th of November 1945, on which date her Mukhtar, Taj Din, had applied for copies of the mutations attested in this behalf on the 4th of August 1945. On these facts, the learned Judge has concluded that the suit filed on the 2nd of October 1950 was clearly barred by limitation, as the period allowed under the law was only three years." 15. In the case of MUHAMMAD SHARIF and 13 others versus INAYAT ULLAH and 24 others (1996 SCMR 145) the Supreme Court of Pakistan reiterated the above principles in the following words:- "12. Article 95 of the Limitation Act provides a limitation period of three years for a suit "To set aside a decree obtained by fraud, or for other relief on the ground of fraud" and the terminus a quo is the date "When the fraud becomes known to the party wronged". Now the suit of the plaintiffs in the present case is a suit for declaration and recovery of possession of the land in dispute and not for setting aside any decree or document based on fraud. It is manifest from the body of the plaint and the prayer made therein that the plaintiffs sought it to be declared that the power of attorney purporting to have been executed by them on the basis whereof,…
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