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Petitioner: RAEES AHMED through L.Rs, VS Respondent: PAKISTAN DEFENCE OFFICERS HOUSING JUDGMENT
Court Name: Sindh High Court Judge(s): Amir Hani Muslim Title:RAEES AHMED through L.Rs, vs PAKISTAN DEFENCE OFFICERS HOUSING
JUDGMENT
Reported As: 2005 CLC 1182 Result: Order accordingly Judgment JUDGMENT ' The plaintiff, Rais Ahmed, who during the pendency of the suit has died and is represented through his L.Rs,, has filed the present proceedings against the defendants with the following reliefs:-- "(a) Cancellation of Transfer of the Plot bearing No,3, Khayaban-eBadar, Phase VI, measuring 1983 square yards in favour of defendant No,3 and direct defendant No,1 to transfer the same in favour of the plaintiff; (b) Permanent injunction restraining the defendants from further transferring/alienating/encumbering the suit plot to anyone else but to the plaintiff; (c) In the alternative, if for any reason the above prayers at (a) and (b) cannot be granted then a decree be passed for the sum of Rs,40 lacs against the defendants jointly and/or severally with interest at the usual rate i,e, 15% per annum with effect from 4th of June, 1987, the date on which the transfer was undertaken to be executed by defendant No,1 in favour of the plaintiff. (d) Costs of the suit. (e) Any other relief which the Honourable Court may deem fit and proper under the circumstances of the case. 2. The facts as they appear from the pleadings of the parties are that the plaintiff purchased Plot No,3, Khayaban-e-Badar, Phase VI, Defence Housing Authority, Karachi, from one Shehnaz Begum. The plaintiff approached the defendant No,1 for the transfer of the said plot in his name and had complied with the requisite formalities for the purposes of transfer of the plot in his name in the record of the defendant No, 1 . The plaintiff claims to have appeared with the said Shehnaz Begum
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before the defendant No,1 and on execution, confirmation and verification of the requisite documents, was issued receipt on 4-5-1987 by the defendant No,1 for collection of Transfer Order in his favour by 4-6-1987. 3. The plaintiff, on account of his heart ailment, could not contact the office of defendant No,1 for the purpose of collection of Transfer of Order of the plot in his favour. The plaintiff further claims that he received a letter on 17-7-1987 from the defendant No,1, copy of which was endorsed to the defendants Nos.2 and 3 calling upon the plaintiff to visit the office of defendant No,1 along with the identity card. The subject-matter of the said letter reflected an affidavit of 18-5-1987. The said letter, the plaintiff claims, was mailed on 18-7-1987 and received by the plaintiff either on 25 or 16th July, 1987, as the letter was not mailed under registered post. 4. The plaintiff claims that on 28-7-1987 the plaintiff visited the office of the defendant No,1 and was shocked to notice that the defendant No,2 fraudulently had sold his plot to the defendant No,3 by forging his signatures, after unauthorizedly collecting the original Transfer Order of the plot from the defendant No, I. The plaintiff further claims that he on noticing fraud immediately lodged a written complaint on the same day with the office of the defendant No,1 where after the defendant No,2 called the plaintiff and handed over him a pay order of Rs,5,00,000 to be kept "in trust" with an assurance to get the matter settled while admitting that he has committed a mistake. The defendant No,2 during this meeting requested the plaintiff not to prosecute him for the fraud committed by him. The plaintiff claims that he did not give any assurance to the defendant No,2 and kept the pay order in "trust" for the defendant No,2. 5. It has been pleaded in the plaint that a meeting was arranged on 3-8-1987 between the plaintiff, defendants Nos.2 and 3 in the office of defendant No,1 but no settlement was arrived at between the parties, as a result of which, the plaintiff after giving legal notice to the defendant No,1 has filed the present proceedings. 6. The defendant No,1 in reply had filed written statement in which they have taken the plea that the original Transfer Order in favour of the plaintiff was delivered to the authorized agent (defendant No,2) of the plaintiff as per their record. The defendant No,1 has, however, admitted in paragraph 7 of their written statement that a letter dated 17-7-1987 was addressed by them to the plaintiff. The defendant No,1 however, has disputed the allegations of fraud made by the plaintiff and has pleaded that the plot was lawfully transferred in favour of the defendant No,3 and has prayed for dismissal of the suit. 7. The defendant No,2 filed his written statement in which he had pleaded that the defendant No,3 approached him to arrange transfer of suit property and had presented some fictitious person before the defendant No,1 by introducing him as the Rais Ahmed (plaintiff) as a seller of the plot. The defendant No,2 had pleaded that he prepared the papers and submitted them to the office of the defendant No,1 and had received a sum of Rs,15,000 for the services he provided to the defendant No,3. The defendant No,2 has claimed that his role was confined to the submission of the papers to the office of defendant No, 1. He further pleaded that on acquiring the knowledge that the papers have been. Submitted through fictitious seller, he intervened and paid Rs,10,50,000 to the plaintiff and attempted to resolve the dispute between the plaintiff and defendant No,3. In the written statement it was further pleaded that defendant No,3 was required to transfer the plot to the plaintiff on receipt of Rs,13,50,000 but it was flatly refused by the defendant No,3. He lastly prayed for the dismissal of the suit against him. 8. The defendant No,3 tiled his written statement denying the averments made in the plaint. He claimed that the market value of the plot at the relevant time was Rs,13,50,000 which amount he claims to have paid to the defendant No,2, who was the authorized agent of the plaintiff. In his written statement it was denied that the plaintiff had received Rs,5,00,000 in Trust from the defendant No,2 and has pleaded that the plaintiff has in fact received Rs,8,00,000 and the balance
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amount of sale consideration was with the defendant No,1 and on account of appreciation in the value of the property, the plaintiff has objected to the sale of the property. The defendant No,3 claims to be a bona fide purchaser. The defendant No,3 has denied, pleaded that the plaintiff was entitled to any of the relief against the defendant No,3 except that he was only entitled to the recovery of the balance sale consideration from the defendant No,2. 9. Out of the pleadings of the parties, on 28-10-1990 the Court framed the following issues:- "(1) Whether the plaintiff authorized the defendant No,2 to collect from the office of defendant No,1 the Transfer Order in respect of the suit plot? (2) Whether the defendant No,2 practised fraud on the plaintiff and the defendant No,1, by forging signature of the plaintiff and receiving transfer paper in respect of the suit plot from the defendant No,1? (3) Whether the documents in respect of transfer of the suit plot in favour of the defendant No,3 are forged and fraudulent? (4) Whether the defendant No,2 confessed commission of fraud and paid Rs,5 lacs to the plaintiff by way of trust for getting the matter settled? (5) Whether the transfer of the suit plot in favour of the defendant No,3 is fraudulent and liable to be cancelled? (6) What should the decree be?" 10. The plaintiff examined himself and has produced original receipt dated 3-5-1987 regarding submission of transfer documents issued by defendant No,1 as Exh P.W.1/1, original letter, dated 17- 7-1987 addressed to the plaintiff by the defendant No,1 as Exh.P.W.1/2, original authority letter of the plaintiff addressed to the defendant No,1 as Exh.P.W.1/3, original letter addressed to the defendant Nol. Bearing specimen signatures of the plaintiff as Exh.P.W.1/4, original undertaking given by the plaintiff as Exh.P.W.1/5, Original Transfer Affidavit of the plaintiff as Exh.P.W.1/6, original letter/application addressed to the defendant No,1 by the plaintiff regarding mutation as Exh.P.W.1/7, original complaint dated 28-7-1987 addressed to the Secretary of defendant No,1 as Exh.P.W.1/8, original letter dated 3-8-1987 addressed by the defendant No,1 to the plaintiff as Exhibit P.W.1/9, carbon copy of legal notice dated 17-8-1987 addressed to the defendant No,1 as Exhibit P.W.1/10, AD Card as Exh.P.W.1/11, copy of plaint as Exh.P.W.1/12, original Transfer Order issued by the defendant No,1 on 21-5-1987, in favour of Mst. Shahnaz Begum as Exh.P.W.1/13, carbon copy of Transfer Order issued by the defendant No,1 on 22-7-1987 in favour of the plaintiff as Exh.P.W.1/14, photocopy of Certificate of Nationality of the plaintiff as Exh.X.2 and photocopy of the plaintiffs' NIC as X-3.. 11. The defendant No,1 having produced the documents through plaintiff did not lead any evidence. The defendant No,2 after filing the written statement neither contested the proceedings nor appeared in the witness-box. 12. The defendant No,3, however, examined himself and has produced counter-affidavit dated 7-2- 1988 as Exh.D./2. 13. Mr. H.A. Rahmani, learned counsel for the plaintiff, has contended that the plaintiff never authorized the defendant No,2 to collect the original Transfer Order, Exh.P.W.1/13, from the office of the defendant No,1, on 3-6-1987. He submitted that original authority letter of the plaintiff addressed to the defendant No,1, Exh.P.W.1/3, letter addressed to the defendant No,1 bearing specimen signatures of the plaintiff, Exh.P.W.1/4, undertaking given by the plaintiff, Exh.P.W.1/5, Original Transfer Affidavit of the plaintiff, Exh.P.W.1/6 and application addressed to the defendant No,1 by the plaintiff requesting mutation of the plot, Exh.P.W.1/7, were forged documents and the plaintiff has denied his signatures on them. Mr. H.A. Rahmani contended that in order to get the plot in-question transferred in favour of the defendant No,3 the defendants have fabricated the aforesaid documents.
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14. He next contended that aforesaid documents were filed by the defendant No,1, which were produced and exhibited during the evidence of the plaintiff, who has denied his signatures on them. According to the learned counsel all these documents which were produced and exhibited were subject to prove of their contents. The defendants have failed to prove the contents of these documents. It was contended by the learned counsel that the attesting witnesses of Exh.P.W.1/4 (specimen signatures) and Exh.P.W.1/7 were not examined by the defendants. The Estate Agent Shahid Aleem through whom the defendant No,3 claims to have purchased the plot was also not examined. 15. It was further contended by the learned plaintiff's counsel that neither any document pertaining to the so-called sale transaction has been proved nor the so-called transaction itself has been proved in absence of the direct evidence. He submitted that the undated Authority Letter purported to have been signed by the plaintiff was taken on record pursuant to an order of this Court passed on the applications (C.M.As. Nos.7665 of 1999 and 7897 of 1999) of the defendants on 18-2-2004, through which an attempt was made to show that the plaintiff had authorized the defendant No,2 to collect the Original Transfer Order, Exh.P.W.1/13, from the office of defendant No, 1. He submitted that even this document has not been produced in evidence nor was proved nor the plaintiff was confronted with this document. He submitted that the defendants have failed to prove either signatures of the plaintiff or the contents of different Exhibits on which the plaintiff has denied his signatures in order to establish that plaintiff ever authorized any person to sell his plot. He submitted that the defendant have failed to bring any material on record to reflect that sale of the plot was ever agreed to by the plaintiff. 16. Mr. M.A. Rahmani in support of his contention has relied upon the case of Karachi Municipal Corporation v. Ali Hussain, reported in 1982 CLC 93 at page 95, case of Muhammad Yousuf v. S.M. Ayub, reported in PLD 1973 SC 160 (190 and 192), and D.B. Judgment in the case of Tariq Mehmood v. Zarda Begum reported in 1995 CLC 531 at 539 that non-confrontation of the documents to a witness of a party when he is in witness-box were held to be fatal. He further submitted that in the case of Sanaullah v. Muhammad Manzoor reported in PLD 1996 SC 256 the Honourable Supreme Court has laid down the principles providing modes of proof a document. He submitted that the witness of defendant No,1 was not examined as the defendant No,1 was relying upon the documentary evidence, which documents were produced in the evidence of the plaintiff. Even the documents filed and relied upon by the defendant No,1, which were produced in the evidence of the plaintiff do not reflect that the plaintiff had given any authority to the defendant No:2 to enter into any sale transaction and or to accept any sale consideration of the plot and or to act as an agent of the plaintiff before the defendant No,l. He submitted that the issue No,1 has, not been proved and as a consequence the logical conclusion would be that fraud was practised by the defendant No,2 in connivance with the other two defendants and avoided appearance in the witness-box to support them. The documents on which the plaintiff has denied his signatures were not proved, in law and, therefore, the defendant No,1 has failed to perform' its duty by not verifying the authenticity of different documents on the basis of which the plot in-question was transferred to the defendant No,3. 17. On issue No,3, Mr. Rahmani has submitted that the defendant No,3 was the beneficiary of the documents alleged to have been signed by the plaintiff and, therefore, the onus to prove these documents lies upon him to prove its contents particularly the documents, Exhs.P.W.1/1 to P.W.1/7, on which the plaintiff has denied his signatures. In support of his contention he has relied upon the case of Muhammad Yusuf S.M. Ayub reported in PLD 1973 SC 160, case of Bengal Friends & Co. v. Gour Benode Saha & Co. Reported in PLD 1969 SC 477, case of Foremost T. Co. v. Caledonian I.C. Ltd. Reported in PLD 1988 Kar. 131, case of Sanaullah v. Muhammad Manzoor reported in PLD 1996 SC 256, case of Siraj Din v. Jamilan reported in PLD 1997 Lah. 633 and case of Muhammad Khan v Rasul
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Bibi reported in PLD 2003 SC 676. The defendant No,3 failed to discharge his burden to prove these documents. 18. The learned counsel next contended that in paragraphs, 8 and 14 of the plaint the plaintiff has denied execution of the documents, which were shown to him for the first time by the defendant No,1 in their office on 28-7-1987 and at the first available opportunity on the same day, he lodged complaint Exh.P.W.1/8 denying execution of the documents. He submitted that once a document is denied in such manner, no further objection is required to be raised irrespective of the fact that such document was produced and exhibited and it will have no evidentiary value unless the contents of such document besides the signature of the executant are proved. In support of his contention, he has relied upon the case of Abdul Razzak v. Fatima Bai reported in 1981 CLC 1083. He further submitted that in order to prove documents not only the factum of signatures but the contents of such documents are also required to be proved in terms of the Article 87 of the Qanun- e-Shahadat. He, therefore, contended that it was a case of no evidence against the plaintiff. 19. It was next contended by the learned counsel Mr. H.A. Rahmani that even the attesting witnesses of Exhs.P.W.1/4, P.W.1/6 and P.W.1/7 were not examined to prove the documents and the defendant No,1 public body has erroneously accepted the different documents including the referred exhibits without examining their authenticity. He submitted that one Brigadier from Quetta initially attested Exhs.P.W.1/4 and P.W.1/7 and thereafter, a Colonel has further attested them. None of them were examined to prove the signatures of the plaintiff. Even the Oath Commissioner before whom the Exh.P.W.1/6, the affidavit alleged to have been sworn by the plaintiff, was not examined to prove its execution or the contents of the affidavit. 20. Mr. Rahmani contended that the documents relied upon by the defendant No,3 on the basis of which the transfer was made by the defendant No,1 since were not proved, therefore, Issue No,3 has to be answered in affirmative. 21. On Issue No,4, it was contended by Mr. Rahmani that in paragraph 10 of the plaint it has been pleaded that the plaintiff was handed over the pay order of Rs,5,00,000 to be kept in trust by the defendant No,2. It was pleaded in the said paragraph that the defendant No,2 has admitted his mistake and requested the plaintiff that he may not be prosecuted for his fault. In reply to the receipt of Rs,5,00,000 as trust, the defendant No,2 has not disputed that the plaintiff has received the amount of Rs,5,00,000 as per paragraphs 14 and 15 of his written statement. The learned counsel has drawn my attention to the examination-in-chief of the plaintiff in which the plaintiff has deposed that he met with defendant No,2 in his shop. The defendant No,2 admitted that he committed a mistake and requested the plaintiff not to report the matter to police and gave a pay order of Rs,5,00,000 to be kept as trust and promised to get the plot transferred back to him. He submitted that this portion of examination-in-chief of the plaintiff was not challenged by any of the defendants and there is no suggestion in the cross-examination to the plaintiff that the amount of Rs,5,00,000 was not kept in trust and or any other amount was paid to him. He submitted that the plea taken by the plaintiff that the amount of Rs,5,00,000 was kept "in trust" has gone unchallenged and, therefore, the issue No,4 has to be answered in favour of the plaintiff. 22. On issue No,5 Mr. Rahmani contended that the transfer of the plot made by the defendant No,1 to the defendant No,3 was collusive, illegal and unauthorized. The learned counsel contended that the letter of authority purported to have been assigned by the plaintiff, which was taken on record pursuant to the order of this Court dated 18-2-2004 would not amount to proof of its contents as in the order the document was taken on record subject to all just exceptions, which implies that even the letter of authority, which was ordered to form part of evidence, its contents were required to be proved independently when the plaintiff had specifically denied his signatures on this document. He submitted that the defendant No,1 was in error in allowing the transfer of the subject plot in favour of the defendant No,3 without procuring personal appearance of the plaintiff as was done
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by the Officers of the defendant No,1 in the case of transfer of the plot in favour of the plaintiff when Shahnaz Begum, the seller, had personally appeared with the plaintiff. It is submitted that there was no explanation by the defendant No,1 for deviation from the procedure in the case of defendant No,3. The plaintiff was never required by the defendant No,1 to appear in person, before accepting the transfer of the plot in favour of defendant No,3. He submitted that there was also no explanation as to why an application for transfer in favour of defendant No,3 was entertained even prior to transfer order prepared in favour of the plaintiff. He submitted that the original authority or the sale agreement, purported to have been signed by the plaintiff, were neither produced nor the defendants Nos.1 and 3 confronted the plaintiff with these two documents. The learned counsel submitted that even prior to purchase of the plot in question, no publication in any newspaper was made. Even the sale consideration, which the defendant No,3 claims to have made, was not made in the name of the plaintiff. Instead two pay orders, one in the name of a lady and the other in the name of the defendant No,2 were made for which no explanation was given by either of the defendants. 23. The learned counsel further submitted that the law requires that a purchaser has to hold thorough inquiry before he purchases a property. The defendant No,3 before the purchase of property did not contact the plaintiff for the proposed sale transaction for which no explanation was given either in the written statement or in the evidence. He submitted that on the aforesaid grounds the claim of the defendant No,3 that he was a bona fide purchaser, without notice, fails. In support of his contention he has relied upon case of Abdul Ghafoor v. Muhammad Akram reported in PLD 2003 Lah. 576. 24. Mr. Narain Das, the learned counsel for defendant No,3 has contended that there is procedure provided for transfer of plot by the defendant No, 1. According to the learned counsel personal appearance of a party is not always necessary and in this regard he has relied upon rule 27(h)(j) of the Hand Book for Guidance to Members, 1981. He submitted that an authorized representative of a party could collect transfer order. He submitted that in paragraphs 4 and 8 of the plaint, the plaintiff has not pleaded forging of his signatures. Learned counsel submitted that the plaintiff's signatures were not forged and in this regard he has relied upon paragraphs 4 and 8 of the written statement of defendant No, 1 . He submitted that Exh.P.W.l/6 was executed by the plaintiff on 6-6- 1987 and, therefore, the impression that the transfer order in favour of defendant No,3 was issued by defendant No,1 prior to the date on which the original transfer order of the plaintiff was delivered was wrong. 25. He next contended that even if a document is not exhibited nor produced in evidence, still it can carry evidentiary value and he has relied upon the provisions of Article 84 of Qanun-e-Shahadat. In support of his contention that the documents can be looked into though such documents have neither been produced nor exhibited in evidence and has cited the case of Hakim Khan v. Orangzeb reported PLD 1975 Lah. 1170 at 1175, case of Muhammad Ashraf v. Ghulam Murtaza reported in 1993 CLC 185 at 186 (Placitum B), case of Muhammad Azam v. Muhammad Iqbal reported in PLD 1984 SC 95 and the case of reported in Muhammad Azam v. Muhammad Iqbal; PLD 1984 SC 95 at Placita M & N) 26. He also submitted that this Court has ample power to compare the signatures of the plaintiff on the different exhibits, on which the plaintiff has denied his signatures with the admitted signatures of the plaintiff. In support of his contention has relied upon the case of Waqas Enterprises v. Allied Bank of Pakistan reported in 1999 SCMR 85, case of Ummatul Waheed v. Nasira Kausar reported in 1985 SCMR 214 (Placitum A), case of Maseel Ahmed v. PB.S.C.B. Reported in 1974 SCMR 490 (Placitum B), case of Abdul Ghaffar v. Muhammad Sharif reported in 1993 CLC 1779 at 1783
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(Placitum A), case of Muhammad Ishaque v. Azizuddin reported in 2004 MLD 251 and case of Ghulam Rasool v. Sardar-ul-Hasan reported in 1997 SCMR 976. 27. He next contended that a person who alleged fraud has to prove it and particulars of such fraud are required to be pleaded. The learned counsel submits that in this regard the Honourable Supreme Court has laid down a principle as to how a fraud is to be proved and has cited the case of. Nasira Khatoon v. Aisha Bai reported in 2003 SCMR 1050 (Placitum E) at 1052, the case of Mushtaq Ahmed v. Muhammad Saeed reported in 2004 SCMR 530 (Placitum B), case of Khurshid Ali v. Shah Nazar reported in PLD 1992 SC 822 at 824 and case of Zarb Ali Shah v. Yousaf Ali Shah reported in 1992 SCMR 1778. He submitted that Exh.P.W.1/1, Exhs.P.W.1/4, P.W.1/7 and P.W.1/13 are the documents which clearly reflect that the defendant No2. Was authorized to transfer the plot in dispute to defendant No,3 as these documents were signed by the plaintiff himself. He submitted that even if the plaintiff has not given express authority than too, it could be construed that the defendant No,2 has implied authority from the plaintiff to sell the plot as the plaintiff has accepted a sum of Rs,5,00,000 from the defendant No,2 knowingly that the plot was transferred in the name of defendant No,3 on 28-7-1987. He submits that there was no occasion to accept an amount of Rs,5,00,000 from the defendant No,2, which the plaintiff claims as "Amanat" of the defendant No,2 on 30-7-1987 that too, after the plot was transferred. 28. The learned counsel next contended that the legal notice Exh.P.W.1/10 dated 17-8-1987 does not state that the plaintiff has received a sum of Rs,5,00,000 as "Amanat" and this fact was wilfully suppressed by the plaintiff. It was argued by…
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