Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MOHSIN ALI VS Respondent: SAFDAR HUSSAIN BIRLAS and others
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: MOHSIN ALI vs SAFDAR HUSSAIN BIRLAS and others Case No.: Suit Nos. 209 of 2010 and 112 of 2011 Date of Judgment:2019-03-29 Reported As: 2019 CLC 1951 Result: ?Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD FAISAL KAMAL ALAM, J. Due to commonality , the title suits are decided through this Judgment. Suit No.209 of 2010 is filed by Mohsin Ali against Safdar Hussain Birlas and his wife Mrs. Afshan Safdar , seeking following relief:- "It is, therefore, humbly prayed on behalf of the Plaintif f above named that this Hon'ble Court may be graciously pleased to pass Judgment and Decree against the Defendants Nos.1 and 2 and in favour of the Plaintif f as follows: (a) To pass Judgment and Decree directing the Defendants Nos.1 and 2, their agents, representatives and / or any other person(s) acting under them or on their behalf having possession of the suit plot bearing Bungalow No.103, Plot No.D-1 19/1, Block-14, KDA Improvement Scheme No.5, Kehkashan, Clifton, Karachi to hand over the vacant physical possession of the suit property to the Plaintif f. (b) Decree for a sum of Rs.10 millions as damages and compensation against the Defendant for the monetary losses and mental torture and agony caused to the Plaintif f. (c) Decree for a sum of Rs.2,64,000/- (Rupees Two Lac Sixty Four Thousand Only) in favour of the Plaintif f as mesne profit at the rate of Rs.2, 000/- per day from the month of July 2006 till date and future mesne profit @ Rs.2,000/- till the premises is vacated and possession handed over . (d) To grant Permanent Injunction restraining the Defendants Nos.1 and 2 their men, agent and / or any other person acting under them or on their behalf holding possession of the suit property from alienating, transferring damaging, altering and / or creating third party interest in the suit property in any manner whatsoever . (e) That in alternative, in case the Defendants Nos.1 and 2 jointly and severally failed to put the Plaintif f in possession of the suit plot for any reason whatsoever , Decree for a sum of Rs.17 million as an alternative
---
## Page 2
remedy being the present market value of the suit property . (f) Cost of the suit. (g) Any other relief this Hon'ble Court may deems fit and proper under the circumstances of the case." 2. The subsequent Suit No.112 of 2011 has been filed by the above named Defen dants against the above named Plaintif f. The plaint contains the following Prayer Clause:- "That the Plaintif f prays that this Hon'ble Court will be pleased to pass Judgment and Decree in favour of the Plaintif f and against the Defendant as under: - i) A declaration that the purchase of the Bungalow bearing No.D-1 19/1, Block-4, KDA Scheme, Kehkashan, Clifton, Karachi, as per Conveyance Deed dated 12.12.2001, Annexure "B" in the name of Defendant by the Plaintif f is a benamidar transaction, hence the Bungalow does not own / belong to the Defendant as its owner . ii) A declaration that the Plaintif f No.1, is the real owner , which is in posse ssion and occupation of the Plaintif fs, the Bungalow No.103, constructed on the Plot No.D-1 19/1, Block-4, KDA Scheme No.5, Kehkashan, Clifton, Karachi for all intents and purposes. iii) A permanent injunction order against the Defendant restrained him from claiming himself to the real owner of the said Bungalow No.103, Clifton, Karachi, and from dealing with the same as its owner in any manner whatsoever . iv) Any other relief(s) which this Hon'ble Court deem fit and proper in the circumstances of the case may also be granted. v) Costs of the suit." 3. Upon service of summons, the Defendants in both suits contested the respective claims of Plaintif fs. Undisputedly , the subject matter of both cases is a built up House-Property (No.103 ) having address D-119/1, Block-4, KDA, Improvement Scheme No.5, Kehkashan, Clifton, Karachi, measuring 260 Square Yards-the 'Suit Property'. 4. The Plaintif f (Dr. Mohsin Ali) of the first suit, that is, the Suit No.209 of 2010 is claiming the subject property as his, whereas, the Defendants (of Suit No.209 of 2010) have disputed the claim; thus, merely for the sake of clarity , Mohsin Ali, who is the Plaintif f in Suit No.209 of 2010 and Defendant in the subsequent Suit No.112 of 2011 will be referred to as the 'Claimant' , whereas, the Defendants (Safdar Hussain Birlas and Mrs. Afshan Safdar ) of the above Suit No.209 of 2010 and Plaintif fs of subsequent Suit No.1 12 of 201 1 will be referred to as the 'Objectors'. 5. Vide order dated 14.12.2010, passed in Suit No.209 of 2010, the following Issues Proposed by the Plaintif f (Claimant) were adopted as Court Issues:-- "1. Whether the Plaintif f has purchased the Suit plot through the Defendant No.1 and whether the Plaintif f sent the money to the Defendant No.1 through Banking Channels to purchase the Suit plot for Plaintif f? 2. Whether the Defendants obtained the loan for a sum of Rs.37,43,648/- from the Plaintif f and whether the Defendant No.1 of fered to pay the alleged loan amount to the Plaintif f who refused the same? 3. Whether the Plaintif f accommodated and allowed the Defendants to live in the Suit property on humanitarian grounds as the Defendants were about to be evicted from their premises? 4. Whether the Defendant is living in the suit property as Benami owner or as a licensee? 5. Whether the Plaintif f has suffered mental torture, agony and huge monetary .losses due to the acts and omission on the part of the Defendants? If so, what is the ef fect? 6. Whether the Plaintif f is entitled for permanent injunction in respect of the suit property and damages to the tune of Rs.10 million? 7. Whether the Plaintif f is entitled to recover a sum of Rs.2000/- per day from the month of July 2006 as mesne profit till the premises is vacated and possession handed over to the Plaintif f by the Defendants? 8. Whether the Plaintif f is entitled for the possession of the suit property? 9. Whether the Plaintif f is entitled for alternate remedy for a sum of Rs.17 million? 10. What should the Decree be?"
---
## Page 3
6. By order dated 07.12.2013 passed in the above subsequent Suit, both suits were ordered to be consolidated with further clarification that the Suit No.209 of 2010 will be the leading Suit and the Issues framed therein and evidence led in pursuance thereof shall be treated as consolidated Issues and evidence in both the consolidated suits, respectively . 7. Jawed Mirza on behalf of Claimant and the Objector No.1 (Safdar Hussain Birlas ) examined themselves as witnesses and were cross-examined. 8. Findings on the issues are as follows: ISSUE NO.1: In Affirmative. ISSUE NO.1-(A): In Negative.
ISSUE NO.1-(B): In Affirmative.
ISSUE NO.2: In Negative.
ISSUE NO.3: In Affirmative.
ISSUE NO.4. Accordingly .
ISSUE NO.5. In Affirmative.
ISSUE NO.6. Accordingly . ISSUE NO.7. In Negative.
ISSUE NO.8. In Affirmative.
ISSUE NO.9 In Negative. ISSUE NO.10 Suit No.209 of 2010 is decreed and Suit No.112 of 2011 is dismissed. 9. Messrs Mirza Adil Beg and Muhammad Atif Shujaat M. Beg, the learned Advocates representing the Claimant (Dr. Mohsin Ali) have argued that the Claimant in utmost good faith allowed the Objectors to reside in the suit property , which was purchased with the funds of Claimant, because both the parties were good friends and the Claimant also stayed with the Objectors at their Dubai residence when the Claimant was in Dubai in search of an employment. It is further argued that in due course of time, the Claimant got settled in the United Kingdom as a successful Medical. Practitioner and when he visited Pakistan in the year 2001, he also visited the Defendant No.1 and was deeply concerned to see the financial plight of Defendants / Objectors, who shared their apprehension with Claimant, about eviction from their rented Apartment. Since the Claimant wanted to purchase a property in a good location as an investment, he discussed the idea with the Objectors and they readily agreed to find a suitable accommodation for the Claimant. After some time, the Objectors informed the Claimant about the suit property , which after exchange of Emails / correspondence between the parties hereto, was purchased with the funds of Claimant. However , in order to accommod ate the Objectors, as in the intervening period they were evicted from the Apartment, the Claimant allowed the Objectors to move into the suit property . That in the year 2006, the Claimant himself and through common friends called upon the Objectors to vacate the premises, as by that time the financial condition of Objectors has become reasonably good, but the Objectors did not vacate the premises in question. Finally , in the year 2008, the Claimant wanted to dispose of the suit property and also took steps in this regard but could not fetch a good market price because the property was in possession of the Objectors and it was learnt that
---
## Page 4
the latter (Objectors) had also attempted to misguide certain prospective buyers . Finally , a Legal Notice dated 12.01.2010 was sent to Objectors and eventually the filing of present lis. 10. The above arguments of Claiman t have been controverted by Mr. Mustafa Lakhani, Advocate, while representing the Defendants / Objectors. The ownership of Claimant has been vehemently disputed while stating that it is the Objector No.1, who is the actual owner of the suit property and Claimant is merely a benamidar (ostensible owner ). It is further contented by the learned counsel for the Objectors, that the latter (Defendants/Objectors) purchased the suit property from their own funds and with regard to the amount sent through Banking channel, it is argued, that it was a loan sent by the Claimant to the Objectors for purchase of an Apartment, but finally the Objectors decided to purchase the suit property and since Objectors could not arrange the entire sale price, therefore, the Claimant financially helped the Objectors by making payment of Rs.37,43,648/- (Rupees Thirty Seven Lac Forty Three Thousand Six Hundred Forty Eight Only) towards the sale price of the suit property , but with the condition that the same should be purchased in the name of Claimant as a conditional / simple mortgage with the right of redemption and once the loan amount is paid off, the property would be transferred to the Objectors (Defendants of Suit No.209 of 2010 and Plaintiff of Suit No.112 of 2011). The learned counsel with the support of pleadings has also argued that the Objectors were residing in their own Apartment situated in Spring Town Building near Frere Town and was not in a financial crisis as contended by Claimant side. 11. Rival submissions heard and record of both the cases have been considered. 12. Looking at the controversy and pleadings of both suits, two more Issues are to be framed as Issues Nos.1(A) and 1(B), which are:-- "1(A) Whether the Objector (Safdar Hussain Birlas) is the actual owner of the suit property and Claimant is merely a benamidar? 1(B) Whether Jawed Mirza is a duly constituted attorney of Claimant, if not, then, what is the consequence? " ISSUE NO.1 (B). 13. Since Mr. Mustafa Lakhani, Advocate, on behalf of one of the Objectors in subs equent Suit No.112 of 2011, has raised a legal question about the authority of the Attorney (Jawed Mirza) of Claimant and has strenuously argued that the entire evidence of the Claimant is to be discarded as Jawed Mirza son of Anwer Baig, who testified on behalf of the Claimant as his attorney , was not authorized to do so, thus it is necessary to decide this question first, that is, the Issue No.1(B), as it goes to the root of the case. The learned counsel has further pointed out that the Verification Clause of the Plaint in Suit No.209 of 2010 (filed on behalf of Claimant ) is also defective and should entail adverse consequences. He then referred to the General Power of Attorney , which is produced in the evidence by the above named Attorney as Exhibit P-1/1, that the same was only upto 01.01.2012 as per Clause-9 of the document itself. Thus, when the testimony of the said Attorney as PW-1 was recorded, he was not authorized to depose and hence, the evidence of the Claimant is to be discarded. He has referred to the portion of the cross- examination of the above named witness (PW-1) that he himself has admitted that he is not the attorney of the Claimant at the relevant time. He has placed reliance on a decision of this Court in Abdul Hameed case (supra). It is contended that even the subsequent General Power of Attorney produced in the evidence as Exhibit-P-1/19 is also defective as it does not mention the description of the present /is, while referring to the deposition of the above named Claimant's sole witness that he did not deny the suggestion that the subsequent Power of Attorney (Exhibit P-1/19) does not specifically empower the said attorney for production of documents in the evidence. 14. The legal team of Claimant has obviously disputed the above contention. They first distinguished the above cited decision, by arguing, that the facts of the above case are quite different from the present one, as in the reported case, the authority to file the proceeding was challenged because the principal was seriously ill and mentally incapacitated for giving such an authority and thus with these distinct facts, the decision was given, whereas, undisputed facts of the present case are completely different. The Claimant (Dr. Mohsin Ali) has twice executed the General Power of Attorney in favour of the above named Attorney (Jawed Mirza ) and in order to avoid any confusion and legal complexity , the subsequent Power-of-Attorney (Exhibit P-1/19) contained Clause-9, whereby , ex post facto authority is given and extended in favour of Jawed Mirza (the above named Attorney). In
---
## Page 5
support of his arguments, the learned counsel has relied upon the case law, mentioned in the opening paragraph of this Judgment. 15. On perusal, it is quite apparent that the subsequent General Power of Attorne y (Exhibit P-1/19) mentions the description of the suit property; Clause-3 whereof states that the above named Attorney can file and defend the cases in respect of the suit property and also give evidence in any Court of law. The said Attorney has also empowered to settle and compromise the pending suits and other legal proceedings, as per Clause-5; whereas, the lacuna, if any, has been rectified and ratified through the (retrospective) ex post facto approval and it is specifically provided in Clause-9, that the subsequent General Power of Attorney (Exhibit P-1/19) is the continuation of the earlier one, that is, Exhibit P-1/1 . Hence, on the factual plane, the contention of the learned counsel for the Objectors has no force; rather it is contrary to record. 16. The gist of the case law cited on this point, particularly , Anwar Khan case (of Hon'ble Supreme Court ) and subsequent cases of learned Division Bench of this Court handed down in Hockey Federation and Karim Dad cases , is that a party should not be non-suited if the Rules relating to pleadings, including, Order VI, Rules 14 and 15 of C.P.C., are not strictly followed. In the reported decisions question of non-signing of pleadings even at the stage of the evidence was rectified and held to be a curable defect, if the main party to the case subsequently ratify the act of his agent or Advocate/pleader , as the case may be. The above reported decision cited by the Objectors' learned counsel is clearly distinguishable, because in that reported precedent (PLD 2004 Karachi page-17) , the Objection about the authority of plaintif f's attorney was sustained on account of the facts that the original plaintif f was medically incapable to endorse his signatures and even his wife/the attorney herself could not sign but used to put her thumb-impression. However , it is clarified that if a case is covered by Order XXIX, Rule 1 of C.P.C., pertaining to a Company or other legal entity, then the principle with regard to the authority of a person signing the pleadings is different and stricter than the one explained above, because in a subsequent situation, depending upon the circumstances, even a suit may be dismissed, specially , when a plaintif f is a corporate entity and the person filing the plaint is not authorised by a Board Resolution. 17. It is a matter of record that deposition of said Attorney (PW-1) was recorde d on 28.01.2013, whereas, the subsequent General Power of Attorney (Exhibit P-1/19) is of 18.02.2013 , which is also duly attested by the Pakistan Mission at London, as per requirement of Article-89 of the Evidence Law, therefore, the lacuna, even if it was there at the time of giving evidence, has been subsequently rectified/cured by the aforesaid subsequent General Power of Attorney , as authenticity whereof has never been disputed. More so, in terms of Article-103 of the Evidence Law, documentary evidence excludes the oral evidence and any contrary deposition of said Attorney (Claimant witness), at the relevant time, when subsequent General Power of Attorney was not there but subsequently produced in the evidence as Exhibit P-1/19, will not adversely af fect the case of Complainant. 18. In view of the above, I have no hesit ation to hold that the above named attorney was duly authorized by his principal / Claimant (Dr. Mohsin Ali) to institute and pursue the present litigation in all respects. Hence, Issue No.1(B) is answered in Affirmative . ISSUES NOS.1, 1(A) AND 2 . 19. These Issues are interlinked and, therefore, they are decided together . 20. The reported decisions of Hon'ble Supreme Court relied upon by the legal team of both Parties (Claimant and Objectors) primarily relate to the princi ple rather jurisprudence of benami transaction (ostensible ownership ) evolved in the Subcontinent. Interestingly couple of reported decisions relied upon by both the learned counsel for the parties are common; 2005 SCMR page-577 and 2009 SCMR page-124 . Prcis of the case law cited by the learned counsel for the parties is that. i). Motive for ostensible ownership, that is, a party setting up a claim of benami, should satisfy the Court that why the property in question does not stand in the name of the agitator but in the name of his opponent; ii). source of payment; iii). who is in possession of the property , and; iv). in whose custody the original title document(s) of the property is.
---
## Page 6
A reported judgment of this Court- 1992 MLD page-2515 , is also very relevant, as in the said Judg ment the concept of benami transaction has been explained, inter alia, from the perspective of Section 82 of the Trusts Act, 1881. 21. In the cross suit, filed by the Objectors as Plaintif f, they have claimed the ownership rights of the suit property and termed the Claimant (Dr. Mohsin Ali) as benamidar , therefore, newly framed Issue No.1(A) should be decided first. It is a settled rule in the light of various judicial pronouncements (including those cited by the learned Advocates for the parties), that onus to prove a benami transaction is on a person who is claiming the same and is seeking a relief to this ef fect; in the case in hand, this burden of proof is on the Objectors. The Objectors while justifying the motive for purchasing the suit property in the name of Claimant have averred, that because he (Claimant) initially provided the funds to the Objectors but in the shape of a loan, thus the suit property was purchased in the name of Claimant. Detailed submission on this aspect is already mentioned in the preceding paragraphs. The Objectors wanted to return the loan amount, but Claim ant refused to take back the lent amount of Rs.37,43,648/- (Rupees Thirty Seven Lac Forty Three Thousand Six Hundred Forty Eight Only ). On this very Issue, the evidence of both the parties is appraised. The Objector No.1 (Safdar Hussain Birlas) has acknowledged in his evidence (Affidavit-in-Evidence) that the loan amount was paid by the Claimant on various dates, therefore, the property was purchased in his name. He further stated that the Objectors sold their privately owned Apartment in 'Spring Town Building' for a sum of Rs.19,00,000/- (Rupees Nineteen Lac Only) and he repaid first installment of Rs.15,00,000/- (Rupees Fifteen Lac Only) as partial settlement of loan, to the Claimant (Dr. Mohsin Ali), but the latter returned the amount to Objector No.2 (Mrs. Afshan Safdar), the wife of Objector No. 1. He further stated that Public Notice dated 28.11.2001 before the purchase of suit property (Exhibit D/5) was got published by the said Objector No.l. The Objector No.1 in his Affidavit-in-Evidence/examination-in-chief has deposed that the Claimant surreptitiously mentioned his name as Vendee / Purchaser in the Sale Deed dated 12.12.2001, which is an undisputed document, produced in the evidence as Exhibit P-1/3 by the Claimant's witness (afore named Attorney-Jawed Mirza), but in his Written Statement, the said Objector No.1 has stated (on oath) that the Sale Deed was registered in the name of Claimant (Dr. Mohsin Ali) because he provided the loan to Objector No.1 for purchase of the suit property and unless the amount of Rs.3,743,648/- (Rupees Thirty Seven Lac Forth Three Thousand Six Hundred Forty Eight Only) is repaid, the title document is to be kept in the custody of Claimant, being a conditional / simple Mortgage, with right to redemption. Similarly , the plaint in Suit No.112 of 2011, filed by the Objectors, contains a new plea, that the Objectors have incurred a huge sum of Rs.18,75,000/- (Rupees Eighteen Lac Seventy Five Thousand Only) for making improvement in the suit property . Although no evidence is led by the Objectors in support of their claim about incurring expenditure. As against this, the stance of Claimant at least to the extent of his pleadings, that is, as mentioned in the plaint of Suit No.209 of 2010 (filed by the Claim ant) and his Written Statement in subsequent Suit No.112 of 2011, is consistent. 22. In his cross-examination, the Objector No.1 has not disputed the financial soundness of Claimant and that he is an Overseas Pakistani. The Objector No.1 did not dispute that he was residing in a rented Apartment in the year 2001, which is the same period when the Claimant visited Pakistan and met Objectors. Subsequently , the suit property was also purchased vide a Sale Deed dated 12.12.2001, already produced as Exhibit P-1/3. The Objector No.1 has admitted in his cross-examination that he was evicted from the Apartment situated in Falcon Terrace, Block-4, Karachi, through the eviction proceeding initiated by the landlord. Although the Objector No.1 has denied the suggestion that he and his wife were in financial crisis and the suit property was purchased by the Claimant as an investment opportunity as well as to accommodate the Objectors to reside therein with family , but at the same time, the said witness / Objector No.1 did not deny the sending of E-mail dated 20.01.2001 (Exhibit P- 1/7) and admits his E-mail dated 30.11.201 1 (Exhi bit P-/9). The Objector No.1 also admits that it was the Claimant who transferred the funds from England in the Account of Objector No.1 to purchase the suit property . It would be necessary to reproduce herein below the relevant admission:- "It is correct that the Plaintif f had transferred 43 thousand 500 Pounds in my Account as mentioned in Ex- P-1/10. I do not know if High Commission had also confirmed the transfer of the above amount in my account."
---
## Page 7
23. The witness has acknowledged the receipt of Legal Notice dated 12.01.20 10 (Exhibit P-1/14) [which was produced by the Claimant's witness], which was never replied to by the Objectors. The Objector No.1 has further admitted that the original Sale Deed dated 12.12.2001 (Exhibit P-1/3) is with the Claimant. The said Sale Deed mentions the sale consideration as Rs.2,048,000/-. 24. With regard to the stance of Objector No.1 that he repaid an amount of Rs.1.5 million after sale of his Flat in 'Spring Town Project' at Frere Town, in his cross-examination, the Objector No.1 admitted that he has not produced any document, particularly relating to the sale of the said Apartment. It means that the statement of Objector No.1 that he paid a sum of Rs.1.5 million to Claimant towards partial settlement of loan amount out of the sale proceeds of afore referred Apartment, has been disproved. Secondly , the Objector No.1 could not explain that when the amount of Rs.15,00,000/- (Rupees Fifteen Hundred Thousand Only) towards partial settlement of his liability , was sent to Claimant but was returned by him to the wife of Objector No.1, viz., Object or No.2. The said Objector No.2 was never examined by the Objector No.1; thus this part of testimony is also without substance. Similarly , Objectors also failed…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.