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Petitioner: Safdar Hussain Jatt & others VS Respondent: Zafar Ali & others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title: Safdar Hussain Jatt & others vs Zafar Ali & others Case No.: Civil Revision Application No. S-85 of 2010 Date of Judgment:2020-09-03 Reported As: 2021 MLD 624, 2020 SHC 746 Result: Application dismissed
JUDGMENT
JUDGMENT Through this Civil Revision Application, the Applicants have impugned judgment dated 23.11.2010 passed in Civil Appeal No.14/2010 by 1st Additional District Judge, Shikarpur , whereby the judgme nt dated 24.03.2010 and decree dated 31.03.2010 in F.C. Suit No.18/2003 passed by 2nd Senior Civil Judge, Shikarpur dismissing the Suit of Respondent No.1 has been set aside by decreeing the Suit of Respondent No.1. 2. It appears that the plaintif f in Suit/respondent No.1 sought specific performance of an agreement and permanent injunction, with the following prayer(s): - (a) To pass decree in favor of the plaintif f for the Specific Performance of Contract, while directing the defendant No.4 through himself or through his legal attorney to perform his part of contract by executing registered sale deed in favor of plaintif f regarding the Suit land after receiving the remaining consideration amount of Rs. 39,750/- from plaintif f and in case of failure, the Nazir of this Honourable Court be directed to do the needful. (b) To grant permanent injunction, restraining the defendants No.3 and 4 from forcibly and illegally dispossessing the plaintif f from the Suit land, moreover , the defendants No.2 to 5 be restrained from alienating, mutating, transfer and mortgaging the right of Suit land in favor of other person except plaintif f. (c) To award the costs of the Suit. (d) To grant any other equitable relief which this Honorable Court may deem fit and proper with circumstances of the case. 3. After filing of written statement, following issues were settled by the learned Trial Court and through judgment dated 24.3.2010 the Suit was dismissed. 1. Whether Suit is not maintainable? 2. Whether Suit is time barred? 3. Whether Suit is barred by section 42, 54 and 56 of Specific Relief Act?
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4. Whether Suit is barred under provisions of Contract Act? 5. Whether agreement to sell dated 20.07.2001 executed by defendant No.5 in capacity of attorney of defendant No.4 in favor of plaintif f in respect of Suit land is legal, lawful and is binding upon defendant No.4, and whether such transaction in favor of plaintif f was without notice, knowledge and information of defendant No.4 and as such said sale agreement is collusive and fraudulent? 6. Whether general power of attorney dated 22.01.2003 executed by defendant No.4 in favor of Muhammad Ayaz S/o Muhammad Qasim is legal, valid and was legally executed by defendant No.4 after cancellation of general power of attorney in favor of defendant No.5 and having legal sanctity? 7. Whether defendant No.4 sold out the Suit land to Muhammad Ayaz through agreement to sell dated 21.01.2003 in the sum of Rs.5,00,000/- and possession of same was too delivered? 8. Whether agreement to sell dated 21.07.2001 executed by defendant No.5 in favor of plaintif f is based on malafides? 9. Who is in possession of the Suit land either plaintif f or defendant No.4 or even Muhammad Ayaz? 10. Whether plaintif f is entitled to the relief as sought for? 11. What should the decree be? 4. Thereafter appeal was preferred, which has been allowed through impugned judgment dated 23.11.2010 through which the Suit of Respondent No.1 / Plaintif f has been decreed. 5. Learned Counsel for the Applicants has contended that the Appellate Court has failed to comply with the provision of Order 41 Rule 31, CPC, as no points for determination were settled; that the Appellate Court also failed to appreciate the evidence led by the parties; that the learned trial Court had settled various issues and after a threadbare examination of the entire evidence was pleased to dismiss the Suit, hence no interference was warranted; that the Suit for specific performance filed by respondent No.1/plaintif f could not have been decreed, as the power of attorney of respondent No.2/defendant No.5 on the basis of which Sale Agreement was executed stood cancelled/revoked; that in terms of Section 215 of the Contract Act the said attorney/ respondent No.2 had no legal authority to enter into any sale agreement of the property in question without informing and obtaining permission from the Applicants; that admi ttedly no specific permission was granted by the Applicants to respondent No.2 to sell the property in question; that it is the case of the Applicants that respondent No.2/attorney was acting dishonestly , had committed fraud and betrayed confidence; hence in absence of specific permission as contemplated under Section 215 of the Contract Act no sale could have materialized; that the objection regarding competency of this Civil Revision Application filed through attorney is also misconceived inasmuch as the power of attorney is already on record, whereas as an abundant caution, subsequently a fresh power of attorney has been placed on record and the defect, if any, stands cured; that the Appellate Court was required to dilate upon the entire evidence while setting aside the judgmen t of the trial court dismissing the Suit. In support of his contention, he has relied upon the following reported cases: - 1. Province of Punjab v . Muhammad Sharif ( PLD 1990 Lahore 208 ), 2. Mrs. Ismat Ashraf v . Salateen T rust ( 2017 CLC Note 199 ), 3. Wali Muhammad v . Mohammad Ramzan (2017 CLC Note 183), 4. Rafique Ahmed v . Ashok Kumar ( 2017 CLC 317 ), 5. Imam Dino v . Nawaz Ali Shah ( 2003 CLC 1889 ), 6. Moar v . Member Board of Revenue ( 2012 CLC 912 ), 7. Saif Ullah v . Waqar-ul-Haq ( 2012 CLC 899 ), 8. Muhammad Hanif v . Muhammad Aslam (2016 CLC Note 80), 9. Juma Khan v . Shamim ( 1992 CLC 1022 ), 10. Abdur Razzaq v . Sabar Khan ( 2004 CLC 950 ), 11. Karachi Development Authority v . Taj Mahal Nursery ( 2000 CLC 1352 ), 12. Shaukat Ali v. Razia Bibi ( 1999 CLC 62 ), 13. Jan Muhammad v . Hashmat Bibi ( 2005 MLD 657 ), 14. Muhammad Khan v . Bahadur ( 2005 MLD 672 ),
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15. Trustees of the Port of Karachi v . Faquir Muhammad ( 1992 MLD 1782 ), 16. Shair Rehman v . Said Dilawar Jan ( 2006 CLC 1324 ), 17. Fairdoon v . Shafiullah Khan ( 2002 CLC 1262 ), 18. Muhammad Mustafa v . Janat Bibi ( 2006 YLR 941 ), 19. Asghar Abbas v . Muhammad Ramzan ( 1993 CLC 1313 ), 20. Tariq Mehmood v . Ahmed Din ( 2009 CLC 940 ), 21. Muhammad Ibrahim v . Muhammad Idrees ( 1998 CLC 1 123), 22. Muhammad Ramzan v . Fatima (PLD 2004 Lahore 14), 23. Muhammad Rashid Ahmed v . Muhammad Siddique (PLD 2002 Supreme Court 293), 24. Noor Hussain v . Hussain Bibi ( 2007 SCMR 378 ), 25. Abdul Qadir v . Ghulam Qadir ( 1996 CLC 1216 ), 26. Muhammad Khaqan v . Trustees of the Port of Karachi ( 2008 SCMR 428 ), 27. Muhammad Shafi v . Shamim Khanum ( 2007 SCMR 838 ), 28. Muhammad Ameen v . Sardar Ali (PLD 2006 Supreme Court 318), 29. Muhammad Ashraf v . Muhammad Malik (PLD 2008 Supreme Court 389), 30. Faqir Muhammad v . Pir Muhammad ( 1997 SCMR 181 1), 31. Jamil Akhtar v . Las Baba (PLD 2003 Supreme Court 494), 32. Munir Hussain v . Muhammad Aslam (PLD 2003 Azad J&K 16), 33. Hamid Khan v . Musa Khan ( 1974 SCMR 335 ), 34. Muhammad Shafi v . Government of Sindh ( 2014 YLR 602 ), 35. Ayoob Ali Shah v . Rabia Begum ( 2013 CLC 419 ), 36. Gul v . Jumo ( 2017 MLD 1878 ), 37. Qadir Bakhsh v . Nizam-ud-Din Khan ( 2001 SCMR 1091 ), 38. Muhammad Nazir v . Muhammad Yaqub ( 2003 SCMR 1246 ), 39. Lal Baz v . Gulab ( 1989 CLC 8 ), 40. Yan Loong W u v. Sultan Jehan ( 1984 CLC 2369 ), 41. Abdul Momin v . Haleema Saadia ( 2007 CLC 760 ), 42. Muhammad Hussain v . Shahzad Khan ( 2006 CLC 1038 ), 43. Khayam Films v . Bank of Bahawalpur Ltd. ( 1982 CLC 1275 ), 44. Bashir Ahmad v . Muhammad Qasim ( 1992 MLD 2407 ), 45. Muhammad Khaliq v . Abdullah Khan ( 1987 CLC 1366 ), 46. Fazal-ur-Rehman v . Khurshid Ali (NLR 2005 Civil 47), 6. On the other hand, learned Counsel for respondent No.1 has contended that this Civil Revision Application is not maintainable as the attorney who has filed the same, had no specific authority to do so and at the most his authority was only in respect of the Civil Suit before the trial Court; that the learned Appellate Court has decided the controversy after threadbare examination of the entire material, including the evidence and therefore, the objection in respect of non-compliance of Order 41, Rule 31, CPC is not sustainable; that respondent No.1 filed Suit for specific performance of agreement entered into with respondent No.2, who was acting as the attorney of the Applicants' father(since deceased), whereas neither the power of attorney in his favor , nor the agreement itself, has been denied; that the only objection raised in the written statement by the deceased father of the Applicants appears to be that the entire amount was not paid to him; that it is not a case wher eby Section 215 of the Contract Act could be invoked inasmuch as the power of attorney in question was registere d and had given full authority to the attorney not only to manage the property but so also to sell the same and even mortgage or lease out; that the purported revocation of the power of attorney is subsequent in time after execution of the agreement and without notice and assigning any reasons; hence is of no legal value and therefore, the Revision Application does not merit any consideration. In support he has relied upon the following cases: - 01. Intej Ali v Yadullah & Others ( PLD 1961 Dacca 79 ), 02. Wilayat Begum v W azir Begum ( 1992 CLC 553 ),
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03. Muhammad Siddique v Mst Shagufta Begum ( 1994 CLC 1690 ), 04. Islamic Republic of Pakistan v Abdul Ghani Abdul Rahman ( 2002 CLC 1039 ), 05. Muhammad Meharban v Sadrud Din ( 1995 CLC 1541 ), 06. Wazeer Ahmed v Abudl Ghani ( 2010 MLD 1 167), 07. Irshadullah v Muhammad Arshad ( 2005 CLC 1774 ), 08. Ramzan v Lara and others ( 2001 MLD 957 ), 09. Muhammad Karim v Kala and others ( 2014 YLR 353 ), 10. Alamgir Khan v Haji Abdul Sattar Khan ( 2009 SCMR 54 ), 11. Unreported judgment dated 18.01.2010 re- Zaman Shah & others v/sMst. Irshad and another 7. I have heard both the learned Counsel and perused the record. 8. First I would like to deal with the objection regarding maintainability of this Civil Revision Application on the ground that the power of attorney annexed and placed on record is not in respect of this Civil Revision Application; but only for the purposes of F.C. Suit No.18/2003. On perusal of the same though it reflects that Muhammad Ismail Dahar was appointed by the present Applicants on 05.09.2006 as their attorney purportedly after the demise of their father , the original owner of the property as their special attorney for us, in our name and on our behalf in the "case" titled Zafar Ali v/s Province of Sindh , F.C. Suit No.18/2003 ; however at the same time it needs to be appreciated that the proceedings of appe al and Revision are apparently in continuation of the said case and the word "case" would not only include F.C. Suit No.18/2003, but the adjudication of the case even thereafter . Secondly , a subsequent power of attorney has been placed on record which is in continuation of the earlier one, and now specifically empowers the attorney to prosecute this Civil Revision, and therefore, the objection, if any, stands cured and I am not inclined to sustain this objection so raised by learned Counsel for respondent No.1 to dismiss this Civil Revision Application as being filed incompetently . Moreover , it is also a settled proposition of law that if the attorney is acting in support of and to preserve the interest of the executants, whereas the executants have not come forward to object or dispute the authority so conferred, then the presumption would be that the attorney is competent to act in the interest of the executants. Reliance in this regard may be placed on the case reported as First Dawood Investment Bank Limited v Bank Islami Limited (2020 CLD 49) approved by the Hon'ble Supreme Court in the case reported as First Dawood Investment Bank Limited v Bank Islami Limited (2019 SCMR 1925 ) and Qadir Buksh & Others v Kh. Nizam-ud-Din Khan and others (2001 SCMR 1091 ) and Muhammad Khaliq v Abdullah Khan ( 1987 CLC 1366 ). 9. In the case reported as Muhammad Nazir v Muhammad Yaqub (2003 SCMR 1246 ) the Hon'ble Supreme Court has dealt with an identical situation and has been pleased to hold that even if a power of attorney was given to a person for pursuing the case before a District Judge, the same in absence of any challenge by the executants, will also be valid for further appeals and revisions. The relevant finding is as under; 5. Learned counsel then contended that revisions were field by Allah Rakha on behalf of respondents, but without proper authorization, therefore, revisions were not maintainable. In this behalf it is to be noted that such objection was raised by the petitioners before the High Court but it was overruled for the reasons namely that though the power of attorney was executed in his favour at the time when the matter was pending in appeal but it pertains to the present litigation between the parties which culminated into revisional judgment of the High Court. It may also be noted that as far as the respondents are concerned, they have never denied that so far as Allah Rakha is concerned, he was not duly authorized to participate in the proceedings, therefore, legally it would be presumed that on the basis of. said power of attorney , which was executed in his favour , mentioning there in that he was authorized to appear on behalf of respondents up to the Court of District Judge, can also be considered as a document on the basis of which he was authorized to file revisions, arising out of the litigation between the parties. Accordingly , the objection in respect of this Civil Revision being filed by an incompetent person raised on behalf of Respondent No.1 is hereby repelled. 10. Insofar as the objection regarding the judgment passed by the Appellate Court in terms of Order XLI Rule 31 and non-framing of points for determinat ion is concerned, I may observe that on perusal of the said judgment, it
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appears that though specific points for determination have not been so stated, however , the learned Appellate Court after perusal of the material available on record and going through the Record & Proceedings of the trial Court has given its cogent findings which reflect that the controversy and the objections so raised on behalf of the Applicants have been duly attended to. If the Appellate Court in each and every case, has not framed points for determination, it is not that such judgment would be liable to be set aside on that ground alone, whereas, it becomes immaterial, more-so, when all the questions raised have been answered by the Appellate Court. The case of the Applicants is not that any misreading or non-reading of the evidence is involved; nor it is the case of the Applicants that the Courts below had no jurisdiction or have acted in excess of jurisdiction. It is, but sufficient, that the Appellate Court answers the mate rial questions in its judgment and even if no points are framed for determination it would not ipso facto render the judgment illegal or without lawful authority subject to that the point or controversy has been attended to and decided on the basis of evidence available before the Court. This could only sustain when the judgment is itself without reasoning and also fails to determine the points for determination and not when it is a reasoned judgment attending to all the relevant issues / pertinent controversy between the parties. 11.The Hon'ble Supreme Court of Pakistan in the case of Muhammad Iftikhar v. Nazakat Ali (2010 SCMR 1868 ) has been pleased to deal with a similar situation and has observed as under: 4. We asked the learned counsel as to what were the arguments specifically urged before the learned High Court during the hearing of the regular second appeal but he failed to specifically refer the law points urged during the course of arguments before the learned High Court. However , perusal of para No.6 of the impugned judgment indicates that the only ground urged before the learned High Court was that the learned Courts below did not strictly adhere to the provisions of the Order XLI, Rule 31, C.P.C., which contention has been properly and correctly addressed to by the learned High Court in the impugned judgment. It appears from the perusal of the impugned judgment and that by the first Appellate Court, in substance compliance of the provisions of Order XLI, Rule 31, C.P.C was made and it is not always required that in each case the Appellate Court would deal with each of the issue and to resolve the same separately in the light of the evidence available on the record unless the same had caused any serious violation of the law or resulted into a grave miscarriage of justice to any of the parties to the Suit. 5. In the instant case, the findings of facts recorded by the learned trial Court on the issues were maintained by the learned first Appellate Court, therefore, unless the findings are reversed by the first Court of appeal which is not so in the present case, decision on each issue may not to be distinctly and essentially recorded, provided in substance compliance of the provisions of the Order XLI, Rule 31, C.P.C. has been made. The case-law cited by the learned counsel in view of his contention before the learned High Court, is quite distinguishable and is, therefore, not relevant. In our considered opinion, the impugned judgment does not suffer from any impropriety or illegality , so as to call for any interference by this Court." 12. Similar view has been expressed in the case of Hafiz Ali Ahmad v. Muhammad Abad and others PLD 1999 Karachi 354, Ghulam Samdani and others v. Faqir Khan PLD 2007 Peshawar 14, Abdulllah and 11 others v. Muhammad Haroon and 8 others 2010 CLC 14 and Muhammad Azam v. Mst. Khursheed Begum and 9 others 2013 YLR 454 . 13. Here in this matter , the learned Appellate Court has decided the main controversy regarding the admissibility of the agreement and the validity of power of attorney and whether on the basis of such admitted documents a decree for specific performance could have been passed or not. And once that is decided with detail reasoning, then even a failure on the part of the Appellate Court in mentioning the points for determination separately in its order would not be that damaging so as to set-aside the same on this ground alone in absence of any other evidence, material or convincing argument in favor of the Applicants. The relevant finding of the appellant Court is as under which I am of the view is correct and does not require interference by this Court while exercising jurisdiction under section 115, CPC; I have considered the submissions advanced by learned advocate for appellant, learned advocate for respondent No.4 and perused the material available on record so also perused the R&Ps of trial Court. Perusal of record
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reveals that the appellant had filed Suit for Specific Performance of Contract and Permanent Injunction in respect of an agricultural land bearing S.Nos.407, 418 and 429, measuring area 23-39 acres, situated in Deh Kandhar , Taluka Garhi Yasin, District Shikarpur , claiming that he had purchased the said land from respondent No.4 through his legal and lawful general attorney respondent No.5. The plaintif f paid Rs.200000/- in cash to respondent No.4 through his legal attorney and for remaining consideration amount 18 months' period was given to appellant; such agreement was reduced in writing on 20.07.2001 attested by witnesses executed by respondent No.5 on behalf of respondent No.4. In first week of January 2003 appellant approached to respond ent No.5 to perform his part of contract while receiving balance consideration amount of Rs.39750/-, but firstly he kept the appellant on hopes, ultimately refused to do so. The appellant also directly approached respondent No.4 to perform his part of contract, but he also refused, ultimately he filed above Suit. I have perused the General Power of Attorney dated 11.07.2001 executed by respondent No.4 in favor of respondent No.5 in respect of an agricultural land situated at Deh Kandher , Tapa Kandher , Taluka Garhi Yasin, District Shikarpur . In Para No.1 of said General Power of Attorney the respondent No.4 empowered respondent No.5 to sell, to mortgage, lease out, gift out or exchange the said properties whatsoever may be. I have also perused the written statement of respondent No.4 filed by him before trial Court, whereby in Para No.5 he has admitted that he appointed respondent No.5 as his General attorney by reposing confidence in him. The respondent No.5 in his written statement has also admitted that he was appointed as attorney by respondent No.4 under registered General Power of attorney dated 11.07.2001 and on the strength of said attorney power he executed an agreement to sell dated 20.07.2001 with the appellant. He further added that after filing aforesaid Suit one Muhammad Ayaz S/O Muhammad Qasim Dahar moved an Application U/O 1 Rule 10 CPC through his advocate for his joinder in the Suit as defendant No.6, he along with his Application filed photostat copy of agreement to sell dated 21.01.2003 and photostat copy of General Power of Attorney dated 22.01.2003 executed by respondent No.4 in his favour , he also produced photostat copy of document dated 28.11.2001 showing that the power of attorney dated 11.07.2001 executed by respondent No.4 in favour of respondent No.5 has been cancelled/revoked without first giving notice to respondent No.5. Lastly he admi tted that sale agreement dated 20.07.2001 executed by respondent No.5 in favour of appellant is valid and binding upon respondent No.4 because at that time the power of attorney dated 11.07.2001 in favour of respondent No.5 was intact and operative. When the respondent No.4 executed general power of attorney in favour of respondent No.5, then he was fully authorized to sell out the disputed land to appellant, as such he has rightly sold out the disputed land to appellant. The respondent No.4 has stated that he had revoked the General power of attorney executed by him in favour of respondent No.5, but he did not give any notice to him. 14. It may also be noted that the argument in respect of violating Section 215 of the Contract Act is also misconceived inasmuch as the power of attorney in question executed by deceased father of the Applicants in favor of respondent No.5 was a registered instrument and it is not in dispute that such power was executed by him. In the evidence it has come on record, and even in the written statement of the deceased father , such execution has not been denied. Learned Counsel for the Applicants has argued that since the father of the Applicants expired after filing of the written statement, and never appeared in the witness box, therefo re, no reliance can be placed on such written statement as it has not been proved in the evidence. Though on the face of it, this argument appears to be attractive and convincing, as it is settled law that ordinarily until the written statement is proved in the evidence after going through the test of cross examination, it cannot be relied upon; however , at the same time, in cases like in hand, when the person who was privy to the real facts and has expired after filing of his written statement, his legal heirs or for that matter an attorney , cannot go beyond the said stance of a deceased person so recorded by him in the written statement. He can only depose in support of the written statement already on record, except where permission has been grante d to file another written statement, which again is done in rare cases. At least not in this case. The facts cannot be added, twisted or changed in such circumstances by his legal heirs as they are not in any better position to prove or disprove such facts. The attorney Mr. Ismail Dahri was in fact appointed by the legal heirs of Applicants / Defendant No.4 on 5.9.2006 and not by the said Defendant himself (in fact deceased Niaz Muhammad had purportedly appointed one Muhammad Ayaz S/o Muhammad Qasim
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somewhere in 2002 as stated in his written statement who never appeared in evidence). In his cross examination the attorney says that "I was told by deceased Niaz Muhammad in respect of sale of suit land under false agreement ". Now he is not the attorney of Defendant No.4; but of the legal heirs of Defendant No.4; hence, it is not easily conceivable that he had any direct knowledge about the facts of the case as contended. He has further stated in his cross examination that "The defendant No.4 deceased Niaz Muhammad had given the general…
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