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Petitioner: Fawwad Salim Malik VS Respondent: Mrs. Samina Ansari and others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: Fawwad Salim Malik vs Mrs. Samina Ansari and others Case No.: Suit No. 1104 of 2013, Suit No. 1284 of 2013 Date of Judgment:2021-12-14 Reported As: 2021 SHC 1270, 2022 YLR 2304 Result: Plaint returned
Judgment ORDER SALAHUDDIN PANHWAR, J.-By dint of this order, I intend to decide maintainability of both suits as questioned by this Court. 2. Precisely, the facts as narrated in Suit No. 1104 of 2013 are that the plaintiff purchased agriculture land situated at "SeharkiTaluka' Tando Allah Yar, District Hyderabad, Sindh, measuring about 82. 34 Acres, (hereinafter referred to as the "subject property") falls in the following Survey numbers: i) 216, 219, 250, 252, 217, 241, 251, 253. ii) 66/1, 2, 3 & 4, 663/1 & 5, 675/1, 676/1 & 2. (iii) 231, 233, 267, 298, 310, 312, 316, 654/3-A, 660/2, 677/1, 678, 286, 296, 266, 237, 244, 297, 309, 311, 313, 317, 660/1 & 3, 667/2, 280, 296, 263, 268, 228, 242, 243, 247, 248, 249, 281, 650/1, 2, 3 & 4, 278 & 471. iv) 271, 279-A & B. v) 455, 459, 462,/B, 677/3, 678-2, 458, 462/A, 460, 463, 677-4. vi) 314, 315, 316, 317, 468 total. "1.10 Acres" which are Kharant in the Khate from Mukhtarkar Office, Tando Allah Yar. vii) 246, 452, 451, 453 Total (22-11) Acres. viii) 54, 468, 676/3 & 4, 675/3 & 255 Total (31-36) Acres. ix) 262, 241, 315, 359, & 470, Total "(25-36)" Acres. x) 208, 215, 277, 456, 540, 683, 659, Total "98-16" Acres, 275, 276, 627-6 Kharanth. from defendant No.1, which she acquired by way of inheritance from her father who expired on or about in the year 1965; that property more than 600 acres including the subject property bearing agriculture land situated at "SeharkiTaluka" Tando Allah Yar, District Hyderabad, Sindh, measuring
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82.34 acres, was allotted to Akhund Ghulam Ahmed Siddiqui (late), who expired at Karachi on or about 1965 leaving behind him one widow, one son and six daughters including the defendant No.1; that upon the death of Akhund Ghulam Ahmed Siddiqui (late), the entire property was mutated in the name of his legal heirs in the record of rights of the Defendant No.3 on or about 17.5.1976; that out of total agricultural land about 600 acres, which was transferred/mutated in the name of all the legal heirs of late Akhund Ghulam Ahmed Siddiqui, the defendant No.1 acquired about 82.34 acres as such the defendant No.1 being the co-owner of the property was seized, possessed of and otherwise well and sufficiently entitled to sell her share in the property; that since the defendant No.1 was/is residing in United States of America, as such she executed General Power of Attorney in favour of her real brother Mr. Akhund Khair Muhammad Siddiqui Son of Akhund Ghulam Ahmed Siddiqui, at USA duly attested by Mr. Sarfaraz Hussain, Consular Attach, Embassy of Pakistan, Washington, DC, CD/251/08 dated 6.11.28 as such the plaintiff entered into Sale Agreement with the defendant No.1 through her duly constituted General Attorney. It is further stated by the plaintiff that he entered into Sale Agreement dated 7th January 2009 with the defendant No.1 through her duly constituted Attorney Akhund Khair Muhammad Siddiqui for the purchase of the subject property against total sale consideration of Rs.15,120,000/- (Rupees Fifteen Million One Hundred and Twenty Thousand Only); that the plaintiff paid Rs.60,00,000/- (Rupees Six Million Only) in the shape of 150 Prize Bonds, each of Rs.40,000/- from serial No.231600 to 231750 at the time of execution of Sale Agreement which was duly acknowledged/admitted by the Attorney in the Sale Agreement; that the Plaintiff after execution of Sale Agreement in order to take reasonable care to ascertain the title of defendant No.1 had visited the office of defendants to 2 to 5 alongwith copies of Deh Form-VII which were provided at the time of execution of sale Agreement and the defendants duly verified the same as true and correct entries available on record of rights and that too having been acquired by way of inheritance; that the defendants 4 and 5 verified that the share of defendant No.1 is approximate same as mentioned in the Sale Agreement; that plaintiff after satisfaction, paid the balance sale consideration in different times as mentioned below. 1. That in terms of Clause-2 of the Sale Agreement balance sale consideration of Rs.91,20,000/- (Rupees Nine Million One Hundred Twenty Thousand Only) was payable within twelve (12) months. 2. That the plaintiff paid the following amounts from time to time to the Attorney of the Defendant No.1 in terms of the Sale Agreement, which were duly acknowledged by the Attorney:- a. Rs.26,71,500/-, dated 27.02.2009 by way of 39,000 $ U.S b. Rs.27,50,000/- (Two Million Seven Hundred and Fifty Thousand Only) on 18.03.2009 through three post dated Cheques bearing Nos.0007225964, dated 21.03.2009, amounting to Rs.5,00,000/- (Five Hundred Thousand Only), 0007225966, dated 22.03.2009, amounting to Rs.2,50,000/- (Two Hundred and Fifty Thousand Only) & 0007225974, dated 29,03.2009, amounting to Rs,20,00,000/- (Two Million Only) c. Rs.5,00,000/- (Five Hundred Thousand Only on 03.08.2009 through two post dated Cheques bearing No's.0004350069, dated 17.08.2009, amounting to Rs.3,00,000/- (Three Hundred Thousand Only),0004350071, dated 26.08.2009, amounting to Rs.2,00,000/- (Two Hundred Thousand Only). d. Cash Rs. 10,00,000/- (One Million Only) on 26th day of March 2010. 3. It is further averred in the plaint that after payment of Rs.10,00,000/= (Rupees One Million Only) towards balance sale consideration, the physical possession of the subject property was also handed over to the Plaintiff through handing over Physical Possession & Acknowledgement of Possession dated 26.03.2010 and since then the plaintiff is enjoying the physical possession as well; that as per requirement of the Defendants No. 2 & 3, for the purpose of mutation and/or execution of instrument of transfer / Sale Deed, NOC is required and the Defendant No. 1 was required to apply for the issuance of NOC for sale within time; that since the Defendant No. 1 failed to obtain NOC for sale from the competent authorities, as such the plaintiff withheld Rs.24,48,500/- from the
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balance sale consideration as such presently the plaintiff is liable to pay Rs.24,48,500/- only towards balance sale consideration in terms of Sale Agreement referred above; that the Plaintiff has requested the Defendant No. I through her Attorney to complete the sale transaction as required under the law but no positive response has come forward from the Defendant No. 1 or from her Attorney; that the Plaintiff is ready to pay the balance amount and is entitled for the mutation of the suit property in his name under the Provisions of Transfer of Property Act, having made the substantial payment. But the Defendant No. 1 has failed / neglected to complete the transaction despite Plaintiff's just demand for registration/ execution of Sale Deed / Instrument of transfer; that it is pertinent to mention here that out of total sale consideration of PKR. 151,20,000/- (Rupees Fifteen Million One Hundred and Twenty thousand Only), the Plaintiff had paid an amount of PKR. 12,671,500/= (Rupees Twelve Million Six Hundred Seventy One Thousand Five Hundred Only) through Prize Bonds, US Dollars, Cheques and Cash and only an amount of PKR. 24,,48,500/- (Rupees. Two Million Four Hundred Forty Eight Thousand Five Hundred Only) is balance which the Plaintiff is ready and willing to pay the Defendant No. 1 subject to execution of Sale Deed / Instrument of Transfer in terms of Sale Agreement. The Plaintiff is also ready to deposit the balance sale consideration with the Nazir of this Court; that the Plaintiff has reasons to believe that the Defendant No. 1 is not ready and willing to perform her part of the contractual obligation and acting with malafide intentions; that Plaintiff also seriously apprehends that the Defendant No. 1 may create third party interest in respect of Suit Property, hence this suit is also for permanent injunction as well as Specific Performance of Contract; that the cause of action accrued to the Plaintiff when the Sale Agreement dated. 7.1.2009 was executed at Karachi and from time to time paid the balance sale consideration and the Plaintiff time and again requested the Defendant No. 1 for completion of transaction but no positive response has been received and the same is still continuing, hence the plaintiff prayed for the following reliefs: PRAYER i. Declare that the Plaintiff is bonafide purchaser of Suit Property bearing agriculture land situated at "Sehathi Taluka" Tando Allah Yar, District Hyderabad, Sindh, measuring about 82.34 Acres for valuable consideration. ii. Decree for specific performance of Sale Agreement dated. 7.1.2009 in respect of suit property bearing agriculture land situated at "Seharki Taluka" Tando Allah Yar, District Hyderabad, Sindh, measuring about 82.34 Acres, falls within the Survey Numbers as mentioned in Para-1 of the Plaint, with the directions to execute a registered Sale Deed / Instrument of Transfer in respect of suit property in favour of the Plaintiff OR in case of failure of Defendant No. 1 the Nazir of this Honourable Court may be directed to execute the Sale Deed / Instrument of Transfer in favour of Plaintiff on behalf of the Defendant No. 1. iii. To grant permanent injunction thereby restraining the Defendants or anybody else claiming / acting through them or under their authority from selling, alienating, encumbering, the Suit Property and/or dispossessing the Plaintiff from the suit property bearing agriculture land situated at "Seharki Taluka" Tando Allah Yar, District Hyderabad, Sindh, in the Survey numbers as particularly mentioned in Para-1 of plaint, measuring about 82.34 Acres, without due course of law. iv. Award cost(s) of the suit. v. Any other / further / additional / better relief (s) or order (s) against the defendants and/or in favour of Plaintiff as this Honourable Court may deem fit under the circumstances of the instant case. 4. In Suit No. 1284 of 2013, the plaintiff (who is defendant No.1 in suit No.1104 of 2013) has submitted that in the year 1965, the father of the plaintiff and the defendant No. 1 expired hence the plaintiff inherited her share from agricultural land in Tando Allahyar; that in the year 1992 the plaintiff executed a General Power of Attorney in the United States of America in favor of her Attorney
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namely Mohammad Moosa Mirbahar s/o Wattu Khan Mirbahar for presenting the instant lis before this Court; that said General Power of Attorney was notarized by the competent authority in the Consulate General of Pakistan, New York; that in the first quarter of the year 2013, the plaintiff came to know through her attorney that the defendant No. 1 is trying to create third party interests in the subject property through fake and concocted documents, hence, the plaintiff notified competent authority for keeping the proprietorial rights of the plaintiff intact on the subject property vide letter dated 18-3-2013 containing description of the subject property; that under the principles of caveat emptor, general public was also informed as to the above said phenomenon through notices published in daily Jang issued on 4th April, 2013 and Daily Kawish dated 22.3.2013; that in the month of September, 2013 the plaintiff came to know that Suit No. 1104/2013 has been filed by the present defendant No. 2 (who is plaintiff in suit No.1104/2013) through her fake attorney i.e. the present defendant No. 1 who is claiming to be the attorney of the present plaintiff to which claim the plaintiff has, long before even institution of Suit No. 1104/2013 notified general public and competent authorities to be fake and based upon concocted documents, as an abandoned caution. It is further averred in the plaint that plaintiff and/or her validly constituted attorney has no privity of contract with the defendant 2 and thus anything emanating out of fake and forge document on the basis of which the defendant No. 2 has, as claimed, paid amounts to the defendant No. 1 for purchase of subject property is illegal per-se and cause of action, if any, accruing to the defendant No. 2 is against the defendant No. 1, in personam, stretching to the jurisdictions of civil and criminal courts of competent jurisdictions; that the Power of Attorney annexed as annexure P/2 pp. 25 to Suit 1104/2013, which is, for the sake of convenience again being produced as annexure "G" hereof, through which the present defendant No. 1 has created third party interest as to the subject property favoring the defendant No. 2, hereof, is concocted, fake, fictitious and fraud and having no significance in the eyes of law; that it would be in the supreme interest to cancel the above said general power of attorney, judicially, and all the benefits arisen through the said power of attorney to any person whatsoever to be judicially declared to be of no effects, retrospectively; that initial cause of action accrued to the plaintiff in the year 1965 when her father died and the plaintiff inherited the subject property. The cause of action again accrued to the plaintiff in June, 1999 when a General Power of Attorney was executed by the plaintiff in favor of the present attorney. The cause of action look a horizontal flight in first quarter of 2013 when the plaintiff came to know that the defendant no. 1 is trying to create third party interests in the subject property claiming to be the attorney of the plaintiff. The cause of action again accrued to the plaintiff when the plaintiff notified the competent authority as well as general public that the present attorney is the real attorney of the plaintiff and the defendant No. 1 is trying to play with some fake and fictitious documents as the attorney. The cause of action took serious turn triggering presentation of the present suit when in September, 2013, Suit No. 1104/2013 was filed by the defendant No. 2 against the present plaintiff and the fake attorney of the present plaintiff and it is still continuing. The plaintiff has prayed for the following reliefs: PRAYER i. Declare that the General Power of Attorney qua Annexure "G" to the instant lis and Annexure P/2 to Suit: 1104/2013 sub judice before this Hon. Court is concocted, fake, fictitious, a fraud and of no legal consequence with retrospective effects. ii. Declare that no privity of contract ever existed by and between the plaintiff and the defendant No. 2. iii. Perpetually restrain the defendants as to usage of the fake and concocted General Power of Attorney qua Annexure "G" of the instant plaint and Annexure P/2 to Suit 1104/2013 for any purpose whatsoever. iv. Any other relief/ reliefs deemed fit may also be granted.
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5. It is pertinent to mention here that both the plaintiffs who are also defendants in each other suit have filed their respective written statements wherein they raised preliminary objections as regards to the maintainability and further pleaded their cases. 6. Since the subject property is situated out of the territorial jurisdiction of this Court, therefore, the issue whether this Court has jurisdiction to try the captioned suits requires to be addressed first, so as to avoid further proceedings, orders etc. as redundant or coram non-judice. Here, I would not hesitate in adding that whenever the Court is confronted with the issue of territorial jurisdiction, then it shall always be safe to decide such issue because it relates to competence of the Court in entertaining (taking cognizance) the suit. For deciding such like issue the Court is not supposed to go deep into the merits of the Case, including that of 'Cause of Action' but such question is always to be decided while examining the 'pecuniary & territorial jurisdiction'. Needless to add that the jurisdiction of the Court(s) is neither dependent upon the wishes of party or parties nor consents of two or more can control such subject but the 'jurisdiction is always subject to Constitution or any other law relating to such question' therefore, it is safe to add that no Court shall exercise any jurisdiction in any matter brought before it until and unless such jurisdiction has been conferred upon it by the Constitution itself or under any law, as held in the case of Malik Iqbal Hassan v. DHA &Ors PLD 2019 Lahore 145 as:- "4. We are further of the view that in accordance with Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973 no Court shall exercise any jurisdiction in any matter brought before it until unless such jurisdiction has been conferred upon it by the Constitution itself or under any law. Article 175(2) is reproduced verbatim for ready reference:- "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". 7. Confining myself to such legal position, the learned counsel for the plaintiff in Suit No.1104 of 2013, while addressing the issue of maintainability, raised by this Court has contended that since Agreement to Sale was executed at Karachi, therefore this Court is competent to entertain this suit. Per learned counsel it is settled proposition of law that if cause of action accrued at Karachi and property is out of territorial limits of original civil jurisdiction of this Court, even then suit is competent. Counsel for the plaintiff in Suit No. 1284 of 2013 has contended that connected suit has been filed before this Court, as such under clause (c) of Section 20 CPC, this Court has ample powers to dispose of both the suits. 8. Heard learned counsel for the parties and perused the record. 9. Before proceeding any further, it would be conducive to reproduce hereunder Sections 16 and 120 of the CPC: "16. Subject to the pecuniary or other limitations prescribed by any law, suits; (a) for the recovery of immovable property with or without rent or profits; (b) for the partition of Immovable property; (c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or Interest in immovable property; (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment; shall be instituted in the Court within the local limits of whose jurisdiction the property is situated [or, in the case of suits referred to in clause (c), at, at the place where the cause of action is wholly or partly arisen:- Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose
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jurisdiction the property is situate 1[or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain." 10. Prima facie, the Section 16(d) supra makes it quite clear and obvious that if the determination of any right or interest in immovable property is involved then the suit shall be instituted in the Court within local limits of whose jurisdiction the property is situated. No doubt, the Section 120 of the Code reads as:- "120. (1) Provisions not applicable to High Court in original civil jurisdiction. The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20. and, prima facie, gives an impression that Section 16, 17 and 20 are not applicable to the High Court in the exercise of its original civil jurisdiction, with that regard it would be to germane to add, if accepted as true then the plaintiff shall have liberty to institute the suit(s) even for a property, located at any part of the Country or Sindh Province. The same, I shall insist, might fail the jurisdiction, vested by Constitution and Law upon the Civil Courts /high Courts of other Provinces as well that of Sindh Province. Such conclusion legally can't be expected from the Legislature. In a case of Muhammad Waseem Ghori & another v. Altaf Hussain Tunio & 6 others 2016 YLR 157 (authored by me), the above proposition was answered as:- "6. In case of West Pakistan Industrial Development Corporation (supra) it is held that:-- "(7) As rightly pointed out by Mr. Brohi sections 16, 17 and 20 do not apply to the High Court in the exercise of its original civil jurisdiction by virtue of the provisions of section 120, C.P.C. This section reads:-- "The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20." It is thus obvious that sections 16, 17 and 20 which prescribe the necessary conditions for giving the Court its jurisdiction and also the limitations under which such jurisdiction is given may not be available for the parties in this case. 8. So far as the jurisdiction under clause 12 of the Letters Patent is concerned it is not the case of the parties or any one of them that this Court has any such jurisdiction to enable it to entertain the present suit. It was agreed by the learned counsel for the parties that the original civil jurisdiction of this High Court is derived under Article 5 of the High Court of West Pakistan (Establishment) Order (No. XIX) of 1955. Article 5 reads:- "Original Civil and Criminal jurisdiction of the Bench at Karachi-Notwithstanding anything in this Order or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Sessions for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act VII of 1926). Provided that the Governor-General may by notification in the official Gazette direct that as from a specified date such jurisdiction and powers as are mentioned therein shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers." The original civil jurisdiction for the Civil District of Karachi was exercised immediately before the commencement of this Order (Order XIX of 1955), by the Chief Court of Sind under section 8 of the Sind Courts Act, 1926 (Sind Act VII of 1926), as later amended by clause 2 of President's Order II of 1956. As section 8 of Act VII of 1926 stands, at present, the High Court has original civil jurisdiction in respect of suits and proceedings wherein the subject-matter in amount or value exceeds 25,000 rupees.
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12. Sections 16, 17 and 20 and clause 12 of the Letters, Patent prescribe the forum and the place for suing. But these sections do not apply to High Court. Article 5 of the High Court of West Pakistan Establishment Order, 1955 and also section 8 of Sind Act VII of 1926 do not prescribe the place of suing. Section 5, only saves the jurisdiction of Karachi Bench as exercised by it under section 8 of Sind Act of 1926. It is my view that the jurisdiction of the High Court has been enlarged rather than restricted by removing altogether the restrictions contained in sections 16, 17 and 20. The Legislature could never have intended to take away the jurisdiction of the West Pakistan High Court (Chief Court of Sind) altogether, since the High Court got that jurisdiction as a place of suing through these sections. Two alternative conclusions can arise from the non-applicability of sections 16, 17 and 20, C.P.C. to the High Courts. Firstly that the West Pakistan High Court could not entertain any suit, whatsoever, and secondly, it could entertain suits, from all places within its jurisdiction. It is true that all the District Courts except Karachi District Court have no limit prescribed to their pecuniary juris-diction. The present suit could, therefore, be filed at Hyderabad. The question for decision, however, before me is whether it could not be instituted in the High Court at Karachi. The restrictions prescribed by sections 16, 17 and 20, C.P.C. having been removed the original jurisdiction of the High Court is enlarged and it has juris-diction to entertain the present suit. 7. In the case of Abdul Kadir (supra) the suit for specific performance of contract and ratio of that judgment at placitum "C" at relevant page 121 is as under:-- "These payments are not disputed. Plaintiff was not able to disprove the payments of these cheques. It is also held that in view of section 16 of C.P.C. the…
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