Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SABIR AWAN through Legal Heirs VS Respondent: PAKISTAN DEFENCE OFFICES JUDGMENT
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Sadiq Hussain Bhatti Title:MUHAMMAD SABIR AWAN through Legal Heirs vs PAKISTAN DEFENCE OFFICES
JUDGMENT
Reported As: PLD 2016 Sindh 337 Result: Appeal dismissed Judgment JUDGMENT ' NADEEM AKHTAR, J.--Through this appeal, the appellant has impugned the judgment delivered by a learned Single Judge of this Court on 19.03.2005 and the decree drawn in pursuance thereof on 12.04.2005 in the respondent No,3's Suit No,926/1987, whereby the said Suit was decreed in terms of prayers (a) and (b) by cancelling the transfer of Plot No,3, Khayaban-e-Badar, Phase VI, Defence Housing Authority, Karachi, measuring 1,983 sq. Yds. ('the suit property'), in favour of the appellant, by restoring its transfer in favour of respondent No,3, and by permanently restraining the defendants in Suit from further transferring / alienating/encumbering the suit property to anyone else except respondent No,3. During pendency of this appeal, C.M.A. No,1948/2005 was filed by the appellant under Order XLI, Rule 27, C.P.C. Seeking permission to produce the documents described therein as additional evidence before the regular hearing of this appeal. With the consent of the learned counsel for the parties, the said application and the main appeal were heard together. 2. The facts giving rise to the filing of this appeal are that respondent No,3 Raees Ahmed filed Suit No,926/1987 at the original side of this Court against the appellant and respondents 1 and 2 for cancellation of transfer documents in respect of the suit property and injunction, and alternatively for damages. It was the case of respondent No,3/plaintiff that he purchased the suit property from one Shahnaz Begum and applied to respondent No,1 Pakistan Defence Officers. Housing Authority ('DHA') for its transfer and mutation in his name. Upon submission of relevant documents and requisite transfer fee for this purpose with DHA, an acknowledgement receipt dated 04.05.1987 was issued by DHA whereby he was asked to collect the transfer order in his favour by 04.06.1987. Due to his serious ailment and bypass surgery as averred by him in the plaint, he could not collect the
---
## Page 2
original transfer order and presumed that the same would be dispatched to him at his address by registered post as mentioned on the receipt issued by DHA..A letter dated 17.07.1987 addressed to him, respondent No,2 and the appellant, was received by him regarding transfer of the suit property in favour of the appellant and asking him to visit the DHA's office along with his identity card. On 28.07.1987, he visited the office of DHA when he came to know that respondent No,2 had played fraud upon him and DHA by forging his signatures and receiving the original transfer order from DHA. He also came to know that other documents with his forged signatures were also prepared by respondent No,2 and by using such forged documents, the suit property was sold and transferred in favour of the appellant. In view of the above, he immediately lodged a written complaint with DHA on the same day. In order to settle the matter, respondent No,2 came to visit him and during such meeting, respondent No,2 handed over a pay order for Rs,500,000/- to him for keeping the same in trust for getting the matter settled as soon as possible as respondent No,2 confessed to have committed a mistake and did not want to be prosecuted for committing fraud, to which no undertaking was given by respondent No,3. However, the pay order was kept by him in trust for respondent No,2. On 03.08.1987, respondents 2 and 3 and the appellant were invited by DHA for settlement, but no result was forthcoming. On 18.08.1987, a legal notice was sent by him calling upon DHA to retransfer the suit property in his name, and such demand was reiterated by him by another notice dated 16.09.1987. It was alleged in his plaint by respondent No,3 that the transfer of the suit property in favour of the appellant was illegal and was based on forged documents, and there was collusion between the appellant, DHA and respondent No,2, as the transfer was effected by DHA without properly verifying the documents. 3. In the above background, following relief was sought by respondent No,3 in his Suit No,926/1987 : "a) Cancellation of Transfer of the Plot bearing No,3. Khayaban- e-Badar, 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." 4. In its written statement, it was admitted by DHA that a receipt for delivery of transfer order was issued by DHA in favour of respondent No,3. It was averred that respondent No,3 had authorized respondent No,2 to collect the transfer order on his behalf ; he sold the suit property and documents of transfer duly executed by him were submitted with DHA for mutation/transfer ; such documents were accepted by DHA as the covering/mutation letter was duly attested by an authorized officer of the armed forces; after proper processing of the transfer documents executed by respondent No,3 in favour of the appellant, transfer order was issued in favour of the appellant ; and, the transfer was effected by DHA with full diligence and as per their rules and regulations. The allegations of collusion and negligence leveled by respondent No,3 in his plaint were denied by DHA. 5. Respondent No,2 also filed his written statement, wherein in paragraph 8 he stated that the appellant approached him and arranged to get the transfer documents of the suit property prepared; the appellant presented one person by claiming that he was Raees Ahmed (respondent No,3), who wanted to transfer the suit property to the appellant; and, he prepared the papers and
---
## Page 3
submitted the same with DHA for which a sum of Rs,1,500/- was paid to him towards his services. In the same paragraph, it was admitted by respondent No,2 that the person introduced to him by the appellant as Races Ahmed was not actually Races Ahmed. In paragraph 10, it was stated by respondent No,2 that on coming to know that the person presented by the appellant as Races Ahmed was not in fact Races Ahmed (respondent No,3), he approached respondent No,3 and promised to get the market price for the suit property ; he paid a sum of Rs,1,050,000/- to respondent No,3 as security deposit ; and, thereafter, respondent No,3 started threatening him that he wanted the suit property. In paragraph 14, it was reiterated by respondent No,2 that the appellant approached him and produced one person by claiming that they had concluded a deal with regards to the suit property; he was asked only to submit the papers with DHA ; and, on becoming aware of the facts, he approached the appellant and respondent No,3 for settlement in order to avoid litigation. In paragraph 15, respondent No,2 claimed that it was agreed that the appellant would transfer the Suit property to respondent No,3 on being paid back the amount of Rs,1,300,000/- ; and, he and respondent No,3 arranged to pay back the amount to the appellant, but the appellant flatly refused to transfer the suit property to respondent No,3. The allegation of fraud leveled against him by respondent No,3 was denied by respondent No,2. 6. In his written statement, the appellant denied the assertions and allegations made by respondent No,3. In paragraph 5, he claimed that on 03.06.1987, respondent No,3 through his duly authorized agent/respondent No,2 sold the suit property to him in consideration of Rs,1,350,000/- which was the prevailing market price ; at the time of agreement, an amount of Rs,10,000/- was paid by him as token money and the balance was payable within 15 days ; respondent No,2 held all the documents duly executed by respondent No,3 and duly verified by Brig. S. A. R. Durrani; as desired by respondent No,2, he had two pay orders prepared of Rs,500,000/- each on 07.06.1987 and brought Rs,350,000/- in cash at the time of presentation of the documents at the office of DHA; as DHA did not accept the documents for want of the official seal of the attesting officer, the same were returned by DHA to respondent No,2 for proper verification ; the documents were finally accepted by DHA in presence of the appellant after verification by Col. Ikram Ali Khan; and, he then deposited the transfer fee of Rs,19,800/- with DHA on 08.06.1987 and paid the balance sale consideration on '11.06.1987 to respondent No,3 through respondent No,2, whereafter the suit property was transferred in his name on 22.07.1987 by DHA. In paragraph 6, it was stated by the appellant that the assertions were made by respondent No,3 due to subsequent differences between him and respondent No,2 over their business dealings which did not affect the transaction in his favour. In paragraph 9, by denying that respondent No,3 was entitled to the retransfer of the suit property in his name, it was pleaded by the appellant that respondent No,3 was entitled to recovery of the balance amount from his own agent/respondent No,2 who had betrayed his trust. The allegations of fraud were denied by the appellant. 7. In view of the pleadings of the parties, following issues were settled by the learned trial Court: "I. Whether the plaintiff authorized the defendant No,2 to collect from office of defendant No,1 the Transfer Order in respect of the suit plot ? 2. Whether the defendant No,2 practiced 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,]? 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 ?
---
## Page 4
6. What should the decree be ?" 8. Respondent No,3 / plaintiff examined himself and produced several documents in support of his claim. No evidence was led by DHA. After filing his written statement, respondent No,2 did not contest the proceedings nor did he appear in the witness box. In support of his case, the appellant examined himself and produced only a counter affidavit dated 07.02.1988 filed by him in the Suit. After hearing the learned counsel for the parties, the learned Single Judge decided Issue Nos .1, 2 and 3 against the defendant/appellant, and Issue Nos.4 and 5 in favour of the plaintiff/respondent No,3. As a result of his findings, the Suit of respondent No,3 was decreed by the learned Single Judge through the impugned judgment and decree in terms of prayers (a) and (b) by holding that the transfer made by DHA in favour of the appellant was unauthorized, and the transfer of the suit property in favour of respondent No,3 be restored cancelling Exhibit PW-1/4, that is, the transfer of the suit property in favour of the appellant. 9. Mr. Munir A. Malik, learned counsel for the appellant, contended that specific allegation of fraud by respondents 2 and 3 and collusion between them was pleaded by the appellant in his written statement, but no issue to this effect was framed by the learned trial Court ; though no application was filed by the appellant for amendment of issues or for framing an additional issue, yet it was the duty of the trial Court to frame such issue; under Order XLI, Rule 25, C.P.C. Where a relevant issue is not framed by the trial Court, the appellate Court may frame such issue and remand the matter to the trial Court. In support of these submissions, he relied upon Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company, 1992 SCMR 2375, Roazi Khan and others v. Nasir and others, 1997 SCMR 1849 and Mansab Ali v. Nawab and others, 1994 CLC 2208. 10. He submitted that signatures of the plaintiff / respondent No,3 on relevant documents were compared visually by the learned Single Judge, which is not permissible in law; the disputed signatures could only be proved ,either by circumstantial evidence or by an expert; and, the learned trial Court should have made an inquiry as to whether or not the signatures of respondent No,3 stood proved by circumstantial evidence. According to him the following facts were on record which ought to have been accepted by the learned trial Court as circumstantial evidence. As per Exhibit PW-1/1, respondent No,3 was required to collect the transfer documents in his favour on 04.06.1987, but he did not explain as to why he did not go to the DNA's office on or after the said date. It was claimed by respondent No,3 that he could not collect the transfer documents due to his ailment as he had a bypass surgery in December 1985. This stance taken by him was belied by his own admission that he went to the DHA's office on 04.05.1987 to submit the documents. It was admitted by respondent No,3 in his cross-examination that respondent No,2 was his agent at the time of mutation of the suit property in DHA and respondent No,2 was present with him when Exhibit PW-1/1 was issued. Respondent No,2 had witnessed License 'A' of another property in the name of respondent No,3, which was a public document. The learned counsel submitted that the above circumstantial evidence was not appreciated by the learned Single Judge which was sufficient to show that there was no fraud or collusion on the part of the appellant, but in fact respondents 2 and 3 had committed fraud in collusion with one another. In support of his above submissions, he relied upon Qamrul Hasan and another v. United Bank Ltd. And another, 1990 MLD 276, Karali Prasad Dutta and another v. A. I. Ry. Co., AIR 1928 Calcutta 498, Govardhan Das v. Ahmadi Begum, AIR 1953 Hyderabad 181 and General Manager, HBFC and others v. Ali Rehman and others, 1995 CLC 531. 11. Mr. Munir A. Malik pointed out that C.M.A. No,1948/2005 has been filed in this appeal by the appellant for production of four documents as additional evidence in order to prove that Brig. (Rtd.) S.A.R. Durrani had attested the signatures of respondent No,3 on the relevant documents, and respondent No,2 had prior business dealings with respondent No,3. He submitted that the appellant is entitled to produce additional evidence under Order XLI, Rules 27 and 28, C.P.C. Even at the appellate stage in order to prove the issues involved in the Suit through circumstantial evidence,
---
## Page 5
and while hearing this appeal, this Court should exercise its discretion in his favour so that the issues are decided effectually and completely. He further submitted that the bar for filling up any lacuna is contrary to the Islamic law, Pakistan jurisprudence and administration of justice, and the same being a mere technicality should not hinder the administration of justice. In support of the above submissions, he relied upon Zar All Shah and 9 others v. Yousuf Ali Shah and 9 others, 1992 SCMR 1778, Ghulam Zohra and 8 others v. Nazar Hussain through legal heirs, 2007 SCMR 1117 and Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another. PLD 2008 SC 564. 12. It was also argued by the learned counsel that the letter of authority executed by respondent No,3 in favour of respondent No,2 was wrongly discarded by the learned Single Judge on the ground that the same did not meet the requirements of registration under Section 17 of the Registration Act, 1908. He submitted that registered power of attorney was not mandatory in this case, as there is no law which provides that a registered power of attorney is mandatory to sell an immovable property. In support of this submission, he relied upon Sections 32 and 33 of the Registration Act, 1908, and Riazul Ambia v. Ibrahim and others, PLD 1961 SC 43 and American Life Insurance Co. v. Abdullah and others, PLD 1968 Karachi 765. 13. Mr. Munir A. Malik further submitted that if the learned Single Judge had concluded that the suit property was wrongly transferred, then DHA, being a public functionary, should have been penalized for transferring the suit property in the appellant's name rather than penalizing the appellant who is the bona fide purchaser ; however, DHA has been left unaccountable ; the proper course would have been to grant a decree for damages to respondent No,3 against DHA because the appellant had paid the entire agreed sale consideration to him ; equitable relief of cancellation of transfer of the suit property in favour of the appellant ought not be granted to respondent No,3 as he could have been easily compensated ; respondent No,3 was not entitled to equitable relief also on the ground that he was negligent inasmuch as he failed to collect the transfer order in his name within the stipulated period ; there was collusion between respondents 2 and 3, who committed fraud with the appellant; admittedly an amount of Rs,500,000/- was received by respondent No,3 from respondent No,2, which fact alone was sufficient to belie his claim; originally the Suit was filed by respondent No,3 by claiming alternate relief of damages w the tune of Rs,20,00,000/- which claim was increased by him to Rs,40,00,000/- by amending the plaint respondent No,3 had not come to the Court with clean hands ; and, respondent No,3 was not entitled to any discretionary relief in view of the well-settled principle of natural justice that a person who seeks equity must do equity. In the end, Mr. Malik prayed that the impugned judgment and decree, being contrary to the evidence and the law, be set aside. 14. At the very outset, Mr. H. A. Rahmani, learned counsel for respondent No,3/plaintiff, submitted that there was no agreement between the appellant and respondent No,3 in respect of sale of the suit property as alleged by the appellant or otherwise. He argued with vehemence that the case of the appellant in his written statement was that he purchased the suit property through the duly authorized agent of respondent No,3, but there was complete failure on his part to establish that the suit property was sold to him by respondent No,3 through any such agent; no power of attorney or letter of authority by respondent No,3 in favour of his alleged agent was produced by the appellant existence or proof of any sale transaction between the appellant and the respondent No,3's alleged agent was never established ; and, the burden to prove all the above was on the appellant, but he miserably failed to discharge the same. Learned counsel specifically pointed out that the appellant had admitted in his examination-in-chief that there was an agreement for sale of the suit property which was entered into by his brother with the assistance of broker Shahid Aleem who was in Karachi. He emphasized that the alleged sale remained unproven according to law and also for lack of proper, relevant and admissible evidence ; firstly, on the basis of the Rule of Best Evidence as the claim of the alleged sale and transfer was not proved through direct and
---
## Page 6
relevant evidence of the appellant's brother and broker Shahid Aleem; and, secondly, in view of the firm denial by respondent No,3 about the alleged sale, the appellant was required to produce corroborative evidence in which he had failed. He relied upon Gul Begum v. Muhammad Riaz and another, 2006 MLD 480, in support of this submission. 15. The learned counsel submitted that the evidence led by respondent No,3 to the effect that due to his ailment he could not visit the DHA's office on 04.06.1987 to collect the transfer order in his name and he was expecting the same to be delivered to him by DHA through post, was not challenged in his cross-examination nor was any material brought on record in rebuttal thereof. It was urged that in any event the suit property could not be transferred and respondent No,3 could not be deprived therefrom on the ground that he did not visit the DNA's office or did not collect the transfer order on the given date. It was contended that respondent No,3 was never negligent as he was persistently pursuing his complaint with DHA and filed the Suit within two months of the illegal transfer. He submitted that respondent No,3 produced all relevant documents in original in support of his case, and his entire evidence remained un-rebutted and unshaken as there was no contradiction or inconsistency therein. He further submitted that personal appearance of the vendor at the time of transfer was necessary under Regulations Nos.27(g) and 27(h) of the 'Hand Book for Guidance to Members' issued by DHA ; the documents bearing the alleged signatures of respondent No,3 showed that they were attested at Quetta despite the admitted fact that all the parties to the alleged sale were at Karachi at the relevant time; and, the alleged attestation at Quetta was deliberately and fraudulently managed by the appellant in order to avoid personal appearance of respondent No,3 before DHA at the time of transfer. 16. Regarding the disputed signatures of respondent No,3 on documents transferring the suit property in the name of the appellant and the contents thereof, Mr. Rahmani submitted that under Article 72 of Qanun-e-Shahadat Order, 1984, (Qanun-e-Shahadat), contents of the documents should be proved by primary or secondary evidence Article 78 thereof requires proof of the signature as well as the writing of the author of the document ; and, in case of denial of execution of the document, it can only be proved through the various modes as provided in Qanun-e- Shahadat, and not otherwise. He further submitted that the Superior Courts have consistently held that the execution as well as contents of a document have to be proved by its beneficiary in case its execution is denied by its author, and Articles 78 and 79 of Qanun-e-Shahadat are the only modes through which the disputed document could be proved. It was urged that the appellant failed in proving any of the documents bearing the alleged signatures of respondent No,3 as he did not examine the attesting witnesses, and he also failed to examine the oath commissioner of the disputed affidavit ; and further, the appellant did not adopt any other course or mode provided under Qanun-eShahadat to prove the contents of the disputed documents as well as the alleged signatures of respondent No,3 thereon. It was further urged that in view of the above failure on the part of the appellant, the documents relied upon by him remained unproven and as such the same were rightly not considered by the learned Single Judge. In support of his above submissions, learned counsel relied upon Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others, PLD 1973 SC 160, AAS Muhammad and others v. Chahat Khan and others, 2004 SCMR 770, Anwar Ahmed v. Mst. Nafisa Bano through legal heirs, 2005 SCMR 152, Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others, 2007 SCMR 1884 and Messrs Foremost Trading Company v. Messrs Calendonian Insurance Company Limited and 2 others, PLD 1988 Karachi 131. 17. In response to the submissions made by the learned counsel for the appellant with regard to consideration or acceptance of circumstantial evidence, Mr. Rahmani submitted that circumstantial evidence is not the substitute of Articles 72, 78 and 79 ibid nor can circumstantial evidence override the requirements of the said Articles ; circumstantial evidence is based on inference and presumption; and, if the correctness or truth of the contents of the document and
---
## Page 7
the signatures thereon are not proved through direct evidence in terms of Article 72 and 78 ibid, then the truth or otherwise of the document cannot be presumed under circumstantial evidence. 18. Responding to the contention of the learned counsel for the appellant regarding the findings of the learned Single Judge that in the absence of a registered instrument as required under Section 17 of the Registration Act, 1908 the appellant was unable to prove that respondent No,2 acted as the authorized agent of respondent No,3 were contrary to law, the learned counsel submitted that the question of registered document was/is immaterial as the appellant never produced any such document; and the legality, genuineness or authenticity of a document and the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.