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Petitioner: WAJAHAT HUSSAIN VS Respondent: AFTAB AHMED And Other
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui Title: WAJAHAT HUSSAIN vs AFTAB AHMED And Other Case No.: Revision Application No.286 of 1991 Date of Judgment:2001-03-17 Reported As: 2001 MLD 1101 Result: Petition allowed
JUDGMENT
JUDGMENT This revision application under section 115, C.P.C., is directed against the judgment passed by learned VIth Additional Sessions Judge Karachi, East, in Civil Appeal No. 136 of 1990, dated 13-10-1991 and the decree, dated 2-11-1991. The relevant facts giving rise to this revision application are that Respondent No.1/plaintiff Aftab Ahmed filed suit for declaration and permanent injunction under section 42 of the Specific Relief Act, read with section 53-A, Transfer of Property Act, praying as follows:-- "It is, therefore, prayed that the Hon'ble Court may be pleased to pass judgment and decree as under:-- (i)That the transfer caused in favour of defendant No.3 is illegal and the transfer documents executed, in favour of plaintiff by the defendant No. 1 are intact and operative. (ii)That the General Power of Attorney Annexure 'D' is operative and irrevocable and debars the defendants Nos. 1 and 2 to cause the transfer of the suit property in favour of anyone-else except the plaintiff. (iii)That the plaintiff is entitled to the transfer of the suit property in his favour by the defendant No.2 and further that the plaintiff is entitled to continue in possession of the suit-land. (iv)That the defendant No.3 be permanently restrained to claim possession or the transfer of the suit property as the defendant No. 1, is legally estopped to cause the transfer of the suit property in favour of defendant No .3. (v)To grant cost to the plaintiff; and/or (vi)To grant any other relief deemed necessary."
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It was stated in the plaint that the defendant No. 1/Respondent No. 1, was allotted a Plot bearing No.A-1, Block 3, K.D.A. Scheme No.24, Gulshan-e-Iqbal, Karachi, measuring 273 Sq. Yds. Vide allotment order dated 27-11-1971 of NHQ Letter No.WE/0904/70, dated 27-2-1971. It was alleged in the plaint that on oral agreement between the Respondent No.1/ plaintiff and Respondent No.2/Defendant No. 1, the latter agreed to surrender his right in favour of the Respondent No.1/plaintiff and two letters were addressed to the Assistant Officer Land and Estates Department (Gulshan-e--Iqbal) K.D.A. Karachi. It was further averred that the Respondent No.2/Defendnt No.1, acknowledged receipt of Rs.24,000 as a consideration for transferring his right over the suit property. He also executed Irrevocable General Power of Attorney, in favour of Respondent No. 1/Plaintiff, which was duly registered before the Sub-Registrar T-Division Karachi. A notice was also published in daily Jissarat, dated 16-9-1979, under the caption Ittila-e-Aam. No objection or claim was received in response to the above notice. According to Respondent No.1/Defendant No.1, he delivered all original documents to the plaintiff which included Letter No.WE/0904/70 dated 27-2- 1971 and allotment order issued by K.D.A. Dated 27-11-1971. The respondent No.2/Defendant No.1, assured of all cooperation in getting the suit property transferred in the record of K.D.A., the Respondent No.3. It was further averred that the Respondent No.2, who was originally serving in Pakistan Navy, joined Merchant Navy and left for abroad on 21-1-1980 and thereafter was not traceable. The transfer of record with Respondent No.1, was therefore, delayed. It was further stated in the plaint that the Respondent No.2, handed over physical and constructive possession of the suit property at the time of receiving the sale consideration. It was still held by the Respondent No. 1. It was further averred in the plaint that about a week before the filing of suit, it transpired that the Respondent No.2/Defendant No. 1 surreptitiously and fraudulently entered into a deal with applicant/Defendant No.3 on terms and conditions not known to the Respondent No. 1. The respondent No. 1, learnt that some digging was going on the suit property at the instance of applicant. On further inquiry it transpired that the Respondent No.2, in collusion with Respondent No.3, K.D.A. Got the suit property transferred in favour of applicant/Defendant No.3. It was contended that the General Power of Attorney executed in favour of Respondent No. 1, was persisting as no notice of cancellation was given to the Respondent No. 1 and therefore, the suit property was not available for transfer in favour of any party except the Respondent No. 1. It was pleaded that the transfer in favour of applicant by the Respondent No.3, was mala fide and illegal. It was stated that the Respondent No. 1, performed his part of the contract with the Respondent No.2 and the Respondent No.2 in collusion with Respondent No.3, failed to perform his part of the contract. For the purpose of valuation the suit was valued at Rs.24,000 and for injunction at Rs.200, on which court-fee was paid. The applicant/Defendant No.3, in his written statement denied the transaction alleged in the plaint and contended that he had no notice of the same. He submitted that he purchased the disputed plot as bona fide purchaser for value and without the knowledge of the alleged agreement between the Respondent No.1/plaintiff and Respondent No.2/Defendant No.1. He further averred that, when he entered into sale agreement with Respondent No.2/Defendant No.1, he was informed that the Respondent No.2 had already revoked the General Power of Attorney in the name of Respondent No. 1/plaintiff and that said power of attorney was never utilized. He produced registered deed of revocation. He denied all other contents of the plaint and specifically denied the delivery of possession of the plot to the Respondent No.1. He alleged that the Respondent No.2/Defendant No.1, was put in physical possession of the disputed plot on 3rd June, 1982, by the officials of Respondent No.3/Defendant No.2, K.D.A. And the Respondent No.2, delivered plot on the very next day to the applicant/Defendant No.3 and since then he was in exclusive possession of the same as a transferee of the plot. He produced copy of the acknowledgement of possession dated 3-6-1982. He further stated that after obtaining possession of the disputed plot he constructed
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boundary wall around the plot and also affixed an iron gate in the month of August, 1982 and thereafter, constructed a Jhuggi on the plot. He further denied that any surreptitious and fraudulent deal was made with Respondent No.2. He contended that he purchased the plot openly and also got the public notice published in daily Nawa-i-Waqt, inviting objections from public and no objection from any quarter was notified to the K.D.A. And, therefore, the Respondent No.3, K.D.A. Transferred the plot in his favour vide letter, dated 15-7-1982. He alleged that the Respondent No.2, transferred all rights in the disputed plot in his favour and a joint application accompanied by affidavit was submitted before the K.D.A. And thereafter, he is in possession of the plot in his own title and right. He specifically pleaded that he was lawful transferee of the disputed plot and was admittedly in possession of the same: The respondent No.1 /plaintiff' was not entitled for any relief and the suit was hit by the provisions contained in section 42 of the Specific Relief Act, and was not maintainable in law. He further pleaded that the suit was rendered infructuous as the disputed plot was already transferred in his name and General Power of Attorney was cancelled before its utilization. He pleaded that the disputed plot was purchased by him and he was a bona fide purchaser for value without notice or knowledge of the alleged previous transaction and that there was nothing on the record of the K.D.A. To show that the respondent No.2, handed over/surrendered his rights of the plot in favour of anybody. He further contended that the Respondent No.3/Defendant No.2, K.D.A. Never informed him about any defect in the title of Respondent No.2 and he purchased the plot after taking every precautionary measure purchased the plot in good faith and for value, as such his rights were not effected in any way. The territorial jurisdiction of the Court was also challenged. It was further contended that the suit was under-valued and, therefore, the plaint was liable to be rejected or returned under Order 7, rules 10 and 11, C.P.C. The Respondent No.3/Defendant No.2, K.D.A. Also filed written statement. Preliminary objections were raised to the effect that the suit was incompetent for want of Mandatory Notice required under Article 131 of the K.D.A. Order V of 1957 and that the suit was bad under section 42 of the Specific Relief Act. It was stated that the Respondent No. 2, Muhammad Nawaz Khan, allottee of the disputed plot submitted an application dated 5-1-1982 alongwith attested copy of his N.I.C. And deed of revocation of his Power of Attorney executed before Sub-Registrar T-Division-I, vide Registration No.1169, dated 5-10-1981. It was further stated by the K.D.A. In its written statement that the Respondent No.2, furnished certificate of Release and an Indemnity Bond, to the effect that he is allottee of the plot, stating that he has revoked General Power of Attorney, which was executed in favour of Respondent No. 1, Aftab Ahmed. On receipt of this revocation deed a letter under registered covered was sent to the Respondent No.1, Aftab Ahmed, at his address B-44/11 Malir Extension Colony, but the same was received back undelivered. It was further stated that the K.D.A. Was not in the know of any oral agreement alleged by Respondent No.1/plaintiff Aftab Ahmed and no documents were on the record of K.D.A. Containing the fact of surrendering of the disputed plot in favour of Aftab Ahmed. It .Was, however, admitted that two applications dated 28-5-1977 and 5- 10-1980 were available on the file of K.D.A. Wherein Muhammad Nawaz, allottee of the plot had requested for handing over physical possession of the plot to Aftab Ahmed and also informed that he has appointed Mr. Aftab Ahmed, as his attorney. The letter was accompanied by photostat copy of the General Power of Attorney in favour of Aftab Ahmed. It was further stated in the written statement that the Respondent No.2, Muhammad Nawaz, the original allottee of the disputed plot applied for issuance of certificate true copy of the documents of plot on 8-5-1982, stating that the documents were left in a taxi while coming from Station. It was contended that the physical possession of the suit plot was taken over by Muhammad Nawaz, the Respondent No.2, on 3-6- 1982 and it was not in physical possession of Respondent No. 1, Aftab Ahmed. The K.D.A. Further stated in the written statement that after revocation of General Power of Attorney, in favour of Respondent No. 1, the Respondent No. 2 Muhammad Nawaz, sold the plot to the applicant Wajahat
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Hussain for lump sum sale consideration of Rs.2,60,000 and executed sale agreement on 5-10-1981 and after completion of requisite formalities, plot in question was transferred in favour of the applicant Wajahat Hussain -under normal rules. It was further stated that the suit was under valued. The respondent No.2, Muhammad Nawaz Khan, did not appear and the suit proceeded ex parte against him. On the pleadings of the parties the following issues were framed by the trial Court:-- (1)Whether the defendant No. 1 agreed to sell suit Plot No.A-1, Block-3, Gulshan-e-Iqbal, Karachi to the plaintiff and received a sum of Rs.24,000 in full and final payment of the sale consideration thereof vide receipt dated 25-12-1997? If so to what effect? (2)Whether the defendant No. 1 executed an irrevocable General Power of Attorney dated 27-12- 1979 in favour of the plaintiff in respect of the suit plot and got the same registered before Sub- Registrar, Karachi on 31-12-1979? If so, to what effect? (3)Whether the defendant No. 1 in pursuance of the sale agreement and execution of the irrevocable General Power of Attorney handed over original documents of title of suit property to the plaintiff? If so, to what effect? (4)Did the defendant No. I handed over physical and constructive possession of the suit land to plaintiff? (5)Whether the defendant No. 1 informed the defendant No. 2 about the execution of irrevocable General Power of Attorney in favour of the plaintiff? If so, to what effect? (6)Whether the defendant No. 1 could revoke the irrevocable General Power of Attorney? If not what is the effect of execution of the deed of revocation power of attorney dated 5-10-1981? (7)Did the defendant No.2 after receipt of deed of revocation and application from defendant No.1 for transfer of suit plot in favour of defendant No.3 serve any notice upon the plaintiff? If so, to what effect? (8)Is the transfer of the suit plot by the defendant No.2 in favour of defendant No.3 illegal and void ab initio? (9)Is the plaintiff entitled to specific performance of the sale agreement and to the transfer of the suit plot in his favour by the defendant No.2? (10) Is the plaintiff entitled to the possession of the suit plot? (11) Is the plaintiff entitled to the relief of permanent injunction against defendant No. 3 as prayed for? (12) Whether the defendant No.3 is a bona fide purchaser of value without notice of the alleged agreement between the plaintiff and defendant No. 1? (14) Whether this Court has pecuniary and territorial jurisdiction 'in the matter? (15) What is the market value of the suit property? (16) Whether the plaintiff is in possession of the suit property? (17) Whether the suit is not maintainable under proviso of section 42 of the Specific Relief Act? (18) Whether the defendant No. 1 could transfer the suit property in favour of the plaintiff without the permission of defendant No.2. If not, what is its effect? (19) Whether, the plaintiff and defendant No. 1 are in collusion with each other and want to deprive the defendant No.3 from the suit property? (20) What should the decree be?" The parties led their respective evidence on the above issues. However, learned trial Court treated the following 5 issues as preliminary legal issues and disposed of the suit by giving findings thereon instead of considering the factual aspect and the law applicable to the facts:--- Issue No. 1. Whether the suit is not maintainable under section 42 of Specific Relief Act?
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Issue No.2. Whether the plaintiff is in possession of the suit property? Issue No.3. Is the plaintiff entitled to the possession of suit plot? Issue No.4. Whether this Court has pecuniary and territorial jurisdiction in the matter? Issue No.5. What should the order be? The learned trial Court discussed the Preliminary Issues Nos.1, 2 and 3 together and held that the plaintiff was not in possession of the disputed plot and during long period of the pendency of suit neither amended the plaint nor prayed for possession of plot in question and did not implead the person as party in the suit, who is in Dossession of the suit plot and therefore, the suit as framed was not maintainable under section 42 of the Specific relief Act. So far the Preliminary Issue No.4, is concerned which pertains to the pecuniary jurisdiction, the learned trial Court accepted the plea of plaintiff's Advocate that the plaintiff has alleged to have purchased suit plot from Defendant No.1, for a sum of Rs.20,000 and has not sought any relief of possession of .The said plot, therefore, valuation of the plot for the purpose of jurisdiction and court-fees does not require any consideration. The plea raised on behalf of Defendant No.3, that it was purchased by him for Rs.3,00,000 and, therefore, the plaintiff should have paid court-fees at Rs.3,00,000 was repelled. Consequent to the findings on Preliminary Issues Nos. 1, .2 and 3 to the effect that suit as framed was not maintainable, it was dismissed with no order as to costs. The suit was disposed of on 26-8-1990. Being aggrieved with the dismissal of suit the plaintiff preferred irst appeal being Civil Appeal No. 136 of 1990. The learned VIth Additional district Judge Karachi; East, set aside the judgment and decree of the trial court and decreed the suit on 13-10-1991. Th learned First Appellate Court formulated following points for determination:-- "(1) Whether the defendant/respondent No. I agreed to transfer the suit plot to the plaintiff/appellant after receiving total sale consideration and handing over the title documents of the suit plot. If yes, whether ' it was legal. (2)Whether the revocation of irrevocable Power of Attorney by the Defendant No. 1, in favour of the plaintiff/appellant was valid and legal? (3)Whether the transfer of the suit plot by K.D.A. In favour of respondent No.3 is legal? (4)Whether the respondent No.3 is a bona fide purchaser of the suit plot for valuable consideration without notice to the previous agreement? (5)Whether the appellant/plaintiff is entitled for the specific performance of the contract? (6)Whether the suit as framed can be decreed for specific performance of the contract? (7)Whether the appellant/plaintiff was handed over physical possession of the suit plot by the respondent No. 1 at the time of execution of sale agreement? If yes, whether he was in possession of the same at the time of filing the suit? 'The learned First Appellate Court observed - that' the learned Advocate .For the parties submitted before him that although the learned trial Court has not discussed each and every issue framed by it and has discussed the suit on the point of maintainability but entire evidence produced by the parties was available before the appellate Court, therefore, Vie appellate Court may dispose of the entire suit instead of remanding the suit to the trial Court for its findings on all the remaining issues. The learned First Appellate Court, accepted the submission and proceeded on to decide the points for determination framed " y him on merits, in pursuance of the power vested in appellate Court under Order 41, Rule 23, C.P.C.
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The learned First Appellate Court held that the plaintiff was not in possession of plot at the time of filing the suit and, therefore, the suit filed for declaration -and injunction was not maintainable, however, mere reason that consequent relief by way of possession was not claimed should not result in dismissal of suit. By placing reliance on the judgment in the case of Ahmed Din v. Muhammad Shafi and others, (PLD 1971 SC 762), the learned First Appellate Court held that in such cases the plaintiff should be allowed to amend plaint by adding prayer for possession and after payment of appropriate ad volerem court-fee, the Court may grant relief of possession even though it was not specifically asked for. The Court further held that though the suit was for declaration and injunction only a decree for specific performance can be awarded. The learned First Appellate Court placed reliance in this behalf on the judgment in the case of Muhammad Mustafa and another v. Bashir Ahmed Choudhry and another reported as PLD 1991 Lahore 400. He ultimately held that Muhammad Nawaz Khan, the original allottee has not contested the suit as well as the appeal and, therefore, there is no denial on his behalf, as such the suit can be decreed for the specific performance of the contract against him. The learned First Appellate Court held that the plaintiff is entitled for specific performance of the contract notwithstanding the fact that there is no prayer for specific performance of the contract and that the plaintiff/appellant Aftab Ahmed can obtain physical possession of the plot in question by way of execution of the decree of specific performance without any specific prayer for possession on payment of ad volarom court- fees as per market value of the plot which was not less than Rs.2,60,000, which is the consideration on which Respondent No.3, Wajahat Hussain, purchased the plot in question. The plaintiff/appellant Aftab Ahmed was directed to pay court-fee on amount of Rs.2,60,000 in First Appellate Court within 30 days. The First Appellate Court further directed respondent Muhammad Nawaz Khan to get the name of appellant Aftab Ahmed mutated in the record of K.D.A. Failing which the Respondent No.2, K.D.A. Would transfer the plot in question in favour of the appellant. Being aggrieved with the impugned findings of the First Appellate Court, the applicant Wajahat Hussain, preferred civil revision before this Court under section 115, C.P.C. The K.D.A. Also preferred revision application against the judgment of First Appellate Court being R.A. No.73 of 1992. During the pendency of revision applications the Respondent No. 1, filed applications .Under section 151, C. P. C. Read with sections 115 and 102, C. P. C. Being C. M. A. No. 1225 of' 1996 (in Civil Revision Application No. 62 of 1991 and C. M. A. No. 1226 of 1996 in Civil Revision Application No.73 of 1992). The contentions raised in both the applications were common to the effect that the decree prepared by the appellate Court in Civil Appeal No. 136 of 1990, was in accordance with the court-fee leviable on the Memorandum of Appeal determined by the Appellate Court at Rs.2,60,000. It was submitted that as per amendment in Schedule I of the Court Fee Act, 1870, introduced under the Sindh Finance Act, 1974, where the revision application is for the revision of an appellate decree, the court-fee payable shall be levied on the Memorandum of Appeal. Thus, the court-fee on the revision application was payable on the value of Rs.2,60,000. It was averred that the applicant filed Revision applications without payment, of court fee and thus in the eye of law, there was no Revision Application properly filed before High Court and as such it was not maintainable under the law and that the Revision Applications merited dismissal. The applicant Wajahat Hussain filed objections contending that the decree of First Appellate Court was drawn up in pursuance of its judgment suo motu awarding the relief of specific performance of the alleged contract in favour of Plaintiff/Respondent No-1 on the price agreed upon by the applicant Wajahat Hussain. In the absence of relief for specific performance and possession prayed for or claimed, no court-fee was paid either on the plaint or in Civil Appeal No. 136 of 1990 and as such the provision contained in Schedule I of the Court Fee Act, was not applicable to the Revision Application. Some other pleas were also taken and the applicant Wajahat Hussain undertook to pay the requisite court-fee as and when called upon by this Court. Another application being
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C.M.A. 892 of 1997 was submitted by applicant Wajahat Hussain praying for condoning the delay in paying court-fee on the Memorandum of Revision Application upon determination of the valuation of the subject matter, or prior thereto, as may be considered proper, just and expedient in the interest of justice particularly in the circumstances that non-payment of court-fee was not out of any contumacy or wilful negligence or, disobdience of any order, but due to oversight, inadvertence or misunderstanding, for the reason that no court-- fee was originally paid on the plaint because the suit was valued at Rs.24,000 only and no objection was raised regarding payment of court-fee even by the office of High Court at the time of scrutiny of the Memorandum of Revision Application. It was further stated in the affidavit in support of application under section 28 of the Court Fees Act, read with section 149, C.P.C., that the decree for specific performance and delivery of possession was passed at the appellate stage subject to payment of court-fee by the Respondent No. 1, at value fixed at Rs.2,60,000 arid the said valuation was beyond pecuniary jurisdiction of the original as well as the Appellate Court. Accordingly, an objection to the said valuation and pecuniary jurisdiction of the First Appellate Court was raised and argued by the parties before the High Court. It was further submitted that the correct determination of the valuation of suit property at the relevant time is still pending final decision and is under consideration of the High Court and therefore, the accurate amount of court-fee if leviable would depend upon the determination of correct valuation of the plot by the High Court. It was further contend that the application for payment, of Court-fee as determined may be allowed and such payment of court-fee be treated according to law as if paid at the time of presenting the Civil Revision Application. It was further pleaded that on payment of court---fee as directed the institution of the Revision Application will not suffer from any consideration of bar of limitation. The applicant further submitted that he was prepared to pay the amount of…
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