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Official Citation: 2024 SHC 930
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Mst. Zulekha Bibi and others vs Mst. Hafeeza Ahmed and others
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 SHC 930. In this matter between Mst. Zulekha Bibi and others and Mst. Hafeeza Ahmed and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024SHC930
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title: Mst. Zulekha Bibi and others vs Mst. Hafeeza Ahmed and others Case No.:Judicial Miscellaneous No.66 of 1999, Suit Nos.07, 1210, 1211 of 1998, 283 of
JUDGMENT
Reported As: 2024 SHC 930 Result: Petition Disposed of Judgment
JUDGMENT Muhammad Faisal Kamal Alam, J: This Judicial Miscellaneous is filed to challenge the Judgment and Decree dated 08.09.1999 passed in Suit No.1210 of 1998, in respect of a built up property at Plot No.82 (old No.16), measuring 1250 Square Yards, in Jamshed Quarter No.1, Karachi, - the "Suit Property". The Applicants request that since the Judgment and Decree has been obtained through fraud and misrepresentation, therefore, the same may be set aside and is not binding on the Applicants / Petitioners and the purported occupant of the Suit Property - Muhammad Ahmed Iqbal Baloch [later impleaded as Petitioner No.4, vide Order dated 14.12.2022]. 2. In order to appreciate the controversy, it is necessary to give background facts and to clarify the description of Parties involved in this litigation, who have raised their adverse claims of Ownership in respect of the Suit Property (ibid). 3. The titled J.M. is filed by Mst. Zulekha Bibi widow of Jafar Abdul Raheem and her children Muhammad Ahmed and Najima Naz. Their addresses are of Karachi and they have preferred the J.M. through their attorney Qamaurddin son of Ghafoor Ali Saifi. The Respondents in this J.M. is Mst. Hafeeza Ahmed widow of Jafar Abdul Raheem and her children, namely, Abdul Raheem, Abdul Aziz Ahmed, Basim, Mahir, Hytham, Ali, Mst. Amma, Mst. Fatima, Mst. Taj, Mst. Hana, Mst. Farah, Mst. Aliya, Mst. Rabab; these Respondents reside in the Sultanat of Oman and are represented through their general attorney Abdul Aziz son of Muhammad Ali, who has a local address. The Respondent No.16 in this J.M. is Khalil Ahmed Khan son of Dilbar Khan, who instituted two separate Suits, being Suit Nos.07 and 1211 of 1998 [tagged with this J.M.]. In both these Suits, Jafar Abdul Raheem [for the sake
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of reference "JAR-Omani"] was impleaded as Defendant and the address given is of Oman and Karachi, viz. "Muttam, Musqat 114, P.O. Box No.1031, Sultanat of Oman or C-21, Block-2, North Nazimabad, Karachi." Suit No.07 of 1998 was for Specific Performance and Permanent Injunction and it was claimed that Khalil Ahmed Khan was a resident of the Suit Property and it was purchased from JAR in the year 1984. It was contested by Defendant through his counsel and vide Order dated 18.06.1998, Suit was dismissed in limine, for the reason that on the date of filing of said Lis, JAR Omani was not alive. 4. In the Suit No.07 of 1998, the counsel for Defendant while informing the Court that JAR was not alive has mentioned the names of Legal Heirs, who are present Respondents in the titled J.M. After three months from dismissal of Suit No.07 of 1998, another Lis [supra] was instituted by Khalil Ahmed Khan and present Legal Heirs of JAR-Omani were impleaded as Defendants, which was again contested by the 3 Defendants [present Respondents / Legal Heirs of JAR-Omani]. On 27.09.1999, this subsequent Suit No.1211 of 1998 was also dismissed by this Court; whereas, Suit No.1210 of 1998 was instituted by the present Respondents against Khalil Ahmed Khan [the above Plaintiff claiming to have purchased the Suit Property], was decreed. 5. Perusal of the record of Suit No.1210 of 1998 shows that on 28.09.1998, Nazir was appointed as Commissioner to inspect the Suit Property and file a Report. Since it was not contested by the Defendant-Khalil Ahmed Khan, therefore, after hearing the argument of counsel for present Respondents on 08.09.1999, a Judgment and Decree were passed in favour of Plaintiffs [present Respondents (of JAR)], inter alia, declaring that Khalil Ahmed Khan is a trespasser and is liable to vacate and handover peaceful possession of the Suit Property to Plaintiffs [present Respondents of JAR Omani] and pay Mesne Profits at the rate of Rs.20,000/- per month from December 1997 till its vacation by the Defendants. This Judgment and Decree have been challenged in present Judicial Miscellaneous. 6. Subsequently, present Respondents [of JAR] being Decree Holders filed Execution No.28 of 2000 for implementing the above Judgment and Decree. Record of the execution proceeding shows that on 19.09.2000, present Applicant/Petitioner No.4, stepped into the proceeding through his Counsel by filing an intervenor application. It was ordered on 19.09.2000 that the intervenor will not interfere in the possession of the present occupants of the Suit Property and Nazir shall post his guards at the expense of Intervenors, Muhammad Ahmed Baloch (present Applicant No.4/ Petitioner] and Qamaruddin Saifi. 7. Muhammad Ahmed Iqbal Baloch [the intervenor] and now Petitioner / Applicant No.4, has subsequently instituted his Suit No.283 of 2006, impleading the present Respondents as Defendants No.1 to 15, besides, Officials, the then City District Government Karachi as Defendant No.16, and the present Petitioners Mst. Zulekha Bibi, Muhammad Ahmed and Mst. Najima, also claiming to be Legal Heirs of JAR, as Defendants No.17, 18 and 19. Settlement Department, Province of Sindh, was impleaded as Defendant No.20. 8. In this last Suit preferred by Applicant / Petitioner No.4 [Muhammad Ahmed Iqbal Baloch; for the sake of reference be referred to as "Alleged Purchaser"], has made number of prayers including declaring him as lawful owner of the Suit Property, Specific Performance of Sale Agreement dated 08.01.1999, so also the Mutation Order passed by Karachi Metropolitan Corporation [KMC], cancelling the mutation in favour of present Petitioners No.1, 2 and 3, is of no legal effect; it is also prayed that Lease Deed dated 12.04.1948 and Sale Deed dated 01.03.1948, produced by present Respondents No.1 to 15 [of JAR-Omani], are forged and fabricated documents. 9. The second set of facts is about the litigation of multiple High Court Appeals. High Court Appeal No.01 of 2002 and High Court Appeal No.32 of 2002 were also preferred by Mst. Zulekha Bibi, that is, present Petitioner Applicant of titled J.M. against present Respondents [Legal Heirs of JAR-Omani].
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In first High Court Appeal, it was ordered that the Trial Court shall decide title Execution No.28 of 2000 and J.M.66 of 1999, whereas, in the second High Court Appeal, it was by consent ordered that the title J. M. and the Execution No.28 of 2000 be decided up to 30.04.2002, and till then, Possession (of the Suit Property) will remain with the Nazir, subject to any Order of the learned Single Bench of this Court. High Court Appeal No.37 of 2006 was filed by the above alleged Purchaser, which was allowed by the Order dated 22nd February 2006, inter alia, directing that the subject J.M. be decided expeditiously, while possession would be retained by the Nazir of this Court; this Order was challenged by the present Respondents [Legal Heirs of JAR-Omani] before the Honourable Supreme Court in Civil Petition No.112-K of 2006, which was disposed of as not pressed by the Petitioners [present Respondents of JM]. High Court Appeal No.139 of 2002 was preferred by present Applicants 1, 2, 3 against the present Respondents [of subject JM], challenging the Order dated 23.05.2002 passed in subject Judicial Miscellaneous, directing the Nazir of this Court to take possession, while restraining the Respondents from creating any third party interest. The above Appeal was disposed of by a consent order that if witnesses were not produced, then learned Single Bench would be at liberty to pass any appropriate Order, including for delivery of possession to the Respondents. 10. On 01.02.2006, the titled J.M. was dismissed, inter alia, for the reason that after perusal of record produced by the NADRA [National Database and Registration Authority], the identity of present Applicants / Petitioners No.1, 2 and 3 [claiming to the Legal Heirs of JAR], was found fake and it was ordered that possession of the Suit Property be handed over to present Respondents No.1 to 15, Legal Heirs of JAR-Omani. This was challenged in H.C.A. No.37 of 2006, which was decided on 22.02.2006, as stated above. 11. On 28th March 2024, the matter was re-listed for hearing, to clarify certain facts, as Sub-Power of Attorney in favor of present Petitioner No.4 was revoked through a registered Deed of Revocation. On 1st April 2024 learned counsel for the Applicant sought time. 12. On 2nd May 2024, it was argued by the learned Counsel for the Applicants, that since Power of Attorney in favor of Petitioner No.4 is a registered instrument and for consideration, therefore, in view of Section 202 of the Contract Act, the same cannot be revoked. Mr. Anwar Hussain [Advocate] cited the following case law to support his arguments, discussion on which is mentioned along with other case law, in the later part of this Decision. i- 2003 SCMR 1555 [Mst. Hajran Bibi and others versus Suleman and others]; and ii- 1999 SCMR 2718 [Syed Humayun Zaidi and 4 others versus Mst. Hussain Afroza]. 13. On the last date of hearing, Mr. Ziauddin Junejo, learned Additional Advocate General Sindh, also appeared and sought time to file Interveners Application on behalf of the Provincial Government, as according to him the Suit Property has been declared as heritage. Time was allowed but till date no Intervener application is filed. 14. Mr. Anwar Hussain, Advocate for Petitioner No.4 has highlighted the fraud and collusive proceedings between the Respondents. He has referred to the record of Suit No.07 of 1998 and 1211 of 1998 preferred by above Khalil Ahmad Khan against the JAR-Omani and contends that stance in both the Suits was contradictory; by referring to AR Diary of 24th December 1998, he states when summons were not issued, then how beforehand Vakalatnama was filed on behalf of Defendant [JAR], which proves collusion between Khalil Ahmad Khan and the present Respondents; referred to the record of Suit No.1210 of 1998 and states that the foreigner cannot file such a case in Court, in violation of Rules 502 to 509 of the Sindh Chief Court Rules ["SCCR"] of Original Side of this Court, besides, it is violative of Section 83 of Civil Procedure Code, wherein a procedure is mentioned for
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filing cases by aliens, with prior permission of the Government, which was never obtained by JAR- Omani or his Legal Heirs [who are now Respondents]. Similarly, present 7 Respondents - Legal Heirs of JAR-Omani, obtained a collusive Decree in their Suit No.1210 of 1998 instituted against Khalil Ahmad Khan, because, as per the Assistant Registrar Diary dated 18th May 1999, Power / Vakalatnama was filed on behalf of above Defendant, but no Written Statement was filed, resulting in passing of the Order dated 12th August 1999 [by the AR] debarring the said Defendant from filing the Written Statement, followed by the collusive Decree [detail whereof is stated in the foregoing Paragraphs], now under challenge. Contended that the above Suit preferred by Respondents is a nullity in the eyes of law, because the Vakalatnama of Advocate, representing the Plaintiffs / present Respondents - Legal Heirs of JAR-Omani, was not signed by them, as required under Rule 114 and 115 of SCCR, which means that the Counsel was not duly authorized to represent the above Legal Heirs of JAR Omani. Contended that Petitioner No.4 [Muhammad Ahmed Iqbal Baloch] had purchased the Suit Property from Qamaruddin, who purchased the same from the Applicants - Petitioners No.1, 2 and 3, the real legal heirs of JAR- Omani vide an Agreement to Sell dated 08.01.1999, produced in the evidence by the Petitioners witness as Exhibit A-W-1/23 [page-77 of the Evidence File]. After completing the transaction with the Petitioners No.1, 2 and 3, the said Qamaruddin being a registered Sub-Attorney of Petitioners vide an Irrevocable General Power of Attorney-Exhibit A-W-1/1, executed Special Power of Attorney in favour of present Petitioner No.4 [Muhammad Ahmed Iqbal Baloch], which is produced in the evidence as Exhibit A-W2/1. Has referred to the testimonies of the witnesses and states that the Petitioner No.4 [Muhammad Ahmed Iqbal Baloch] has proved his genuine sale transaction with Petitioners No.1, 2 and 3, whereas, Respondents, claiming to be the Legal Heirs of JAR-Omani, never led the evidence and thus did not discharge onus to prove their claim of ownership; relied upon under Articles 95 and 100 of the Qanun-e-Shahadat Order, 1984 ["Evidence Law"], to emphasize that the above General Power of Attorney and Special Attorney are presumed to be a valid Document and should be given full effect, coupled with the fact that it is more than thirty years old document. Compared the Sale Deeds, Exhibit A-W-1/4, which according to the learned Counsel was executed by the original owner Ramchand G. Advani in favour of Jafer A. Rahim, predecessor- in-interest of present Petitioners No.1, 2 and 3, whereas, Sale Deed produced by the Respondents before Commissioner-Exhibit A-W-1/29, is a bogus document; similarly, the Lease Deed dated 29.10.1937 issued by the then Karachi Municipality in favour of above owner Ramchand G. Advani produced by Witness of Petitioner No.4, Exhibit as A-W-1/2, is a genuine Lease, whereas, one produced by the Respondents [JAR-Omani] is a forged one, because at the relevant time Muhammad Ali Jinnah Road [MA Jinnah Road] never existed. Referred to Page 265 [of Evidence File], which is a Resolution No.617, passed by the then KMC, for the change of names of different roads in Karachi. 15. Mr. Muhammad Ashraf Qazi and Mr. Saleem Raza, Advocates represented Respondents No.1 to 15, the Legal Heirs of JAR-Omani. While refuting the above line of arguments of learned Counsel for Petitioner No.4, the Legal Team of Respondents argued that in the past, many attempts were made to usurp the Suit Property belonging to the predecessor-in-interest of these Respondents, namely, JAR-Omani. Has referred to the Court record and especially the Orders dated 13.12.2005, 13.01.2006 and 01.02.2006, to show that Petitioners No.1, 2 and 3 never appeared in the present proceeding and in fact after considering the Report submitted by the National Database and Registration Authority [NADRA], this Court was pleased to dismiss the present J.M. [although subsequently challenged and set aside in High Court Appeal No.37 of 2006, as mentioned in the preceding paragraphs]. Contended that mutation in favour of Petitioners No.1, 2 and 3 was cancelled by the competent Authority, which was challenged in a C. P. No. D - 1400 of 1999 by the Intervenor, but said Petition was dismissed and the cancellation order attained finality.
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The present Respondents filed a comprehensive Counter Affidavit to the present Application, under Section 12(2) of CPC / J.M., but no Affidavit-in-Rejoinder was filed by the Petitioners which shows that the averments / stance of Respondents has been accepted. Contended that Rejoinder was preferred by the Intervenor Muhammad Ahmed Iqbal Baloch [now Petitioner No.4] only. Contended that sale transaction was never proved by the Petitioners, inter se, and the onus in this regard was never discharged by them. 16. Arguments heard and record perused. 17. Following Issue was framed_ Whether the decree passed in Suit No.1210/1998 has been obtained by respondents through fraud and misrepresentation? If so, its effect? 18. To augment his above arguments, Applicants Counsel has cited the following case law_ i. 2002 CLC 449 [Qatar Airways versus Genyis International (Pvt.) Ltd.]; ii. 2017 CLC 1519 [Messrs China Machinery Engineering Corporation [CMEC] through Project Manager, Member of Association, Principal Officer and Chief Executive Neelum Jhelum Project and another versus Azad Jammu and Kashmir Council Board of Revenue and others]; iii. PLD 1975 Karachi 352 [Muhammad Usman versus Lal Muhammad and 12 others]; iv. 2009 CLD 779 [Azra Saeed versus Raees Khan through General Attorney and 5 others]; v. 2003 SCMR 1555 [Mst. Hajran Bibi and others versus Suleman and others]; and vi. 1999 SCMR 2718 [Syed Humayun Zaidi and 4 others versusMst. Hussain Afroza]. 19. Prcis of the Case Law cited by the learned Counsel for the Applicant / Petitioner No.4 is that if a Power of Attorney is coupled with interest, then in terms of Section 202 of the Contract Act, it is irrevocable, thus, since Sub-Power of Attorney given to Petitioner No.4 by Qamaruddin Saifi [ibid] is not an ordinary Power of Attorney, but it is coupled with interest as it is Petitioner No.4, who after paying the entire sale consideration had to complete the sale transaction and Petitioner No.4 has direct interest in the subject matter and of the Sub-Power of Attorney [Exhibit AW 2/1], which is coupled with interest. If a Power of Attorney is not authenticated as per Article 95 of the Qanoon-e-Shahadat Order, 1984 [the Evidence Law], no benefit can be given to that document [Article 95 stipulates that Court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Pakistani Consul or Vice Consul, or representative of the Federal Government, was so executed and authenticated]- this case law is cited to support the stance that Abdul Aziz who acted as an Attorney of private Respondents [Legal Heirs of JAR-Omani] through General Power of Attorney (available in the Record) has no value because it lacks proper authentication and thus, Suit proceeding of Suit No. 1210 of 1998 filed by them [Respondent No. 1 to 15] is void ab initio, so is the Judgment and Decree Dated 08.09.1999. In Usman Case [Supra], a document was held to be inadmissible in evidence because being a foreign document from India, it was produced as Exhibit-49 but did not bear seal of a Notary Public or of a Pakistan Mission. That in terms of Section 83 of the Civil Procedure Code, 1908, an alien or entity can institute a Suit only after seeking permission from the Government of Pakistan [this provision is relied upon to argue that private Respondents being Omani Nationals were not authorized to institute Suit No.
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1210 of 1998 without prior approval of the Government of Pakistan, hence the entire Suit proceeding is void a initio]. 20. This Court by its Order dated 13th November 2001, appointed Mr. Atash Mirza [Advocate] to inspect both Sets of the Documents relied upon by the Parties hereto and submit a Report. The Report has been exhibited as Exhibit A-W1/ 31, Page 129 of the Evidence File. It is stated that the Objectors, that is, the present Petitioners / Applicants number 1, 2 and 3 did not produce Purchase document, Power of Attorney, Sub-Power of Attorney, Letter of Administration or Mutation entry in record of rights about the death of their Ancestor. 21. It is relevant to observe that present Petitioners No. 1 to 3 did not come forward to produce the Documents before the learned Commissioner, but, they were produced by Qamaruddin Saifi [the Attorney] and Iqbal Baloch [the Sub-attorney] / present Petitioner No.4, whereas, the Documents submitted by the present Respondents was through Ahmed Jafar son of Jafar Abdul Rahim [Omani]. It means that the present Petitioners No.1 to 3 [claiming to be the Legal Heirs of JAR- Omani] never came forward in the present Proceeding, even before the Commissioner. 22. The learned Commissioner was cross-examined extensively by the learned counsel for the Applicant / Petitioner No.4. The first part of the cross-examination relates to the Leases of the Suit Property, exhibited in the Evidence as A-W 1/2 [produced by the Applicant No.4], and a Lease Deed presented by the Respondents No. 1 to 15 before the Commissioner which is marked as Document 5, whereas, the second part revolves around the Sale Deeds produced by the Petitioners and Respondents as Exhibit A-W-1/4 and A-W 1/29, respectively, besides, other facts narrated in the Report of the learned Commissioner. The Commissioner [Mr. Atash Mirza, Advocate] remained Sub-Registrar in Karachi from 1967 to 1974 when Mr. M.S. Jalil was the District Registrar of Karachi and was Sub-Registrar in 1949. Commissioner Report, Exhibit A-W-1/31, stated about the signatures of M.S. Jalil, appearing on the Sale Deeds produced by both the Parties, viz. present Petitioner No.4 [at the relevant time, the Objector] and the present private Respondents No.1 to 15. He has specifically stated that Mr. M.S. Jalil was appointed in 1948-49 when the then Registrar Mr. Balchandani left for India. He further stated [at page-2 of the Report] that Mr. M.S. Jalil was still alive [when the Report was submitted]. With regard to the Sale Deed [A-W 1/4] produced by the Applicant / Petitioner No.4, the Commissioner stated in his Report that the serial and fee rubber stamps of Registrar Office were not in use nor those were so worn out; the Signature of the Sub-Registrar dated 24.06.1949 is definitely not of Mr. M.S. Jalil, whereas, with regard to the Sale Deed produced by the present Respondents [Exhibit A-W-1/29], his opinion is that the same is a genuine document, for which he has given reason in the following words_ "H. The document produced at Serial No.4 on behalf of Decree Holder, Sale Deed dated 12th March, 1948 is genuine. It shows the practice in vogue. The document was typed in January, stamped with different period stamps in February and presented for registration in March. Before presentation, it was brought to the office for examination and fixation of appointment. It shows "Ok, initials and date 12/3" on the left margin of the first page. It also shows the rough calculation of fee in pencil on left margin bottom. The filling of boundaries and endorsement are of two different persons. The endorsement and signature of Sub-Registrar are of the same person. The signature of Mr. M.S. Jalil is of Mr. M.S. Jalil and 100% genuine." It is necessary to clarify that present Respondents No.1 to 15 referred to as Decree Holder [ibid], because Suit No.1210 of 1998 was decreed [as stated in the above Paragraphs]. 23. The Commissioner was put a specific question about his assertion in the Report that adhesive stamps affixed on the Sale Deed [Exhibit A-W-1/4 produced by the present Petitioner No.4] was not in practice. It is relevant to reproduce the exact questions put to the Commissioner and his replies thereto as under
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"Q: How do you say that the special adhesive stamps of the period March 1948 affixed on the sale deed dated 12.04.1948 produced by the applicant were not in practice during that period and old stamps were lying with the stamp office, when you were not in the office of the Registrar during that period? Ans: I gather all this information when I joined the office of Registrar and my report is on the basis of my experience. Q: I put it to you that whatever observations you have made about adhesive stamps affixed on the sale deed, rubber stamps affixed on it and other entries on the sale deed cannot be made by you as at the relevant time you were not in the office of Registrar. What do you say about it? Ans: Whatever I have stated I have stated on the basis of my experience which I acquired after I joined the Registrar Office." 24. In his cross-examination, he has admitted that he did not verify from Mr. M.S. Jalil, about his signature on the Sale Deed, but he remained consistent in his response, that the Exhibit A-W-1/4 [the Sale Deed produced by the Applicant / Petitioner] is not a genuine document. The Commissioner gave the firsthand account when he was working in the Office of the Registrar; conversely, the present Applicants did not summon M.S. Jaleel, to dislodge the evidence of the Commissioner about the genuineness of the documents and his Signatures [of M.S. Jalil], in particular, the Sale Deed produced by them, as onus was / is on the Applicants to prove the sale transaction, claimed through Sale Deed [A-W-1/4] and the subsequent transaction between the Petitioners inter se. 25. The Petitioner's counsel attempted to impeach the credibility of the Commissioner by putting him questions that although he did not have any case in the Court on the day he was appointed as Commissioner, but he was deliberately present so that he may be given this assignment, to which the Commissioner responded in negative. The reply of Commissioner that for many years, he worked in the Registrar Office of Karachi and he has personal knowledge of the relevant facts, could not be disproved by the Petitioners in the evidence. 26. Notwithstanding to the above, the documents produced during the evidence and in particular the Sale Deed around which the entire controversy revolves, is re-considered. 27. In cross-examination, the Commissioner has accepted the facts that at the…
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