Mr. Justice Aqeel Ahmed Abbasi.
Ghazi Naseem & others………………………………………………..Appellants
Moulana Mohammad Bilal & others……………………………. Respondents
Date of hearing: 18.01.2010.
Date of Judgment 15.02.2010.
Appellants Through Ms Mehrunnisa, Advocate
J U D G E M E N T
AQEEL AHMED ABBASI., J- This Second Appeal has been filed by the appellants who are legal heirs of late Nazir Ahmed against the Judgment and Decree both dated 19.8.2009 passed by Ist Additional District Judge (East) Karachi in Civil Appeal No. 38 of 2009 filed against the judgment and decree in Civil Suit No. 249 of 2008 passed by VIII Senior Civil Judge (East) Karachi both dated 30th June 2009.
2. Since the respondents could not be served through normal mode of services, learned counsel for the appellants on 20th October 2009 prayed that respondents may be directed to be served through publication in daily Jisarat, Karachi, which request was acceded and the respondents were directed to be served through publication. Accordingly, the publication was made on 6.11.2009 in daily Jisarat, Karachi, but nobody attended on behalf of the respondents nor any intimation received in this regard. The service upon respondents was held-good on 18.1.2010.
3. Brief facts leading to the instant appeal are that appellant filed a Civil Suit for Specific Performance of contract in respect of suit property where the appellant stated as under:
"That the Respondent No.1 is the owner of the lease hold residential plot of land bearing No.B-123, Block-B, measuring 200 sq. yds, together with Double Storied House constructed thereon, situated at Kazimabad, Survey Nos.302, 303, 305 to 311, Deh Mehran, Tappo Malir, Taluka and District Karachi East, hereinafter called (The Suit Property) by virtue of Indenture of Registered Lease Deed. (The Copy of Registered Lease Deed is filed herewith as Annexure-"C". The Respondent No.1 executed Registered Irrevocable Power of Attorney in favour of the Respondent No.2 in respect of the suit property which includes the power of sell also. The copy of Registered General Power of Attorney is filed herewith as Annexure "D". The Respondent No.2 on the basis of Power of Attorney contracted to sell the suit property to the father of Appellant/Petitioner No.1, 3, 4 and husband of Appellant/Petitioner No.2 namely Nazeer Ahmed son of Ahmed Din against the Sale consideration of Rs.13, 50,000/- (Rupees Thirteen Lacs Fifty Thousand Only) and executed Sale Agreement in Writing and payment of receipt where acknowledged the sum of Rs.13, 50,000/- (Rupees Thirteen Lacs Fifty Thousand Only). And also executed a registered Sub-Power of Attorney in favour of the said Nazir Ahmed. And handed over the peaceful physical vacant possession and all the original title documents to said Mr. Nazeer Ahmed. (The copies of Sale Agreement, receipt and Sub-Power of Attorney are filed herewith as annexure "E", "F" &"G" respectively). That the said Nazeer Ahmed expired on 10.07.2005 and the Appellant/Petitioner who is his legal heirs applied for Letter of Administration in respect of immovable properties including the suit property which was granted on 18.02.2006 and Letter of Administration was issued on 06.11.2006. The copies of order and Letter of Administration are filed herewith as Annexure "H" & "I" respectively. That on the basis of said Letter of Administration, the Appellant/Petitioners applied for mutation of the suit property in favour of the Appellant/Petitioners but it was refused by the office of suit property and demanded specific Court Order or registered Conveyance Deed by virtue of letter dated 07.07.2007. The copies of application for mutation by the Appellant/Petitioners and reply are filed herewith as Annexure "J" & "K" respectively. That thereafter the Appellant/Petitioners tried to contact the Respondent No.1 & 2 at their address but they are not living at the said addresses and Appellant/Petitioner tried their level best to find out them but not succeeded. That the Appellant/Petitioner are entitled for mutation of suit property on the basis of Sale Agreement, receipt, Registered Power of Sub-Attorney and Letter of Administration. That in para 3 at page No.3 of Sale Agreement the Respondent No.2 undertook to execute and deed or sign any documents whenever required for finalization of sale and transfer of the suit property at any later stage for execution and signing of the agreement of sale and full cooperate with the Vendee will the transfer/mutation of the suit property in all respect.
The suit was filed on18.3.2008 process calling the Respondents were issued repeatedly through bailiff by way of registered A.D but the same were returned with endorsement of bailiff, therefore, in the interest of justice order for publication passed on 09.07.2008. Inspite of publication none came forward from Respondents side to file written statement at last service upon the Respondents was held good vide order dated 07.08.2008 and the Respondent was given chance to file written statement but Respondent remained absent without any intimation, therefore, in the interest of justice matter was repeatedly adjourned but the Respondent did not appear and chosen to remain absent, therefore, Respondent was declared expartee vide order dated 01.12.2008. The Appellant/Petitioner in support of his contention filed Affidavit-in-Exparte. Where he has reproduced contents of plaint on oath. None came forward from Respondents side to produce his evidence unrebuttal to the contention of Appellant/Petitioner."
4. Learned trial Court dismissed the above suit on the grounds of the limitation, for the reason that as the settlement agreement between parties was executed on 17.12.1996, whereas the suit was filed on 8th March 2008, therefore, there was delay of 11 years as per Article 113 of the Limitation Act, 1908, which provides a period of three years for specific performance of a contract. Against the said order an appeal was preferred before the learned 1st Additional District Judge (East) Karachi. Respondents could not be served through normal mode of service, therefore, they were directed to be served through publication which was accordingly made and service was held good on 14.5.2009. None attended on behalf of the respondents. The Appellate Court after hearing the counsel for the appellants dismissed the appeal on the ground of limitation by concurring with the finding of the learned trial Court in this regard. Being aggrieved by such order the present appeal has been preferred on the following grounds:
(i) That the impugned order is bad in law and also on facts.
(ii) That learned trial Court and as well as appellate Court failed to determine that suit for filing the specific performance of contract is not three years but as per Article 113 of Limitation Act, 1908, which is applicable in the above matter is reproduced hereunder for ready reference.
For Specific Performance of Contact
The date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused.
(iii) In the above case in the Sale Agreement no period for executing the Transfer Deed is fixed and in para 3 of the Sale Agreement the Seller under took to execute deed or sign any document whenever required for finalization of sale and transfer of the suit property and at any later stage from execution and signing of the agreement of sale and full cooperate with the Vendee in the transfer/mutation of the suit property in all respect.
(iv) That in the above matter the Seller never refused to transfer the property and after the death of Appellants/Appellant/Petitioner's father and husband applied for Letter of Administration including the above property which was granted by Hon'ble High Court and as such the Appellant/Appellant/Petitioners applied for mutation of the property in the concerned department, the department demanded specific order by the Court. Therefore, the Appellants/Appellant/Petitioners tried their best to find out the Respondents on their available addresses and then the above suit is filed as such there is no bar of limitation and suit is within time.
(v) That the Appellate Court failed to consider the judgment referred by the Appellant where it has been defined when Suit for Specific Performance was filed after the period of Years where the Seller has not refused to performance of contract and where no time is fixed for performance of contract.
5. Learned counsel for the appellants has argued that the impugned order is based on misinterpretation of the provisions of Article 113 of the Limitation Act. According to learned counsel, the provisions of Article 113 are attracted when either date fixed for the performance expires or when the plaintiff has noticed that performance is refused, three years period of limitation is provided under the circumstances. Whereas in the instant case, as per learned counsel for the appellants, neither there is any fixed date for the performance nor there is any refusal on the part of either party. In the instant case the respondent No.1, namely, Moulana Muhammad Bilal Somayri, who was the owner of the lease hold residential plot bearing No. B-123, Block-B, measuring 200 sq. yds, together with double storied house constructed thereon, situated at Kazimabad, Survey Nos.302, 303, 305 to 311, Deh Mehran, Tappo Malir, Taluka and District Karachi East, vide registered lease deed, who subsequently executed Irrevocable Power of Attorney in favour of respondent No.2, namely. Muhammad Abdul Qadeer Khan with the power to sell the suit property. The respondent No.1 on the basis of such power executed agreement of sale in the year 1996 with Nazir Ahmed son of Ahmed Din against sale consideration of Rs.13,50,000/-(Rupees Thirteen Lac Fifty Thousand only). It was accordingly paid and receipt dated 13.12.1996 was issued Irrevocable General Sub-Power of Attorney in favour of the said Nazir Ahmed was also executed on 17.12.1996, which was duly registered with Sub-Registrar, "T" Div-III, Karachi and the physical vacant possession alongwith original documents of title were also handed over to said Mr. Nazir Ahmed being the father of appellants No.1,3,4 and husband of appellant No.2. According to learned counsel, the present peaceful possession of the suit property and there has never been any adverse claim or dispute regarding ownership of suit property. Learned counsel further states that on 10.7.2005 the father of appellants No.1,3,4 and husband of appellant No.2 expired. Where after the present appellants, being legal heirs of Nazir Ahmed applied for Letter of Administration in respect of suit property which was also granted on 18.2.2006 and Letter of Administration was issued on 6.11.2006. According to learned counsel, the appellants are entitled for mutation of such property on the basis of Sale Agreement, Receipt, registered Sub-Power of Attorney and Letter of Administration issued by this Court. Learned counsel in support of her arguments to the effect of agent's authority coupled with interest in agency, has placed reliance on a Division Bench judgment of this Court i.e. Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig P.L.D 1994 Karachi 194, wherein it has been held as under:
"The circumstances of the case show that Section 201 of the Contract Act is not attracted, but it is Section 202, which will apply. According to this section when the agent has himself an interest in the property, which forms the subject-matter of the agency, the agency cannot in the absence of an express contract be terminated to the prejudice of such interest. Thus, when the agent's authority is coupled with an interest, it becomes irrevocable. Of course, when the authority is not coupled with interest and is given independently then with the death of Principal the agency is terminated. In the case in hand, there is documentary evidence to show that the Christian owners had sold the suit property to one Mst. Jaina Bai wife of Muhammad for valuable consideration of Rs.3,25,000/- and handed over its vacant and peaceful possession to her, as per agreement to sell dated 21.8.1978. Aforesaid agreement of sale was accompanied by registered general irrevocable power of attorney. Thereafter, the Christian owners had no interest in the suit property and for all practical purposes it belonged to said Mst. Jaina Bai. Then there is evidence on record to show that said Mst. Jaina Bai, through her son Haider Ali, by an agreement of sale and irrevocable general power of attorney, sold the suit property to said Tajuddin Bayani, who, in his turn transferred it to the respondent. From 21.8.1978, the Christian owners ceased to be the owners of the suit property. Since interest was created through agreement of sale and by irrevocable power of attorney the agency could not be terminated.
On this point reference can also be made to the case reported as PLD 1979 Kar. 22, Syed Shafique Hussain v. Syed Abdul Qasim, wherein an observation in this regard was made. We also hold the same view. Said observation is as follows:-
"It is no doubt true that the power of attorney does not specifically mention the interest of the applicant in the land. But, as pointed out in ILR 20 Mad. 97, cited above, it is not necessary that express mention of the interest be made in document itself, as language of Section 202 of the Contract Act is wider and what is necessary under the said section is that the agent should have an interest in the property forming the subject matter of the agency which may be inferred either from the document or from the course of dealings between the parties and, I would add, from the other surrounding circumstances. In other words, it is the existence of the interest, not the mode in which it is given, that is of importance."
In the case of Muhammad Din v. Mst. Absar Fatima and others 1996 C.L.C 1979, it has been held as under:
"The plaintiffs and defendant No.2 claimed that the authority under power of attorney deed was not revocable as the donee of the power had himself an interest in the property, is not without substance. Defendant No.1, having herself created in the disputed property, a right of defendant No.2 under the deed registered on 2.7.1969 could not revoke this authority. Section 202 of the Contract Act, 1872 was applicable and illustration (a) applied to the facts of this case with full force. The contention of the appellants that the condition was void was not tenable."
6. On the ground of limitation, learned counsel has placed reliance on the case of Mst. Munawar Bibi v. Mst. Maheen Quddusi 1986 C.L.C 1887, wherein it has been held as under:
"It has also been noticed earlier that the present suit was filed on 16.5.1978. The relevant article of the First Schedule to the Limitation Act, 1908 is Article 113, which provides a period of three years for filing a suit for specific performance of contract and the time, from which this period of three years begins to run, is provided as the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. According to Mr. Jan Muhammad Dawood, learned counsel for plaintiff the case of the plaintiff falls within the second part of Article 113, that is, time begins to run when the plaintiff has notice that performance is refused.”
7. Learned counsel further argues that since in the instant case none of the eventuality as visualized in terms of Article 113 is attracted, therefore, both the Courts below have erred in law by placing reliance on Article 113 of the Limitation Ac t. According to learned counsel, this is a case where probate has been issued in favour of the legal heirs of Nazir Ahmed, who was owner of the subject suit property on the basis of sale agreement, receipt of the total amount of consideration, original document of title and peaceful possession of the suit property. The appellants have inherited of the rights and encumbrances in the subject property by virtue of law of inheritance duly recognized and confirmed by this Court while issuing Letter of Administration in favour of the appellants in respect of such property. Learned counsel further states that in view of herein above facts the appellants are entitled to get the subject suit property duly transferred/mutated in their names by the concerned department, who inspite of Letter of Administration issued by the Hon'ble Court in favour of the appellants refused to do so on the pretext of getting a specific order/decree from the Court.
8. I have heard the arguments, perused the record and examined the provisions of Article 113 as well the case law relied upon by the learned counsel for the appellants. I am of the opinion that in view of the facts and circumstances of this case, provisions of Article 113 of Limitation Act, are not attracted as none of the eventuality as visualized in such article is available in the instant case. The appellants have acquired lawful right in the subject property on the basis of sale agreement, receipt of the full amount towards sale consideration undisputed continuous physical possession of the suit property and original documents of title since 1996 as well as the registered Irrevocable General Sub-Power of Attorney with the right to sale i.e. agent's authority coupled with interest in the agency. Moreover the matter is non-contentious, there are no claimants except the present appellants, of the subject property hence there seems no impediment of suit is directed in favour of appellants. Accordingly, the impugned judgment and decree passed by both the Courts below are set aide. The appeal is allowed and the suit is decreed as prayed.