IN THE HIGH COURT OF SINDH, KARACHI
Constitutional Petition No.D-2400 of 2010
Present:
Mr. Justice Sajjad Ali Shah &
Mr. Justice Aqeel Ahmed Abbasi, JJ
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Date of Hearing |
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9th February 2012
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Date of Short Order
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9th February 2012
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Petitioner
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Sher Afzal through his Attorney Azmat Abbas Butt through Mr. Gohar Iqbal, Advocate.
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Respondent No.1 |
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Mujahid Raza through Syed Muhammad Abbas, Advocate.
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Nemo for Respondent No.2. |
SAJJAD ALI SHAH, J – Through instant petition the petitioner has challenged the concurrent findings of Courts below whereby his application under Section 12(2) C.P.C. for setting aside judgment and decree dated 06.08.2007 was dismissed by the trial Court vide its order dated 27.03.2009 and the revision filed against the said order met the same fate through order dated 01.03.2010 passed by the Ist Additional District Judge in Civil Revision Application No.25 of 2009. We also after hearing the learned counsel for the respective parties through a short order had dismissed this petition in the earlier part of the day and these are our reasons for so doing.
Briefly the respondent No.1 on 09.7.2005 filed Civil Suit No.768 of 2005 against the petitioner through his attorney Mushtaq Hussain i.e. respondent No.2 seeking declaration, specific performance, possession and permanent injunction. It was asserted that the petitioner through his attorney on 17.12.2002 entered into an agreement for sale of shop No.A-8/1 admeasuring 58 square yards situated in a project named as “Latif Plaza” constructed on Sub-Plot No.FL-4/8 of Plot No.FL-4/A, Block No.6, K.D.A. Scheme No.24, Gulshan-e-Iqbal, Karachi (hereinafter referred to as “said property”) for a total sale consideration of Rs.12,00,000/-. Respondent No.1 paid a sum of Rs.100,000/- and was ready and willing to pay balance sale consideration, but the petitioner was avoiding and neglecting to perform his contractual obligations leading to filing the suit. Petitioner on 07.10.2005 through his attorney Mushtaq Hussain i.e. respondent No.2 filed written statement denying the agreement of sale as well as receipt of Rs.100,000/- as part payment and pleaded that the agreement itself is fabricated. It was, therefore, prayed that the suit be dismissed with special compensatory cost.
The trial Court after framing issues allowed parties to adduce their evidence, the respondent No.1 as plaintiff led his evidence and was cross-examined by the counsel for petitioner and, thereafter, respondent No.2 as attorney of petitioner appeared in the witness box, who was cross-examined by the counsel for respondent No.2 and on the basis of documentary as well as oral evidence trial Court vide its judgment dated 30.07.2007 allowed specific deposit of balance sale consideration in the sum of Rs.1,100,000/-. Admittedly balance sale price of Rs.1,100,000/- has been deposited by the respondent No.1, sale deed stands executed as no appeal was filed by the petitioner against the said judgment and decree.
The petitioner instead of filing appeal against the judgment and decree on 14.01.2008 filed an application under Section 12(2) CPC seeking setting aside the judgment and decree dated 30.7.2007 and 06.8.2007 respectively through present attorney viz. Azmat Abbas Butt. The respondent No.1 filed a detailed counter-affidavit and the trial Court after hearing the application through its order dated 12.01.2008 summarily dismissed the said application. Petitioner, thereafter, filed Civil Revision Application No.45 of 2008 before the IInd Additional District Judge, Karachi East, who vide his order dated 24.12.2008 upon setting aside the said order remanded the case to the trial Court with direction to provide opportunity to the parties of adducing evidence. The petitioner through his second i.e. present attorney Azmat Abbas Butt led evidence in support of application under Section 12(2) CPC, whereas respondent No.1 himself appeared in the witness box. The trial Court after appreciating the documentary as well as oral evidence adduced by the respective parties on record dismissed the application under Section 12(2) CPC vide its order dated 27.3.2009. The petitioner, thereafter, impugned the said order before the Ist Additional District Judge, Karachi East in Civil Revision Application No.25 of 2009 which also met the same fate through order dated 01.03.2010 impugned in the instant petition.
Mr. Gohar Iqbal for the petitioner after referring of various portion of evidence has raised two propositions, firstly, that though the respondent No.2 was the duly constituted attorney of the petitioner at the time of filing the suit but the petitioner during the proceedings had revoked his attorney on 13.11.2005 which fact was concealed from the Court resulted in judgment and decree against the petitioner and therefore, on account of such concealment the decree was liable to be set aside, and secondly, that since it has come on record that the first attorney of the petitioner i.e. Mushtaq-respondent No.2 was a friend of respondent No.1, therefore, they both in connivance have manipulated a shame agreement in order to deprive the petitioner from his property, therefore, on account of such friendship between the respondent No.1 and 2, they tried to deprive the petitioner from his valuable property and therefore, the judgment and decree were liable to be set aside. In support of his contention Mr. Gohar Iqbal has placed reliance on the Judgments of the Supreme Court in the case of Haji Faqir Muhammad and others Vs. Pir Muhammad and another (1997 SCMR 1811) and Rasool Bukhsh and another Vs Muhammad Ramzan (2007 SCMR 85)..
On the other hand Counsel for the respondent contends that since the petitioner admits that on the date of filing the instant suit his previous attorney i.e. respondent No.2 was duly empowered to sell the said property and to receive the process from the Court, therefore, even if the power of attorney was revoked during pendency of suit, the sale agreement process accepted in the suit, written statement filed were lawful acts of the attorney and could not be vitiated on account of subsequent revocation and of course such change cannot adversely effect the rights of respondent No.1. Regarding second contention, it is asserted that the petitioner, his previous attorney and the present attorney are closely related to each other and in fact they have connived to defeat the lawful rights of the respondent No.1 by manipulating a back dated revocation. He has further relied on Section 203 to 206 of the Contract Act to plead that the revocation of agent’s authority subsequent to exercise of such authority binds the principal of all the acts of the agent prior to revocation and in the instant case even according to the petitioner’s case the authority given to respondent No.1 through power of attorney dated 24.03.1998 to sell the suit property was duly exercised by the agent/respondent No.2 on 17.12.2002, therefore, even the alleged revocation dated 13.11.2005 would not effect the transaction. He therefore, prays for dismissal of the instant petition with exemplary cost including the cost deposited by the petitioner in terms of Order dated 24.12.2010.
We have heard the learned counsel for the respective parties at length and have perused the record minutely and the case law cited at bar.
Perusal of the record reflects that the petitioner admittedly on 24.03.1998 had executed a general power of attorney in favour of Respondent No.2 which was duly attested by the Embassy of Pakistan at Riadh, empowering the respondent No.2 inter-alia to sell, mortgage, encumber, transfer, let out, gift the said property and also prosecute and defend cases before any Court or authority including appointment of pleader and to verify and file plaints, applications etc., and consequent to such powers the said attorney entered into a sale agreement with the respondent No.1 on 17.12.2002 in respect of said property for a total sale consideration of Rs.12,00,000/- and received Rs.100,000/- in cash. The record further reflects that after filing of suit for specific performance of the said agreement on 09.07.2005 the respondent No.2 filed written statement on 07.10.2005, therefore, even if the revocation of said power of attorney dated 13.09.2005 is accepted on its face value still all actions i.e. sale agreement, acceptance of notice of the suit as well as filing of written statement were duly competent and in terms of Section 203 of the Contract Act had a binding force against the petitioner. Beside perusal of the revocation of Power of Attorney reflects that though it specifies the date of execution as 13.11.2005 at Riyadh but it has been stamped in Pakistan on 05.12.2009 which cause serious doubt on the execution date of revocation. Even otherwise, in view of the facts that the respondent No.2 i.e. previously attorney of the petitioner had denied the execution of sale agreement and receipt of Rs.100,000/- from the respondent No.1 not only in his written statement but in his evidence too, therefore, the assertion of Mr. Gohar Iqbal regarding connivance between respondent No.1 and respondent No.2 appears to be totally misplaced. This view further find support from the fact that the petitioner has close relationship not only with his previous attorney but with the present attorney and both the attorneys are also closely related inter se. Therefore, the friendship of respondent No.1 with the previous attorney keeping in view his relationship with the petitioner / principal does not permit us to accept connivance between respondent No.1 and respondent No.2, specially when the respondent No.2 previous attorney did not make any concession in favour of respondent No.1 entitling setting aside of judgment and decree on the ground of fraud or misrepresentation.
As to case law, in the case of Haji Faqeer Muhammad (supra) the Apex Court has held that attorney while alienating the property of his principal in favour of those who are so closely related to the agent, that ultimate beneficiary, the agent would be himself, should in his own interest obtained the consent of the principal, failing which, the principal is at liberty to repudiate the transaction. In the instant case, admittedly, agent / attorney is not closely related to the beneficiary, not even related to the beneficiary what to speak closely related. On the contrary, the agent is related to the principal and ultimate beneficiary is not the Attorney, therefore, the dicta laid down in the judgment is of no benefit for the petitioner. Likewise in the case of Rasool Bukhsh (supra) the Apex Court has held that a person who is validly authorized to alienate the property of other, has to satisfy the Court that at the time of entering into a transaction of sale of a property, the principal was not available and if there is no such evidence then the transaction does not hold good unless it is established that the transaction has been made with the knowledge and with consent of the principal. Again this principal is inapplicable to the case in hand as admittedly the principal throughout and till date is out of country.
We in the circumstances, find no reason to interfere with the concurrent findings of the Court below and dismiss this petition with cost of Rs.50,000/- already deposited by the Petitioner with the Nazir of this Court in compliance to Order dated 24.12.2010.
JUDGE
JUDGE