Judgment Sheet

IN THE HIGH COURT OF SINDH KARACHI

(Civil Appellate Jurisdiction)

Revision Application No. 28 of 2013

Applicant                   :   Jamil Ahmed Shaikh, through

                                                    Syed Rafiq-un-Nabi Advocate.

Respondent              :   Muhammad Taqi Siddiqui called absent.

            Date of hearing        :   24.01.2019.

J U D G M E N T

NADEEM AKHTAR, J. – Suit No. 22 of 2007 for declaration, specific performance, possession and permanent injunction filed by the respondent was decreed against the applicant by learned IV^th Senior Civil Judge Karachi Central vide impugned judgment and decree dated 02.02.2010 and 08.02.2010, respectively ; and, Civil Appeal No.35/2010 filed by the applicant against the said judgment and decree was dismissed by the learned I^st Additional District Judge Karachi Central vide judgment and decree dated 10.12.2012 and 17.12.2012, respectively. This Civil Revision Application has been filed by the applicant against the concurrent findings of the learned trial and appellate Courts.

2.         Relevant facts of the case are that the above Suit was filed by the respondent seeking declaration, specific performance, possession and permanent injunction against the applicant in respect of residential portion No.’B’, ground floor, Plot No.12, Row No.9, Sub-Block ‘F’, Block 3 (III-F, 9/12), measuring 824 sq. ft., Nazimabad, Karachi, (‘suit property’). It was the case of the respondent / plaintiff that the suit property was owned by one Mst. Shahnaz Begum who granted a registered irrevocable general power-of-attorney dated 09.04.2001 in respect thereof in favour of the applicant ; the applicant entered into an agreement to sell dated 01.06.2006 (‘the agreement’) with him, whereby the applicant agreed to sell the suit property to him in consideration of Rs.2,050,000.00 ; some part payments, as mentioned in the plaint, were made by him whereafter an amount of Rs.1,540,000.00 was payable by him to the applicant ; and, despite his requests, the applicant did not transfer / convey the suit property to him and refused to perform his agreed part of the contract. In the above background, the respondent filed the above Suit against the applicant and official defendants who were joined only as proforma defendants.

3.         Perusal of the agreement shows that it was clearly stated therein that the actual and real owner of the suit property was one Mst. Shahnaz Begum and the applicant was merely her attorney. Likewise, perusal of the respondent’s plaint shows that the respondent was fully aware that the applicant was not the owner of the suit property, but was merely an attorney of the actual and real owner as this fact was specifically pleaded by him in paragraphs 2, 3 and 4 of the plaint. Despite this admitted position, the agreement was not made in the name of the owner nor was the owner joined by the respondent in his above Suit. Moreover, it was not pleaded in his plaint by the respondent that the applicant had purchased the Suit property from Mst. Shahnaz Begum nor was any agreement or other title document in this behalf produced by him in his evidence. Since the suit property was admittedly owned by Mst. Shahnaz Begum and the applicant was her attorney, the agreement ought to have been made between Mst. Shahnaz Begum and the respondent, by mentioning in the recital that it was being executed by Mst. Shahnaz Begum through the applicant / her attorney. If this course had not been adopted by the parties and the agreement was made inadvertently in the name of the applicant / attorney, even then the Suit ought to have been filed against the owner Mst. Shahnaz Begum through her attorney. It is well-settled that an attorney can neither sue in his own name or personal capacity nor can he be sued as such. Needless to say that a Suit for declaration, specific performance, possession and/or injunction in respect of an immovable property cannot be filed or proceeded with in the absence of the actual owner of such property. Therefore, the Suit filed by the respondent, being bad for non-joinder of necessary party, was not maintainable in law.

4.         It may be observed that under Order I Rule 10(2) CPC the learned trial Court had the power and jurisdiction to add the owner of the suit property as a party to the Suit suo motu, but the learned trial Court failed to exercise such power and jurisdiction despite the fact that it was an admitted position on record that the applicant / defendant was not the owner of the suit property and the name and other particulars of the actual owner of the suit property were on record. Not only this, no issue on the point of maintainability of the Suit on this ground was framed by the learned trial Court. Unfortunately the learned appellate Court also failed to appreciate the above aspect. Revisional jurisdiction can be exercised only in case of non-assumption or illegal assumption of jurisdiction, or where jurisdiction is exercised illegally or with material irregularity. In view of the above discussion, I am of the considered view that the judgments and decrees passed by the trial and appellate Courts are not sustainable in law and both the learned Courts below failed to exercise the jurisdiction vested in them by law.

5.         In view of the above, the impugned judgments and decrees of the learned trial and appellate Courts are hereby set aside and the above Suit filed by the respondent is hereby dismissed. However, the respondent may seek his remedy for recovery of the amount paid by him to the applicant, if the law so permits. This Revision Application is allowed in the above terms with costs throughout.

    J U D G E