ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision Application No. S-85 of 2010
1. For hearing of CMA No.05/2011.
2. For hearing of main case.
Applicants: Safdar Hussain Jatt & others.
Respondents: Zafar Ali & others.
Mr. Prem Chand R. Sawlani, advocate for the Applicants.
Mr. Ghulam Dastagir A. Shahani, advocate for respondent No.1.
Mr. Abdul Hamid Bhurgri, Additional Advocate General.
Dates of hearing : 27.08.2020 & 03.09.2020.
Date of Order : 03.09.2020.
J U D G M E N T.
Through this Civil Revision Application, the Applicants have impugned judgment dated 23.11.2010 passed in Civil Appeal No.14/2010 by 1st Additional District Judge, Shikarpur, whereby the judgment dated 24.03.2010 and decree dated 31.03.2010 in F.C. Suit No.18/2003 passed by 2nd Senior Civil Judge, Shikarpur dismissing the Suit of Respondent No.1 has been set aside by decreeing the Suit of Respondent No.1.
2. It appears that the plaintiff in Suit/respondent No.1 sought specific performance of an agreement and permanent injunction, with the following prayer(s): -
(a) To pass decree in favor of the plaintiff for the Specific Performance of Contract, while directing the defendant No.4 through himself or through his legal attorney to perform his part of contract by executing registered sale deed in favor of plaintiff regarding the Suit land after receiving the remaining consideration amount of Rs. 39,750/- from plaintiff and in case of failure, the Nazir of this Honourable Court be directed to do the needful.
(b) To grant permanent injunction, restraining the defendants No.3 and 4 from forcibly and illegally dispossessing the plaintiff from the Suit land, moreover, the defendants No.2 to 5 be restrained from alienating, mutating, transfer and mortgaging the right of Suit land in favor of other person except plaintiff.
(c) To award the costs of the Suit.
(d) To grant any other equitable relief which this Honorable Court may deem fit and proper with circumstances of the case.
3. After filing of written statement, following issues were settled by the learned Trial Court and through judgment dated 24.3.2010 the Suit was dismissed.
1. Whether Suit is not maintainable?
2. Whether Suit is time barred?
3. Whether Suit is barred by section 42, 54 and 56 of Specific Relief Act?
4. Whether Suit is barred under provisions of Contract Act?
5. Whether agreement to sell dated 20.07.2001 executed by defendant No.5 in capacity of attorney of defendant No.4 in favor of plaintiff in respect of Suit land is legal, lawful and is binding upon defendant No.4, and whether such transaction in favor of plaintiff was without notice, knowledge and information of defendant No.4 and as such said sale agreement is collusive and fraudulent?
6. Whether general power of attorney dated 22.01.2003 executed by defendant No.4 in favor of Muhammad Ayaz S/o Muhammad Qasim is legal, valid and was legally executed by defendant No.4 after cancellation of general power of attorney in favor of defendant No.5 and having legal sanctity?
7. Whether defendant No.4 sold out the Suit land to Muhammad Ayaz through agreement to sell dated 21.01.2003 in the sum of Rs.5,00,000/- and possession of same was too delivered?
8. Whether agreement to sell dated 21.07.2001 executed by defendant No.5 in favor of plaintiff is based on malafides?
9. Who is in possession of the Suit land either plaintiff or defendant No.4 or even Muhammad Ayaz?
10. Whether plaintiff is entitled to the relief as sought for?
11. What should the decree be?
4. Thereafter appeal was preferred, which has been allowed through impugned judgment dated 23.11.2010 through which the Suit of Respondent No.1 / Plaintiff has been decreed.
5. Learned Counsel for the Applicants has contended that the Appellate Court has failed to comply with the provision of Order 41 Rule 31, CPC, as no points for determination were settled; that the Appellate Court also failed to appreciate the evidence led by the parties; that the learned trial Court had settled various issues and after a threadbare examination of the entire evidence was pleased to dismiss the Suit, hence no interference was warranted; that the Suit for specific performance filed by respondent No.1/plaintiff could not have been decreed, as the power of attorney of respondent No.2/defendant No.5 on the basis of which Sale Agreement was executed stood cancelled/revoked; that in terms of Section 215 of the Contract Act the said attorney/ respondent No.2 had no legal authority to enter into any sale agreement of the property in question without informing and obtaining permission from the Applicants; that admittedly no specific permission was granted by the Applicants to respondent No.2 to sell the property in question; that it is the case of the Applicants that respondent No.2/attorney was acting dishonestly, had committed fraud and betrayed confidence; hence in absence of specific permission as contemplated under Section 215 of the Contract Act no sale could have materialized; that the objection regarding competency of this Civil Revision Application filed through attorney is also misconceived inasmuch as the power of attorney is already on record, whereas as an abundant caution, subsequently a fresh power of attorney has been placed on record and the defect, if any, stands cured; that the Appellate Court was required to dilate upon the entire evidence while setting aside the judgment of the trial court dismissing the Suit. In support of his contention, he has relied upon the following reported cases: -
1. Province of Punjab v. Muhammad Sharif (PLD 1990 Lahore 208),
2. Mrs. Ismat Ashraf v. Salateen Trust (2017 CLC Note 199),
3. Wali Muhammad v. Mohammad Ramzan (2017 CLC Note 183),
4. Rafique Ahmed v. Ashok Kumar (2017 CLC 317),
5. Imam Dino v. Nawaz Ali Shah (2003 CLC 1889),
6. Moar v. Member Board of Revenue (2012 CLC 912),
7. Saif Ullah v. Waqar-ul-Haq (2012 CLC 899),
8. Muhammad Hanif v. Muhammad Aslam (2016 CLC Note 80),
9. Juma Khan v. Shamim (1992 CLC 1022),
10. Abdur Razzaq v. Sabar Khan (2004 CLC 950),
11. Karachi Development Authority v. Taj Mahal Nursery (2000 CLC
1352),
12. Shaukat Ali v. Razia Bibi (1999 CLC 62),
13. Jan Muhammad v. Hashmat Bibi (2005 MLD 657),
14. Muhammad Khan v. Bahadur (2005 MLD 672),
15. Trustees of the Port of Karachi v. Faquir Muhammad (1992 MLD
1782),
16. Shair Rehman v. Said Dilawar Jan (2006 CLC 1324),
17. Fairdoon v. Shafiullah Khan (2002 CLC 1262),
18. Muhammad Mustafa v. Janat Bibi (2006 YLR 941),
19. Asghar Abbas v. Muhammad Ramzan (1993 CLC 1313),
20. Tariq Mehmood v. Ahmed Din (2009 CLC 940),
21. Muhammad Ibrahim v. Muhammad Idrees (1998 CLC 1123),
22. Muhammad Ramzan v. Fatima (PLD 2004 Lahore 14),
23. Muhammad Rashid Ahmed v. Muhammad Siddique (PLD 2002
Supreme Court 293),
24. Noor Hussain v. Hussain Bibi (2007 SCMR 378),
25. Abdul Qadir v. Ghulam Qadir (1996 CLC 1216),
26. Muhammad Khaqan v. Trustees of the Port of Karachi (2008
SCMR 428),
27. Muhammad Shafi v. Shamim Khanum (2007 SCMR 838),
28. Muhammad Ameen v. Sardar Ali (PLD 2006 Supreme Court 318),
29. Muhammad Ashraf v. Muhammad Malik (PLD 2008 Supreme Court
389),
30. Faqir Muhammad v. Pir Muhammad (1997 SCMR 1811),
31. Jamil Akhtar v. Las Baba (PLD 2003 Supreme Court 494),
32. Munir Hussain v. Muhammad Aslam (PLD 2003 Azad J&K 16),
33. Hamid Khan v. Musa Khan (1974 SCMR 335),
34. MuhammadShafi v. Government of Sindh (2014 YLR 602),
35. Ayoob Ali Shah v. Rabia Begum (2013 CLC 419),
36. Gul v. Jumo (2017 MLD 1878),
37. Qadir Bakhsh v. Nizam-ud-Din Khan (2001 SCMR 1091),
38. Muhammad Nazir v. Muhammad Yaqub (2003 SCMR 1246),
39. Lal Baz v. Gulab (1989 CLC 8),
40. Yan Loong Wu v. Sultan Jehan (1984 CLC 2369),
41. Abdul Momin v. Haleema Saadia (2007 CLC 760),
42. Muhammad Hussain v. Shahzad Khan (2006 CLC 1038),
43. Khayam Films v. Bank of Bahawalpur Ltd. (1982 CLC 1275),
44. Bashir Ahmad v. Muhammad Qasim (1992 MLD 2407),
45. Muhammad Khaliq v. Abdullah Khan (1987 CLC 1366),
46. Fazal-ur-Rehman v. Khurshid Ali (NLR 2005 Civil 47),
6. On the other hand, learned Counsel for respondent No.1 has contended that this Civil Revision Application is not maintainable as the attorney who has filed the same, had no specific authority to do so and at the most his authority was only in respect of the Civil Suit before the trial Court; that the learned Appellate Court has decided the controversy after threadbare examination of the entire material, including the evidence and therefore, the objection in respect of non-compliance of Order 41, Rule 31, CPC is not sustainable; that respondent No.1 filed Suit for specific performance of agreement entered into with respondent No.2, who was acting as the attorney of the Applicants’ father(since deceased), whereas neither the power of attorney in his favor, nor the agreement itself, has been denied; that the only objection raised in the written statement by the deceased father of the Applicants appears to be that the entire amount was not paid to him; that it is not a case whereby Section 215 of the Contract Act could be invoked inasmuch as the power of attorney in question was registered and had given full authority to the attorney not only to manage the property but so also to sell the same and even mortgage or lease out; that the purported revocation of the power of attorney is subsequent in time after execution of the agreement and without notice and assigning any reasons; hence is of no legal value and therefore, the Revision Application does not merit any consideration. In support he has relied upon the following cases: -
01. Intej Ali v Yadullah & Others (PLD 1961 Dacca 79),
02. Wilayat Begum v Wazir Begum (1992 CLC 553),
03. Muhammad Siddique v Mst Shagufta Begum (1994 CLC 1690),
04. Islamic Republic of Pakistan v Abdul Ghani Abdul Rahman (2002 CLC 1039),
05. Muhammad Meharban v Sadrud Din (1995 CLC 1541),
06. Wazeer Ahmed v Abudl Ghani (2010 MLD 1167),
07. Irshadullah v Muhammad Arshad (2005 CLC 1774),
08. Ramzan v Lara and others (2001 MLD 957),
09. Muhammad Karim v Kala and others (2014 YLR 353),
10. Alamgir Khan v Haji Abdul Sattar Khan (2009 SCMR 54),
11. Unreported judgment dated 18.01.2010 re-Zaman Shah &
others v/sMst. Irshad and another
7. I have heard both the learned Counsel and perused the record.
8. First I would like to deal with the objection regarding maintainability of this Civil Revision Application on the ground that the power of attorney annexed and placed on record is not in respect of this Civil Revision Application; but only for the purposes of F.C. Suit No.18/2003. On perusal of the same though it reflects that Muhammad Ismail Dahar was appointed by the present Applicants on 05.09.2006 as their attorney purportedly after the demise of their father, the original owner of the property as their special attorney for us, in our name and on our behalf in the “case” titled Zafar Ali v/s Province of Sindh, F.C. Suit No.18/2003; however at the same time it needs to be appreciated that the proceedings of appeal and Revision are apparently in continuation of the said case and the word “case” would not only include F.C. Suit No.18/2003, but the adjudication of the case even thereafter. Secondly, a subsequent power of attorney has been placed on record which is in continuation of the earlier one, and now specifically empowers the attorney to prosecute this Civil Revision, and therefore, the objection, if any, stands cured and I am not inclined to sustain this objection so raised by learned Counsel for respondent No.1 to dismiss this Civil Revision Application as being filed incompetently. Moreover, it is also a settled proposition of law that if the attorney is acting in support of and to preserve the interest of the executants, whereas the executants have not come forward to object or dispute the authority so conferred, then the presumption would be that the attorney is competent to act in the interest of the executants. Reliance in this regard may be placed on the case reported as First Dawood Investment Bank Limited v Bank Islami Limited (2020 CLD 49) approved by the Hon’ble Supreme Court in the case reported as First Dawood Investment Bank Limited v Bank Islami Limited (2019 SCMR 1925) and Qadir Buksh & Others v Kh. Nizam-ud-Din Khan and others (2001 SCMR 1091) and Muhammad Khaliq v Abdullah Khan (1987 CLC 1366).
9. In the case reported as Muhammad Nazir v Muhammad Yaqub (2003 SCMR 1246) the Hon’ble Supreme Court has dealt with an identical situation and has been pleased to hold that even if a power of attorney was given to a person for pursuing the case before a District Judge, the same in absence of any challenge by the executants, will also be valid for further appeals and revisions. The relevant finding is as under;
5. Learned counsel then contended that revisions were field by Allah Rakha on behalf of respondents, but without proper authorization, therefore, revisions were not maintainable.
In this behalf it is to be noted that such objection was raised by the petitioners before the High Court but it was overruled for the reasons namely that though the power of attorney was executed in his favour at the time when the matter was pending in appeal but it pertains to the present litigation between the parties which culminated into revisional judgment of the High Court. It may also be noted that as far as the respondents are concerned, they have never denied that so far as Allah Rakha is concerned, he was not duly authorized to participate in the proceedings, therefore, legally it would be presumed that on the basis of. said power of attorney, which was executed in his favour, mentioning therein that he was authorized to appear on behalf of respondents up to the Court of District Judge, can also be considered as a document on the basis of which he was authorized to file revisions, arising out of the litigation between the parties.
Accordingly, the objection in respect of this Civil Revision being filed by an incompetent person raised on behalf of Respondent No.1 is hereby repelled.
10. Insofar as the objection regarding the judgment passed by the Appellate Court in terms of Order XLI Rule 31 and non-framing of points for determination is concerned, I may observe that on perusal of the said judgment, it appears that though specific points for determination have not been so stated, however, the learned Appellate Court after perusal of the material available on record and going through the Record & Proceedings of the trial Court has given its cogent findings which reflect that the controversy and the objections so raised on behalf of the Applicants have been duly attended to. If the Appellate Court in each and every case, has not framed points for determination, it is not that such judgment would be liable to be set aside on that ground alone, whereas, it becomes immaterial, more-so, when all the questions raised have been answered by the Appellate Court. The case of the Applicants is not that any misreading or non-reading of the evidence is involved; nor it is the case of the Applicants that the Courts below had no jurisdiction or have acted in excess of jurisdiction. It is, but sufficient, that the Appellate Court answers the material questions in its judgment and even if no points are framed for determination it would not ipso facto render the judgment illegal or without lawful authority subject to that the point or controversy has been attended to and decided on the basis of evidence available before the Court. This could only sustain when the judgment is itself without reasoning and also fails to determine the points for determination and not when it is a reasoned judgment attending to all the relevant issues / pertinent controversy between the parties.
11. The Hon’ble Supreme Court of Pakistan in the case of Muhammad Iftikhar v. Nazakat Ali (2010 SCMR 1868) has been pleased to deal with a similar situation and has observed as under:
4. We asked the learned counsel as to what were the arguments specifically urged before the learned High Court during the hearing of the regular second appeal but he failed to specifically refer the law points urged during the course of arguments before the learned High Court. However, perusal of para No.6 of the impugned judgment indicates that the only ground urged before the learned High Court was that the learned Courts below did not strictly adhere to the provisions of the Order XLI, Rule 31, C.P.C., which contention has been properly and correctly addressed to by the learned High Court in the impugned judgment. It appears from the perusal of the impugned judgment and that by the first Appellate Court, in substance compliance of the provisions of Order XLI, Rule 31, C.P.C was made and it is not always required that in each case the Appellate Court would deal with each of the issue and to resolve the same separately in the light of the evidence available on the record unless the same had caused any serious violation of the law or resulted into a grave miscarriage of justice to any of the parties to the Suit.
5. In the instant case, the findings of facts recorded by the learned trial Court on the issues were maintained by the learned first Appellate Court, therefore, unless the findings are reversed by the first Court of appeal which is not so in the present case, decision on each issue may not to be distinctly and essentially recorded, provided in substance compliance of the provisions of the Order XLI, Rule 31, C.P.C. has been made. The case-law cited by the learned counsel in view of his contention before the learned High Court, is quite distinguishable and is, therefore, not relevant. In our considered opinion, the impugned judgment does not suffer from any impropriety or illegality, so as to call for any interference by this Court.”
12. Similar view has been expressed in the case of Hafiz Ali Ahmad v. Muhammad Abad and others PLD 1999 Karachi 354, Ghulam Samdani and others v. Faqir Khan PLD 2007 Peshawar 14, Abdulllah and 11 others v. Muhammad Haroon and 8 others 2010 CLC 14 and Muhammad Azam v. Mst. Khursheed Begum and 9 others 2013 Y L R 454.
13. Here in this matter, the learned Appellate Court has decided the main controversy regarding the admissibility of the agreement and the validity of power of attorney and whether on the basis of such admitted documents a decree for specific performance could have been passed or not. And once that is decided with detail reasoning, then even a failure on the part of the Appellate Court in mentioning the points for determination separately in its order would not be that damaging so as to set-aside the same on this ground alone in absence of any other evidence, material or convincing argument in favor of the Applicants. The relevant finding of the appellant Court is as under which I am of the view is correct and does not require interference by this Court while exercising jurisdiction under section 115, CPC;
I have considered the submissions advanced by learned advocate for appellant, learned advocate for respondent No.4 and perused the material available on record so also perused the R&Ps of trial Court. Perusal of record reveals that the appellant had filed Suit for Specific Performance of Contract and Permanent Injunction in respect of an agricultural land bearing S.Nos.407, 418 and 429, measuring area 23-39 acres, situated in Deh Kandhar, Taluka Garhi Yasin, District Shikarpur, claiming that he had purchased the said land from respondent No.4 through his legal and lawful general attorney respondent No.5. The plaintiff paid Rs.200000/- in cash to respondent No.4 through his legal attorney and for remaining consideration amount 18 months’ period was given to appellant; such agreement was reduced in writing on 20.07.2001 attested by witnesses executed by respondent No.5 on behalf of respondent No.4. In first week of January 2003 appellant approached to respondent No.5 to perform his part of contract while receiving balance consideration amount of Rs.39750/-, but firstly he kept the appellant on hopes, ultimately refused to do so. The appellant also directly approached respondent No.4 to perform his part of contract, but he also refused, ultimately he filed above Suit.
I have perused the General Power of Attorney dated 11.07.2001 executed by respondent No.4 in favor of respondent No.5 in respect of an agricultural land situated at Deh Kandher, Tapa Kandher, Taluka Garhi Yasin, District Shikarpur. In Para No.1 of said General Power of Attorney the respondent No.4 empowered respondent No.5 to sell, to mortgage, lease out, gift out or exchange the said properties whatsoever may be. I have also perused the written statement of respondent No.4 filed by him before trial Court, whereby in Para No.5 he has admitted that he appointed respondent No.5 as his General attorney by reposing confidence in him. The respondent No.5 in his written statement has also admitted that he was appointed as attorney by respondent No.4 under registered General Power of attorney dated 11.07.2001 and on the strength of said attorney power he executed an agreement to sell dated 20.07.2001 with the appellant. He further added that after filing aforesaid Suit one Muhammad Ayaz S/O Muhammad Qasim Dahar moved an Application U/O 1 Rule 10 CPC through his advocate for his joinder in the Suit as defendant No.6, he along with his Application filed photostat copy of agreement to sell dated 21.01.2003 and photostat copy of General Power of Attorney dated 22.01.2003 executed by respondent No.4 in his favour, he also produced photostat copy of document dated 28.11.2001 showing that the power of attorney dated 11.07.2001 executed by respondent No.4 in favour of respondent No.5 has been cancelled/revoked without first giving notice to respondent No.5. Lastly he admitted that sale agreement dated 20.07.2001 executed by respondent No.5 in favour of appellant is valid and binding upon respondent No.4 because at that time the power of attorney dated 11.07.2001 in favour of respondent No.5 was intact and operative. When the respondent No.4 executed general power of attorney in favour of respondent No.5, then he was fully authorized to sell out the disputed land to appellant, as such he has rightly sold out the disputed land to appellant. The respondent No.4 has stated that he had revoked the General power of attorney executed by him in favour of respondent No.5, but he did not give any notice to him.
14. It may also be noted that the argument in respect of violating Section 215 of the Contract Act is also misconceived inasmuch as the power of attorney in question executed by deceased father of the Applicants in favor of respondent No.5 was a registered instrument and it is not in dispute that such power was executed by him. In the evidence it has come on record, and even in the written statement of the deceased father, such execution has not been denied. Learned Counsel for the Applicants has argued that since the father of the Applicants expired after filing of the written statement, and never appeared in the witness box, therefore, no reliance can be placed on such written statement as it has not been proved in the evidence. Though on the face of it, this argument appears to be attractive and convincing, as it is settled law that ordinarily until the written statement is proved in the evidence after going through the test of cross examination, it cannot be relied upon; however, at the same time, in cases like in hand, when the person who was privy to the real facts and has expired after filing of his written statement, his legal heirs or for that matter an attorney, cannot go beyond the said stance of a deceased person so recorded by him in the written statement. He can only depose in support of the written statement already on record, except where permission has been granted to file another written statement, which again is done in rare cases. At least not in this case. The facts cannot be added, twisted or changed in such circumstances by his legal heirs as they are not in any better position to prove or disprove such facts. The attorney Mr. Ismail Dahri was in fact appointed by the legal heirs of Applicants / Defendant No.4 on 5.9.2006 and not by the said Defendant himself (in fact deceased Niaz Muhammad had purportedly appointed one Muhammad Ayaz S/o Muhammad Qasim somewhere in 2002 as stated in his written statement who never appeared in evidence). In his cross examination the attorney says that “I was told by deceased Niaz Muhammad in respect of sale of suit land under false agreement”. Now he is not the attorney of Defendant No.4; but of the legal heirs of Defendant No.4; hence, it is not easily conceivable that he had any direct knowledge about the facts of the case as contended. He has further stated in his cross examination that “The defendant No.4 deceased Niaz Muhammad had given the general power of attorney to Defendant No.5 Tairque bin Zia on 12.07.2001 and Defendant No.5 sold out the suit land to his relative plaintiff Zafar Ali on 20.07.2001 under agreement of sale without consent of defendant No.4 deceased Niaz Muhammad”. This piece of evidence led on behalf of the Applicants / Defendant No.4 confirms that a power of attorney was given by the deceased Niaz Muhammad; however, the same was misused. In my view as already noted, for that the remedy ought to have been availed independently and not by filing written statement in the Suit of Respondent No.1 for specific performance. Again he has stated that “It is incorrect to suggest that it was mentioned in general power of attorney executed by defendant No.4 in favor of defendant No.5 that defendant No.5 will sale [sic] the land”. This is belied from the contents of the power of attorney on record and his evidence is not at all confidence inspiring as he is giving false evidence as against the record itself.
The said piece of evidence through which an attempt has been made to resile on facts so averred by the deceased person in his written statement can always be looked into by the Court after an overall perusal of the record and appraisal of the evidence led on behalf of the deceased. Here in this matter perusal of the power of attorney executed by Defendant No.4, the deceased father of the Applicants clearly reflects that the attorney had full powers not only to manage the property, but to sell, mortgage or lease out etc.etc. And to that extent there is no denial; rather an admission is recorded in the written statement in response to Para 5 of the plaint by stating “That the Para No.5 is denied. The averment is coaled-up [sic] except that the defendant No.4 appointing defendant No.5 as his General attorney by reposing confidence in him, but he betrayed the confidence of defendant by indulging in dishonest and fraudulent dealings and he made so called agreement to sell dated 20.7.2001 in favor of his relative…….”.In that case, question of invoking of Section 215 of the Contract Act does not arise. Power of attorney in respect of an immovable property duly registered can though be revoked, but for that a proper procedure has to be followed. It could either be through another registered instrument after proper notice to the attorney, or by way of some publication in the newspaper. The executant cannot simply resile from the power of attorney and the authority so conferred until and unless the revocation of the same has been made in accordance with law. In this case, it is an admitted position that no notice was ever issued to the attorney for cancellation of the power nor it was published in any newspaper, whereas even the cancellation deed so recorded does not contain any objection on the authority of the attorney, as is now being contended that he was acting dishonestly, had betrayed the confidence and so on. Admittedly the agreement was entered into within the validity of the power of attorney and before its purported revocation and therefore in that case, Respondent No.1 / Plaintiff cannot be burdened or held responsible to suffer the consequences. This appears to be an afterthought on the part of deceased father of the Applicants and now the Applicants themselves. In support of his contention, learned Counsel for the Applicants has relied upon various precedents of the Court; however, majority of them are either irrelevant; or on facts are clearly distinguishable. He has specifically relied upon the case of Muhammad Ashraf (Supra) to support his argument based on the implication of section 215 of the Contract Act. And to this it may be observed that firstly, as noted above, there was no challenge to the power of attorney admittedly executed by the deceased father of the Applicants, whereas, in the cited case a Suit for declaration was filed to the effect that the power of attorney was a fraud and a manipulated instrument; and secondly, the sale of the property in question was in favor of next of kin / himself or wife, whereas, in the instant case it is not so; and lastly, in the case of Muhammad Ashraf (Supra) the very power of attorney was never proved to have been validly executed. In the case reported as Haji Faqir Muhammad (Supra) again there was a challenge to the very power of attorney by the executants or beneficial owners of the property; and secondly, it was a case wherein, the ultimate beneficiary of the property after its sale was the agent / attorney himself. This is not the case in hand as it has never been proved that the ultimate owner was the attorney / Respondent No/2. In the rest of cases so relied upon, the facts were entirely different and most important one being that in this case there is no independent challenge to the said power of attorney by the executant himself; hence, the ratio of the said judgment(s)are of no help to the case of the Applicants.
15. In the case reported as Ahmad Khan v Settlement Commissioner (1975 SCMR 64), the issue was that Petitioner had executed power of attorney authorizing his attorney to enter into agreement of sale, whereafter the attorney acted accordingly, and an attempt of cancellation of the power of attorney by the petitioner was not appreciated after execution of deed of relinquishment by his attorney. The Hon’ble Supreme Court was pleased to hold that;
7. The points raised by him before the learned Judge‑in‑Chamber were duly considered and tightly overruled for good reasons. The power of attorney executed by the petitioner in favour of respondent No. 2 remained valid from 27‑8‑1969, the date of execution, to 8‑3‑1973, the date of its cancellation. The validity of anything done by respondent No. 2 during this period on the basis of the power of attorney remains unquestionable. It is not the petitioner's case that the power of attorney was a forgery and as such was void ab initio. No fault can, therefore, be found with the view taken by the learned Judge‑in‑Chamber. The authority relied upon by the petitioner P L D 1973 S C page 34 does not lay down an absolute and inflexible rule regardless of the circumstances of each case and proceeds on distinguishable facts.
16. In the case reported as Raja Muhammad Arshad v Raja Rabnawaz (2015 SCMR 615), the Hon’ble Supreme Court had the occasion to deal with a case wherein on the basis of a power of attorney duly executed by the owner, a pre-emption suit was compromised, and thereafter, a section 12(2) CPC application was filed by the executant on the ground that he had cancelled the power of attorney. The Hon’ble Supreme Court while discussing sections 201 and 208 of the Contract Act was pleased to dismiss such plea of the executant on the ground that a right created in favor of the pre-emptor when the power of attorney was still subsisting, cannot be disturbed in this manner. The relevant observations are as under;
5. Two main points have arisen which were emphasized by the learned counsel for the appellant in support of his case. The appellant did not deny that a registered power-of-attorney Exh.A/7 was indeed executed by him in favour of Ghazanfar on 15-10-1995. His case, however, was that the said power-of-attorney was cancelled on 4-2-1998 vide Exh.A/1. The said cancellation is neither registered nor is it on stamp paper. In fact the document Exh.A/1 is on a plain piece of paper.
6. Based on the above, learned counsel for the appellant argued firstly that the power-of-attorney although registered under the Registration Act could have been cancelled through writing on a plain piece of paper. We are afraid this contention is misconceived. We have examined the two cases titled Raza Munir and another v. Mst. Sardar Bibi and 3 others (2005 SCMR 1315) and the case titled Muhammad Ali Razi Khan v. Muhammad Ali Zaki Khan and others (2007 MLD 54) from the Karachi jurisdiction cited by learned Advocate Supreme Court for the appellant. Both cases have been seen in the light of the relevant provisions of the Contract Act i.e. sections 201, 208 and 215. The said three sections are, for ease of reference reproduced hereunder:--
"201. Termination of agency. An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."
"208. When termination of agent's authority takes effect as to agent, and as to third persons. The termination of the authority of an agent does not, so far as regard the agent, take effect before it becomes known to him, or so far as regards third persons, before it becomes known to them."
"215, Right of principal when agent deals on his own account, in business of agency without principal's consent.--- If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transition, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him."
7. Section 208 is directly relevant in the present case because the respondent/vendee was a third person who had no notice of the cancellation of the power-of-attorney granted in favour of Chazanfar. The first cited case is also distinguishable inasmuch as there was a proper public notice published in a newspaper which had notified the public at large that the power-of-attorney in question in that case had been cancelled. In the present case admittedly no such notice was given and the facts on record show that the respondent in fact did not have any notice of such cancellation. The cited case is, therefore, distinguishable on facts. Furthermore, the case referred to is only an order of this Court in which a civil petition was dismissed and leave to appeal was declined. The said refusal to grant leave cannot constitute a precedent in this case. The second case Muhammad Ali Razi Khan v. Muhammad Ali Zaki Khan and others (2007 MLD 54) is also clearly distinguishable. It is only through the remarks made obiter that an observation has been made. The said case in any event is by a learned Single Bench of the Sindh High Court and did not consider section 208 of the Contract Act reproduced above. At this point we may also reproduce illustration No.(d) of section 208 of the Contract Act which is as follows:--
"(d) When A trades as B's agent with B's authority (even though the business be carried on in A's name, if the agency is known in fact), all parties with whom A makes contracts in that business have a right to hold B liable to them until B gives notice to the world that A's authority is revoked; and it makes no difference if in a particular case the agent intended to keep the contract on his own account."
Based on the above, there remains no doubt in our mind that the respondent could not be burdened with any notice of any cancellation of the power-of-attorney Exh.A/7.
17. It may also be noted that Suit of respondent No.1 was for specific performance of agreement primarily against respondent No.2/defendant No.5. The agreement was not denied nor the power of attorney, but a defence was set up on behalf of the Applicants through their deceased father, that the power of attorney has been cancelled/revoked and surprisingly the learned trial Court went on to settle issues, which were or could not have been taken into consideration in the said Suit. The dispute between respondent No.2/defendant No.5 and the father of the Applicants/defendant No.4 was an independent cause and it had nothing to do with the plaintiff/respondent No.1. He had come before the Court to seek specific performance of an agreement and the only thing the Court was required to see was that the agreement was valid and was to be specifically enforced or not. It is an admitted position that neither any Suit was independently filed by the deceased father of the Applicants in respect of conduct of respondent No.2/their attorney; nor even any counter claim was set up in this very Suit. However, surprisingly, the learned trial Court settled the issues, which could have only been settled either by way of a counter claim or in an independent Suit by the deceased father of the Applicants. The trial Court in a Suit for specific performance was not competent nor had jurisdiction to decide the fate of the power of attorney, its validity and the subsequent revocation. For that the Applicants father ought to have filed a Suit for declaration on his own and to seek a declaration that the power of attorney in favor of Respondent No.2/ Defendant No.5 was no more valid; that he had revoked the said power of attorney or in the alternative his claim could have been for recover of money the attorney had allegedly misappropriated. This was not so and therefore, settlement of such issues and its adjudication was not within the domain of the Suit and the pleadings of the plaintiff.
19. In view of hereinabove facts and circumstances of this case and on perusal of the material on record, I am of the view that no case for interference is made out by the Applicants to upset the judgment of the Appellate Court, which is based on reasonable findings and has dealt with the issues in accordance with law and does not appear to be a case of exercising jurisdiction not vested in the Appellate Court nor of misreading of the evidence, and therefore, by means of a short order passed on 03.09.2020 this Civil Revision Application was dismissed and these are the reasons thereof.
JUDGE
Qazi Tahir PA/*