ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P. No.D- 161 of 2009

DATE ORDER WITH SIGNATURE OF JUDGE

For Katcha Peshi.

11.12.2009

Mr. Abdul Aziz A. Shaikh, Advocate for the Petitioner alongwith the Petitioner.

Mr. Allah Bachayo Soomro, Additional A.G. alongwith Khuda Dino Shro E.D.O. (Revenue) Dadu, Qamaruddin Memon, D.O. (Revenue) Dadu, Inayatullah Assistant Mukhtiarkar Johi and Muhammad Umer Abbassi Sub-Registrar Johi.

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We have examined the orders passed by the trial Court as well as by the Appellate Court. It is an admitted fact that a Suit for Specific Performance was filed some where in 2003 by the Petitioner against the Respondents seeking enforcement of an agreement of sale of 1.8.1998. The written Statement was filed by the private party and thereafter application under Order VII Rule 11 C.P.C. was made. This application was dismissed. Another application under Order VII Rule 11 C.P.C. was made that too was dismissed. Against which a Civil Revision Application was filed by the Respondent which was allowed and the plaint was rejected, inter-alia, on the ground that the suit is barred by time. This order in Civil Revision has been impugned in these proceedings.

The contention of the learned Counsel for the Applicant is that the Additional District Judge was in error in holding that the suit is barred by time, inter-alia, on the ground that the cause has been accrued to the Petitioner in the year 2003 when the respondents No.4 and 5 has been refused the issuance of “FARD”. According to him on such refusal by the Mukhtiarkar the Respondents have refused to execute sale agreement.

We are not persuaded by this argument for the reason that the seller party to the Specific Performance has not challenged the registered instrument which is stated to have been executed by them authorizing one person namely Zulqarnain attorney for the sellers who in turn was authorized under the power of attorney to alienate the property by executing sale deed or otherwise. This authority which was registered and is claimed to have been issued by the sellers to the agreement has never been challenged by them before any forum. What normally is expected that in order to perfect the title of the Petitioner but sellers should have filed a suit seeking cancellation of the deed which was executed by the attorney on the authority conferred upon him by the sellers. There is no plausible explanation given by the Petitioner in the suit or even in the subsequent proceedings.

On the other hand we have noticed that the petitioner who claims to be purchaser has challenged the power of attorney and the registered sale deed executed by the sellers in favour of Zulqarnain. We believe that the registered instrument executed by Zulqarnain has authorized attorney of the sellers cannot be challenged by the purchaser of an agreement of sale. As far as the limitation is concerned there is no specific refusal pleaded in the plaint by the sellers and the sellers who had the knowledge of the authority which they have delegated to Zulqarnain under a registered instrument has never cared to enquire nor such instrument was ever cancelled by them.

In the given circumstances we believe that at best it was a case the purchaser/Petitioner could have filed against the seller for damages. We are clear in our mind that the suit has titled for specific performance is barred for the aforesaid reason and as far as the challenge in regard to registration of instrument is concerned the Petitioner has no legal character to challenge the same.

We accordingly dismissed this petition in limine.

JUDGE