PLJ 2009 Lahore 855
Present:
Maulvi Anwar-ul-Haq, J.
ALLAH DITTA
SHAHEEN--Appellant
versus
KHALID
SHAFIQ and others--Respondents
RSA No. 62
of 1985, heard on 18.11.2008.
Contract
Act, 1872 (IX of 1872)--
----S.
208--Power of attorney admittedly executed--Later on it was revocked through
Abtalnama--Effect--Held: Cancellation of the same must be notified to the
attorney as is mandated by the S. 208.
[P. 858] A
Principle of
lis pendence--
----Effects
of principle of lis pendence--Held: Only effect of doctrine of principle of lis
pendence is that it would not effect the rights of the other parties. [P. 859] B
Power of
Attorney--
----Power of
attorney has no nexus with pre-emption suit filed by attorney on behalf of
principal. [P. 859] D
Bona fide
Purchaser--
----Matter
of bona fide purchaser--Alienation made during pendency of the suit will not be
void--Plea of bona fide purchaser would be available to transferee pendente
lite notwithstanding the result of the suit. [P.
859] C & E
Rana
Muhammad Anwar, Advocate for Appellants.
Malik Noor
Muhammad Awan and Mr. Ishfaq Qayyum Cheema, Advocates for Respondent No. 1.
Nemo for
Respondents No. 2 & 3.
Dates of
hearing: 12.11.2008 & 18.11.2008.
Judgment
This RSA was
allowed by this Court vide judgment dated 22.03.2001 for reasons stated therein
and the suit filed by the appellant for specific performance of an agreement to
sell was decreed. Respondent No. 1 (Khalid Shafiq) filed C.P. No. 1899-L-01
which was allowed and the judgment was set aside by the Hon'ble Supreme Court
of Pakistan vide judgment dated 04.08.2004. The said judgment is based on the
agreement of the learned counsel who were present. The agreement was that the
judgment be set aside and the RSA be directed to be decided afresh after
providing opportunity of hearing to all concerned with liberty to Respondent
No. 1 to put forward pleas in respect of issues which were abandoned by him
before the appellate Court as well as the High Court. After remand only the
appellant and Respondent No. 1 put in appearance. No one turned up for
Respondents No. 2 & 3. The case has been reheard accordingly. The facts and
reasons for setting aside of the judgment of learned Courts below are contained
in the said judgment and I need not to reproduce the same here, rather, this
judgment shall be read into a part of the said earlier judgment for what is to
follow. Learned counsel for Respondent No. 1 has very candidly conceded that the
judgments as recorded by the learned Courts below have been correctly set aside
for the reasons stated in my judgment dated 22.03.2001. They, however,
addressed on the issues which were never agitated before the learned Courts
below and which this Court is obliged to answer in the light of above noted
judgment of Hon'ble Supreme Court of Pakistan. Malik Noor Muhammad Awan,
Advocate led arguments for Respondent No. 1. He contends that the earlier
judgment fails to refer to the written statement actually filed by Respondent
No. 1 and available at pages 191 and 192 of the trial Court file wherein he has
pleaded to be a bonafide purchaser for consideration and has alleged collusion
inter se the Respondent No. 2 (attorney) and the appellant. Further contends that
the land described in the power of attorney Ex.P. 1 is different from the land
mentioned in the agreement Ex.P.2; that the power of attorney being in respect
of land which is yet to be allotted is ineffective; that the power of attorney
was cancelled vide "Abtaal Nama" Ex.D.8, executed on 17.02.1976
whereas the agreement Ex.P.2 was also executed on the same date. Contention is
that it can be assumed that the agreement was executed after cancellation of
the power of attorney; Respondents No. 2 & 3 ultimately colluded with the
appellant and conceded his case to the detriment of Respondent No. 1; that
notwithstanding the fact that the sale in favour of Respondent No. 1 is
pendente lite, the rule of lis pendence would not apply. Lastly contends that
power of attorney is to be construed strictly and since there is no express
power of entering into an agreement to sell, the agreement is without lawful
authority. He relies on the cases, "Muhammad Nawaz Khan vs. Muhammad Khan
and two others" (2002 SCMR 2003), "Qadir Bukhsh and 10 others vs. Kh.
Nizam ud Din Khan and 4 others" (1997 SCMR 1267) and "Bashir Ahmad
and others vs. Mst. Nasim Fatima and others" (2001 CLC 1447). Rana
Muhammad Anwar, Advocate, learned counsel for the appellant on the other hand,
contends that the power of attorney was granted for acquiring alternate land to
the land mentioned in the same. According to him correctly the written
statement was referred in the earlier judgment as material facts were not
denied; that the power of sale included the power to agree to sell the land. He
has sought distinguish to the judgments cited by Malik Noor Muhammad Awan,
Advocate as to the power of attorney being ineffective qua the land yet not
acquired. Denies any collusion inter se the appellant and Respondents No. 2
& 3. According to him, the plea of bonafide purchaser was not available to
the Respondent No. 1.
2. I have gone through the records of learned
trial Court with the assistance of learned counsel for the parties. I have
examined the written statement filed by Respondent No. 1 on 21.02.1977. I find
that in reply to the material contents of the plaint i.e. paras-1 and 2 wherein
it was alleged that Respondent No. 2 was appointed as an attorney and that he
deposited the amount and the further facts leading to the execution of the
agreement have not been denied, rather, ignorance has been pleaded. Be that as
it may, in view of the said judgment of Hon'ble Supreme Court. I have
considered the pleas now raised by learned counsel for the Respondent No. 1 and
answered by learned counsel for the appellant. The power of attorney is Ex.P.
1. Apart from the fact that there was no denial of the said document even in
the written statement originally filed by Ghulam Muhammad, Respondent No. 2,
rather, his case was that he had cancelled the power of attorney. The document
was proved by producing Abdul Rehman, PW-1, Scribe. Needless to state that
Ghulam Muhammad never entered the witness box to prove the allegation that the
power of attorney was got incorporated through fraud, on the other hand, he did
enter the witness box in the course of compromise and proceeded to state that
he had received the money and further that the attorney was duly appointed who
had paid all the price of the land to the Government. PW-5 is the appellant and
not a single question was put to him regarding the execution of the said
document. It is true that the "Abtaal Nama" Ex.D.8 was executed on
17.02.1976. (Incidentally it does not at all refer to any fraud or any absence
of power of sale in the power of attorney). It was presented for registration
on 18.02.1976 but nothing turns on the same, the reason being that there being
no plea and of course no evidence that the admitted attorney or the appellant
was notified of the said cancellation as is mandated by Section 208 of Contract
Act, 1872. The power of attorney Ex.P.1 narrates that the land mentioned
therein was allotted to the doner but has been cancelled and he is not able to
procure alternate land and he is appointing Respondent No. 3 as an attorney
accordingly with the powers narrated therein. It is admitted position on record
that it was Abdul Jabbar, attorney who got the alternate land allotted and
finally confirmed and proprietary rights were also conferred. It is further
admitted fact that the land subject matter of the agreement Ex.P.2 and
consequently of the suit is the land that was transferred in the alternative.
The contention as to the land being different hardly merits any consideration.
3. The contention that the power of alienation
could not have been conferred regarding the land which was not owned by the
Respondent No. 2 at the time of execution of the document, is sought to be supported
on the basis
of said case of Qadir Bukhsh and
10 others, decided by the Hon'ble Supreme Court and followed by this Court in
the case of Bashir Ahmad and three others. I have examined the said judgments.
Both the cases arose out of a pre emption suit. I may note here that in the
said case of Qadir Bukhsh, the contents of power of attorney stand reproduced
at pages 1272 and 1273 of the report. It narrates that the principal owns land
in District Multan and since he is unable to manage the same, he is appointing
an attorney. The attorney proceeded to file a suit for possession by pre emption
in respect of land which was located in Qadir pur Distt. Vehari. It was in the
said context that his Lordships held that the said power of attorney has no
nexus with the pre emption suit filed by the attorney on behalf of the
Principal. The facts of said case of Bashir Ahmad, decided by this Court are
some what similar. In the present case the power of attorney is couched in a
manner which leaves no manner of doubt as to the purpose for which the attorney
was appointed i.e. obtaining the alternate land and then inter alia to alienate
the same.
4. The contention of Malik Noor Muhammad Awan,
Advocate as to the absence of express power as to entering into an agreement to
sell also does not hold much water. It
has been found as a fact that the earnest amount of Rs. 18000/- was received by
Ghulam Muhammad himself through receipt Ex.P.3 and otherwise also the power to
receive consideration being expressly given, needless to state that it includes
part of consideration as well.
5. Coming to the matter of bonafide purchaser
regarding which the learned counsel has otherwise conceded, in the said case of
Nawaz Khan, Hon'ble Supreme Court held that alienation made during the pendency
of the suit will not be void. The only effect of doctrine of principal of lis pendence
is that it would not affect the rights of other parties. The judgment does not
at all give an impression that the plea of bonafide purchaser would be
available to the transferee pendente lite notwithstanding the result of the
suit. So far as the allegation of collusion is concerned, the same goes both
ways. The appellant has admitted that Ghulam Muhammad was personally known to
him and that his son is his class fellow. Both of them live in the same village
and the sale having taken place after institution of the suit, the plea of
absence of knowledge would be of no avail.
6. For the reasons recorded in the judgment
dated 22.03.2001 as also herein above, this RSA is allowed. The impugned
judgments and decrees are set aside and the suit filed by the plaintiff/appellant
is decreed against the defendant/respondents. No orders as to costs. Records of
learned Court below be remitted back immediately.
(R.A.) RSA allowed.
