PLJ 2006 AJ&K 42
Present: Ghulam Mustafa Mughal, J.
MUHAMMAD HAFEEZ KHAN and
another--Appellants
versus
MUHAMMAD AZEEM--Respondent
C.A. No. 64 of 2005, decided on
13.12.2005.
(i)
Civil Procedure Code, 1908 (V of 1908)--
----S. 10--Consolidation of two suits--Courts
have inherent power to consolidate two suits together in proper cases to avoid
multiplicity of litigation and contradictory decrees, however, such rule is not
mandatory and of universal application--Where one case has been decided or was
at the stage of final arguments and other was still at initial stage
consolidated cannot be ordered. [P.
45] A
(ii)
Contract Act, 1872 (IX of 1872)--
----Ss. 214 & 215--Gift dead executed
in violation of S. 215 of Contract Act, 1872--Validity--Agent is required to
obtain prior permission of principal or at least to bring into his notice if he
intends to deal with his own account in the business of agency, failing which
principal has a right to repudiate transaction etc. [P. 47] D
(iii)
Contract Act, 1872 (IX of 1872)--
----S. 201--Revocation of
agency--Principle must give reasonable notice of revocation to his agent,
otherwise he cannot get rid of consequences of dealings of agent. [P. 47] C
(iv)
Pakistan
Administration of Evacuee Property Act, 1957--
----S. 41--Jurisdiction of Civil
Court--Bar of--Essentials--Dispute between parties did not relate to allotment
of property--Dispute between parties was with respect to execution of gift
deed--Jurisdiction of Civil Court was not excluded to settle dispute in such matter. [P. 49] E
(v)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 103--Contents of power of
attorney--Contradiction of--Contentions of power of attorney having been
admitted by defendant as agent/attorney of plaintiff, no oral evidence on
behalf of either of parties concerned, can be accepted nor would be admissible
for purpose of contradicting, varying adding to or subtracting terms of power
of attorney as per dictates of Art. 103 of Qanun-e-Shahadat Order, 1984. [P. 47] B
PLJ 1992 SC (AJK) 88; 1997 SCR 284; PLD
2003 SC 31; PLD 1985 SC 341; 1987 SCMR 1009 and PLD 2003 AJK 16, ref.
Mr. Muhammad Ayyub Sabir, Advocate for
Appellants.
Raja Muhammad Siddique, Advocate for
Respondent.
Date of hearing : 13.12.2005.
Order
The above captioned appeal is directed
against the judgment and decree of the District Judge Bhimber dated 1.4.2005
whereby suit for declaration and cancellation of gift-deed executed on
24.3.2003, on behalf of the plaintiff/respondent herein is allowed.
Briefly stated facts of the case are that
respondent herein executed a power-of-attorney in favour of the
Appellant/Defendant No. 1, for management of his property comprising Khasra No.
578 min measuring 17 Marlas 6 sarsahi, situated in Bhimber on 2.8.1989. It was
averred that Defendant No. 1 at the time of execution of the power-of-attorney
illegally and with mala fide intention got inserted the power of
alienation/transfer of the said property which authority in fact was never
delegated to him. It is alleged that on 18.8.1990 the plaintiff revoked the
said power of attorney. It is claimed that Defendant No. 1 despite revocation
of power-of-attorney transferred the suit land to Defendant No. 2, his son,
through a gift-deed dated 24.3.2003. The case of the plaintiff is that the
gift-deed is without lawful authority and is against the interest of the
plaintiff for being executed in favour of his son (Defendant No. 2).
The defendants resisted the suit by
filing writing statement. In the written statement various objections have been
raised to the maintainability of the suit besides controverting the facts
pleaded therein. It is claimed that Defendant No. 1 got the disputed land
allotted in the plaintiff's name out of
which 17 marlas and 7 sersahi was soled to Defendant No. 1 in consideration
of Rs. 60,000/- on 24.6.1989 and for the same purpose the power-of-attorney was
executed in favour of Defendant No. 1, on 2.8.1989. It was stated that
revocation of the power of attorney was not conveyed to Defendant No. 1,
therefore, the gift-deed cannot be challenged for having been executed without
lawful authority or on the ground of mala fide. After necessary proceedings,
the learned District Judge vide judgment dated 1.4.2005 decreed the suit.
Ch.
Muhammad Ayyub Sabir, the learned Advocate for the appellants, inter
alia, contended that without adverting to the merits of the case the judgment
under challenge is liable to be vacated as another suit between the same
parties in respect of the same land is pending before the Court of Senior Civil
Judge, Bhimber, and for avoiding contradictory decrees, it was in the interest
of justice to consolidate both the suits. The learned Advocate further
contended that it was Defendant No. 1 who obtained the allotment of the
disputed land in plaintiff's name after hectic efforts and spending huge
amount. Out of which, 17 marlas 6 sarsahi of land was transferred in favour of
Defendant No. 1 for a consideration of
Rs. 60,000/- on 24.6.1989. The learned Advocate submitted that the defendant constructed the whole property as an owner, received rent etc. throughout without any objection on the part of plaintiff/respondent. The learned Advocate further contended that revocation of power-of-attorney was never conveyed to the defendant, hence, transfer of the land through gift in favour of Defendant No. 2 is neither beyond the delegated authority nor is bad in law. The learned Advocate also submitted that the Civil Court has got no jurisdiction to entertain the suit as the land in dispute is admittedly evacuee, therefore, the judgment and decree are without jurisdiction in view of Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957.
Rs. 60,000/- on 24.6.1989. The learned Advocate submitted that the defendant constructed the whole property as an owner, received rent etc. throughout without any objection on the part of plaintiff/respondent. The learned Advocate further contended that revocation of power-of-attorney was never conveyed to the defendant, hence, transfer of the land through gift in favour of Defendant No. 2 is neither beyond the delegated authority nor is bad in law. The learned Advocate also submitted that the Civil Court has got no jurisdiction to entertain the suit as the land in dispute is admittedly evacuee, therefore, the judgment and decree are without jurisdiction in view of Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957.
Raja Muhammad Siddique, the learned
counsel for the respondent, controverted the arguments advanced on behalf of
the appellants and submitted that the suit filed on behalf of the
plaintiff/respondent was decreed on 1.4.2005 whereas the subsequent suit for
declaration has been filed by Appellant No. 2 herein, on the basis of the
gift-deed which has already been cancelled by the learned District Judge,
therefore, consolidation of both the suits on such an advance stage was,
neither requirement of law nor is in the interest of justice, especially when
the subsequent suit is mala fide one, and is not maintainable for being filed
on the same cause of action. The learned Advocate submitted that the
power-of-attorney was revoked by the plaintiff/respondent in 1990 and the
gift-deed has been executed in 2003, hence, the same had been executed without
lawful authority. The learned counsel further submitted that the gift-deed is
even otherwise violative of law for having been executed against the interest
of the plaintiff/respondent without his prior permission as required by
Sections 214 and 215 of the Contract Act. The learned Advocate argued that the
jurisdiction of the Civil Court
is also not barred because neither any order of the Rehabilitation authority
was under challenge nor interest of the Custodian or the Rehabilitation
authority was likely to be affected. The learned Advocate in support of his
submissions placed reliance on the following case:--
(i) "Muhammad
Mehrban v. Sadar Din and others" (PLJ 1992 SC (AJK) 88) and
(ii) "Ghulam
Hussain v. Muhammad Sarwar and 2 others" (1997 SCR 284).
I have heard the learned Advocates for the
parties and also gone through the record of the case.
So far as the first contention of
Muhammad Ayyub Sabir, the learned Advocate for the appellants, that it is
essential to remand the present case for the purpose of consolidation with the
suit pending in the Court of Senior Civil Judge Bhimber is concerned, that is
devoid of any force. It is well settled principle of law that Court has
inherent power to consolidate two suits together in proper cases to avoid
multiplicity of litigation and contradictory decrees but rule is not mandatory
and of universal application. The applicability of the rule depends upon the
facts of a particular case. Where one case has been decided or is at the verge
of final arguments and other is still at initial stage, consolidation cannot be
ordered. The proposition has been considered by the apex Court of AJ&K in
Muhammad Mehrban's case. The facts of the case were that Muhammad Mehrban,
appellant therein, filed a suit for possession of Plot No. 321 measuring 10
marlas, situate in Dudyal in the Court of Sub Judge, on 21.3.1987. After
conclusion of evidence of the parties the case was fixed for arguments for
6.4.1989. The arguments could not be heard on the said date and even after that
several opportunities were availed by the parties for the purpose. Meanwhile
Sadar Din, defendant, filed a cross suit on 14.3.1990 against Muhammad Mehrban,
appellant therein. The trial Court instead of hearing arguments in the ripe
suit ordered to keep the decision in the former suit pending on the ground that
a cross suit had been filed by Sadar Din, respondent therein, and consolidated
both the suits vide its order dated 12.11.1990. It was further opined by the
trial Court that as the evidence of the parties had already been recorded in
the suit filed by Muhammad Mehrban and no additional issue arises in the suit
filed by Sadar Din except issue of jurisdiction of the Court to try the case.
The trial Court, thus, framed an additional issue to the same effect and fixed
the cases for final arguments as the plaintiff of the second suit declined to
produce any evidence. The order was challenged before this Court on the ground
that defendant should be given an opportunity to adduce the evidence on the
additional issue. This Court held that the defendant is entitled to lead
evidence on additional issue. The order was further assailed before the apex
Court. The apex Court vacated the order of consolidation although the parties
had not challenged the order to the extent of consolidation of the suit. The apex
Court opined as under:--
"It is evident from bare reading of
Section 10 of the C.P.C. that it is mandatory to stay the trial of the suit
filed subsequently subject to the conditions envisaged therein. It has already
been stated that in the instant case not only the parties are the same but the
issues arising in the subsequent suit filed by Saddar Din, respondent, are also
the same as were framed in the earlier suit filed by Muhammad Mehrban,
appellant; only one additional issue regarding the jurisdictional competence of
the trial Court was framed. In such circumstances, it cannot be said that it
was conductive to the interest of justice to consolidate the suits and withhold
the decision in the former suit. The evidence in the former suit had already
been recorded and it was fixed for arguments, how the consolidation could be
regarded in the interest of justice. The evidence recorded in the former suit
before consolidation cannot be read in the later suit; at least the parties can
be denied the opportunity to lead evidence on an issue framed in the subsequent
suit. As the trial in the earlier suit had already been completed, it was not
just to consolidate the suits in exercise of inherent powers. The practice of
consolidations of suits which has become an essential part of our procedure, is
meant to advance the ends of justice and not to death them. If the main issues
in both the suits are identical then the second suit would be barred by the
principle of res judicata and the question of contradictory decrees does not
arise; irrespective of the fact as to whether former suit is decreed or
dismissed, the principle of res judicata
will be operative against one or the other party. Thus, the question of
possibility of contradictory decrees is not only remote but the fact would not
render the provisions of Section 10, C.P.C. as nugatory. Thus, in the instant
case the proper course for the trial Court was to postpone the trial of the
latter suit and hear the arguments in the suit filed by the appellant herein,
and decide the same. So far as the proceedings in the latter suit are
concerned, those would have their legal course after the judgment in the former
suit.
Although the parties have not questioned
the validity of the order of the consolidation by the trial Court, yet in the
interest of justice we ourselves take note of the fact and set aside the order
of consolidation in exercise of the powers which vest in this Court under
Section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and
under Rules 4 and 5 of the Order XLIII of the Azad Jammu and Kashmir Supreme
Court Rules 1978. Consequently the consolidation order, the order to recast the
issues and the impugned order are hereby set aside. It is directed that the
trial Court shall hear the arguments in the former suit filed by the appellant
therein, and decide the same in accordance with law while the proceedings in
the suit filed by the respondent, Saddar Din, shall be kept in abeyance as
contemplated under Section 10 of the Code of Civil Procedure. The orders of the
trial Court to recast the issues and to hear arguments in both the suits also
stand amended as indicated above."
(underlining is mine)
The contention of the learned Advocate
for the appellants that it was Defendant No. 1 who got allotted the property in
the name of the plaintiff/respondent, is without substance, in view of the
record. The allotment chit has
been issued on
16.1.1971 in favour of the plaintiff. The contents of power-of-attorney
dated 2.8.1989 also reveals that the same was executed for management of the
house and shops already constructed by Muhammad Azeem, plaintiff/respondent.
These contents have been admitted by Appellant No. 1 as agent/attorney/holder
of the plaintiff, therefore, no oral evidence on behalf of either of the
parties can be accepted nor is admissible for the purpose of contradicting,
varying, adding to or subtracting the terms of power-of-attorney in view of
Article 103 of the Qanoon-e-Shahadat Order. Thus, neither the oral deposition
of Muhammad Azeem that the has not delegated any authority to sell the land
through the power-of-attorney nor the stand of appellants herein contrary to
the contents of the power-of-attorney can be accepted. Though, it is an
admitted fact that the power-of-attorney executed in favour of Defendant No. 1
stood cancelled on 18.8.1990 but no notice was given about its cancellation to
Defendant No. 1. No doubt an agency can be terminated on the grounds mentioned
in Section 201 of the Contract Act, however, it is enjoined upon the principal
to give a reasonable notice of its revocation to his agent, otherwise, he
cannot get rid of the consequences of the dealings of the agent. No evidence
has been lead by the plaintiff that the order of revocation was duly conveyed
to defendant/appellant No. 1. Herein, therefore, the gift-deed under challenge,
cannot be set aside on this ground.
The contention of Raja Muhammad Siddique,
the learned Advocate for the respondent, that the gift-deed was executed in
violation of Section 215 of the Contract Act has a substance. Under Section 214
it is the duty of an agent in case of difficulty to use all reasonable
diligence in communicating with his principal, and in seeking to obtain his
instructions. Similarly, under Section 215 of the Contract Act, it is the duty
of the agent to obtain prior permission of the principal or at least to bring
into his notice if he intends to deal with his own account in the business of
the agency, failing which the principal has a right to repudiate the
transaction etc. The duties of the agent and rights of the principal in view of
Section 215 of the Contract Act have been considered by the superior Courts in
various cases, some of which are:--
(i) Maqsood Ahmed's case (PLD 2003 SC
31);
(ii) Fida
Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD
1985 SC 341);
(iii) Mst.
Feroze Bano and another v. Mst. Bilqis Jehan and others (1987 SCMR 1009);
(iv) "Munir
Hussain and others v. Muhammad Aslam and others" (PLD 2003 AJK 16);
In Maqsood Ahmed's case, the scope of
Sections 211 and 215 of the Contract Act was considered by the apex Court of
Pakistan. At page 37 of the report, the Hon'ble Supreme Court held as under:--
"13.
With reference to the context of power of attorney we have pointed out
to the learned counsel for appellants that as appellant Maqsood Ahmed had been
authorized to deal with the affairs of the property including the financial
powers, therefore, if he wanted to transfer the land in respect whereof
allegedly respondent appointed him as attorney to deal with his property, it
was incumbent upon him to have sought prior approval of the Principal before
transferring the land on the name of his brother Muhammad Ayub being the close
relative of the attorney in order to make it a valid transaction in terms of
Section 211 read with Section 215 of the Contract Act. His contention was that
the respondent had already received Rs. 36,06,000/- in between the period
commencing from 1992 to 1995 which a commitment to transfer 71 kanals, 18 marlas
in favour of appellants, therefore, after making payment of this much amount
which admittedly was received by respondent in parts from time to time
including the payment of Rs. 6,00,000/- as per Exh. D/1, therefore, the
Attorney Maqsood Ahmad had an implied consent of the respondent for transfer of
the property on the name of his brother Muhammad Ayub."
Again at page 39 of the same report, the
following observation has been recorded:--
"17.
Now adverting towards an important aspect of the case namely that when
attorney holder intends to transfer the property of his principal in favour of
one of his close relative he is required to take the consent of the latter. In
this behalf reference may be made to the judgments reported in the cases of
Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal heirs and others
PLD 1985 SC 341 and Muhammad Yasin and another v. Dost Muhammad through Legal
heirs and others PLD 2002 SC 71. In view of the law laid down in the cited
judgments there is no need to discuss this aspect of the case in detail except
observing that in such like cases wherein it is alleged that attorney holder
has committed a fraud in transferring the property of the principal on the name
of his close relative the Court must construe the power of attorney strictly
and examine the matter thoroughly following the principle of administration of
justice to ensure that the person who has executed power of attorney in favour
of his agent is not deprived from his rights including the financial matters
arising out of the transactions which are carried out by the attorney on his
behalf and also to examine whether the attorney holder has fulfilled his future
obligations towards his principal or not."
In view of the above settled principle of
law, I have no hesitation in holding
that the conclusion
reached by the learned District
Judge that the gift-deed executed by Appellant No. 1 in favour of his son, was
violative of law, is unexceptionable.
The last contention of Mr. Muhammad Ayyub
Sabir, that the Civil Court
has no jurisdiction to entertain the suit in view of Section 41 of the Pakistan
Administration of Evacuee Property Act, 1957, is also without substance. The
dispute between the parties, in the present case, is with respect to the
execution of the gift-deed. There is no dispute with regard to the allotment of
the property which is the exclusive function of the Rehabilitation authorities
or the Custodian. In these circumstances, it cannot be accepted that
jurisdiction of the Civil Court
is excluded. This view lends support from a case reported as 1997 SCR 284
whereby the apex Court of Azad Jammu and Kashmir repelled the same contention
in the following words:--
"8.
It is evident from the above observations that the jurisdiction of the
Civil Court is not ousted even if the property remains evacuee, provided the
facts alleged and the relief sought are not of such a nature which are
prejudicial to the interests of the Custodian or the Rehabilitation Authorities
or are hit by the mischief of any provisions of Rehabilitation laws. The bar of Civil Court
would be attracted only to the case where the exercise of such jurisdiction
offends against the principles indicated above."
The upshot of the above discussion is
that finding no force in this appeal it is hereby dismissed.
(A.A.) Appeal
dismissed
