PLJ 2010 Lahore
245
Present: Syed Asghar Haider, J.
ABDUL SATTAR and another--Appellants
versus
MUHAMMAD IQBAL--Respondent
RSA No. 4 of 2008, decided on 30.1.2009.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 100 & 107--Punjab Pre-emption Act, 1991, S.
13--Pleading contiguity common source of irrigation, passage and
co-sharers--Regular Second Appeal--Effect of production of witnesses and
documentary evidence--Numerical strength of witnesses--Parameters for
determining the propositions are foreclosed within the rights granted u/S. 100,
CPC and are, therefore, required to be examined--Section 107, CPC bestows upon
High Court same powers as are conferred upon the Court of original
jurisdiction--Appellate Court also has discretion to substitute findings of a
lower Court if it has exercised them capriciously and against legal principles.
[P. 249] A
& C
Evidence in Civil Cases--
----It is always the quality of evidence, which decides
the fate of the dispute, the numerical strength of witnesses or documents if
they are doubtful and open to dispute does not help the cause--No
cross-examining a witness, in civil proceedings, means that the statement to
that extent stands admitted. [P. 249] A
& B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 79 & 95--Principle of "Lex Situs"
the requirements as enunciated in Pakistan, under the power of
Attorney Act, 1882 and Arts. 79 and 95 of Qanun-e-Shahadat Order, 1984, have to
be examined--These requirements incidentally are not violative of English
Jurisprudence or law but, infact, are in harmony with them--If a document is
required to be attested by law, it shall not be used as evidence until two
attesting witnesses, at least have been called for the purpose of proving its
execution--There is nothing on record to prove the due execution of power of
attorney in England as required and stated--This condition is further qualified
by Art. 95 of Qanun-e-Shahadat Order, 1984, it states that every power of
attorney executed should be certified and authenticated by a notary public or
any Court, Judge, Magistrate, counsel or vice counsel or representative of the
Federal Government. [P. 251] D
1984 PSC 939 & PLD 1984 SC (AJK) 157, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 3--Cross objection--Legal
question--Interfere and reverse the findings--Maintainability of suit--If cross
objections are not filed such matters cannot be touched, however, the rule in
this context is not absolute but is subject to interference, if the appellate
Court perceives, that ultimate relief prayed for, emerges from incidental and
collateral issues not under challenge, on which the findings are illegal, but
have not been assailed by the other party, however, they effect the
maintainability of the suit--It than has manifest powers to set right any
illegality committed in law by the Courts below while deciding a specific issue
in his context by exercising corrective powers as contained in Order XLI Rule
33, CPC for doing complete justice--Appeal dismissed. [P. 252] E
Mian Israr-ul-Haq, Advocate for Appellants.
Mr. S.M. Masud, Advocate for Respondent.
Date of hearing: 4.12.2008.
Judgment
This single judgment shall decide RSAs No. 4, 5 and 6 of
2008, inter se the same parties, more or less upon the same cause of action.
2. Facts necessary
for adjudication of the present dispute are that the respondent/defendant
Muhammad Iqbal purchased the disputed land from Amjad Ali, Kalsoom Akhtar,
Saddaf, Sehar Ali, Kiran Ali and Samar Ali, for a consideration of Rs.
4,39,50,000/-, vide registered Sale-Deed No. 12488, dated 1.8.2005. The
appellants/plaintiffs filed a suit on 15.10.2005, for possession of the
disputed land as contemplated by Sec. 13 of the Punjab Pre-emption Act, 1991,
pleading contiguity, common source of irrigation, passage and co-sharers, it
also was averred, that the price of the suit land is inflated and fictitiously
mentioned as Rs. 75 Lac. per acre, instead of Rs. 25 Lac, as actually paid. The
respondent/defendant contested the suit. Of the divergent pleadings of the
parties seven issues were framed. The parties were put to trial and thereafter
the suit was dismissed on 14.10.2006, on Issues No. 1 and 5. However,
affirmative findings were returned on Issues No. 2 and 3 in favour of the
appellants/plaintiffs. Issues No. 4 and 6 were also decided against the
respondent/ defendant. The respondent did not file appeal or cross objections
qua Issues No. 2, 3, 4 and 6 decided against him. The appellants/ plaintiffs
filed an appeal against adverse decision upon Issues No. 1 and 5, but it was
dismissed by the lower appellate Court on 20.10.2007. Hence this second appeal.
3. The learned
counsel for the appellants/ plaintiffs contended that the appellants produced
six witnesses, including the Post-man and Post-master. The respondent only
produced Muhammad Riaz, D.W.1 and no independent witness, yet the trial Court
dismissed the suit on basis of Issues No. 1 and 5 regarding Talb-i-Muwathibat
and Talb-i-Ishhad, it thereby committed an illegality, as positive findings qua
Issues No. 4 and 6, in favour of the appellants/ plaintiffs holding that power
of attorney as valid and non-filing of appeal or cross objections, these issues
attained finality, and now, therefore, cannot be permitted to be argued or
challenged, therefore, the dispute be limited to Issues No. 1 and 5 only. There
is a little difference between RSA No. 4 of 2008 and the other two appeals, as
superior right of pre-emption of the plaintiffs also has not been accepted
therein. Thereafter the learned counsel for the appellants stated that P.Ws. 2,
3, 4 and 6 affirm the stance of the plaintiffs/appellants, as the receipt of
the post office is on record as Exh. P-1, notice of Talb-i-Ishhad as Exh. P-2,
copy of registered envelope as Exh P-3/1, copy of acknowledgement due as Exh.
P-3/2, thus the plaintiffs/appellants adequately discharged onus. But it
concurrently was ignored by the Courts below. The counsel thereafter stated
that the testimony and evidence of P.W.2 to 4 clearly reflects upon
Talb-i-Muwathibat and its due performance, there is nothing on record to show
that these witnesses were cross-examined on this point, thus, under the law of
civil proceedings, anything which is not cross-examined is deemed to have been
accepted correct, therefore, their testimony is above board. But this principle
also was ignored. The solitary witness of the defendant did not specifically
advert to this issue clearly, in these circumstances both the Courts fell in
error and committed misreading and non-reading of evidence. The parameters of
Talb-i-Muwathibat and Talb-i-Ishhad were duly proved in accordance with law.
The defendant did not appear in person, but was represented by an attorney, his
absence should have been adversely construed, but it was ignored. The
documentary evidence on record was not appraised properly, disparaging and
uncalled for, remarks were passed by the lower appellate Court against P.W.1
without examining the impact and import of Exh. P-2, which proved his presence
in Pakistan,
therefore, a legal illegality also was committed.
4. The learned
counsel for the respondent stated that the case as put up by the
plaintiffs/appellant was that they were informed through Muhammad Ali in United Kingdom
that the disputed land had been sold, thereafter a notice was sent as required
by law to the respondent on 14.9.2005 and a suit was instituted. Both the
Courts below held that Talb-i-Muwathibat was not proved, as the requirements of
Sec. 13 were not fulfilled, as commanded by law, there are concurrent judgments
of two Courts below on Issues No. 1 and 5, qua the right of pre-emption,
therefore, the same cannot now be permitted to be raised in second appeal,
which has a limited scope, Exh. P-9 and Exh. P-10 clearly indicate that the
property is located in municipal limits and, therefore, its status stands
changed, so no right of pre-emption exists, therefore, the suit was not
maintainable. (Reference Abdul Aziz Versus Sheikh Fateh Muhammad 2007 S.C.M.R.
336). It also was emphatically pleaded by the learned counsel that power of attorney
was not executed in accordance with legal dictates and requirements of law, the
date of knowledge of sale of disputed land, as mentioned in plaint is
14.9.2005, around 7 P.M. U.K. time. The power of attorney was executed in the
name of Rehmat Ali on the same day, it is impossible to prepare a power of
attorney in so short a time frame, further it was endorsed by an unauthorized
person of the Pakistan Embassy, therefore, the document itself has no legal
sanctity, thus, the suit filed on basis of this document was not maintainable
and all consequential proceedings are ultra vires of law.
5. Heard.
6. The admitted
facts culminating in the filing of the present suit are :--
Amjad Ali, Kalsoom Akhtar, Saddaf, Sehar Ali, Kiran Ali
and Samar Ali were owners of the disputed land. They sold the same to the
respondent, Muhammad Iqbal, through a registered Sale-Deed No. 12488, dated
1.8.2005. The appellants, who are residents of United
Kingdom, were informed of this sale by Muhammad Ali and
his wife Mehmooda Begum at their residence, 122 Terry, Glasgow, England.
They immediately reacted and raised demand of pre-emption, claimed superior
right in presence of two truthful witnesses. Rehmat Ali was appointed later as
their attorney, who performed Talb-i-Ishhad and (Talb-i-Khusumat) by filing the
suit on 15.10.2005.
7. Important legal
propositions raised by the learned counsel are the effect of production of 6
witnesses and documentary evidence Exh.
P-1 to Exh. P-15 by the plaintiffs in affirmative, in
comparison to a solitary witness of respondent/defendant Muhammad Riaz as
D.W.1. This is a second appeal, the parameters for determining the propositions
are foreclosed within the rights granted under Section 100 C.P.C. and are,
therefore, required to be examined in this context. It always is the quality of
evidence, which decides the fate of the dispute, the numerical strength of
witnesses or documents if they are doubtful and open to dispute does not help
the cause. In the present matter the witnesses produced by the
plaintiffs/petitioners are of a poor quality, there are serious lapses in their
testimony tendered, it is correct that not cross-examining a witness, in civil
proceedings, means that the statement to that extent stands admitted. But in
the present matter as stated earlier, a part of testimony, not cross-examined
cannot be read in isolation, upon appraisal of entire evidence, the view point
of the Courts below is correct and thus unexceptionable. Likewise the pivotal
document Exh. P-1 is manifestly doubtful, qua not only the manner and mode in
which it was executed but also serious legal omissions in due execution rock
the very foundation of this document, therefore, the numerical strength of the
petitioners' witnesses or documents is of no use.
8. The trial Court
and the lower appellate Court concurrently dismissed the suit of the
appellants/plaintiffs on Issues No. 1 and 5 regarding Talb-i-Muwathibat and
Talb-i-Ishhad. Issue No. 4 was decided against the defendant/respondent holding
that the power of attorney granted to Rehmat Ali, P.W.1, was valid, but no
cross objections were filed against this finding, although prima facie there is
a conflicting decision on Issues No. 1 and 4, it therefore, is necessary to
re-determine, these issues. The legal proposition which emerges thus is that
can this Court interfere on Issue No. 4 or not, if, the decision is contrary to
law and against record. Before venturing further, Section 107 C.P.C. bestows
upon this Court same powers as are conferred upon the Court of original
jurisdiction. Thus it has uninhibited powers to examine record and pass any
order which the trial Court could have (Reference North West Frontier Province
Government, Peshawar through Collector, Abbottabad and another Versus Abdul
Ghafoor Khan through legal heirs and 2 others (P.L.D. 1993 S.C. 418), Further
the appellate Court also has discretion to substitute findings of a lower Court
if it has exercised them capriciously and against legal principles. The
foremost question for determination by this Court, therefore, is whether the
power of attorney Exh. P/1, is valid document or not, and are the findings of
the trial Court and the lower
appellate Court correct
and in accordance
with parameters governing Section 13 of the Act. The important facts in
this context are that plaintiffs gained knowledge of the instant transaction
from Muhammad Ali and his wife, who were in England on 14.9.2005, at 7 p.m.,
local time. Talb-i-Muwathibat was made in their presence (Muhammad Ali and
Mehmooda Begum), they appeared as P.Ws.2 and 3, respectively. The cause of the
plaintiffs/appellants was pursued by P.W.1, Rehmat Ali, as attorney. The power
of attorney referred to is available on record as Exh. P-1. The opening
paragraph of the power of attorney reflects complete details of the disputed
property, qua which, authority was delegated to Rehmat Ali. He appeared as PW.
1 and stated in his cross-examination, that he does not remember the Khewat or
Khatooni numbers of the disputed land, likewise, Muhammad Ali, P.W.2, also
stated that he does not remember the Khewat number of the disputed land as
enunciated in the power of attorney. Therefore, it is clear that
plaintiffs/appellants had knowledge of the sale of the disputed property
earlier and through other sources, because neither P.W.1 and P.W.2 could
divulge details of property mentioned in the power of attorney, this casts a
grave doubt on their credibility, as well the document Exh.P/1. Muhammad Ali,
the informant, could not divulge, correct details of Sand as incorporated in
Exh. P-1, therefore, he also does, not qualify the test of a truthful witness
within the ambit of Pre-Emption Act. Thus his evidence has no sanctity or
force. The matter which needs paramount consideration is the validity of power
of attorney, Exh. P-1 or otherwise, as the fate of filing of suit and all
subsequent proceedings hinges upon it. Because if it was executed in consonance
with legal requirements, the filing of suit and all consequential proceedings
are legal, otherwise (Exh.P-1) is legally ineffective and thus would result in
dismissal of the suit.
9. The perusal of
Exh. P-1 (power of attorney) reflects that it was executed on 14th September,
2005, it is admitted on record that the appellants gained knowledge of the
transaction in dispute also on 14.9.2005, at 7 p.m. through Muhammad Ali and
his wife Mehmooda Begum, who came to a dine with them. It also is clear from
record that the appellants and Rehmat Ali were both resident in England (United Kingdom) where power of
attorney was executed. The question now arises is whether this power of
attorney would be governed by the laws of United Kingdom or Pakistan. The law
of power of attorney in the United Kingdom clearly ordains that an attorney can
use, power of attorney (which is known there as lasting power of attorney)
after it has been executed by the principal, affirmed by a Solicitor and
registered with Office of Public Guardian, earlier, thereto any transaction,
upon its strength and basis is void. (The procedure ordained in this context
lays guide lines for execution of a power of attorney which are incorporated in
the Mental Capacity Act, 2005 (Code of Practice). As stated earlier a power of
attorney is required to be drawn by a Solicitor, who certifies the same, in
presence of two witnesses. If examined from this angle, it is clear that the
power of attorney, Exh.P-1, does not fulfill any of these conditions. As it has
not been drawn by an attorney/Solicitor, it also has not been registered, or
notarized as required, therefore, under the law of England (United Kingdom) it
is not a validly executed document. Even for the sake of argument if it is
assumed that as the disputed property is located in Pakistan, therefore, the
transaction in question would be governed by the laws of Pakistan, in
accordance with the principle of "Lex Situs" the requirements as enunciated in Pakistan,
under the Power of Attorney Act, 1882 and Articles 79 and 95 of the
Qanun-e-Shahadat Order, 1984, have to be examined. These requirements
incidentally are not violative of English jurisprudence or law but, in fact,
are in harmony with them. Article 79 clearly spells that if a document is
required to be attested by law, it shall not be used as evidence until two
attesting witnesses, at least have been called for the purpose of proving its
execution. There is nothing on record to prove the due execution of power of
attorney in England as required and stated. This condition is further qualified
by Article 95 of the Qanun-e-Shahadat Order, 1984, it states that every power
of attorney executed should be certified and authenticated by a Notary Public
or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul or
representative of the Federal Government. The perusal of power of attorney on
these premises shows that it has not been endorsed or issued by any of the said
authorities. There is no seal of any Notary Public, nor certification or
endorsement, qua the fact that power of attorney was signed by the executant in
presence of authorized official, therefore, it has no legal validity under
Article 95. Reference: Qurban Hussain etc. Vs. Hukam Dad (1984 PSC 939--P.L.D.
1984 S.C. (AJK) 157). Though a seal of Pakistan Embassy is affixed upon the
same but it again is highly improbable that Exh. P/1 could be got executed
after 7 p.m., when the Embassy stood closed. A further doubt upon its
authenticity is cast, as it has been attested by Abdul Ghaffar, Accountant. Law
does not bestow this authority upon an Accountant, it only bestows this power
upon Pakistan Consul or Vice-Consul. Even if any such power was bestowed upon
the Accountant of Pakistan Embassy in Glasgow, he was bound to divulge the
details and record them upon the document, but this also is missing, therefore,
it is clear that power of attorney was not executed in accordance with the
procedure ordained by law, but was executed in violation of the same,
therefore, it has no legal sanctity and validity, mere registration of power of
attorney in Pakistan is a rebutable presumption and cannot give credence to a transaction,
which is legally void. There is sufficient material on record to over ride this
presumption. This dimension was noted by the trial Court as it adverted to the
same while deciding Issue No. 1 in the following manner:-
"... It is next to impossible that after 7.00 p.m.
plaintiffs drafted the power of attorney with every minute detail (especially
with regard to detail of khasra No. and detail of address of the vendee
defendant) and on the same day it was presented in the Embassy of Pakistan and immediately
it was attested by the Consulate especially when the working hours are already
over".
But strangely it decided Issue No. 4 in affirmative
accepting its validity, completely misconstruing Article 95 of the
Qanun-e-Shahadat Order, 1984. Therefore, as stated earlier there is conflict in
the judgment of the trial Court qua findings on Issues No. 1 and 4. The
reasoning of the trial Court on Issue No. 1 and the discussion made above,
clearly reflects that the suit was incompetently filed as the power of
attorney, executed by the principals has no legal validity, consequently the
suit also was filed incompetently.
10. The next legal question, which arises is, can this
Court interfere and reverse the findings on Issue No. 4 when no cross
objections or appeal has been filed by the appellants. Normally the Courts
refrain from entering into this dimension, as ordinarily, if cross objections
are not filed such matters cannot be touched, however, the rule in this context
is not absolute but is subject to interference, if the appellate Court
perceives, that ultimate relief prayed for, emerges from incidental and
collateral issues not under challenge, on which the findings are illegal, but
have not been assailed by the other party, however, they effect the maintainability
of the suit. It than has manifest powers to set right any illegality committed
in law by the Courts below while deciding a specific issue in this context by
exercising corrective powers as contained in Order XLI Rule 33 C.P.C. for doing
complete justice. Reference: Ghulam Hussain and another Versus Faiz Muhammad
and 7 others (P.L.D. 1991 S.C. 218), Central Government of Pakistan and others
Versus Suleman Khan and others (P.L.D. 1992 S.C. 590), North West Frontier
Province Government Peshawar through Collector, Abbottabad and another Versus
Abdul Ghafoor Khan through Legal Heirs and 2 others (P.L.D. 1993 S.C. 418) and
Province of Punjab through Collector, Rajanpur District and 2 others Versus
Muhammad Akram and others (1998 S.C.M.R. 2306). Therefore, the precedents
referred to Muhammad Aslam and 2 others Versus Syed Muhammad Azeem Shah and 3
others (1996 S.C.M.R. 1862) and Muhammad Nawaz Versus Mst. Ahmad Bibi and 3
others (1995 S.C.M.R. 266) pale into insignificance. In the present proceedings
Issue No. 4 was not correctly decided as the findings on Issues No. 1 and 4 are
in conflict with each other and also because as, held (above) the power of
attorney is legally invalid, therefore, the findings on the same are reversed.
As far as the issues challenged by the appellants through the present appeal
are concerned, as stated
earlier, they do
not fall within the parameters of
second appeal under Section 100 C.P.C., therefore, the findings on the same are
unexceptionable.
In view of what has been discussed above, these appeals
have no merits and are, therefore, dismissed leaving the parties to bear their
own costs.
(M.S.A.) Appeals
dismissed.
