1989 PLP 1220 (MLD)

AJMAL MIAN, C.J.‑‑The petition is directed against the orders dated 17‑12‑1977 and 24‑5‑1979, passed by respondents 2 and 3 respectively, declining the petitioner's application under section 13 of the Abandoned Properties (Taking Over and Madagement) Act, 1975 (hereinafter referred to as the Act). The brief facts leading to the filing of the above petition are that House No. R‑113/1:1, situated in Nasecrabad, Federal `B' Area, Karachi (hereinafter referred to as the House) was allotted to one Muhammad Niamatullah by Karachi Development Authority (hereinafter referred to as the KDA) and lease‑deed in respect thereof was executed. The said Muhammad Niamatullah before leaving Karachi, appointed and constituted his brother Muhammad Inayatullah as the attorney to manage the house. The above Power of Attorney included the power to sell the house. It is the case of petitioner that Muhammad Inayatullah sold the house to the petitioner for a sum of Rs.35,000 under the receipt dated 15th December, 1974. It appears that after the enforcement of the Act, the petitioner riled the aforesaid application under section 13 of the Act, for confirmation of the above sale transaction for the reason that the house waS owned by a specified person. The above application was rejected by respondent

2. Against which, the ‑petitioner riled an appeal which was also dismissed by the impugned order dated 24‑5‑1979. The petitioner being aggrieved by the above two orders has filed the present petition. In support of the above petition, Mr. Akhtar Mahmood, learned counsel for the petitioner, has urged as follows:‑‑ (1) That the respondents erred in holding‑that a receipt cannot constitute a sale agreement, and therefore, the two orders are based on wrong assumption of law. (2) That the petitioner had produced ample evidence to prove the bona rides of the transaction and hence the respondents were not justified to decline the petitioner's application. On the other hand, Mr. S.M. Shahudul Haq, learned counsel for the respondents, has contended as follows:‑‑ (1) Since the suit is pending, the above petition is not competent. (2) That a receipt, cannot constitute an agreement to sell; and (3) that the two forums have given cogent reasons in holding that this alleged sale transaction was not bona fide and therefore this. Court will not interfere with the two orders in exercise of Constitutional jurisdiction, as the orders cannot be said to be without jurisdiction or in excess of jurisdiction or suffer from any infirmity of law warranting the protection of Constitutional jurisdiction. Before taking up the above contentions, it may be pertinent to mention that there was an ex parte judgment passed in the above case by a Division Bench of this Court on 14‑10‑1985, whereby, it was held that respondents 1 and 2 were not justified in refusing the confirmation. The above order was set aside by the above aforesaid Division Bench on the ground that the learned counsel appearing for the respondents and a justifiable reason for not being present when the case was taken up early in the morning. Be that as it may, it may be stated that after the above or name judgment and before the above judgment was set aside, the petitioner filed a suit No. 1184 of 1988, in the Court of Vth Senior Civil Judge (West), Karachi, for specific performance of the Sale Agreement against Niamatullah. We may take the first contention of Mr. S.M. Shahudul Haq, learned counsel for the respondents, that since the suit is pending, the above petition is not competent, in our view, the above contention is devoid of any force as the A object of filing an application under section 13 of the Act was to get the alleged sale agreement confirmed under the Act, whereas, the object of filing of the suit is to get the above alleged sale agreement specifically enforced. The suit is not competent in the absence of confirmation of the sale agreement by the respondents as the property would be deemed to have been vested in the Federal Government in terms, of section 3 of the Act. Adverting to the basic question, whether a receipt can constitute a sale agreement, we may observe that if a receipt contains full particulars of the property which is the subject‑matter of the sale and the amount of sale 1 consideration and the agreement on the part of the vendor to sell and if the receipt is genuine, it may constitute a sale agreement. In this connection reference may be made to the case of Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan P L D 1956 (W.P.) Kar. 521, in which Inamullah, J. as his Lordship then was, held that, reciting receipt of an advance and containing offer to execute an agreement of sale within one month constituted document evidenced an agreement to execute the sale‑deed. The sale agreement was specifically enforced on the basis of the above document. As regards the question, whether the respondents were justified to hold that the petitioner had failed to prove a bona fide sale transaction, it may be observed that respondent 2 as well as respondent have given number of reasons for holding that the transaction was not a bona fide one, we would not like to dilate upon the same as we are of the view that the respondents might have been influenced by the fact that they were holding that a receipt cannot be treated as an agreement to sell. We would, therefore, remand the case to respondent 2 with the direction to rehear the petitioner's application and allow him to produce evidence on the points which created doubt in the mind of respondent 2 and which have been referred to in the impugned orders. The above petition stands disposed of in the above terms with no order as to costs. M.Y.H./A‑529/K Order accordingly.