2009 PLP 538 (MLD)

GULZAR AHMED, J.

Counsel for the plaintiff and defendant No.1 have been heard on the maintainability of the suit. The question of maintainability of the suit has arisen in the background of the fact that plaintiff alleges to have entered into an agreement to sell, dated 12-11-2007 (P/1) with the defendant No.1 for purchase of property being constructed house on Plot No.D-60, Block-8, measuring 1000 Sq. Yards, situated in Gulshan-e-Iqbal, Karachi (the suit property), for a total consideration of Rs.55,00,000 out of which plaintiff alleges to have paid Rs.50,00,000 in cash to the defendant No.1, on receipt of which it is alleged that plaintiff has been put into possession of the suit property. Plaintiff has described the defendant No.1 as sole and absolute owner and well and sufficiently entitled to the suit property and has authority to transfer/sell the same to the plaintiff. With the plaint, plaintiff has filed as annexure P/7, an agreement of sale, dated 18-11-2002 between one Shabir Ahmed Butt and Muhammad Akbar Ansari, the father of defendant No.1. By this agreement Shabir Ahmed Butt through his attorney Shahid Hafeez Khawaja has agreed to sell the suit property to Muhammad Akbar Ansari for a total consideration of Rs.95,00,000, which consideration through supplementary sale agreement, dated 20-1-2004 (P/6) between the same parties were reduced to Rs.75,00,

000. It is mentioned in the agreements (P/6 and P/7) that there is some embargo on the suit property in Criminal Case No.3 of 1999 pending in the Customs Court. In the face of fact as appearing from the plaint and its annexures, it seemed that neither the defendant No.1 is the owner nor had any authority to sell the suit property to the plaintiff and for these reasons parties' counsel were heard on the maintainability of the suit. It was contended by learned counsel for the plaintiff that plaintiff has purchased the suit property on the basis of agreement (P/1) from the defendant No.1 who is attorney of his father. On the other hand, learned counsel for the defendant No.1 has contended that the agreement relied upon by plaintiff is false and fabricated, the defendant No.1 is not the owner of suit property nor has authority to sell the same to the plaintiff and that in respect of agreements annexures P/6 and P/7, Muhammad Akbar Ansari the father of defendant No.1 and defendant No. 1 have themselves filed suit No.673 of 2006 in this Court for specific performance of contract against the owner Shabir Ahmed Butt and others which is pending and in which order has been passed, whereby parties are directed to maintain status quo. He contended that the plaint is liable to be rejected as the plaintiff has no cause of action and has relied upon the cases of Burmah Eastern Ltd. v. Burmah Eastern Employees Union and others (PLD 1967 Dacca 190) and Rashid Ahmed v. Federation of Pakistan through Secretary Ministry of Communication (Communication Division) Islamabad and another (1998 SCMR 405) and Rasheed Ahmed Khokar v. Sanaullah (1997 CLC 1159). I have considered the submissions of the learned counsel. In the first place, there is no mention in the agreement (P/1) that the defendant No.1 is the attorney of his father nor such fact is at all pleaded in the plaint. In the title of this agreement after the name of defendant No.1 words "for self and on behalf of his father Akbar Ansari" are added. Sections 2 and 4 of the Power of Attorney Act, 1882, provides that power of attorney has to be created by an instruments. Article 95 of the Qanun-e-Shahadat requires the Courts to presume every document purporting to be a power of attorney, which is executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul, or representative of the Federal Government. The obvious meaning of these provisions of the Power of Attorney Act as well as of the Qanune-e-Shahadat is that a power of attorney has to be a written document. Unless the power of attorney in the shape of written document is filed before the Court, neither any assumption of its existence can be made nor the Court will make any presumption as is required under Article 95 of Qanun-e-Shahadat. Merely writing of the words "for self and on behalf of his father" in itself will not make the defendant No.1 an attorney of his father. Even if it is assumed (which assumption as noted above, is not permissible in law) that defendant No.1 is an attorney of his father, the question that arises is as to what right defendant No. 1 or his father has to sell the suit property to the plaintiff. The plaintiff has himself filed with the plaint photocopies of allotment letter of the suit property (P/3), which is in favour of Shabir Ahmed Butt, acknowledgement of possession letter of the suit property (P/4), which is in favour of Shabir Ahmed Butt, indenture of lease of the suit property (P/5) which is also in favour of Shabir Ahmed Butt and then plaintiff has filed photocopies of two agreements (P/6 & P/7) with the plaint, by which Shabir Ahmed Butt through his attorney has agreed to sell the suit property to Muhammad Akbar Ansari. In the agreement (P/1) it is mentioned that defendant No.1 will obtain a transfer statement before the KDA/Sub-Registrar/Works Society directly from the original party Shabir Ahmed Butt. The narration of these documents clearly shows that actual owner of suit property is Shabir Ahmed Butt, who has agreed to sell the suit property to Muhammad Akbar Ansari and in respect of which Suit No.673 of 2006 is pending in this Court. Shabir Ahmed Butt, the owner of the suit property is not privy to the agreement of sale in the suit nor is a party in the suit. The father of defendant No.1 is a person who has merely agreed to purchase the suit property on the basis of agreements (P/6 & P/7), but the sale of it has not been finalized instead a dispute has been arisen in respect of which Suit No.673 of 2006 is pending in this Court. Section 54 of Transfer of Property Act provides that a contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Section 7 of the same Act describes persons, who are competent to transfer the transferable property and restricts such competency to person, who is the owner of transferable property or person who is not owner but is authorized to transfer the transferable property. Plaintiff, by filing with the plaint copies of documents of ownership of suit property, has admitted, as a matter of fact, that the suit property is owned by Shabir Ahmed Butt. Such admission is also very clearly read in the agreement (P/1), where the defendant No.1 has been required to obtain transfer statement from Shabir Ahmed Butt. In the face of such admission by the plaintiff, plea of the plaintiff in the plaint that defendant No.1 is absolute owner and entitled to sell and transfer the suit property to the plaintiff, altogether falls to the ground, as it is in direct conflict and contradiction of the documents filed with the plaint. No authority whatsoever is either pleaded in the plaint or filed with the plaint to show that defendant No. I was authorized by the owner Shabir Ahmed Butt to sell the suit property to the plaintiff. Neither the father of the defendant No.1 himself is a party to the agreement (P/1) nor he is party in the suit. He will have no interest or charge in the suit property merely on the basis of agreement of sale made with the owner an he will have no right and entitlement in law to sell the suit property to the plaintiff either by himself or through his son. The submissions of learned counsel for the plaintiff that real intention of the parties to the agreement should be looked into for which he has relied upon the case of Mst. Rasheeda Abdul Rehman v. Zahoor Hussain (2007 CLC 1372), Haji Adam Ali Agaria v. Asif Hussain (1996 MLD 322), Muhammad Sharif v. Noor Ilahi (PLD 1994 Peshawar 255) and section 2(e) of the Contract Act. It is true that in construing the agreement between the parties, the real intention and purpose of parties, for which agreement is made, is to be gathered from reading the whole of agreement and no redundancy is to be inferred unless the expressions and the intention of the parties collectively leads to such inference. The question in the present case is not with regard to gathering of intention of parties, but rather about the validity of the agreement itself and its enforceability in law on the admitted material available on the record of the suit. Though the agreement may be clear in its terms with regard to the intention of the parties- regarding selling of property, payment of consideration, delivery of possession but still whether in the facts and circumstances of the case such agreement will create any legal right in favour of plaintiff capable of being enforced in law, can always be considered by Court for determining as to whether there is a cause of action available to the plaintiff for filing of the suit. Plaintiff counsel has further submitted .that the reading of plaint and its annexures does not make out a case for rejection of the plaint, rather evidence needs to be recorded, and in this respect has relied upon the case of Sajid Saeed v. Inam-ul-Haq (2007 MLD 1622), Prince Aziz- ur-Rasheed Abbasi v. Begum Katherine. Abbasi (2005 MLD 1940) and Miss Gul-e-Rana v. Muhammad Mansoor Khan (2000 CLC 1673). There is no cavil to the proposition that while considering the question of rejection of plaint on the touchstone of Order VII Rule 11 C.P.C., the contents of the plaint and admitted material on the record of the suit are to be examined and I have also considered the plaint and admitted material available in the record of suit for determining the question as to whether the plaint is liable to be rejected or not. It may be noted that prayer in the plaint for specific performance is sought only against defendant No.1 of executing sale-deed in favour of plaintiff and on failure of defendant No.1 to do so by the Nazir of this Court. From the reading of the plaint and its annexures, it is clear that the defendant No.1 is neither an owner of suit property nor he has any authority from owner to transfer the same to the plaintiff and therefore, the relief of declaration and specific performance as sought in the suit by the plaintiff is not grantable. As such conclusion is reached on the basis of plaint and its annexures, there is no need for framing of issues nor of reading evidence. Except for the relief of declaration, specific performance and permanent injunction, no other relief is sought by the plaintiff in the suit. The result of above discussion is that the agreement to sell (P/1) does not, in law, provide to the plaintiff a cause of action for maintaining of the suit. Consequently, the plaint is rejected under Order VII, Rule 11, C.P.C. All pending applications are also disposed of. H.B.T./G-2/K Plaintiff rejected.