P L D 2011 Lahore 284 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Petitioner through her husband filed a suit for declaration to the effect that she purchased land measuring 55 Kanal, 18 Marlas situated at Moaza Ladha Langer Tehsil Kot Adu, District Muzaffargarh through registered Deed No.305 dated 6-5-1969 from respondents. According to the document of sale, at the time of disputed sale, the title of respondent No.2 was not perfect and was in doubt, hence it was agreed that in case the title of seller, in suit-land is proved defective, the respondent No.1 being the attorney of Ghulam Muhammad will be liable to transfer his own land measuring 55 Kanal, 18 Marlas situated at village "Chah Ferozwala". It was further averred that mutation attested in favour of the petitioners was cancelled on 2-5-1978 as the title of Ghulam Muhammad, the principal of respondent No.1 was proved defective. It is further asserted that one Mst. Hameedi got transferred the disputed land in her favour and mutation was attested on 5.8-1978 in her favour, the petitioner prayed for decree for declaration.

2. The respondents denied the assertion of petitioner and the learned trial court framed the following issues:-- ISSUES (1) Whether any legal contract was made by defendant No.1 with the plaintiff if so, what were terms and conditions? OPP (2) Whether suit is not maintainable in its present form? OPD (3) Whether suit has not been correctly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation and to what effect? OPD (4) Whether the suit is bad due to misjoinder of causes of action? OPD (5) Relief.

3. Both the parties adduced their respective evidence both oral as well as documentary and the learned trial court decreed the case on 19-7-1994. The respondents filed an appeal against judgment and decree dated 19-7-1994, which was allowed by learned appellate court, hence the present petition.

4. Learned counsel for the petitioner submits that he is bona fide purchaser for value with a surety that in case a defect is found in the title of the seller, the seller and his attorney will be liable to make good his loss. He further submits that under the law the principal is liable to all acts of his agent unless the agency agreement is not cancelled. He relied on section 128 of the Contract Act. Further submits that plaintiff/petitioner has ratified all the acts of her attorney as is evident from Exh.P

4. He submits that the irregularity if any in filing the suit, has been rectified. He further submits that even if it is presumed that the husband of petitioner was not her attorney even then, the suit was maintainable for the simple reason that deceased Mst.Ameer Begum never challenged the attorney of her husband. It is an admitted fact that Mst. Ameer Begum died and admittedly the petitioner became her legal heir and the alleged defect automatically cured. He relied on Mumtaz Hussain v. Faizullah and 5 others (1999 YLR 981), Hakim Ali and another v. Atta Muhammad and others (1981 SCMR 993), Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCMR 314).

5. Learned counsel for respondent submits that suit was not maintainable as Ellahi Bakhsh was not duly authorized attorney of Mst.Ameer Bibi. Mst.Ameer Bibi has not authorized her husband to institute the suit as such the very institution of suit was hit by Order III, Rule 2, of C.P.C. Further submits that petitioner has wrongly instituted the suit for declaration, the petitioner if was aggrieved she could have file a suit for specific performance of agreement for violation of any clause of sale deed. Mst.Ameer Bibi (plaintiff) never rectify the acts and things done by Mehar Ali in furtherance of alleged document of attorney. Learned counsel further submits that during the pendency of suit Mst.Ameer Begun died and as such the suit abutted as the alleged power of attorney executed by Mst.Ameer Begum came to an end. Learned counsel for the respondents takes refuge under section 131 of the Contract Act and claimed that according to the petitioner's own admission that defendant No.1 Abdur Razaq was a surety. The said surety died during the pendency of the suit and as such under section 131 of the Contract Act the legal heirs of the deceased surety, are not bound to honour his surety if any. He relied on Messrs Shadman Cotton Mills Ltd. v. Federation of Pakistan (PLD 2009 Karachi 169), Mst. Fayyazi Begum and 6 others v. Ali Hassan and another (2009 CLC 1289). Learned counsel for the respondent adds that in Exh. P4 the last line has been inserted subsequently and as such it is not helpful for the petitioner.

6. Heard. Record perused.

7. It is an admitted fact that Ghulam Muhammad was the owner of land subject matter of sale-deed, the sale deed was executed by Abdul Razaq the attorney of Ghulam Muhammad. It was specifically mentioned in the document:--

8. The argument of learned counsel for the petitioners is that Abdul Razaq is the attorney of Ghulam Muhammad who at the relevant time was the owner of land in dispute. The attorney agreed with the petitioners that in case any defect is found in the land, subject-matter of sale, he will transfer his own land equal to the suit land or will return the entire sale consideration along with expenses incurred thereof. It is not the dispute between the parties that the title of respondents was not proved defective but the dispute is that the attorney is not liable to transfer his land to petitioner in terms of sale-deed.

9. The argument of learned counsel for respondents is that Abdul Razaq was the attorney of Ghulam Muhammad and as such he is not personally liable to compensate petitioners in terms of the document of Sale No.305 dated 6-5-1969. He alternatively argued that under section 128 of the Contract Act, if it is assumed that respondent No.1 Abdul Razaq was the surety for compensating the petitioners in case of any happening regarding the defect in title of Ghulam Muhammad, even then no decree could be passed against legal heirs of deceased attorney, admittedly attorney died during the pendency of suit and as such surety come to an end and his legal heirs are not liable to honour the surety of their predecessor in interest.

10. Under section 182 of the Contract Act, the agent and principal are defined, which is as under:- 182. "Agent and "Principal. An "Agent" is a person employed to do any act for another or represent another in dealing with third person. The person for whom such act is done, or who is so representative, is called the "Principal".'

11. Under section 188 of the Contract Act, the extent of agent authority is defined: Extent of agent's authority.

An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act. An agent having an authority to carry on a business has authority to do every lawful thing necessary for the purpose, or usually done in the course of conducting such business.

12. The definition of agent thus is "Agent is a person employed to do any work for another or represent another in dealing with a third party. No particular formality is required to constitute the agreement of agency. Principal's authority to agent to represent or act for him in bringing or to act in bringing him into contractual relationship with the third party constitute essence of agency. Such 'authority or agency need not to be necessarily, in writing but could be inferred from circumstances. The principal is responsible for the acts done by the agent within agency arrangement. It is pertinent to mention here that respondents are not denying the agency agreement with Ghulam Muhammad but their claim is that agent is not bound to make good the loss suffered due to defective title of Principal. In these circumstances, the agency agreement between Ghulam Muhammad and his attorney is not the subject matter of the suit. In these circumstances it has to be seen what is the effect of personal undertaking of agent to third party.

13. Admittedly, Ghulam Muhammad is the principal and Abdul Razaq is his agent. Abdul Razaq sold the property of Ghulam Muhammad to the petitioners with the condition that in case any defect is found in title of Ghulam Muhammad, he will be personally responsible for transferring his own land situated in village "Chuh Ferozwala" or he will return the consideration and all expenses incurred in this behalf. This undertaking of agent shows that he himself represented to petitioner that in case of defect in the title of Ghulam Muhammad, qua the property he will transfer his personal property in favour of petitioner or will return the consideration received, this unqualified undertaking shows that the attorney while acting on behalf of his principal undertaken to compensate the petitioner personally and as such he becomes the guarantor or surely of his principal.

14. Under section 128 of the Contract Act, the liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contract. It is not the case of Ghulam Muhammad that Abdul Razaq, his agent exceeded from his authority but the legal heirs of attorney/surety are claiming that surety is not personally liable for transferring his property to petitioners as he acted as agent of principal and are trying to get refuge under the provision of 131 of the Contract Act which provides as under:-- Revocation of continuing guarantee by surety's death.

The death of the surety operates, in the absence of any contract to the contrary, as a revocation of a continuing guarantee, so far as regards future transactions.

15. But under this section the respondents/attorney could not escape from their liability, this provision of law operates only for future transactions or the contract is otherwise. The respondents are claiming that it was in the knowledge of petitioners that title of Ghulam Muhammad is defective and as such she purchased the land at her own risk but this argument of the learned counsel fails when the agent/attorney of Ghulam Muhammad himself admitted that he will be personally responsible for transferring of his land situated in the village "Chah Ferozwala" if the title of Ghulam Muhammad proved defective. He agrees in the following words:--

16. This undertaking of respondent/agent is sufficient to negate the arguments of their learned counsel. Intact in this transaction Ghulam Muhammad as well as his attorney both are jointly and severely liable to transfer their other land in favour of the petitioners, in case of defective title of Ghulam Muhammad.

17. Under section 126 of the Contract Act, the liability of the surety is co-extensive with the principal and as such the petitioners and the respondents/agent are bound to transfer his personal land in lieu of the defective land of Ghulam Muhammad in favour of petitioner. The agent in this case undertook to transfer his personal land which he confirms available in named village, this undertaking of agent shows that he was fully aware at the time of execution of sale deed about the defective title of his principal that is why he stood guarantee on behalf of seller.

18. The other arguments of the learned counsel for the respondents that suit was not filed by the petitioners and as such it is not maintainable. The power of attorney Exh.P1' in favour of husband of the petitioner shows that petitioner has not delegated her powers to institute the suit but this power of attorney was rectified, with another power of attorney which is available on the record wherein it was specifically mentioned: --

19. It is not denied by the respondents that Mst. Ameer Begum and Elahi Bukhsh are not the husband and' wife. It is not the case of respondents that Mst. Ameer Begum is denying the institution of suit on her behalf by her husband but their argument is that suit has not been filed by duly authorized person and it is a inherent defect in institution of suit which could not be cured. Learned counsel for the respondents submits that under Rule 1, Order III, the plaint neither signed nor verified by the duly authorized attorney is no plaint in the eye of law and as such the suit is incompetent.

20. The perusal of plaint shows that the suit was filed by Mst.Ameer Begum through her attorney Ellahi Bukhsh against Ghulam Muhammad and Abdul Razaq (the principal and attorney). The power of attorney placed on record shows that no doubt there was no specific powers given in the attorney for institution of suit but when the respondents objected this attorney, Mst.Ameer Begum executed another attorney wherein it was specifically mentioned that her Civil Suit for declaration is pending before Civil Court 1st Class, Kot Addu and being 'Parda Nasheen Lady" she is unable to prosecute the said suit, she delegates all her powers for prosecuting the suit to her husband. Through this attorney she further confirmed and rectified the act of institution of suit by her husband in following categorical terms:--

21. This shows that Mst. Ameer Begum has rectified the defect in the earlier power of attorney. It is settled principal of law that Order 3 is directory in nature and is not mandatory. The object of this rule is to ensure that facts stated in the pleadings should be duly owned by the parties presenting the same. The non-signing of the plaint by the principal is not fatal and can be rectified at any stage of proceedings.. Reliance can be placed on 1981 SCMR

687. After removal of defect or rectification, the suit shall be deemed to have been instituted on the day of presentation of the plaint and its registration in the office.

22. Even if it is assumed that the suit was instituted by the husband of Mst.Ameer Begum without authority, even then the said defect has been rectified through a subsequent power of attorney and as such this argument of learned counsel fails.'

23. Third argument of the learned counsel for the petitioners that petitioners can maximum claim the consideration paid and the expenses incurred with reference to the sale in dispute, he submits that the petitioners have not opted to claim the consideration paid but are demanding the alternate land. The perusal of document shows that it was the option of petitioners to exercise which option and petitioner could not be forced to opt the option of respondents choice. She rightly exercise the option and as such this argument is of no avail.

24. Learned counsel for the petitioner in alternative submits that when Abdul Razaq entered into a sale transaction with the petitioners he was not the owner of even single inch of land. This argument of learned counsel is denied from the fact when his son namely Abid Hussain appeared as DW-I, he specifically admitted that:-

25. This categorical admission on the part of son of Abdul Razaq is sufficient to prove that he was owner of land at the relevant time. The legal heirs of deceased Abdul Razaq will inherit his estate subject to first charge of the petitioner as deceased stood guarantor/surety of Ghulam Muhammad qua the suit-land. However, the surety in case of discharge of the obligation of principal is entitled to recover the same from the principal but the legal heirs of deceased surety could not claim that they have been absolved from the liability of their deceased father as he died during the pendency of the suit. The legal heirs of deceased Abdul Razaq will inherit deceased estate subject to payment of his liabilities.

26. The upshot of this discussion is that the petitioners successfully proved his case against the respondents. The principal and his agent both are liable to transfer the property in his favour in lieu of the land which has been cancelled from the name of Ghulam Muhammad.

27. In view of the above, the impugned judgment is set aside and the judgment of the learned trial Court is restored. A.R.K./A-62/L Petition accepted.