2010 PLP 470 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Facts giving rise to the instant appeal are that the appellant filed a suit for specific performance qua the suit property contending therein that the respondent-defendant had entered into an agreement to sell qua the suit property (House bearing No.114-A situated in Block-IV, Satellite Town Quetta) for a consideration of Rs.10,50,000 vide agreement dated 31-5-1994 and Rs.50,000 was paid as earnest money. The remaining amount was to be paid after redeeming the property from House Building Finance Corporation as at the time of execution of the agreement, the house stood mortgaged with the said corporation. The suit was contested. In terms of divergent pleas, following issues were framed:

"(1) Whether the plaintiff has failed to abide by the terms of agreement, dated 5-7-1994? (2) Whether the plaintiff is entitled for the relief claimed for?"

2. The learned trial Court decreed .the suit vide judgment and decree, dated 3-4-1998. This judgment and decree was however, reversed by the learned High Court. Hence this appeal.

3. Learned counsel for the appellant submitted that the learned High Court has reversed the judgment and decree for reasons not sustainable in law, that there was sufficient documentary and circumstantial evidence on record to indicate that respondent had executed the agreement; that the time was not essence of the contract and that the impugned judgment and decree is against the weight of evidence and the law declared by this Court.

4. Learned counsel for the respondent, on the other hand, defended the impugned judgment by submitting that the respondent-defendant never executed any agreement with the appellant-plaintiff; that the so-called agreement dated 5-7-1994 with regard to a house purported to have been executed by the husband 'of respondent-defendant does not bind the latter, first, because the agreement itself shows that it was not executed on behalf of respondent-defendant and second the general power of attorney issued by the respondent-defendant in favour of her husband was with regard to a plot and not a house. He added that the said general power of attorney dated 7-4-1984 was admittedly with regard to a plot which was to be mortgaged with the bank as is evident from the loan agreement, dated 11-4-1984 with the House Building Finance Corporation; that the house was completed on 11-12-1991 which is evident from the completion certificate issued by the said corporation. That being so, he added, neither defendant's husband had any authority to sell the suit property (house), subject-matter of this appeal, nor he acted on her behalf while entering into the agreement to sell in question. In the backdrop of afore-referred facts, he lastly contended, the appellant was not entitled to have the so-called agreement executed either in law or in equity. In support of the submissions made, the learned counsel relied on K.S. Vidyanadam and others v. Variavan AIR 1997 SC 1751, Chand Rani v. Kamal Rani (1993) 1 Supreme Court Cases 519, Muhammad Sharif v. Mst. Faji and others 1996 CLC 883, Malik Ellahi Bux v. Muhammad Aslam 2002 CLC 433, Muhammad Sharif v. Mst. Faji and another 1998 SCMR 2485, Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 and Bootay Khan v. Muhammad Rafiq PLD 2003 SC 318.

5. We have given anxious consideration to the submissions made, and have gone through the evidence led with the assistance of learned counsel for the parties.

6. A bare reading of the general power of attorney executed by the respondent-defendant on 7-4-1984 indicates that the said deed was with regard to a plot and not a house. The fact that immediately after execution of the said power of attorney respondent-defendant mortgaged the said plot with House Building Finance Corporation and obtained loan is not disputed. The recital of agreement to sell entered into between plaintiff and husband of respondent-defendant shows that the same was with regard to a house and not a plot. The general power of attorney dated 7-4-1984 neither makes a mention of the house, subject-matter of the suit nor the house was constructed till then. Interestingly recital of agreement to sell, dated 5-7-1994 shows that respondent-defendant's husband himself was executing an agreement on his own behalf and not on behalf of his wife. This is not even disputed by appellant's learned counsel. The husband of defendant was neither impleaded as a party by the appellant during trial nor any effort was made by him to have him summoned as a witness. It was in the fact of the afore referred evidence led that the learned High Court concluded as follows:-- "A perusal of the above would indicate that agreement to sell was executed by him, as sole owner and not in the capacity of the attorney holder and thus the said sale agreement could not be enforced against the appellant-defendant and at the time of execution of the sale agreement, the plaintiff-respondent should have looked into the title documents of the property in dispute. Admittedly at the time of agreement to sale the property was not in the name of Muhammad Rehman, husband of appellant, thus, he was not competent to enter into sale agreement, in his personal capacity."

7. The afore-referred finding neither reflects any misreading nor non-reading of evidence led. The same, therefore, is unexceptionable. In these circumstances, we do not find any merit in this appeal which is dismissed. M.H./J-15/SC Appeal dismissed.