P L D 2004 Karachi 17 (PLP)

6. To whom the monies lying in Germany, or in London or in Tanzania belong?

7. Did the original plaintiff make any gift in respect of the disputed property?"

6. During the pendency of the suit the original plaintiff namely Abdul. Hamid Khan expired on 16-9-1981. Consequently, vide order dated 1-1-1982 legal heirs of the deceased; namely, Begum Yousuf Ara Khan. wife of the deceased and his four sons; (i) Dr. Arshad Kamal Khan, (ii) Dr. Khalid Kamal Khan, husband of the defendant, (iii) Dr. Hamid Kamal Khan and (iv) Dr. Majid Kamal Khan were brought on record. Subsequently Begum Yousuf Ara also died. On 25-11-1997 an application was filed on behalf of the plaintiff under Order I, rule 10(2), C.P.C. stating therein that after the death of Abdul Hamid Khan the original Plaintiff, amended plaint was filed which was signed only by Yousuf Ara Begum and Dr. Arshad Kamal Khan whereas Dr. Khalid Kamal Khan and Dr. Hamid Kamal Khan did not sign the plaint. Dr. Arshad Kamal Khan also signed as attorney of Dr. Majid Kamal Khan but his power of attorney was missing. It was, therefore, prayed that the abovesaid three persons may be allowed to be joined as defendants. The said application was allowed vide order dated 2-11-1998.

7. Vide order dated 5-10-1999, Commissioner was appointed for recording evidence. After recording the evidence adduced by the parties, the Commissioner submitted his report dated 6-6-2002 which was taken on record by order dated 12-8-2002.

8. In support of his case, the plaintiff Arshad Kamal Khan examined himself as Exh. 1, one Syed Sibtan Kazim, Bank Officer in U.B.L. as Exh.3, Ghulam Safdar Jeskani as Exh.4, Israrul Ebad Khan as Exh.

5. On the other hand, the defendant examined her Attorney namely. Muhammad Luqmanul Haque as Exh.6, one Akhtaruzaman as Exh.7 and Dr.Saeeduzzaman as Exh.8.

9. I have heard Mr. A. Rauf, learned counsel appearing on behalf of the plaintiff and Mr. Abid S. Zubri, learned counsel for the defendant No.1 and have minutely perused the evidence adduced by the parties and the material brought on record.

10. Issue-wise findings are recorded hereunder:-- This issue mainly relates to the maintainability of the suit. Learned counsel for the defendant strenuously argued that the suit was not instituted by a competent person as no power of attorney was filed along with the plaint. Alternatively, it was argued that the plaintiff Abdul Hameed Khan was neither capable of writing nor could he speak. He was not in a position to authorize any one to file a suit. Additionally, the so called attorney, Mrs. Yousuf Ara Begum, herself was unable to write, according to Medical Certificate brought on record. Learned counsel for the plaintiff, however, controverted the above arguments, relying upon a power of attorney purported to have been executed by Abdul Hameed Khan copy whereof was filed along with Vakalatnama. The provisions of Order VI, rule 14, C.P.C. clearly stipulate that, "Every pleading shall be signed by the parties and his pleader (if any); provided that where a party pleading is by reason of absence or for any other good cause, unable to sign the pleading, it may be signed by the person duly authorized by him to sign the same or to sue or defend on his behalf'. In Basdeo v. John Smidt (1899) 22 All. 55 = 1899 AWN 172 (F.B.) it was observed that "the object of the signature to the plaint is to prevent as far as possible disputes as to whether the suit was instituted with the plaintiff's knowledge and authority and that such authority may be established by other means besides the signature." (Emphasis laid by me). In Bisheshar Nath v. Emperor (1918) 40 All. 147 it was held that "the authority to bring a suit is a question of principle". Similar view was endorsed in Secretary of State v. Dinshano Navrrji and another AIR 1925 Sindh

275. Further reference can be made to AIR 1925 Lahore

338. I have already taken the same view in the case reported as Messrs Gulf Air v. Messrs Shakil Air Express (Pvt.) Ltd. (PLD 2003 Karachi 156) and unreported case of Messrs Goteco. Trading Ltd. v. Government of Pakistan and others in Suit No. 209 of 1995. Apparently the plaint in the suit was signed, verified and instituted by Mrs. Yousuf Ara Begum claiming to be the attorney of the plaintiff Abdul Hameed Khan. However, no power of attorney was annexed with the plaint to show that she was duly authorized to sign and verify the pleadings. Neither power of attorney finds mention in the list of documents filed nor it has been shown to be a document relied upon by the plaintiff. Annexing the power of attorney alongwith Vakalatnama would, not be enough to conclude that the signatory was duly authorized to sign and verify the plaint as contemplated under rule 14 of Order VI, C.P.C.

12. Apart from above yet there is another infirmity to render the suit incompetent. Order C.P.C. requires that "every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim" From the said provision of law, it is manifest that the fact that a person who signed the plaint of the plaintiff was duly authorized to do so, was a and such fact ought to have been pleaded in the plaint. It may be stated that all the facts which, though not necessary to establish the cause of action or defence, but which the party pleading is required to prove at the trial, are also material facts. In PLD 1947 PC 180 it was observed as under:-- "It is unfortunate that the facts on which the appellant relied as the foundation of his right were not set out in. the plaint... ... ... "The rule that material facts should be pleaded is no mere technicality and an omission to observe it deprives pleadings of most of their value and may increase the difficulty of the Court's task of ascertaining the right of the parties." In order to prove that the plaint was duly or properly signed as required under Order VI, rule 14, C.P.C., it was necessary that the plaintiff should have pleaded by clearly stating in the body of the plaint that the signatory namely Mrs. Yousuf Ara Begum was duly authorized to do so. Upon examination of the contents of the plaint, it is obviously clear that it has nowhere been pleaded in the plaint that said Mrs. Yousuf Ara Begum was authorized to sign and verify the plaint. Besides, no evidence was led by the plaintiff to prove the fact that Mrs. Yousuf Ara Begum, who is claimed to have signed and verified the plaint and instituted the suit, was duly authorized person.

13. Learned counsel for the plaintiff in an attempt to show that Mrs. Yousuf Ara Begum was a duly constituted attorney drew my attention to the title of the plaint which contains the name of Mrs. Yousuf Ara Begum as attorney of the plaintiffs. I am afraid mere mention of name of the said Mrs. Yousuf Ara Begum as attorney of the plaintiff in the title of the plaint will not be adequate enough to prove that the suit was competently instituted for the obvious reason that the title of the suit can never be treated as part of the plaint as, for one thing, it is not covered by the verification appended at the foot of the plaint. This view was taken in AIR 1974 Allahabad 413 and was followed in the case of Ch. Sultan Ahmad through Legal Heir and others v. Salima Begum and others (PLD 1994 Lahore 111). Even if the power of attorney annexed with the Vakalatnama is taken into consideration for a moment, as canvassed by learned counsel for the plaintiff, same could not be trusted with truth having been depicted dubious and consequently rendered inconsequential for the reasons discussed hereunder:

14. It is stated that the plaint was signed by Mrs Yousuf Ara Begum, wife of the original plaintiff, Abdul Hameed Khan in the capacity of his 4-3-1981. In his evidence the present plaintiff namely Dr. Arshad Kamal Khan candidly and impliedly admitted the existence of two medical certificates (Exh.2/36 and Exh.2/37) having been issued respectively from Ara Medical Centre and by Dr. Rehmatullah who had also consulting clinic in Ara Medic-at Centre. In the Certificate Exh.2/36 it is certified that deceased plaintiff namely Abdul Hameed Khan was unable to endorse his signature on medical grounds. It is also certified that he had suffered a brain stroke in May, 1977 resulting in loss of speech. In the other certificate Exh.2/37 also it was certified that late Abdul Hameed Khan had paralysis of the right half of his body with loss of speech. In addition it was certified that Mrs. Yousuf Ara Begum could not make her signature, but she could put her thumb-impression wherever she was required to do so. The plaintiff Dr. Arshad Kamal Khan has not specifically denied the contents or genuineness of these certificates. At the most he has shown lack of personal knowledge about those certificates. The contents of the abovesaid certificates have created doubt as to whether the original plaintiff namely Abdul Hameed Khan had, in fact, given power of attorney to his wife Mrs. Yousuf Ara Begum. Supposing for the sake of argument that he would have put his thumb-impression on the power of attorney while appointing his wife as his attorney, the second question would arise as to how his wife Mrs. Yousuf Ara Begum signed 'he plaint when she was certified to be incapacitated to pill her signature which fact was not denied by the plaintiff in clear terms. Admittedly the late of issuance of the certificate is prior to the date of filing of the plaint. Said Arshad Kamal Khan was confronted with these medical certificates. He had an opportunity to summon the authors/doctors who issued these certificates to appear and testify but no such steps were taken Seemingly there was no challenge to these certificates by the plaintiffs.

15. Upon the above discussion, I have arrived at the conclusion that the plaint was neither signed nor verified by an authorized person. The suit having not been competently instituted is liable to be dismissed oil this ground alone. Sine the suit was completely heard, I deem it appropriate to discuss the merits of the case.

16. These issues have become redundant in view of the fact that Suit No. 2 of 1981 has already been disposed of on 17-3-1986 as apparent from the suggestion put by the plaintiffs counsel to the defendant's witness namely Muhammad Luqmanul Haque in his cross-examination which was admitted by the said witness

17. As all these issues are inter-linked, the same are being dealt with conjointly. The plaintiff's witnesses in their affidavits-in-evidence have stated that the suit plot was purchased by the original plaintiff, Abdul Hameed Khan from his own funds and that the funds incurred on the construction work and the purchase of medical equipments and machinery etc. were also provided by him. However, in the cross-examination the present plaintiff namely Dr. Arshad Kamal Khan admitted that the suit plot was purchased by the defendant. He also admitted various documents pertaining to certain litigation between the defendant and the plaintiff alongwith his other brothers in which he has been shown to be the tenant of the defendant in the suit premises and was ultimately having been evicted from the same. He also admitted that the original title documents of the suit property could have been with the defendant or her husband. He also admitted that the possession of the suit property is also with the defendant. He also admitted that defendant's husband, Dr. Khalid Kamal Khan had his bank account at London, Germany, Karachi and Tanzania. He deposed that he was not sure that the joint bank account operated by his father, and his other two brothers at Germany actually belonged to defendant's husband, Dr. Khalid Kamal Khan. He also admitted that he has not filed documents with his affidavit-in-evidence to show that his father, the original plaintiff, had the source of income. He also admitted that he has not filed any documents to show that his father had remitted the amount for the purchase of the suit plot. The witness of the plaintiff namely Ghulam Safdar Jeskani Exh.4 in his evidence has stated that the construction work of the hospital was given to him and that the cost of the construction was used to be paid bi Abdul Hameed, the original plaintiff and that no amount was paid by the defendant or her husband, However, in his cross-examination he admitted the execution/swearing of an affidavit Exh.4/3 by him in which he has stated that Dr. Khalid Kamal, the defendant's husband, had entrusted him the responsibility fur the construction of a clinic known as 'Ara Medical Clinic' which building was constructed and completed during the period 1972 to 1975. He also stated in the said affidavit that Dr. Khalid Kamal Khan had provided adequate funds to his father, Abdul Hameed Khan for construction of the Clinic and that his father made available money to him (the witness) on Dr. Khalid Kamal Khan's account from West Germany as and when necessary. He further stated in the said affidavit that the late Abdul Hameed Khan during his lifetime had made it clear to this witness that the Clinic was being constructed out of the money provided entirely and exclusively by his son Dr. Khalid Kamal Khan and that the Clinic belonged to his said son alone and that his no other son or relation had any share, whatever, in the Clinic which was owned by Dr. Khalid Kamal Khan solely. The defendant's attorney, Muhammad Luqmanul Haque, in his affidavit-in-evidence supported the version taken in the written statement. He stated that the defendant through her brother purchased the suit property from her own funds as she had enough funds to purchase the property. He further stated that defendant No. 1 started construction of a clinic on the suit plot from the funds provided to her by her husband. Dr Khalid Kamal Khan. He stated that the said construction was mostly supervised by Dr. Khalid Kamal Khan and in his absence by Ghulam Safdar Jiskani. He produced certain documents which include the original Lease Deed, original Sale Deed in respect of the suit property in favour o1 the defendant etc. Defendant also examined her two brothers namely Akhtaruzaman Exh.7 and Dr. Saeeduzzman. Both of them supported the tae of the defendant.

18. Learned counsel for the defendant in support of his contention that the defendant, Mrs. Saeeda Kamal Khan was not a Benamidar but the actual owner of the suit property relied upon the case reported as Muhammad Sajjid Hussain v. Muhammad Anwar Hussain (1991 SCMR 703). In the cited case the Honourable Supreme Court has laid down the following criteria for determining the question, whether a transaction is a Benami transaction or not:-- (i) source of consideration; (ii) from whose custody the original title deed and outer documents came in evidence; (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction. In the above cited report, their lordships were pleased to observe as under:-- "It is also a well-settled law that the initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof."

19. In the instant case it has been brought in evidence that defendant had sufficient funds as her husband was running his own clinic abroad and had various bank accounts in different countries of the world including Pakistan, whereas plaintiff has failed to adduce any documentary evidence or a solid oral evidence to substantiate the plea the original plaintiff Abdul Hameed Khan was running a private business. On the contrary, in his cross-examination the present plaintiff Dr. Arshad Kamal Khan clearly admitted that defendant's husband, Dr. Khalid Kamal Khan had his bank account at London, Germany, Karachi and Tanzania. He also deposed that he was not sure that the joint bank account operated by his father, the original plaintiff, and his other two brothers at Germany actually belonged to defendant's husband, Dr. Khalid Kamal Khan. He has not been able to place on record any document to show that his father, the original plaintiff, was having required source of income. He also did not file any document to show that his father had remitted the amount for the purchase of the suit plot.

20. It is also an admitted position that the original title documents came in evidence through the defendant's witness. The factum of possession of the suit property with the defendant is absolutely undeniable, she having conclusively succeeded in rent proceedings, got present plaintiff Arshad Kamal Khan evicted from the premises.

21. The motive for Benami transaction as alleged by the plaintiff, being beyond comprehension could hardly be believed. No extraordinary and plausible circumstances were stated or pleaded in the plaint to conclusively conceive that the plaintiff would purchase the property in the name of her son's wife instead of his own sons.. More particularly in the given situation when no blood relation existed between the plaintiff/alleged purchaser and the defendant, except that she was married to one of his sons, Khalid Kamal Khan.

22. In view of above discussion, Issues Nos. 3, 5, 6 and 7 are answered in favour of the defendant. Resultantly the suit of the plaintiff is dismissed with costs. M.H./A-499/K Suit dismissed.