2009 PLP 1305 (MLD)

1. Granted, subject to all just exceptions. (2 &`3). Aggrieved by order dated 19-1-2009 rejecting the plaint under Order VII, Rule 11 C.P.C., the appellant preferred this appeal. Facts for the purpose of deciding listed appeal can be summarized that appellant filed suit for declaration and specific performance of sale agreement dated 12-11-2007 entered into between the appellant and respondent No.1 in respect of a Property bearing No.D-60, Block-8, measuring 1000 sq. yards situated at Gulshan-e-Iqbal, Karachi for a total sale consideration of Rs.55 lacs out of which appellant had allegedly paid a sum of Rs.50 lacs in cash to respondent No.1. From the perusal of agreement of sale, it appears that respondent No. 1 though entered into agreement of sale in his personal capacity but in the preamble it is stated, "for self and on behalf of his father Akbar Ansari". Admittedly respondent No. 1 has no title/interest of any nature in respect of the property for specific performance of which suit was filed nor in the memo of plaint the appellant alleged the respondent No. 1 has any authority for the sale of the property in question on behalf of his father. Under section 230 of the Contract Act, suit is not maintainable against an agent and on this score itself the plaint was liable to the rejected. If any case is required, reference can be made to Pakistan Insurance Corporation v. Pakistan National Shipping Corporation Karachi and others (1994 MLD 667) and Punit Bariwala v. Suva Sanyal and another (AIR 1998 Calcutta 44). Be that as it may, without going into this question, it appears that even father of respondent No.1 has no title or interest in the property in question except that through an agreement he allegedly purchased the property in question from one Shabbir Ahmed Butt. It is well-settled by now that an agreement of sale. by itself does not create any right, title or interest in the property and as such even if there was any agreement of sale between father of respondent No.1 and Mr. Shabbir Ahmed Butt, such agreement did not create any interest in the property to entitle the appellant to seek relief of specific performance. Another argument which also requires consideration is in respect of not joining Muhammad Akbar Ansari who entered into an agreement of sale with Shabbir Ahmed Butt as a party. The appellant filed suit against only respondent No.1 who admittedly has no interest in, the property. Even at the time when the matter was argued no request has been made by the learned counsel to amend the memo of plaint to join Muhammad Akbar and Shabbir but as parties and as such learned Judge rightly rejected the plaint. In the case of Muhammad Ashraf and another Mst. Kokab Benazir Fatima and 2 others reported in 2008 CLC 1398 one of its namely, Arshad Noor Khan, J. had observed as under:-- "The said assertions of the plaintiff in the plaint itself shows that at the time of execution of alleged sale agreement, the plaintiff did not assure himself that the suit property was clear and the defendant No. 6 was invested with all the lawful powers to convey the suit property to him, and, in case, the plaintiff himself committed any mistake to make it clear that whether the defendant No. 6 was invested with the powers to convey the suit property to him or not, he himself could be blamed and not to any other else. In the case of Muhammad Sohrab Khan (supra) it was observed that there was nothing on record of the case to show that the defendant No. 3 was duly authorized agent of his mother to enter into such agreement in respect of the property involved in that case and merely on the said ground that the son of the owner of the property in question possess no lawful right on her behalf to dispose of the property, the suit was held to be incompetent and was rejected under Order VII, Rule 11, C.P.C. The dictum laid down in the aforesaid case is, therefore, fully attracted to the circumstances of the present case. Similar view was taken by another learned Judge of this Court in the case of Muhammad Sohrab Khan v. Muhammad Begum and 3 others reported in PLD 2005 Karachi

280. For the foregoing reasons, listed appeal has no merits which is accordingly dismissed in limine along with pending applications. H.B.T./G-21/K Appeal dismissed.