1999 PLP 1977 (CLC)

Brief facts, as stated in the plaint, giving rise to the filing of this suit. are that the plaintiff who was employed at Muscat and Kuwait for many years wanted to establish his business in Pakistan. After complying necessary formalities he imported machinery for setting up a colour photo processing _ laboratory at Karachi. Since the plaintiff was employed abroad, he approached his friend, defendant No.2, to assist him in establishing and running the aforesaid business. In order to provide finance in Pak Rupee for setting up the aforesaid business, the plaintiff had authorised the defendant No.2 to operate his current Bank Account No. 18063 at United Bank Limited, Jubilee Insurance House I.I. Chundrigar Road, Karachi. The plaintiff after having completed all the formalities for establishing and running the business of colour photo processing laboratory left for Muscat on 8‑8‑1992 and after reaching there sent a draft general power of attorney to defendant No.2 authorising him to take by various steps, on behalf of the plaintiff, necessary for establishing the said business. The said draft general power of attorney, which inter alia, included ‑',',: power to purchase the property for establishing the aforesaid business, at :.,; Karachi .was required to be returned to the plaintiff by defendant No.2 after affixing his signatures in column "specimen signature of the attorney" so that the same may be returned to defendant No.2 after getting it attested from the Pakistani Counsulate in Oman. The defendant No.2 not only failed to return the said draft general power of attorney but also got special adhesive stamps affixed on the same. The case of the plaintiff further is that defendant No.2 entered into a sale agreement, dated 16‑8‑1982 with defendant No.3 to purchase undivided shares of Shops Nos.l and 2, admeasuring 800 sq. ft., on the ground floor of Plot No.Z‑

75. Dehli Mercantile Muslim Cooperative Housing Society, Karachi, for a total sum of 11s.8.t) which, was paid by defendant No.2 to defendant No.3 by withdrawing the said amount from the 'current account of the plaintiff. The plaintiff had full confidence in the integrity of defendant No.2 and in order to ascertain progress of the work for establishing the colour photo processing laboratory, he came to Karachi on 7‑9‑1982 and was appraised by the defendant No.2 about the purchase of said two shops from defendant No.3 for a total sale consideration of Rs.8,00,

000. The plaintiff was further informed by the defendant No.2 that proper conveyance deed in respect of the purchase of said two shops will be executed to favour of the plaintiff by defendant No.3 after completion of necessary formalities, such as, obtaining of gain tax certificate. The plaintiff suspecting no foul play believed in the words of defendant No.2 and after obtaining declaration for payment of professional tax from the Excise and Taxation Department and getting himself registered with the Income Tax Department, he went back to Muscat. Since the defendant No.2, in the meantime, had left for U.S.A. in the third week of September, 1982, the plaintiff employed defendant No.l and otle Robin Punjwani for running the business. It .is the case of the plaintiff that on 14‑10‑1982 the defendant No.2 came back to Karachi from U.S.A. and with the aid and assistance of defendant No. l and some other Goonda elements threatened employees of the plaintiff with dire consequences in case possession of the business of the plaintiff with all relevant articles and documents was not handed over by them to defendant No.2. Such attempt of defendant No.2 was vehemently resisted by employees of the plaintiff and on getting information about illegal activities of defendant No. 1, t the plaintiff rushed to Karachi and lodged a complaint with the Ferozabad Police Station. A public notice in respect of cancellation of general power of attorney, illegally and fraudulently procured by defendant No.2, was also got published in 'Daily Jang of 21‑10‑1982. Later on, the plaintiff learnt that defendant NO‑2 had also fraudulently manoeuvred purchase of two shops in his own name, payment of which. was made from the plaintiff's account. The plaintiff was further informed the defendant No.2 in an illegal and fraudulent manner executed a lease agreement in respect of the said shops in favour of defendant No.1, although. under the law, he was not entitled/competent to do so. In the background of the aforesaid facts, the plaintiff has filed this suit for following reliefs:‑‑ "(i) Declaration that the plaintiff is the lawful owner of shop premises Nos‑ l and 2 situated on the grnnnd floor of Plot No.Z‑75, admeasuring 800 sq. ft. or thereabout in Dehli Mercantile Muslim Cooperative Housing Society, Karachi, by virtue of sale consideration paid by the plaintiff to defendant No.3 from the plaintiff's account; (ii) Declaration that the defendant No.2 has no right, title or interest or claim in shop premiss Nos. l and 2 admeasuring 800 sq. ft. or thereabout situated on the ground floor on Plot No.Z‑75, Dehli Mercantile Muslim Cooperative Housing Society, Karachi, and the alleged agreement to sale is fraudulent, void ab initio, without consideration on the part of the defendant No.2 and creates no title on the basis thereof in favour of the defendant No.2 and further restrain the, defendant No.2 permanently from putting adverse title to that of the plaintiff in respect of said shop premises. (ii‑A) To declare that the convenience deed document P.33 annexed hereto is void/voidable document and the same be ordered to be cancelled and a copy of the decree be sent to the Sub‑Registrar, T‑Division Il, Karachi where the document has been registered with a direction that the sub Registrar shall note cancellation of the document contained in the relevant register at registered No.3825 pages 157 to 163 Vol. 130 Book No. 1, Addl. dated 2‑11‑1982. (iii) Declaration that the alleged lease deed alleged to have been executed by defendant No.2 in favour of the defendant No. l leasing the said shop premises to the defendant No. l at alleged monthly rent of Rs.20,000 is an illegal, void and consequently ineffective document creating no title in favour of the defendant No. l and order cancellation thereof and further the defendant No. l be permanently restrained from claiming any title on the basis of alleged lease deed in respect of the said shop premises. (iv) Mandatory injunction directing the defendant No.3 to execute sale‑deed according to law in favour of the plaintiff in respect of the said shop premises Nos.l and 2, situated on the ground floor on Plot No.Z‑75, Dehli Mercantile Muslim Cooperative Housing Society, Karachi, having received full sale consideration of Rs.8,00,000 from the plaintiff through the defendant No.2. And alternatively the plaintiff further prays that in event the defendant No.3 fails to execute the sale‑deed, the Honourable Court may pass further necessary orders deemed fit and proper in circumstances. (v) Cost of the suit; and (vi) Any other relief or reliefs deemed fit and proper to this Honourable Court to grant in the circumstances of the case." The defendants were served and defendants Nos. l to 3 have filed the it written statements denying all the allegations levelled against them. On the basis of pleadings of the parties, vide order, dated 9‑3‑1986, following consent issued were adopted:‑‑ "(1) Whether the firm Messrs Photo Centre was established by the plaintiff as a sole proprietary concern. If not was it a partnership concern? (2) Whether the foreign exchange components and other finances invested in Photo Centre at Karachi were exclusively provided by the plaintiff, of defendant No.2 had also contributed to the same, if so its effect? (3) Whether the stamping and attestation of the General Power of Attorney. dated 7‑8‑1982 was obtained fraudulently by defendant No.2, if so, its effect? (4) Did the defendant No.2 fraudulently enter into sale transaction of shop premises Nos. l and 2, admeasuring 800 sq. ft. or thereabout on the ground floor of Plot No.Z‑75, situated at Dehli Mercantile Muslim Cooperative Housing Society, Karachi, in his own name and if so, is the agreement to sale, dated 16‑8‑1982 between the defendants Nos.2 and 3 void and/or voidable document? (5) Whether the consideration of shop Premises Nos. l and 2 in the building on Plot No.Z‑75 Dehli Mercantile Muslim Cooperative Housing Society. Karachi, was paid out of the funds of the plaintiff or of defendant No. (6) How much actual consideration of the aforesaid property was paid to defendant No. 3? (7) Whether the tenancy agreement, dated 14th October, 1982, executed by defendant No. 2 in favour of defendant No. l is a fraudulent, fictitious and bogus document, if so, its effect? (8) Whether the conveyance deed, dated 16‑10‑1982, executed by defendant No.3 in favour of defendant No.2 is void or voidable document as stated in para. 25‑A of the amended plaint, if so, its effect? (9) To what relief. if any, the plaintiff is entitled?" The plaintiff examined himself as Exh.P.W.l whereas defendant No.3 was examined as D.W.1. Defendants Nos. l, 2 and 4 did not come in the witness‑box nor they led any evidence on their behalf. I have heard Mr. Ghulam Muhammad Ibrahim for the plaintiff and Mr. Moeen Azhar, for the defendant No.3. My findings on the above issues are, as under:‑‑ Issues Nos. 1 and

2. The plaintiff during his examination‑in‑chief has stated on oath that the business under the name of Messrs Photo Centre was established by him out of his own funds and that defendant No.2 was, in view of employment of the plaintiff abroad, only authorised by the plaintiff to establish said business on his behalf. The plaintiff has' further brought on record sufficient documentary evidence in respect of import of machinery for the purpose of establishing his said business and has also produced certificate from his bankers in respect of his investment in the business. The statement of the plaintiff has trot only gone unrebutted inasmuch as defendants Nos. l and 2 did not cross‑examine the plaintiff in spite of opportunity having given to the counsel for the said defendants but they also failed to lead any evidence in support of their defence. A Issues Nos.1 and 2 are, therefore, answered in the manner that the business of colour photo processing laboratory was established by the plaintiff as a sole proprietor of the same and the .foreign exchange component, and other finances invested in the same were exclusively provided by the plaintiff. Issue No.3: The plaintiff has stated on oath that draft of a general power of attorney which was sent by him to defendant No.2 for his signature was to be returned to him so that the same, after getting it attested from Pakistani Consulate in Oman, be returned by the plaintiff to defendant No.2. Second copy of the said draft of general power of attorney has been produced in Court by the plaintiff as Exh.P.W.l/16. There is no rebuttal to the statement of the plaintiff by defendants Nos. l and 2 on this point and as such I have no alternative but to hold that by not acting on advise/instruction of the plaintiff, the defendant No.2 e acted in a fraudulent manner by getting the draft of the general power of attorney stamped and attested at Karachi. Issue No.3 is, therefore, answered in affirmative. Issues Nos.4. 5, 6 and 8: These issues can be conveniently disposed of together. The plaintiff has stated on oath that a Bank account with the United Bank Limited, Jubilee Insurance Branch, I.I. Chundrigar Road, Karachi, was established by him as a proprietor of Photo Centre and defendant No.2 was only authorised to operate the said account. A sum of Rs.6,40,000 was drawn by the defendant No.2 from the said account by cheque, dated 16‑8‑1982. To support such statement, the plaintiff has produced letters Exhs.P.W.1/17‑A and P.W.1/17‑B issued by the United Bank Limited. It is further stated by the plaintiff that the shops in question were purchased by the defendant No.2 in his own name, instead of in the name of the, plaintiff, from the funds drawn by the defendant No.2 from his account. In order to substantiate his claim, the plaintiff has further produced a certificate (given by the U.B.L.) as Exh.P.W.1/19‑A alongwith photo copies of cheques in respect of withdrawal of money from the plaintiff's account by defendant No.2 as Exhs.P.W.1/9‑B to P.W.1/19‑D. The oral as well as documentary evidence brought forward by the plaintiff in support of his claim for purchase of the two shops has also gone unrebutted and as such I hold that the shops in question were purchased by defendant No.2 fraudulently in his own name out of the funds of the plaintiff and the agreement of sale, dated 16‑8‑1982 between the defendant No.2 and defendant No.2 is also void. The controversy in respect of actual sale consideration of the shops in question, though in view of my above findings stands resolved, yet it may be stated that assertion of the plaintiff is that the shops were purchased by defendant No.2 out of his funds for a sum of Rs.8,00,000 but defendant No.3 in his written statement as well as in his statement before the Court has stated that under sale agreement, dated 16‑8‑1982 the said two shops were sold by him to defendant No.2 for a total sale consideration of Rs.2,00,000 out of which a sum of Rs.1,50,000 was paid by the defendant No.2 by way of pay order and the remaining amount of Rs.50,000 was paid in cash. During the course of his cross‑examination the defendant No.3 when confronted with a photo copy of sale agreement, dated 16‑8‑1982 in respect of said two shops for a sum of Rs.8,00,000, has denied his signatures on the said sale agreement and has reiterated that the sale consideration of the said two shops was Rs.2,00,000 and not Rs.8,00,

000. The plaintiff has not brought any other evidence on record to prove that sale consideration of the two shops was/is Rs.8,00,

000. Under the circumstances, I hold that actual sale consideration of the said two shops paid to defendant No.3 is Rs.2,00,000 and not Rs.8,00,000, as alleged by the plaintiff. In view of the above discussion, I am of the considered view that the conveyance deed, dated 16‑10‑1982, executed by defendant No.3 in favour .of defendant No.3 is void and the same is cancelled. The ~defendant.No.2 is directed to file/submit the same in Court for the purposes of .cancellation. In view of my above findings that the sale consideration. in respect of said two shops was paid by defendant No.2 to defendant No.3 from the funds of the plaintiff and that of cancellation of sale deed, dated 16‑10‑1982, it is held that the plaintiff is the true and lawful owner of the said two shops and is entitled for registration of a proper sale‑deed by defendant No. 3 in his favour. Issue No. 7: In view of my findings on Issues Nos.4, 5, 6 and 8, Issue No.7 is answered in affirmative. Issue No. 9: In view of the foregoing, this suit is decreed as prayed. Since no relief is claimed against defendant No.4, suit against the said defendant stands dismissed with no order as to costs. A.A./I‑46/K Suit decreed