2012 PLP 380 (SCMR)

EJAZ AFZAL KHAN, J.

Leave to appeal was granted to consider whether the High Court has appreciated the relevant law and evidence on the record in its correct perspective while allowing revision petition filed by the respondents.

2. The facts, culminating in the present appeal, are that appellant and respondent No.1 transacted a deal coinciding with execution of an agreement to sell between him and respondent No.2 on the one hand and execution of a power of attorney in favour of respondent No.1 following the payment of a sum of Rs.6,50,000 on the other. When the appellant changed his mind, respondent No.2 instituted a suit which was decreed vide judgment dated 24-11-2004 by the learned Civil Judge, Gujranwala. On appeal, it was set aside vide judgment dated 3-3-2005 by the learned Additional District Judge, Gujranwala, while on revision the judgment of the trial court was restored by the learned Judge of High Court in chambers vide judgment impugned herein.

3. The main argument of the learned counsel for the appellant was that where amount paid to the appellant was a loan, it by no stretch of imagination, could be construed as a sale consideration especially when neither the power of attorney nor agreement to sell has been proved in accordance with the requirements of law. No transfer, the learned counsel added, could validly be made in favour of the husband of the donee of power of attorney, without obtaining the consent from its donor even if it is assumed that it was genuinely executed. The learned counsel, in support of his contention, placed reliance on the cases of Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341), Jamil Akhtar v. Las Baba and others (PLD 2003 SC 494) and Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others (PLD 2008 SC 389).

4. Learned counsel appearing on behalf of the respondents contended that a sale was transacted between the appellant and his brother on receipt of Rs.6,50,000 and pursuant thereto, a power of attorney was executed in favour of respondent No.1 who happens to be the wife of the latter and that it is not a transaction of the type indicated by the learned counsel for the appellant in his arguments, therefore, the judgments cited at the bar by the learned counsel would not be relevant to the case in hand. The learned counsel by concluding his arguments submitted that where no convincing evidence has been brought on the record by the appellant to show that the amount thus received was a loan, he was rightly non-suited.

5. We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties.

6. The learned Judge in chambers, while dealing with the case in hand, held as under:-- "The marginal witnesses of the power of attorney and the agreement (Exh.D.1) have appeared and proved the execution of the two documents by the respondent-plaintiff. The witnesses are consistent among themselves and are credible. The most important aspect of the case, however, is that the sum of Rs.6,50,000 mentioned in the agreement was paid through cheque which was received considered by the learned trial Court as proving the defence put forth by the petitioners and belying the case set up by the respondent-plaintiff. Unfortunately, the learned appellate Court has not dealt with these aspects of the case and nor has it met the reasoning of the learned trial Court. The testimony of the D.Ws. has also not been read by the learned appellate Court. As a result, the impugned appellate decree being a result of non-reading of the record, is set aside. Consequently, the decree of the learned trial Court dated 24-11-2004 stands restored. The petitioners shall be entitled to their costs throughout".

7. Another paragraph is also relevant for the purpose of this case which also runs as under:-- "These circumstances were in themselves sufficient to prove execution of the agreement (Exh.D.1) and the power of attorney (Exh.P.3) by the respondent-plaintiff. It was, therefore, for the respondent to prove affirmatively that the signatures and thumb impressions appearing on the documents were not made by him. He did not take any steps to have his admitted thumb impressions compared with the thumb impressions on the documents. As to the amount of Rs.6,50,000 admittedly received by him, the respondent stated that this was a loan taken by him from his brother (petitioner No.2) for the purpose of his business. He conceded that since 1996 when the amount was received by him, he had neither repaid the amount nor had he paid any return thereon to his brother. He also did not produce any document or any evidence such as tax returns etc. relating to his business to substantiate his plea".

8. The finding of the learned Judge of the High Court appears to be correct. The amount so received cannot be given a colour of loan when preponderance of the evidence on the record does not tend to support it. Even the power of attorney and for that matter the agreement to sell, whose execution has been established through aboveboard evidence, leave no foothold for the appellant to stand upon and deny their execution with his chin up. The judgment rendered in cases of Fida Muhammad v. Pir Muhammad Khan, Jamil Akhtar v. Las Baba and others and Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others (supra) cannot, in any way, advance the case of the appellant when the power of attorney was executed on receipt of sale consideration. It is clearly a case where the subject-matter of agency is coupled with an interest. The purpose behind creating this agency, inasmuch as it can be gleaned from the evidence on the record, was to secure and protect an interest accruing to respondent No.2 upon payment of the amount mentioned above. We, therefore, don't agree with the learned counsel for the appellant that no transfer could validly be made by the donee of the power of attorney without obtaining the consent of its donor. It is, quite obviously, a case of authority coupled with an interest falling within the purview of section 202 of the Contract Act, 1872. Though the section itself is clear yet para 868 of Halsbury's Laws of England would be quite illustrative in this behalf, which reads as under:-- "

868. Authority coupled with interest.

Where the agency is created by deed, or for valuable consideration, and the authority is given to effectuate a security or to security or to secure the interest of the agent, the authority cannot be revoked. Thus, if an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest. So, an authority to sell in consideration for forbearance to sue for previous advances, an authority to apply for share to be allotted on an underwriting agreement a commission being paid for the underwriting, and an authority to receive rents until the principal and interest of a loan have been paid of or to receive money for a third party in payment of a debt, have been held to be irrevocable. On the other hand, an authority is not irrevocable merely because the agent has a special property in or a lien upon goods to which the authority relates, the authority not being given for the purpose of securing the claims of the agent."

9. Having thus considered the impugned judgment appears to be free from any taint of misreading or non-reading of evidence or any other error which could be called jurisdictional. We, therefore, don't feel persuaded to interfere therewith.

10. For the reasons discussed above, this appeal being without merit is dismissed with no order as to costs. M.H./103/SC Appeal dismisse