2003 PLP 2968 (YLR)

(3) Whether the plaintiff was estopped to file this suit by their own conduct? OPD (4) Whether the suit is false and vexatious and the defendants are entitled to special costs under section 35‑A, C.P.C.? OPD (5) Whether the suit is hit under section 11, C.‑P.C.? OPD. (6) Whether the mutation of exchange had been attested legally and bona fide? OPD (7) Whether the plaintiff was owner in possession of the property pursuant upon the decree of trial Court dated 8‑4‑1984 modified under order of the District Judge dated 9‑7‑1984 and subsequently Mutations Nos.344 and 335 of 26‑3‑1986 the later of exchange in favour of defendants Nos. 4 to 9 were illegal, void qua the rights of the plaintiff? OPD (8) Whether the agreement, award and the decree dated 8‑4‑1984 modified by District Judge on 9‑7‑1984 were out come of fraud, illegal, void qua the rights of defendant No. 1? OPD‑1. (9) Relief. Evidence already led in the suit was relied upon and some more evidence was also produced by the parties. Now learned Civil Judge, Sargodha, proceeded to return the application filed by appellant No. 1 vide order dated 4‑5‑1993 to be presented before the Court of learned District Judge, Sargodha, where the said decree was modified on 9‑7‑1984. The application was accordingly presented before the said learned District Judge. In view of the order already passed by an Appellate Court and the consequent order of learned District Judge for hearing of the same together, file of the suit was also sent to the said learned District Judge. Ultimately both the matters were heard together by a learned Additional District Judge, Sargodha, who vide consolidated judgment, degree and order dated 8‑2‑1996 proceeded to decree the suit filed by respondent No. 1 and to dismiss application filed by appellant No.1.

4. Malik Muhammad Akram Awan, learned counsel for the appellants argues that evidence on record particularly the power‑of attorney executed by the appellant No. 1 in favour of respondent No.2 had been misread by the learned trial Court. According to the learned counsel the impugned judgments and order have been passed in violation of statutory provisions as also law laid down by the superior judiciary of the country.

5. Malik Noor Muhammad Awan, learned counsel for the respondents on the other hand supports the impugned judgment and order. He urges‑that execution of the power‑of‑attorney by the appellant lady was proved and as such all proceedings, purpose whereof was to ultimately transfer the land in favour of respondent No. 1 were valid.

6. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I have already referred in some detail to the respective pleadings of the parties abort, Now power of‑attorney Exh.P.8 was executed by appellant No.1 in favour of her brother, respondent No.2 on 3‑3‑1984. It was registered on the same date. The alleged arbitration agreement has not been produced, but according to award Exh.A.2 the same was entered into between respondents Nos. 1 and 2 on 20‑3‑1984. The award dated 21‑3‑1984 (Exh.P.2) narrates that there is a dispute between the appellant No. 1 On the one hand and respondent No.2 on the other and that Bashir Ahmad was appointed an arbitrator vide agreement dated 26‑3-1984. The arbitrator found that appellant No.1 had agreed to sell the suit‑land to respondent No. 1 for a consideration of Rs.2,00 000 and to deliver the possession of the same to her but appellant No.1 refused to bear the expenses for transfer and demanded that expenses be borne by respondent No.1. The arbitrator decided that respondent No.1 shall be deemed to be the owner in possession of the suit‑land and that respondent No.1 shall bear the expenses of transfer, On 26‑3‑1984 the application under section 14 of the Arbitration Act, 1940 was filed. It was conceded by respondent No‑2 on behalf of appellant No.1 and award was made rule of Court on 8‑4‑1984 vide Exh.P.2 subject to registration of award. An appeal was filed by respondent No.1 which was heard by Mr. Lutaf Ali Malik, learned District Judge, Sargodha, who proceeded to allow the appeal and to declare the said condition as unwarranted vide order dated 9‑7-1984.

7. P.W.1 is respondent No. 1 Riaz Bibi. She stated that she purchased the land for Rs.2,00,000 and got consent decree; that land was sold to her by her husband Noor Muhammad who is the brother of appellant No.1. She then‑stated that land was first purchased by Noor Muhammad from appellant No. 1 and then she purchased it from Noor Muhammad; that decree was not incorporated in the Revenue Record because of the pendency of a suit filed by Barkha. In cross‑examination she admitted that appellant No. 1 had all along been in possession of the suit‑land and she never got the possession; that she had given Rs.2,00,000 to Noor Muhammad; that she is living with Noor Muhammad as his wife and that she has no means of income. She denied the suggestion that a fraud has been played. Appellant No.1 appeared as D.W.1. She stated that she was owner in possession of suit‑land and had made gift of the same in favour of her husband Muhammad Riaz and delivered the possession to him; that Noor Muhammad is husband of respondent No.1, who had transferred the land fraudulently in favour of his wife by means of a decree; that she had not given him any authority to transfer her land; that one Barkha had filed a suit against her and power‑of‑attorney was given to pursue the said matter; that she is illiterate village folk; that she had not received any consideration and had never delivered the possession. In her cross‑examination she admitted that Ghulam Rasool Lumbardar (marginal witness of the power‑of‑attorney) is her, cousin. She stated that her former husband was Muhammad Hayat. She denied that she gave any instructions to the scribe for drafting power‑of‑attorney or that the power -of‑attorney was read over to her.

8. Now it appears that she had inherited the suit‑land from her former husband Muhammad Hayat one Barkha filed a suit against her and her three daughters from said Muhammad Hayat on 16‑2‑1979. This suit was dismissed on 9‑3‑1986, while the appeal filed by the said Barkha was returned by the learned District Judge, Sargodha on 2‑6 1986. This latter judgment is available on record as Exh.D.6. The claim of Barkha was that he is a collateral of Muhammad Hayat alias Hata. He had challenged the decree dated 8‑5‑1979 passed in favour of appellant No.1 and her daughters and against the said Hayat. The plea of the appellant No.1 that need to give power‑of‑attorney arose because of the pendency of the said suit is, therefore, quite plausible.

9. Now the learned Additional District Judge has proceeded to decide Issue No.8 and consequently Issues Nos.6 and 7 in favour of the respondent primarily for the reasons that he was satisfied that appellant No. 1 did execute the power‑of‑attorney. Now on the basis of the judgment of the Honourable Supreme Court in the case of Fida Muhammad v. Pir Muhammad Khan (deceased) through L.Rs. PLD 1985 SC 341, it was argued before him that the actions of the respondent No.2 in transferring the property to his wife on the basis of said power‑of‑attorney Exh.P.8 are violative of section 215 of the Contract Act, 1872. The learned Additional District Judge proceeded to brush aside the said argument with the observation that appellant No. 1 had not set up the case that the sale was made without consulting her. I am afraid, but it is apparent on the face of record and is appeared from the statement of respondent No. 1 as P.W.1 that appellant the was kept absolutely aloof from proceedings conducted by her husband in her favour.

10. I am in agreement with the learned counsel for the appellant that the learned Additional District Judge has not even cared to read power‑of‑attorney. No gainsaying the fact that it is by now well‑settled that this document is to be subjected to very strict interpretation and close scrutiny where the authority of attorney is questioned by donor. I have examined the said document and I find that there is no authority whatsoever conferred upon the attorney to enter into agreement for arbitration or to refer any dispute thereto, or to appoint an arbitrator. Needless to state that the entire arbitration proceedings allegedly conducted by respondent No.2 on behalf of appellant No.1 are based on an arbitration agreement. In the first instance the said agreement has not at all been produced and in the second there is no authority spelt out from the power‑of‑attorney Exh.P.8 authorising the said attorney to enter into an arbitration agreement or to appoint an arbitrator.

11. I deem it proper to note here that admittedly the said exercise in obtaining the arbitration award making it rule of Court as also removal of condition of registration by the learned District Judge was of no avail to the respondents. She had to file this suit and sought a declaration on the basis of said award and decree. To my mind, even filing or application under section 12(2), C.P.C. was not necessary as by virtue of Article 58 or Qanun‑e‑Shahadat Order, 1984, the appellants were entitled to show that the saw I orders and decrees were obtained‑by fraud or collusion. The evidence on record does go to show that said proceedings were fraudulent and result of collusion inter se respondents husband and wife.

12. For all that has been discussed above, the R.F.A. as well as civil revision are allowed. The impugned consolidate judgment and decree/orders of the learned Additional District Judge, Sargodha, are set aside. The suit filed by respondent No. 1 is dismissed while application filed by appellant No. 1 is allowed. The said decree and award are set aside. No order as to costs. M.H./A‑869/L Appeal allowed