2012 PLP 1 (SCMR)

MIAN SAQIB NISAR, J.

The facts, of this appeal under Article 185(2)(e) of the Constitution of the Islamic Republic of Pakistan, 1973 are, that Mst. Malooka (since dead), widow of Faizullah Khan along with her five daughters brought a suit against the appellant and respondent No.8 based on the cause of action, that their share in the land subject matter of the suit has been fraudulently transferred by the said respondent in favour of the appellant, by posing himself to be their attorney; the transaction, otherwise was also asserted to be invalid as the vendee was the brother of the alleged attorney and, therefore, it would not qualify the test of a bona fide sale. The suit was contested by the appellant, however, he could not prove before the Court that respondent No.8 was a validly appointed attorney by Saadullah, the son of the aforesaid Faizullah Khan as the plaintiff ladies did appoint Saadullah as their attorney but with no further delegation of authority by him; that the sale by the alleged attorney in favour of the appellant was bona fide, therefore, the suit of the respondents-plaintiffs was decreed by the trial Court on 22-1-2000, but also to the extent of the share of Saadullah in the suit land. The appeal of the appellant could not succeed before the District Judge, Lakki Marwat and his revision before the High Court eventually failed on 10-4-2002 through the impugned judgment. There are concurrent findings of the facts recorded by all the three Courts below that the appellant has failed to prove the valid power of attorney executed by Saadullah in favour of Sanaullah on behalf of the plaintiffs, on the basis of which the suit land of the respondents-plaintiffs could be sold. Moreover, the transaction of sale being in favour of his brother was found colourable and lacking bona fide. It may be pertinent to mention here that in the suit Saadullah was not impleaded as a party. He himself made no attempt to join the respondents-plaintiffs to challenge the said sale or impugne the sale independently, however, still in the decree passed by the trial Court, the entire transaction of sale was annulled by the Court, though in that transaction the land measuring 293 kanals, 16 marlas belonged to Saadullah. This decree, as mentioned above, was upheld in appeal, however, in the revision before the High Court these judgments and decrees were modified and the suit to the extent of share of Saadullah in the suit land was dismissed. Saadullah has not challenged the said judgment and decree in any manner whatsoever i.e. by review or an application under section 12(2), C.P.C. or even by filing an appeal before this Court. Be that as it may, during the pendency of this appeal Mst. Malooka, original respondent No.1 died and her legal heirs including Saadullah were brought on the record, he thus is respondent No.6-A. In response to the notice issued to him as one of the legal heirs of the deceased lady, Saadullah has filed a concise statement in which he has sought the relief in terms of the provisions of Order XLI, Rule 33, C.P.C. and Order XXXIII, Rule 5 of the Supreme Court Rules, 1980 and claims that the revisional judgment to his extent should also be set aside.

2. Heard. The learned counsel for the appellant has submitted that on the basis of same power of attorney, Sanaullah respondent No.8 had sold some other land of the respondents-plaintiffs, which transaction too was challenged by them. The Court in that litigation though has set aside the sale on the reasoning that the transaction in favour of his brother was not bona fide, but at the same time concluded that the power of attorney in favour of Sanaullah (respondent No.8) was valid, this decision shall operate res judicata against the respondents-plaintiffs, therefore, when a duly appointed attorney has sold the property, the principal can only claim sale consideration from his attorney, but cannot legally seek the annulment of the transaction made by such an attorney; Saadullah was a necessary party to the suit, but he was not so impleaded, resultantly, no effective decree could be passed in favour of the respondents-plaintiffs and against the appellant. It is also argued that no relief in the present case can be allowed to Saadullah, as he has not challenged the judgment and decree of the Revisional Court in which the sale to his extent in favour of the appellant was upheld. It is vehemently argued that the provisions of Order XLI, Rule 33, C.P.C. and Order XXXIII, Rule 5 of the Supreme Court Rules, 1980 are inapplicable to the instant case. Learned counsel in support of his contention has relied on the judgments reported as DEO NARAIN SINGH AND OTHERS v. BIBI KHATOON AND OTHERS (AIR 1949 Patna 401) and BRIJ MOHAN LAL MURLI DHAR v. KISHORE AND ANOTHER (AIR 1959 Punjab 555). It is lastly urged that instead of invoking and applying section 187 of the Contract Act, 1872 the present case should be dealt with as per section 175(2) thereof.

3. Controverting the above submission, the learned counsel for the respondents Nos.2 to 6 and 6-A i.e. Saadullah, stated that the later throughout was abroad; he, therefore, could neither join the plaintiffs nor could challenge the said transaction in an independent action; that as he was not a party and had no knowledge of the judgment and decree passed by the Revisional Court against him, therefore, such decree is void, as he has been condemned unheard, therefore, while dismissing this appeal the judgment and decree of the Revisional Court (the impugned decision) through which the share of Saadullah has been excluded from the decrees of the two Courts be set aside. It is also argued that earlier respondent No.8 on the basis of same power of attorney had sold another piece of land of the respondents-plaintiffs to Hidayat, Younis and Ibrahim, the appellant, in the year 1973, all of them are his brothers. Mst. Malooka etc. had challenged that transaction, the suit was decreed in November, 1983 and the appeal was dismissed in February, 1985; their civil revision was dismissed on 12-6-1994 and the leave was declined by this Court on 17-5-1995. Thus when the present sale mutation was entered on 3-11-1985, the power of attorney in favour of Sanaullah had already been declared as invalid, and Sanaullah had thus unauthorisedly sold the suit property to the appellant. Learned counsel for the respondents has heavily relied upon Order XLI, Rule 33, C.P.C. etc. and claims that the decree passed against Saadullah is violative of rule of natural justice. In this behalf he placed reliance on SADDAQAT ALI KHAN THORUGH L.RS. AND OTHERS v. COLLECTOR LAND ACQUISITION AND OTHERS (PLD 2010 SC 878) and CENTRAL GOVERNMENT OF PAKISTAN AND OTHERS v. SULEMAN KHAN AND OTHERS (PLD 1992 SC 590).

4. There are concurrent findings of facts recorded by all the three Courts below that power of attorney in favour of Sanaullah was neither produced in original nor it has been proved in accordance with law, though the appellant was a beneficiary and was required to do so. We are not convinced that on account of some findings about the power of attorney in another litigation, the rule of res judicata shall be attracted in the present matter, particularly when such judgments and decrees have not been shown to have been adduced in evidence by the appellant in the instant case. We also do not find any merit in the arguments that Saadullah was a necessary party to this lis and in his absence no effective decree could be passed. In fact Saadullah in the facts and circumstances of the present case, was only a proper party and due to his non-impleadment the suit cannot be held to fall in the category where no effective decree could be passed. It has not been shown to us if the concurrent decisions suffer from any error of mis-reading and non-reading of evidence on the record or any mis-application or non-application of law.

5. As regards the contention for respondent No.6-A that the Revisional Court has set aside the judgments and decrees in his favour without affording him any opportunity of hearing and, therefore, the impugned judgment is nullity in the eyes of law. Suffice it to say that respondent No.6-A has not challenged the judgment and decree of the Revisional Court before this Court, as no appeal in this regard has been filed. It is not shown if any application under section 12(2), C.P.C. was moved before the Revisional Court by the said respondent or the review of the judgment has been sought. Be that as it may, we have examined the plaint of the case and find that the plaintiffs have only challenged the sale in favour of the appellant to the extent of their share and rights; respondent No.6-A neither joined them, nor even sought to be arrayed as a plaintiff; he directly or indirectly also has never ever questioned the sale to the extent of his share, thus the trial Court had no authority in law to set aside the entire sale qua him (Saadullah); in view whereof the judgments and decrees of the two Courts can be termed to have been passed in the exercise of jurisdiction of the Courts not vested in it by law. In any case, while rendering the said decisions the Courts had acted in the exercise of jurisdiction illegally and with material irregularity, by granting a relief to a person who had never asked for it, was not a party to the lis. And even this was not a case set out by the plaintiff. Therefore, when the above flaw, illegality, invalidity and material irregularity was noticed by the learned High Court, notwithstanding that respondent No.6-A was not a party before it, the said Court, while exercising its supervisory jurisdiction under section 115, C.P.C., in terms of its specific power i.e. "the High Court may make such order in a case as it thinks fit", interfered in the matter. We, therefore, do not find this to be a fit case for the exercise of jurisdiction vested with this Court under Order XLI, Rule 33, C.P.C. or Order XXXIII, Rule 5 of the Supreme Court Rules, 1980.

6. In view of the foregoing, this appeal has no merits which is hereby dismissed. M.H./I-10/SC Appeal dismisse