P L D 1988 Karachi 460 (PLP)

This suit has been filed by K.A.H.Ghori for specific performance of the agreement of sale. In April, 1973, the defendant No.l agreed to sell Plot No.104, 26th Street Defence Cooperative Housing Society, Karachi, measuring 2000 Sq. Yards. The total sale consideration agreed Rs.80,000 and the entire sale consideration was paid by the plaintiff to defendant No.

1. The defendant No.l acknowledged the same by executing a receipt dated 5‑4‑1973 Exh. P/1. The defendant No.l handed over possession of the plot in suit in pursuance of the sale agreement. The defendant No. l also executed an irrevocable power of attorney dated 5‑4‑1973 in favour of plaintiff's son Naseem Hussain. The photostat copy thereof is annexed to the plaint as Annexure C. The plaintiff paid development charges, ground rent and other charges in respect of the plot in suit per Exh.7, Exh.9. The defendant No.l also handed over original title documents to the plaint and produced as Exhs. P‑10, P‑11, statement of account as Exh.P‑12 acid clearance certificate as Exh. P‑

13. The attorney of the defendant No.! executed sale agreement dated 15‑5‑1975 Exh.P‑

2. According to the plaintiff the attorney of the defendant No.l went to the office of the Defence Cooperative Authority, to pay the final instalments of development charges and also to transfer the plot to the plaintiff. He came to know that the defendant No.l cancelled the power of attorney without any notice to him and a fresh power of attorney was issued in favour of the defendant No.2. The plaintiff approached the defendant No.1 through his son and finally the defendant No.1 refused to transfer the property in favour of the plaintiff. The present suit was filed for specific performance in this Court on 5‑5‑1981. The defendant No.1 filed the written statement on 15‑2‑1982 contesting the claim of the plaintiff. The defendant No. 1 denied the allegations of sale, receipt and the amount. A legal plea of limitation has also been taken in written statement. The defendant No.2 also filed written statement wherein he denied the sale and handing over the possession to the plaintiff. On the pleadings of the parties, the following issues were adopted by this Court on 9‑5‑1982:‑ Whether the defendant No.1 agreed to sell Plot No.104, 26th Street, Defence Housing Society to the plaintiff on 5‑4‑1973 and received Rs.80,000 in cash on the same day and executed the receipt Exh. B and delivered vacant possession thereof? (2) Whether the General Power of Attorney dated 5‑4‑1973 was cancelled illegally and without notice? (3) Whether the agreement of sale dated 19th July 1976 executed in the U.S.A. by Nasim Hussain in favour of the plaintiff is valid and proper? If so its effect? (4) Whether the plaintiff is entitled to specific performance of the contract? (5) Whether the present suit is maintainable in view of the previous suit having been withdrawn without permission of the Court? (6) Whether the plaintiff has any cause of action against defendant No.2 ? (7) Whether the Defence Housing Society is a necessary party? (8) What should the decree be? Only the evidence of the plaintiff was recorded on Commission. The defendants' evidence was closed on 24‑9‑1987. On 3‑11‑1987 the defendants and their counsel were called absent. I have heard the arguments of Mr. Shahenshah Hussain on 3‑11‑1987 and 4‑11‑1987. The first issue is whether the defendant No.1 agreed to sell Plat No.104, 26th Street, Defence Housing Society to the plaintiff on 5‑4‑1973 and received Rs.80,000 in cash on the same day and executed the receipt Exh .Band delivered vacant possession thereof. The sale of the plot was denied by the defendant in his written statement. The evidence of the plaintiff was recorded on Commission. The plaintiff has stated in his examination‑in‑chief that he purchased the plot in suit in the year 1973 from defendant No.l. The plaintiff has stated in his deposition that the price agreed was Rs.80,000 and he made the payment to the defendant No.l who executed a receipt dated 5‑4‑1973 Exh. P/1. The plaintiff has stated in deposition that the defendant No.1 executed irrevocable power of attorney in favour of his son Naseem Hussain on the same date. The attorney executed agreement of sale dated 15‑5‑1975 in his favour. He has produced the sale agreement as P/2. The defendant No.1 received the entire sale consideration and acknowledged the same by Exh.P/1. ‑ The possession had also been delivered by the defendant No.1 to the plaintiff on the execution of receipt. It is admitted position in the case that in spite of opportunities, granted to the defendants, no evidence was examined on their behalf and therefore, the pleas raised in the written statements filed by them remained unsupported. It is well settled that the written statement is not a substantive evidence in a suit and if the defendant does not A appear to support the pleas raised in the written statement and offer himself for cross‑examination on facts stated in the written statemeW the pleas and/or contentions raised in the written statement cannot be relied upon (see the case of Mst. Khair‑ul‑Nissa and 6 others v . Malik Muhammad Ishaq and 2 ethers P L D 1972 S C 25). The defendant No.1 denied in his written statement that "he agreed to sell the plot in dispute to the plaintiff for the alleged sum of Rs.80,000 or for any sum at all; that this defendant received the sum of R,s.80,000 from the plaintiff or any lesser sum; that this defendant executed the alleged receipt dated 5‑4‑1973; and that the possession of the plot was handed over to the plaintiff. All their allegations are false and denied." The plaintiff gave evidence in support of case. The defendant No.1 did net cross‑examine the plaintiff and did not give evidence. The plaintiff stated in his plaint that the defendant No.1 agreed to sell the plot in suit for total sale consideration of Rs.80,

000. The plaintiff further stated that he paid the entire sale consideration to the defendant No.1 who acknowledged the same by executing receipt. Exh.P/1. The plaintiff further stated that the defendant No.1 executed power of attorney of his son Naseem Hussain and also handed over possession of the plot in suit to the plaintiff. With regard to the sale of the plot and the payment of sale consideration it is sufficient to observe that if he did not agree to sell or he did not receive the entire sale consideration or that he 'did not hand over possession of the plot in suit, as stated in the plaint it was incumbent upon the defendant No.1 to cross‑examine the plaintiff and to give evidence. Having failed to do so it is open to me to treat hip evasive denial, as to the agreement of sale which was admittedly made payment received and in pursuance of the agreement handed over possession, as :in admission that the statement made in; the plaint are correct. Reference may be made to Order 8, Rule 5, C.P.C. (See Ruther v. Tregant, (1879)12 Ch. D 758). None of the defendants have ventured into the witness‑box to contradict the evidence of the plaintiff. I am, of the opinion that it is the bounden duty of a party t3 personally knowing the whole circumstances of the case, to cross‑examine the plaintiff and to give evidence on his own behalf and to submit 'to cross‑examination. His non‑appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case. The failure of the defendants to go into the witness‑box without any explanation whatsoever at once puts them out of Court. Adverse inference can be drawn against him, that is, the defendant No.1 agreed to the sale of the plot in suit to the plaintiff. The defendant received Rs.80,000 from plaintiff through Exh.P/1 anti the defendant No.1 executed power of attorney in favour of Naseem Hussain son of the plaintiff. Issue No.l is, therefore, decided in the affirmative. The second issue is whether the General Power of Attorney dated 5‑4‑1973 was cancelled illegally and without notice? The defendant No.l admitted in his written‑statement that he executed power of attorney in favour of Naseem Hussain, the son of the plaintiff. The defendant No.l submitted in his written statement that he revoked the power of attorney by deed of revocation dated 30‑1‑1976. The reasons for revocation of power of attorney as disclosed in the written statement that he was unable to act for the defendant No.l at Karachi because he migrated to U.S.A. and the attorney was acting against the interest of the defendant No.l in collusion with the plaintiff who is his father. It is pertinent to note that the defendant No.l did not cross‑examine the plaintiff and did not care to enter in the witness‑box. It is an admitted position that no notice was given to the attorney. The execution of power of attorney is not denied. The defendant No.l denied in his written statement that he never agreed to sell the plot in suit and he never received entire sale consideration. The. evidence on record would show that the defendant No.l agreed to sell the plot in suit, for total sale consideration of Rs.80,

000. The plaintiff paid the entire sale consideration to the defendant No.l and he acknowledged the same as per Exh.P/1. The defendant No.l handed over possession of the plot in suit to the plaintiff and since then the plaintiff has been in possession of the plot and the plaintiff had paid all development charges. This being so, existence of the plaintiff's r interest in plot in suit which formed the subject‑matter of the power of attorney, within the meaning of section 202 of the Contract Act, can hardly be denied and the facts would show that the plaintiff had the interest at the time the power of attorney was executed in favour of his son Naseem Hussain. This power of attorney could not be therefore, revoked by the defendant No.l in view of section 202 of the Contract Act. The other aspect of the case is that once the relationship of principal and agent is created by contract, the incidents of that contract of agency are governed and have to de determined by applying the law of contract. In Pakistan such law is to be found in the Contract Act. The terms of the power of attorney make the power of attorney irrevocable or impose restrictions or circumscribe the limitations within which the power of revocation should be exercised. But all these are matters within the region of contract between the parties and in the absence of anything to the contrary, there is no reason to exclude the right of revocation which is recognised under section 203 of the Contract Act. There are other limitations imposed by the Contract Act on the exercise of the power of revocation, e.g. if the revocation is made after the authority had been partly exercised, section 204 of the Act reserves the validity of such acts and obligations and makes the revocation effective only in respect of further acts. It is contended that the power of attorney can be revoked only before its use and as in the present case, the attorney had already entered into an agreement of sale, it is too late to revoke the attorney. I am of the opinion that the power to revoke an authority given to an agent, after the authority has been partially exercised, has been recognised by section 204 of the Contract Act. The revocation It cannot have effect of invalidating acts and obligation cannot have effect of invalidating acts and obligations already done in the exercise of that authority as an agent. The Issue No.2 is decided in negative. The third issue is whether agreement of sale dated 19th July, 1976 executed in the U.S.A. by Naseem Hussain in favour of the plaintiff is valid and proper? If so what is its effect. The plaintiff has stated in examination‑in‑chief that the attorney of defendant No.l executed agreement of sale dated 15‑5‑1975 in his favour in respect of the plot in suit. He produced the said agreement of sale as Exh.P/2. The plaintiff proved execution of agreement of sale. There is no infirmity in the document. I hold that the agreement of sale is valid. The issue is decided accordingly. The fourth issue is whether the plaintiff is entitled to specific performance of the contract? As observed earlier the sale is not denied. The admitted sale consideration was Rs.80,000 and the entire sale consideration was paid by the plaintiff to the defendant No.l on 5‑4‑1973, for which there is a receipt, which is Exh.P/1. The possession had also been delivered by the defendant No.l to the plaintiff on the execution of receipt. On the admitted facts, the E plaintiff is entitled to specific performance of the contract no fact or circumstance is pointed out on behalf of the defendants, on which a case could be made for denying the relief of specific performance to the plaintiff. Issue No.4 is decided in the affirmative. I hold that the plaintiff is entitled to the specific performance of the contract. The fifth issue is whether suit is maintainable in view of the previous suit having been withdrawn without permission of the Court? Mr. Shahenshah Hussain submits that the plaintiff had filed a suit for declaration and injunction which was withdrawn with permission to file fresh suit. Thereafter the plaintiff has filed the present suit. In this view of the matter 1 think that in the .circumstances of the case the plaintiff withdrew the first suit with permission to file the present case and the present suit is not barred but is maintainable. The issue is decided in the affirmative. The sixth issue is whether the plaintiff has any cause of k action. As observed earlier, the power of attorney executed by the defendant No.l is coupled with interest and the defendant No.l could not revoke. the same. The defendant No.l had no power to revoke the power of attorney executed in favour of Naseem Hussain. In these circumstances the defendant No.l has no authority to execute another power.' of attorney in respect of the plot in suit in favour of defendant No.2.. I am of the view that the power of attorney which was executed m favour of Naseem Hussain was not validly revoked tend Naseem Hussain still continues to be the attorney of the defendant No.

1. The eighth issue is what should the decree be? No arguments were advanced by the defendants. In any case Defence Housing Authority is not a proper party in the present suit. The issue is decided in the negative, As a result of my finding on the issues framed in the suit, Suit No.308 of 1981 is decreed as prayed. However, the plaintiff is at liberty to approach the Defence Housing Authority through Naseeml Hussain the attorney of the defendant No.l, for transfer of the plot in suit which request would be disposed of by the authority in accordance with the Bye‑laws after charging transfer fee and other charges if any. A.A. /K‑67/K Suit decreed.