2014 PLP 1986 (YLR)

SHOAIB SAEED J.

This Regular Second Appeal is directed against the Judgments and Decrees dated 11-2-2011 and 26-5-2010 passed by the Additional District Judge, and Civil Judge, Multan respectively.

2. Brief facts of the case are that respondent No.1 filed a suit for possession through specific performance of agreement to sell dated 12-10-2004 executed between him and the appellant for a total consideration of Rs.500,000 only regarding suit property situated at Qadir Pur Raan, Tehsil Saddar District, Multan. Appellant had given a general power-of-attorney to respondent No.2. Said respondent recorded his statement before the civil judge who vide judgment and decree dated 26-5-2010 decreed the suit. Both parties compromised the matter and recorded their statements resulting into the aforesaid judgment and decree. An appeal was filed by the appellant which was dismissed on 11-2-2011. Feeling dissatisfied appellant filed the instant regular second appeal.

3. It was contended by the learned counsel for the appellant that statement recorded by respondent No.2 on 26-5-2010 was in absence of the appellant on the basis of purported general-power-of-attorney which was cancelled. That no powers to compromise were delegated therein, therefore, statement recorded did not have any legal value and the order passed was unlawful and void. Reliance was placed on Umair Ali Khan and others v. Raiz Rasool and others (PLD 2013 SC 190), Muhammad Yousuf Siddiqui v. Haji Sharif Khan through L.Rs and others (PLD 2005 Supreme Court 705), Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and another (PLD 2002 SC 71), Fida Muhammad v. Pir Muhammad Khan(deceased) through Legal Heirs and others (PLD 1985 Supreme Court 341), Abdul Razzak v. Muhammad Yusuf and 3 others (1984 CLC 1673), Messrs Doha Bank Limited v. Pangrio Sugar Mills Limited and 2 others (2003 CLD 661 (Karachi) and Javed Iqbal, and others v. Bashiran Begum, and others (2013 CLR 224 (Lahore) and Mst. Mumtaz Danish v. Akhtar Bibi and another (1988 CLC 2134).

4. Conversely, it was argued that the suit having been decreed on the basis of compromise, the appeal was not maintainable under section 96(3) of the Code of Civil Procedure. The appellant did not file any appeal before the Additional District Judge as it was not signed by him so there was no appeal in the eyes of law. The appeal having been filed through attorney but his power-of-attorney was not appended. It was also averred that in case of fraud alleged to have been committed by attorney with owner of the property then petition could be filed under section 12(2) of the Code of Civil Procedure in the Court which passed the judgment and decree in question. Reliance was placed on Mst. Shabana Irfan v. Muhammad Shaft Khan and others (2009 SCMR 40) wherein it was held that compromise decree can only be challenged under section 12(2) of the Code of Civil Procedure. Also in judgment reported as "Pakistan Industrial Credit and Investment Corporation Ltd. v. Messrs Khairpur Sugar Mills Limited and another (PLD 2012 Sindh 324) "If compromise decree is challenged on the ground of misrepresentation the same can also be challenged under section 12(2) of the C.P.C. Appellant raised plea of general power-of-attorney for the first time before the appellate Court. It was contended that no such objection was raised before the trial Court nor any such plea taken in the pleadings. That second appeal is competent if it is based on grounds as mentioned in section 100 of the C.P.C. Respondent No.2 (attorney's holder) filed a suit for declaration, etc. in respect of annulment/cancellation of general-power-of-attorney. The said suit was decreed in his favour vide judgment and decree dated 11-3-2010. An appeal was filed against the said judgment and decree which was dismissed on 11-2-2011 against which a civil revision was filed in this Court which also met the same fate and was dismissed on 25-5-2011. The said judgment was assailed through CPLA before the August Supreme Court of Pakistan which too was dismissed on 15-5-2012, as a consequence the order dated I1-3-2013 passed by Civil Judge stood affirmed. General-power-of attorney on the basis of which statement was recorded before the Civil Judge resulting into judgment and decree dated 26-5-2010 was thus valid and subsisting at the time when such statement was made by respondent No.2. The orders passed by courts below were in accordance with law and the appeal in hand be dismissed.

5. Arguments heard. Record perused.

6. The appellant has placed his entire focus on the general-power-of-attorney and alleges that power-of-attorney was annulled and no power to compromise was ever delegated to attorney (respondent No.2). Fraudulently and by misrepresentation appellant was cheated/deprived of his valuable property as he (appellant) was not aware of the statement recorded by respondent No.2 in this regard but the said plea was not raised in the pleadings. A party can plead a case if it had been made out by it in its pleadings

No evidence can be led or looked into in support of plea which had not been taken in pleadings

Variation in pleadings and proof was not, permissible in law as held in Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336).

7. The factum of general-power-of attorney being cancelled at the time when statement was recorded is belied by the judgment passed by the apex Court in Civil Appeal No.1113 of 2011 wherein leave granting order was recalled and the impugned judgments were held to be exceptionable for warranting interference, thus setting at rest the controversy regarding general-power-of-attorney. The power-of-attorney was valid and subsisting when statement was recorded by respondent No.2 before the civil Court. Even otherwise, if fraud or misrepresentation was alleged then it is the matter between the Agent (respondent No.2) and Principal (appellant) for which Principal can institute a suit in a civil Court to proceed against the delinquent or through criminal proceedings and agitate his grievance therein, as reported in Mst. Shabana Irfan versus, Muhammad Shall Khan and others (2009 SCMR 40). Appellant did not append general-power-of-attorney, as reported in Muhammad Yousuf v. Jalaluddin and another (1986 CLC 363 (Karachi), "copy of power of attorney was produced in Court

original power of attorney neither produced in Court nor any witness mentioned therein to have identified executant, produced to prove execution

copy of original power-of-attorney, held, could not be relied in absence of original and in view of non-production of witnesses mentioned in copy to identify executant". Viewed in the present case appellant did not bother even to append copy of power of attorney in absence of which no perverse findings could be given.

8. Interference in second appeal is only permissible if impugned decision is contrary to law or it has been rendered without deciding some material issue of law, or there had been any error or the fact of procedure provided by law. None of the pleas as enumerated above have been raised in appeal, therefore, second appeal is not maintainable. Scope of the appeal is limited to the extent as provided in the said section. The value of subject-matter is Rs.5,00,000 only, second appeal is also not competent under the circumstances. The case-law relied upon by the learned counsel for the appellant are not applicable to the facts of this case. There is no uncertainty, vagueness or inconclusiveness in the judgments rendered by the courts below. The order passed are well-reasoned and in accordance with law. Resultantly, there is no merit in this appeal which is hereby dismissed. AG/A-46/L Appeal dismissed.