P L D 1976 Karachi 877 (PLP)

Mirza Yaqoob Baig for Respondent No.

1. Ali Ahmed Shaikh for Respondent No.

2. Date of hearing: 25th November 1975. This Revision under section 25 of the Provincial' Small Causes Court Act, 1887 is against the judgment and decree of the Judges. Small Causes Court, Karachi dated 7-3-1969 dismissing the- suit of the, applicant.

2. The applicant, Mumtaz Ahmed, filed a suit against the -respondent in the Court of the Small Causes at Karachi, Suit No. 491/1968 - for recovery of Rs. 1,899, in which he pleaded that a residential plot bearing No. B-246 in Block `A' measuring 400 square yards in the . K. D. A. North Nazimabad Scheme, Karachi stood allotted to one A. Nazirul Haque; that one Zahid Hussain, a broker representing that he had authority from the original allottee, obtained possession of the said plot from the Engineering Department of the K. D A. on 5 4-1965, that a few days later on 9-4-1965, the applicant entered into al agreement to purchase the said plot from a person whom the broker, Zahid Hussain, . said was A. Nazirul Haque. The applicant paid Rs. 6,450 to the seller as the purchase price and agreed to pay to the K. D. A. all dues .outstanding against the plot, including transfer charges. Accordingly, on 27-5-1965 he deposited Rs. 1,899 in the K. D. A. in the name of A. Nazirul Haque which comprised the balance of the occupancy value and the transfer charges. Shortly thereafter, he discovered that A. Nazirul Haque, the original allottee had died in December, 1957 and that the alleged seller had impersonated him and in collusion with the broker had defrauded the applicant of the money. He further discovered that the broker had taken possession of the said plot under a forged signature .of the allottee and thus had also defrauded the K. D. A. Only the broker was prosecuted, because the whereabouts of the impersonator were not disclosed. However, the broker was acquitted on 6-3-1967. After serving the statutory notice upon the K. D. A the applicant filed the suit against the K. D. A. the respondent No. 1, and the respondents Nos. 2 (a) to (e), the legal heirs of A. Nazirul HAque, for recovery of Rs. 1,899 deposited by the applicant with the K. D. A. by mistake, as a result of the fraud practised on him.

3. The respondent No. 1, the K. D. A. in its written statement admitted teat a sum of Rs. 1,899 had been deposited in the name of A. Nazirul Haque under Challan No. 2329 dated 27-5-1965 but pleaded -that it was not within its knowledge as to who had deposited the sum, and therefore, denied the right of the applicant to its refund. The respondents Nos. 2 (a) to (e) in , their written statement, while admitting the allotment of the plot in the name of their deceased father A. Nazirul Haque, denied knowledge of the deposit of Rs. 1,899 as alleged by the .applicant, and that in the absence of any privity of contract, they denied their liability. The only evidence on record is an affidavit of one Shariful Haque dated 17-2-1969 which was filed as ex parte proof on behalf of the applicant, at one stage in the suit, claiming to be the attorney of the applicant under a power of attorney dated 15-2-1969 annexed to the affidavit. By the impugned judgment dated 7-3-1969, the learned Judge dismissed the suit of the applicant. He held that the applicant had failed to prove or produce any receipt to show that it was he who had deposited the money with the K. D. A. on behalf of A. Nazirul Haque, and therefore, he could not claim its refund from the K. D. A. As far as the other respondents were concerned, he held that the suit against them was misconceived, as they could not be held liable for the amount paid in the name of their father after his death.

4. Mr. Abdul Majid Khan, learned Advocate for the applicant referred to section 72 of the Contract Act, 1872 which states that a person to whom any money has been paid by mistake must repay it. Relying on this section, he submitted that the K. D. A. was bound to refund the deposit to the applicant. He also cited Sowdra Bai and others v. Saraswathi Ammal (A I R 1942 Mad. 590). In that case, a person falsely representing himself to be the owner of a house induced the appellants to lend him Rs. 2,000 on the mortgage of the house. The real owner had no knowledge of the fraud. Again by another similar misrepresentation he induced the respondent to advance him Rs. 3,500 on a second mortgage of the house and the respondent paid the appellants Rs. 2,000 in discharge of the first mortgage, as agreed. When the fraud was discovered, the respondent instituted the suit to recover from the appellants Rs. 2,000 as a ,payment made in mistake of the facts. The trial Court decreed the suit under section 72, Contract Act holding that the respondent had made the payment to the appellants under a mistaken belief that the mortgage executed in the respondent's favour had been executed by the true owner and it was that mistake which had induced the payment. On appeal the Madras High Court affirmed the decree. It was held that where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back. There is nothing in section 72, Contract Act, to suggest that it should only be applied when there is privity between the payer and payee.

5. The K. D. A. has not denied the deposit of the amount in the name of A. Nazirul Haque, the true allottee. There is also no doubt that the amount which included transfer charges, was deposited in his name by mistake, he having died some eight years earlier and the only question is whether the applicant has established that it was he, who had deposited that sum with the K. D. A. so as to be entitled to its refund. The learned Judge held that the applicant had failed to prove this fact, as he had failed to come forward to give evidence and therefore, an adverse presumption should be drawn against him under section 114, Evidence Act. In my opinion, the learned Judge erred in that he appears to have overlooked the provisions of Order III, rules 1 and 2, C. P. C. which enable a recognised agent to appear, make application and act in any Court on behalf of a party to a suit. Shariful Haque, who held a power of attorney from the applicant was such a recog nised agent. He had sworn an affidavit of ex parte proof which was accepted by the Judge as evidence in the case, which has gone unrebutted, in which he stated that he was well versed with the facts of the suit and that the appli cant had deposited Rs. 1,899 with the K. D. A. as a result of the fraud of the broker. The respondents Nos. 2(a) to (e) also have not explained the deposit as originating from their side. Therefore, on a balance of the evidence, it seems to me that there is preponderance of evidence in favour of the applicant that the amount was deposited by him in the name of the true allottee on the supposition of a fact that it was he who had agreed to transfer the plot to the applicant, which fact was untrue and which was the result of a mistake caused by the fraud perpetrated on him. In the circumstances, I am of the opinion that it would be unconscionable on the part of the K. D.A. to retain the amount. Accordingly, I would allow the Revision and decree the suit against the K. D. A. as prayed but with no order as to costs since the K. D. A. also appears to have been a victim of the fraud of the broker. No cause of action, however, has been made out against they respondents Nos. 2(a) to (e) and the suit against them was rightly dismissed. The Revision against them is dismissed. The Revision is allowed against the' K. D. A. only with no order as to costs. S. A. H. Revision allowed.