1999SCMR2718 (PLP)

SH. IJAZ NISAR, J.

This appeal as of right under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the judgment, dated 23-12-1997, passed by the Peshawar High Court, whereby it allowed Civil Revision No.517 of 1997, filed by Mst. Hussain Afroza, the respondent herein.

2. The facts of this case are that the respondent filed a suit in the Court of Senior Civil Judge, Nowshera, on 13-5-1991, against Syed Humayun Zaidi etc., the appellant herein, for specific performance of agreement to sell House No.82/1-2, Damodar Street Nowshera, and for possession on payment of balance of Rs.2,80,000 of the sale consideration of Rs.3,60,000, Rs.80,000 as earnest money having already been paid to the appellants. The respondent also sought perpetual injunction to restrain the appellants from alienating the house in question or bringing about any change in its nature. Appellants Nos. l to 4 filed a joint written statement whereas Syed Babar Hussain Zaidi, appellant No.5, a close relative of the other appellants who had entered into the agreement as their attorney with Mst. Hussain Afroza respondent, filed a separate written statement. The appellants Nos. l to 4 neither denied the execution of the agreement to sell nor the power of attorney executed by them, in favour of appellant No.5. It was, however, alleged that the contract of sale could not have been executed because of the revocation of the power of attorney by appellants Nos. l to 4.

3. The learned trial Court, after recording the evidence on the issues framed, dismissed the suit on 3-4-1996, on the ground that the power of attorney stood revoked before the sale could take place.

4. On appeal, the learned District Judge vide judgment, dated 18-12-1996, upheld the judgment and decree of the trial Court, inter alia, on the ground that the decree for specific performance being discretionary could not be passed, because appellants Nos. l to 4 were reluctant to complete the sale transaction and that the agreement was only binding upon appellant No.5, who was also a co-owner, but under the circumstances decree against him could also not be passed.

5. Feeling aggrieved, Mst. Hussan Afroza respondent filed a revision in the Peshawar High Court, which was allowed vide impugned judgment, dated 23-12-1997, the relevant portion whereof is reproduced below:-- "It, thus, follows that there has been a valid agreement to sell, entered into between the plaintiff and defendant No.5 on his own behalf and on behalf of defendants Nos.l to 4 under a valid power of attorney. Earnest money had admittedly been paid. The revocation of the power of attorney having come subsequent to the agreement to sell would not invalidate the agreement. The No Objection Certificate was declined only because of notice issued by defendants Nos. l to 4 to Cantonment Board, which they legally could not do. In these circumstances the plaintiff-petitioner is entitled to the grant of decree of specific performance. Consequently the revision petition is allowed, the impugned judgment and decree are set aside and the suit of the plaintiff petitioner is decreed in accordance with the terms prayed for in the plaint." Hence, this appeal by Syed Humayun Zaidi and others.

6. It is contended that the concurrent findings of the two Courts below could not be set aside in revision under section 115, C.P.C. and further that the learned High Court failed to take notice of the fact that the donee acting under the power of attorney had not obtained any instructions from the donor about the sale transaction and that the suit brought by the respondent could not have proceeded without a no objection certificate from the Cantonment Board, owner of the site in question.

7. The execution of the power of attorney by appellants Nos. l to 4 in favour of Syed Babar Hussain Zaidi, appellant No.5, is not disputed. The sale agreement was executed by him in favour of Mst. Hussan Afroza respondent on 26-8-1990 while the deed of revocation was executed on 16-9-1990. Thus, Syed Babar Hussain Zaidi had full authority under the power of attorney executed to, his favour to enter into the sale agreement. Even the deed of revocation', executed by the appellants saves the transactions already made by Syed Babar Hussain Zaidi. The learned High Court had rightly relied on Ahmad Khan v. Settlement Commissioner and others (1975 SCMR 64), wherein it was held that the cancellation of power of attorney by the donor after the donee had' competently, under the power, executed a deed of relinquishment, could not render the deed invalid in the absence of allegation of the power of attorney being forged. It would not be out of place to mention that in the instant case there is no allegation of the power of attorney having been forged by Syed Babar Hussain Zaidi. As regards the refusal of the Cantonment Board to grant no objection certificate to the sale of the site in dispute, it may be mentioned that this was at the instance of Appellants Nos. l to 4, who had tried to frustrate the agreement duly executed by Syed Babar Hussain Ziadi in favour of Mst. Hussan Afroza. Had they not moved the Cantonment Board, the latter would have no objection to the grant of N.O.C. Furthermore, the Cantonment Board was also misled by the appellants that the power of attorney in pursuance of which Syed Babar Hussain had entered into the sale agreement with Mst. Hussan Afroza had been revoked. The correct picture was not brought to the notice of the Cantonment Board that the sale agreement was executed before the revocation of the power of attorney. Even otherwise, it would be a matter between Mst. Hussan Afroza and the Cantonment Board as to whether N.O.C. is issued or not in her favour, but this could not be made a ground for the refusal of the passage of decree in her favour by the Civil Court.

8. It is well-settled that the donor of a power is bound by the act of the donee which he performs in accordance with the terms of the power. The agreement was binding on the appellants as it was executed by a person duly authorized by them and was for consideration. No doubt the grant of decree for specific performance was discretionary with the Civil Court but the said discretion could not be arbitrary and had to be exercised judicially on sound judicial principles. In view of the circumstances narrated above, there was no reason as to why the said discretion should not have been exercised in favour of Mst. Hussan Afroza respondent, who had entered into the agreement with Syed Babar Hussain Zaidi, on the basis of the power of attorney validly executed in his favour by the appellant after payment of the earnest money to him.

9. In consequence, the High Court had rightly decreed the suit in favour of the respondent, and finding no legal defect or infirmity in the well-reasoned judgment of the High Court, we dismiss the appeal. However, the parties are left to bear their own costs. H.B.T./H-28/S Appeal dismissed