1999SCMR2574 (PLP)

MUNIR A. SHEIKH, J.

This common judgment will dispose of Civil Petitions Nos.2095-L of 1998 and 2096-L of 1998 as questions of law and facts are common in both of them.

2. In Civil, Petition No.2095-L of 1998, the petitioner seeks leave to appeal against the judgment dated 21-10-1998 of the Lahore High Court through which Revision Petition No.3150 of 1994 filed by him against the judgments and decrees of the Courts below has been dismissed whereas in, Civil Petition No.2096-L of 1998, leave to appeal has been sought against the judgment dated 21-10-1998 of the Lahore High Court through which petitioner's writ petition against the orders of the two Courts below passed in ejectment petition and appeal, has been dismissed.

3. The facts of Civil Petition No.2095-L of 1998 briefly stated are that the petitioner filed a suit for cancellation of power of attorney dated 28-11-1987 registered on 9-12-1987 and the sale deed executed by the attorney in pursuance of the said power of attorney dated 6-7-1998 registered on 12-7-1988. It was averred in the plaint that the petitioner had business dealings with respondent No.-3 Naseer-ud-Din and in connection with that, he owed an amont of Rs.1,50,000 to the latter. In order to secure the payment of the said amount, he executed an agreement in his favour in addition to which power of attorney was also executed on 28-11-1987 in favour of one Muhammad Afzal who was authorised to sell his/petitioner's house constructed on an area of 5 Marlas in case he would fail to make payment of the said amount to Naseer-ud-Din, Muhammad Afzal attorney sold the petitioner's house to Atta Muhammad for an amount of Rs.8,000 through sale deed dated 6-7-1988 which was registered on 12-7-1988 without giving notice to the petitioner for payment of the said amount as such the said power of attorney had been misused. His case as a whole was that the power of attorney was executed merely to provide security for the payment of the amount due to respondent No.3 by the petitioner.

4. The trial Court after considering the evidence produced by the parties found that the sale-deed executed by Muhammad Afzal in favour of respondent No.3 in respect of house in dispute of the petitioner was valid, therefore, the suit was dismissed through judgment dated 18-3-1993. The appeal filed by the petitioner was dismissed by the learned Additional District Judge through judgment dated 10-7-1994. The revision petition filed by him has been dismissed by the learned Judge in Chambers through impugned judgment dated 21-10-1998 against which leave to appeal has been sought.

5. In connected Civil Petition No.2096-L of 1998, the facts in brief are that respondent No.3 after having become owner of the house of the petitioner through the said sale-deed filed an ejectment petition to seek his eviction therefrom on the ground of default. The existence of relationship of landlord and tenant was denied by the petitioner. The Rent Controller in the first round of litigation decided that the relationship of landlord and tenant did not exist between the parties and dismissed the ejectment petition against which finding respondent No.3 filed appeal which was allowed and the case was remanded to the Rent Controller for decision on merits. Respondent No.3 filed Writ Petition No. 7428 of 1991 which was dismissed by the High Court on 14-12-1991 against which C.P.L.A. No.60-C of 1992 filed in this Court was also dismissed on 9-2-1992. In the post remand proceedings, the Rent Controller found that the petitioner for having denied existence of relationship of landlord and tenant , the default in the payment of .rent stood established for the petitioner's case was not that he had paid the rent. This plea could not have been raised in our view by the petitioner after having -denied his status as tenant under respondent No.

3. The Rent Controller accepted the ejectment petition through order dated 18-3-1993. Appeal filed by the petitioner was dismissed by the learned Additional District Judge by order dated 10-7-1994 against which Writ Petition No. 10084 of 1994 filed by the petitioner has been dismissed through the impugned judgment dated 21-10-1998 against which leave to appeal has been sought in this petition.

6. We have noticed that in Civil Petition No. 2095 of 1998, the petitioner has raised a plea that he had made payment of the amount of Rs.1,50,000 to respondent by supplying the cloth manufactured by him, therefore, the execution of sale deed by attorney Muhammad Afzal of his house for the payment of the said amount was not valid as the said power by the attorney could be exercised only if the petitioner had failed to make the payment. Learned counsel for the petitioner when questioned admitted that in the plaint itself, no averment was made that the petitioner had paid the said amount before the execution of the sale-deed by his attorney, therefore, this plea appears to be an afterthought and cannot be given serious consideration. Apart from this, no independent evidence to prove the same was produced by the petitioner except his own bald statement when appeared as his own statement that too without giving particulars as to date of the payments of the said amount made through supply of cloth from time to time. Besides according to settled law, no evidence could be allowed to be led in respect of a factual plea which had not been raised in the pleadings,

7. Learned counsel for the petitioner maintained that in addition to execution of power of attorney dated 28-11-1987 which was registered on 9-12-1987 (Exh.P2) an agreement was also executed between the petitioner and respondent No.3, Naseer-ud-Din which was produced in evidence as Exh.P1 which too was executed on 28-11-1987 but registered on 12-12-1987. His argument was that if this agreement (Exh, P1) if read alongwith Exh. P2, i.e. the power of attorney as integral part thereof, the net result would be that the intention of the parties was to provide security for the payment of an amount of Rs.1,50,000 by the petitioner and the attorney could not exercise the power under the said power of attorney unless as notice had been issued to the petitioner by Naseer-ud-Din in the first instance calling upon him to make the payment and on his failure to do so, the power of attorney could be invoked and used.

8. Neither copy of the power of attorney nor agreement (Exh. P1) has been placed on the record. When asked learned counsel for the petitioner frankly admitted that no mention has been made in the power of attorney (Exh.P2) of execution of an independent agreement or that the terms of the said agreement should be read as part of the said power of attorney . He also frankly conceded that no provision was made in the power of attorney of the nature that pbwer could not be exercised thereunder for execution of sale-deed in respect of his house unless Naseer-ud-Din for whose benefit the same had been executed or the attorney had issued notices calling upon him to make the payment of the said amount and after such demand had been made, only then the said amount was payable and not before that and on his faulure to make the payment thereafter, the attorney could execute the sale-deed. There was no denial that a specific amount of Rs.1,50,000 admittedly was due from petitioner t0 respondent No.3 and it was in connection with payment of the said amount that the petitioner executed power of attorney in favour' of Muhammad Afzal so that if he would fail to make payment of the same, the latter could execute sale-deed about his,, house to raise funds for the payment of the said debt. According to the well established principle of law, the debtor is to follow the creditor, therefore, there was no need to issue a notice to the petitioner calling upon him to make the payment of the said amount before it could be treated to be due for payment.

9. The Courts below have rightly held that in the facts and circumstances of this case, the execution of agreement (Exh.Pl) had not been legally established. We also find that since no limitation had been placed on the attorney to execute the sale-deed to the power of attorney itself, therefore, it could not be urged that the said power of attorney had been misused or that the sale-deed executed in pursuance thereof was not valid and liable to be cancelled particularly when it has been established that the said amount had not been paid, therefore, the judgments of the Courts below do not suffer from any illegality as no case has been made out for misreading or misconstruction of any material piece of evidence.

10. Since the non-payment of rent of the house in occupation of the petitioner after having been sold in favour of respondent No. 3 stood established by petitioner's own act of denial of existence of relationship of landlord and tenant, therefore, the orders passed in the ejectment petition, for his eviction and maintained in appeal and writ petition by the High Court do no suffer from any legal infirmity.

11. For the foregoing reasons, we find no force in both the petitions which are accordingly dismissed and leave to appeal refused. Q.M.H.-M-315/S Leave to appeal refused.