2004 PLP 1606 (YLR)

Qureshia Begum, the widow of Muhammad Yaseen and her son Muhammad Sualeheen have dispute over house built on Plot No.R‑176, size 1203 sq.yds. Block‑II‑I, North Karachi (hereinafter called as "the house") which first belonged to Najma Ara.

2. Qureshia Begum (hereinafter called as "the mother or plaintiff") filed Suit No.529 of 2000 before 1st Senior Civil Judge, Karachi (Central) claiming therein that she purchased the house from its owner Najma Ara for a total consideration of Rs.2,28,000 including Rs.63,000, the loan of HBFC. Out of which she paid Rs.25,000 to the owner in advance and Rs.1,65,000 were paid by her husband through pay order on 10‑8‑1985 when the owner executed agreement of sale in her favour and delivered the possession of the house to her. She further stated that the sale‑deed could not be executed on account of HBFC loan. However, at her instance the owner executed two powers‑of‑attorney in favour of her elder son Muhammad Sualeheen for looking after the affairs of the house like deposit of HBFC loan amount, taxes etc. and execution of sale‑deed.

3. That after demise of her husband, Muhammad Sualeheen became greedy and tried to get the transfer documents in respect of the house in his own name, therefore, necessity arose to file the suit.

4. The main prayers made by her were the declaration that she and not her son was the purchaser/owner of the house; for cancellation of the power‑of-attorney executed by Najma Ara. the owner of the house, in favour of Muhammad Sualeheen and issuing permanent injunction restraining HBFC from handing over to him the title documents relating to the house.

5. Najma Ara, the owner of the house who was defendant No.2 in the suit, admitted the contention of the plaintiff in respect of the purchase of the house by her, execution of sale agreement in her favour and execution of powers‑of‑attorney in favour of Muhammad Sualeheen at her (plaintiff's) instance.

6. Muhammad Sualeheen (hereinafter referred to as "the son"), however, disputed the claim of his mother. In his written statement he pleaded that the property was purchased by his father from his (son) money and he is purchaser/owner thereof. That the powers‑of‑attorney were also executed in his favour for the reason that he was the purchaser. He also pleaded that the plaintiff was neither owner nor occupant of the house, therefore, neither she has locus standi nor any cause of action had accrued to her for filing the suit.

7. He (the son) also filed an application for rejection of the plaint under Order 7, rule 11, C.P.C. and Mr. Karam Chand Kingrani, the 1st Senior Civil Judge, Karachi (Central) rejected the plaint by order dated 3‑10‑2000. Mr. Muhammad Nauman Memon, the IIIrd Additional District Judge, Karachi (Central) maintained that order. The two orders have been assailed through present revision application.

8. After serving the respondent/son with pre‑admission notice, the arguments have been heard for deciding the revision application at Katcha Peshi stage.

9. Learned Advocate for the applicant contended that the learned 1st Senior Civil Judge wrongly mentioned in his order dated 3‑10‑2000 that the plaintiff had not prayed for declaration in respect of her ownership which observation is in fact against the record. He referred to prayer clause (a), which is for declaration that the plaintiff, the mother, is the purchaser and occupant of the house. He also referred to prayer clause (c), which seeks declaration that the defendant, the son, has never been the purchaser of .the house. He further contended that the 1st Senior Civil Judge, Karachi (Central) also transgressed the limits of law by discussing the factual aspect of the case and recorded the findings that powers‑of‑attorney in favour of the son could not be cancelled at the request of the mother as she was not party to them. Further that HBFC cannot be restrained from delivering title documents to the son in presence of valid powers‑of‑attorney in his favour.

10. The learned Advocate for the respondent No. 1, the son, defended the impugned orders arguing that the plaint was not containing any specific prayer for declaration in respect of title and also legally no third person can seek the cancellation of powers‑of‑attorney.

11. The arguments of the applicant's learned Advocate have force in them. For proper appreciation of the contention it will be proper to, reproduce the prayer clauses "(a), (b) and (c)". They are as under:‑‑ (a) to declare that the suit property, owned by defendant No.2, mortgage with the defendant No.4 and in physical possession of the plaintiff, was purchased by plaintiff in August, 1985 from defendant No.2. (b) to declare that defendant No.1 was duly authorized and appointed by the defendant No 2 as her attorney on the request of plaintiff due to her good faith and trust over him as being her real elder son. (c) to declare that the defendant No.1 has never been the purchaser of the suit property nor he could purchase it at the relevant time.

12. In present case the title documents were yet to be issued, therefore, the prayer for declaration that the plaintiff (mother) and not the defendant No.1 (son) is the purchaser of the house is in fact declaration of ownership by way of purchase. The learned two Courts below wrongly held that no declaration relating to the ownership had been asked for. The prayer clause (b) relates to and is linked with prayer clauses (a) and (c). The learned two Courts below could not record finding relating to power- of‑attorney ignoring the pleadings of plaintiff/mother, in her plaint and without providing her with an opportunity to adduce evidence on the issue. By rejecting the plaint saying that no prayer for declaration about ownership has been made by the plaintiff and that in presence of power‑of- attorney in favour of the respondent No. 1, the son, no order restraining the House Building Finance Corporation from delivering the title documents to him can be passed the learned two Courts below have acted illegally.

13. In the result of above discussion, both of the illegal orders impugned through this revision application are set aside. Suit to proceed from the stage where it was at the time when the plaint was rejected. With this order the revision application is accepted. Respondent No.1 to suffer the costs throughout. M.H./Q‑41/K Case remanded.