2012 PLP 1873 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioner has prayed for modification of decree dated 27-11-1998 passed by the Addl. District Judge, Rahim Yar Khan, whereby the relief for specific enforcement of contract was refused and a decree for earnest money was passed in his favour and the judgment and decree dated 28-3-1996 passed by the Civil Judge 1st Class, Sadiqabad, whereby suit filed by the petitioner was dismissed.

2. Briefly, the facts as leading to this civil revision are that petitioner-plaintiff filed a suit for specific performance on 2-10-1988 on the basis of agreement to sell dated 29-8-1986 of suit-land measuring 4-kanals fully described in the head note of plaint. It was alleged in the plaint that the plaintiff entered into an agreement to sell with regard to the suit land owned by Mst. Rashida Bibi (defendant No.1) through Khalid Mehmood (defendant No.2), her attorney and nephew as well. The defendants were summoned. Defendant No.1 contested the suit by filing written statement, whereas defendant No.2, Khalid Mehmood, filed consenting written statement. Out of the divergent pleadings of the parties, trial court framed the issues and invited the parties to adduce their respective evidence. Both the parties produced their oral as well as documentary evidence. After the close of trial, vide judgment and decree dated 28-3-1996 the trial court dismissed the suit. Feeling aggrieved thereby, petitioner-plaintiff preferred an appeal before the first appellate court, which was partially allowed vide judgment and decree dated 27-11-1998 on the basis that defendant No.2 has admitted the agreement and receipt of Rs.70,000, therefore, a decree for money of Rs.70,000 was granted against defendant No.2 with an interest of 10% from the date of receipt till the date of decree and on this aggregate sum, at the same rate till the date of its recovery. Hence, this civil revision by the petitioner-plaintiff.

3. Learned counsel for the petitioner states that defendant No.1 has not denied that at the time of execution of impugned agreement to sell, defendant No.2 was her attorney; that she has also not denied that defendant No.2 was having authority to enter into an agreement to sell of suit property; that only defence put forth by defendant No.1 in her written statement was that she and her two other sisters, one of whom was real mother of defendant No.2, wanted to give him power of attorney with regard to 10-Marlas of land only but defendant No.2 got recorded in power of attorney the suit land and land situated in Mandi Sadiqabad, due to the illiteracy and simplicity of defendant No.1. Learned counsel for the petitioner further states that the petitioner has fully proved the agreement to sell and receipt, even the same was admitted by defendant No.2; that power of attorney on the basis of which defendant No.2 entered into an agreement with plaintiff, was got cancelled by defendant No.1 on 23-9-1986; that the valid agreement was in favour of plaintiff. It has been further argued that the petitioner-plaintiff has produced as many as four witnesses and he also appeared in the witness box and succeeded to prove the agreement and receipt. Further contends that if there was any misuse of authority by the agent, the Principal can sue to the agent for that misuse of authority. Lastly states that defendant No.2 also sold the other property owned by defendant No.1 through registered sale deeds Exh.P-5 and Exh.P-6 on the basis of same power of attorney against these sale, defendant No.1 filed suits and afterwards those suits were withdrawn and admitted that sale to be competent.

4. On the other hand, learned counsel for respondent No.1/defendant No.1 states that power of attorney should have been a general power of attorney; that plaintiff was bound to prove the valid power of attorney; that respondent/defendant No.1 is a Parda-Nasheen lady, therefore, special care and caution was required before entering into the agreement to sell with regard to her land. Lastly contends that grant of a decree of specific performance is a discretionary relief with the court and the courts below have rightly exercised jurisdiction vested in them by law.

5. I have heard the learned counsel for the parties at full length and have perused the record with their able assistance.

6. It is admitted on record through written statement filed by defendant No.1 that defendant No.2 was her attorney with regard to the suit property and the said power of attorney was got cancelled after coming into existence of the impugned agreement to sell. It is also evident from the record that respondent No.1/defendant No.1 never challenged the impugned power of attorney and even she has not filed any suit in order to challenge the impugned agreement to sell in favour of petitioner-plaintiff. Furthermore plaintiff has produced voluminous evidence to prove the agreement to sell, its date of execution and payment of money. The only question involved in this litigation is that if the agent has committed any fraud with his Principal, which gives the Principal a cause of action to sue against the agent. The petitioner-plaintiff was required to take care before entering into agreement to sell, as to whether defendant No.2 is validly constituted attorney and whether he has right under the power of attorney to sale out the property in dispute. The answer of both these questions on the basis of voluminous evidence available on record and indirect admission of defendant No.1 is that, defendant No.2 was valid attorney of defendant No.1 and he was having authority to enter into agreement to sell or sale out the suit property out the suit property. The objections raised by learned counsel for respondent/defendant No.1 are of academic nature having no weight in the circumstances of the case.

7. The petitioner-plaintiff was entitled to a decree for specific performance of agreement to sell. The refusal by both the courts below is against law. The courts below fell in error while ignoring the voluminous evidence adduced by the petitioner-plaintiff and even ignored the admission made through written statement and in her own statement as she appeared as D.W-1 as her own witness.

8. In the light of what has been discussed above, this civil revision is allowed. The findings recorded by the first appellate court are modified and suit for specific performance of agreement to sell filed by the petitioner-plaintiff is decreed with costs. He is directed to deposit remaining amount of Rs.10,000 in court within a period of one month from today, if not already deposited, otherwise this civil revision will be presumed to have been dismissed. KMZ/A-108/L Revision allowed.