2017 PLP 1552 (MLD)

IBAD-UR-REHMAN LODHI, J.

The suit for declaration, filed by the present respondents, was dismissed by the learned trial court on 01.03.2007; however, in appeal, the suit was decreed on 05.06.2007, by the learned first appellate court.

2. The petitioners, by means of their suit, sought declaration to the effect that gift deed dated 31.07.2002 through which, defendant No.1, in his capacity of the attorney on behalf of the plaintiffs, alienated the suit land in favour of defendant No.2, his wife, was ineffective upon the rights of petitioners and liable to be cancelled. In para-3 of the plaint, it was specifically pleaded that, for such alienation, by means of gift, defendant No.1 has never sought any separate and specific permission of the plaintiffs and, thus, the act of the alienation by the attorney in favour of his wife, was beyond the scope of the powers to be executed by the agent.

3. The defendants, in their written statement, by means of corresponding paragraph No.3, have denied the contents of para-3 of the plaint in the following manner:-- In the written statement, it is nowhere pleaded that, ever a specific permission of the principal was obtained by the attorney for transfer of the subject property in favour of his close relative i.e. wife.

4. In view of the provisions of Order VIII, Rule 5, C.P.C., every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the defendant shall be taken to be admitted except as against a person under disability.

5. The learned counsel for the petitioners has contended that, notwithstanding such denial in para-3 of the written statement, a witness i.e. DW.2-Khan Zaman Khan was produced by the defendants, who has deposed that in his presence, defendant No.1 "informed" the plaintiffs that he has alienated the property in favour of his wife. Such deposition is of no avail to the defendants for variety of reasons; firstly, that said Khan Zaman Khan is nowhere mentioned in the pleadings as a person in whose presence, such information was conveyed and, secondly; the requirement of law is acquiring prior permission of the principal by the agent for alienation of the principal's property in favour of a close relative of the attorney, whereas, according to DW.2, defendant No.1 informed the plaintiffs, after once the property was already alienated by means of gift in favour of wife of the attorney and, thus, such extending information would not equalize the prior permission of the principal. To inform someone about any incident is necessarily is an act done subsequent to happening of actual incident.

6. The Hon'ble Supreme Court of Pakistan in case of Maqsood Ahmad and others v. Salman Ali (PLD 2003 Supreme Court 31) with reference to Sections 211 and 215 of the Contract Act, 1872, has held that it is incumbent upon the agent to have sought prior approval of the Principal before transferring of the land in the name of his close relative. In Kishwar Iqbal Khan v. Muhammad Ali Zaki Khan and others (2007 CLC 1290), it was specifically held that Section 215 of Contract Act, 1872 specifies that if an agent intends to enter into any agreement for his own benefit, he is required to take the consent of his principal and such principal has a right to repudiate the said transaction, if it is proved that certain material facts were dishonestly concealed from him by the agent. This Court in case of Wali Muhammad v. Muhammad Ibrahim and others (PLD 1989 Lahore 440), by interpreting Section 215 of Contract Act, 1872, has held that the agent in such relationship, occupies the position of dominant influence and thus could not be permitted to make a transfer of the property of the principal in his own favour or in favour of his associates without the consent of his principal, and if the attorney by flagrant abuse of his authority entered into a contract of transfer with his son or associate, the principal in such circumstances was legally justified to repudiate such impugned transfer.

7. Keeping in view the above facts, it is held that the learned trial court was not justified to dismiss the suit of the plaintiffs, rather the learned appellate court, on correct appreciation of law and available material on record, reached to a just and right conclusion, while passing a decree in favour of the plaintiffs. The learned first appellate court has committed no illegality in allowing the appeal, filed by the plaintiffs.

8. Resultantly, this revision petition has no force and the same is, therefore, dismissed by upholding the judgment and decree passed by the learned first appellate court on 05.06.2007. The suit, filed by the present respondents, thus, stands decreed. MM/W-6/L Revision dismissed.