2006 M L D 1717

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SARWAR---Petitioner

Versus

JAMIAT KHAN ANWAR and another---Respondents

Civil Revision No.2398 of 2003, heard on 9th February, 2004.

(a) Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), Ss.39 & 42-Suit for declaration---Rejection
of plaint---Cancellation of instrument---Trial Court rejected the plaint in a suit for declaration
on the ground that power of attorney was not challenged, ad valorem Court-fee on basis of
price mentioned in the sale-deed was not paid and the suit should have been for cancellation
of instrument---Validity---Plaint could be rejected only if it did not disclose any cause of action
or was barred by any law---Assertions in the plaint did disclose cause of action and authority
to alienate and sale made by the attorney in favour of his real daughter were also challenged
as being fictitious and without consideration which could only be determined after a full -
fledged trial of the suit and after recording of evidence---Suit could not have been determined
in a summary manner at the initial stage---Such aspects of the case had escaped notice of the
Trial Court, whd erroneously rejected the plaint---Judgments and decrees passed by the Courts
below suffered from patent illegalities/irregularities and were set aside---Case was remanded,
and the suit will be deemed to be pending before the Trial Court which would be decided after
framing of issues and recording of evidence.

(b) Contract Act (IX of 1872)---

----S.214---Duty of agent to communicate with the principal---Personal - gain by the agent---

Alienation by the attorney in favour of his kith and kins needed consent of the principal.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 314; Mst. Shumal Begum
v. Mst. Gulzar Begum 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir
Muhammad and another 1997 SCMR 18,11 and Sultan and another v. The State 2003 SCMR
494 ref.

(c) Civil Procedure Code (V of 1908)---

----O.XXXIX, R.1 & 2---Specific Relief Act (I of 1877), S.54---Injunction---Prayer restraining

further alienation---Plaintiff had to show prima facie, arguable case, suffering of irreparable
loss in case of refusal of the relief and balance of convenience lay in his favour---Where
attorney had executed sale-deed in favour of his real daughter, tentatively without written
consent of the plaintiff, the plaintiff had a prima facie an arguable case in his favour---In order
to provide smooth trial of the suit further alienation was to be stayed---Property was in
possession of respondent and he was enjoying usufruct, there was no probability of suffering
of any loss or inconvenience---Relief of temporary injunction was wrongly refused in
circumstances.

Ch. Akbar Ali Shad for Petitioner.

Rana Liaqat Ali for Respondents.

Date of hearing: 9th February, 2004.

JUDGMENT

MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails judgments and

decrees, dated 24-4-2003 and 16-10-2003 passed by learned Civil Judge and learned
Additional District Judge, Sheikhupura, deciding lis against the petitioner, respectively.

2. A short factual background of the case is that the petitioner filed a suit for declaration with
permanent injunction to the effect that he being a real brother and joint owner of agricultural
land with respondent No.1, appointed him as his attorney to look after his holdings on account
of his ailment/inability to manage the affairs of his property. The petitioner also pleaded -that
respondent No.1 betrayed his confidence and through fraud and forgery alienated his land in
favour of his daughter (respondent No.2) without his knowledge or permission. Sale -deed by
respondent No.1 in favour of respondent No.2 was executed and registered on 18-6-1998. The
petitioner along with his suit filed an application under Order XXXIX Rules 1 and 2, C.P.C.
seeking temporary injunction that the respondents may be restrained from alienating the
property in dispute.

3. The respondents contested the suit filed by the petitioner, as well as, application for grant
of temporary injunction by filing their written statement and written reply. The learned trial
Judge who was seized of the matter while dismissing application of the petitioner under Order
XXXIX Rules 1 and 2, C.P.C., rejected the plaint as well, on the grounds that since the
petitioner has not challenged the power of attorney executed by him, he must file a suit for
damages against respondent No.1 for violating the agency, so created. It was also observed
that suit by the petitioner is one under section 42 of the Specific Relief Act, 1877 whereas he
should file suit under section 39 of the Act ibid. The other ground for non-suiting the petitioner
was that the petitioner was required to pay ad valorem court-fee on the plaint, on the basis of
price mentioned in the sale-deed. Stay application and plaint of the petitioner, were rejected
vice order, dated 24-4-2003.

4. The petitioner aggrieved of the decision of the trial Court, dated 24-4-2003 filed an appeal
before the learned Additional District Judge but remained unsuccessful as his appeal was
dismissed on 16-10-2003. Thereafter he filed instant revision petitioner and respondents have
appeared through their counsel, in response to notice by this Court.

5. Learned counsel for the petitioner submits that plaint filed by the petitioner did disclose a
cause of action and his suit was not barred by any law, as such, the order impugned could not
have been passed. It has further been contended that the reasons which weighed with the two
Courts below, in non-suiting the petitioner, are neither lawful nor had any relevance for
determination of point involved in the case. He further submits that suit filed by the petitioner
was under section 39 of the Special Relief Act but has correctly been said by the two Courts
below, to be one under section 42 of the Specific Relief Act. Similarly, according to his
submissions, suit for cancellation of any document/for its adjudgment, does not require
advalorem court-fee. It has further been contended that the petitioner had challenged authority
of respondent No.1 to sell out his land in favour of respondent No.2 and as such, both the
Courts below have incorrectly remarked that the petitioner should file suit for damages against
his attorney. It is' also urged on behalf of the petitioner that sale inter respondents is in violation
of section 214 of the Contract Act, being direct transfer in favour of the attorney himself,
without consent of the principal. A reference to the case of Sultan and another v. The State
(2003 SCMR 494) was also made in this behalf.

6. Learned counsel for the respondents controverted the assertions of the petitioner, supported
the judgments and decrees of the two Courts below and urged that .the petitioner did not
challenge the power of attorney in his suit, as such, he should have filed suit for damages
against respondent No.1/his attorney, to recover loss, if any, occasioned, on account of his mis-
use of authority. According to the submissions of the learned counsel for the respondents, suit
in the form filed, was not maintainable at law; because the petitioner should have filed suit for
cancellation of power of attorney and sale-deed under section 39 of the Specific Relief Act and
thus the plaint was rightly rejected by the trial Court. It has also been argued that concurrent
findings returned by two Courts below cannot be disturbed in revisional jurisdiction of this
Court, as no illegality has been committed by them. He further submits that respondents No. 2
is in possession of the land, lawfully purchased by her and its title cannot be controlled by the
petitioner. In this manner he opposed the grant of temporary injunction in favour of the
petitioner.

7. I have anxiously considered the respective arguments of the learned counsel for the parties
and have examined the record appended herewith. A plaint can be rejected under Order VII
Rule 11, C.P.C. only if pre - requisites mentioned therein are fulfilled and two of these, are
that suit is barred by any law or the plaint does not disclose a cause of action. Now if we read
the plaint, its paragraph Nos.4 and 5 clearly demonstrate that the petitioner challenged the
power of attorney for the purposes of sale, as well as, sale-deed by respondent No.1, on the
ground that he was appointed as an attorney to manage the properties of the petitioner, on
account of his ailment and that the sale in favour of respondent No.2 is fictitious, without
consideration and contrary to facts. These assertions to disclose a cause of action to maintain
a suit, like the one in hand. It is not shown that such a suit is barred by any law. As regards
form of the suit, it is a suit under section 39 of the Specific Relief Act which seeks ad-judgment
of the sale-deed No.261, dated 18-6-1998 and fulfills all the requirement needed for a suit for
cancellation of any documents under section 39 of the Act, ibid. All the assertions made in the
plaint regarding fictitious nature of the documents in question, sale is not for consideration or
is without an authority or consent of the petitioner or that respondent No.1 was appointed as
an attorney to transfer land of the petitioner in favour of respondent No.2, can only be
determined after a full-fledged trial of the suit, after recording of evidence. All these
allegations could not have been determined in a summary manner at the initial stage of the suit
while deciding stay application. Besides provisions of section 214 of the Contract Act, law
regarding alienation by the attorney in favour of his kith and kins, is almost settled whereunder
the primary requirement is that for such transaction attorney is needed to have consent of the
principle because transfer in favour of daughter of the attorney, as in the case in hand, will be
considered, a transfer in favour of the attorney himself. Judgments in the cases of Mst. Ghulam
Bibi and others v. Sarsa Khan and others (PLD 1985 SC 314), Mst. Shumal Begum v. Mst.
Gulzar Begum and 3 others (1994 SCMR 818), Haji Faqir Muhammad and others v. Pir
Muhammad and another (1997 SCMR 1811) and Sultan and another v . The State (2003 SCMR
494) clearly lay down the principles which are directly applicable to the case in hand, hence,
rejection of plaint in a summary manner, was not at all justified.

8. Learned trial Court, while, hearing application under Order XXXIX Rules 1 and 2 C.P.C.
filed-by the petitioner, not only dismissed this application but also rejected the plaint and since
rejection of plaint was not justified, as noted above, I would examine the justification for
dismissal of application for grant of temporary injunction. It is not denied before me that
respondent No.2 is in possession of the land in question, at the present. The petitioner had
prayed injunction, restraining the respondents from further alienating the land in question,
pending suit. Law regarding grant and refusal of temporary injunction is clear by this time and
in order to succeed in this prayer, the petitioner has to show prima facie, arguable case, in his
favour, suffering of irreparable loss in case of refusal of the relief and that balance of
convenience lies in his favour. On the face of the record, since attorney has executed sale-deed
in favour of his real daughter, tentatively without written consent of the petitioner, thus, he
had a prima facie and arguable case in his favour, for grant of temporary injunction prayed. It
is also clear from the facts of the case that in case the property in question is transferred to
some body else, he will suffer irreparable loss and injury, likewise balance of convenience also
lies in his favour and there is no probability of suffering of any inconvenience by the
respondents. Even otherwise, in order to provide smooth trial of the suit, it was necessary that
no further alienation be made pending it, to avoid further complications and multiplicity of the
proceedings. Respondent No.2 who is already in possession of the property and is enjoying
usufruct of the land, will not be put to any awkward situation if she is restrained from alienating
the property, subject of suit.

9. For what has been discussed above, both the Courts below have erroneously decided the lis
before them and incorrectly relied on the considerations which were not relevant, at all. All
the three reasons noted in the impugned judgments namely, payment of ad valorem court -fee,
filing of damages suit against the attorney and non-challenging of power of attorney, can be
put to issues, requiring the parties to produce their respective evidence on these points, as those
could not have been decided without this exercise but these aspects of the case escaped notice
of them and they erroneously rejected the plaint which could not have been rejected on this
score. Since the judgments and decrees, dated 24-4-2003 and 16-10-2006 passed by the learned
Civil Judge and learned Additional District Judge, Nankana Sahib, suffer from patent
illegalities/ irregularities, above noted, those cannot be allowed to be maintained,
consequently, these are set aside, by accepting this civil revision, with the result that suit filed
by the petitioner will be deemed to be pending before the trial Court which shall be decided
after framing of issues and recording of evidence, in accordance with law. Application filed
by the petitioner for grant of temporary injunction is accepted and parties are required to
maintain a status quo with all respects with regard to land in dispute, pending suit.

10. Parties are directed to appear before the trial Court on 25-2-2004. There will be no order
as to costs.

M.I./M-145/L Revision accepted.