MOIZ ABBAS vs Mrs. LATIFA and others

IJAZ UL AHSAN, J.---The above titled appeal has been filed against a consolidated judgment of the Division Bench of the High Court of Sindh, Karachi dated 12.05.2017 in H.C.As. Nos,74 and 75 of 2016 whereby, judgment and decree passed by the learned Single Judge in Suit No,429/2005 (Appellants suit) and Suit No,115/2005 (Respondents suit), was set aside. The suit of the Appellant which had earlier been decreed was dismissed. As a result, the suit of the Respondents was decreed.

2. The case arises out of oral sale of a house bearing Plot No,A-167, Block C, North Nazimabad, Karachi consisting of ground floor and first floor. Admittedly, the property was owned by Appellant.

The Appellant along with his family, moved to USA in the year 1981. Before leaving he asked his sister namely, Mst. Sakina (Respondent No,2) to look after the property. The Appellant states that in the year 2000 he came to Pakistan and executed a Special Power of Attorney (SPOA) in favour of his sister inter alia authorizing her to rent out the property. However there was no power of sale. After he left Pakistan he was informed in November 2000 that the respondent had taken possession of the property through deceit. The Appellant came back in the year 2004 and sent a legal notice on 30th October 2004, to the respondents seeking vacation of the premises. Mesne profits were also claimed for the illegal possession and use of the House. The respondents replied by stating that the House in question had been sold to them and a deal had been struck between the parties "on or about" 02.05.2002 against a sale consideration of Rs,19,50,000/-. He was allegedly required to issue a general Power of Attorney for execution of a sale deed which the appellant had failed to do. It was also alleged therein that a rent agreement had been executed between the appellant's sister Sakina (the SPOA holder) and the respondent. This was meant to pay and acknowledge the balance sale consideration which had duly been paid by the respondent and received by the Special Power of Attorney holder, Sakina vide cheque No,10457852, HBL Kehkshan Branch dated 02.05.2002.

3. In view of the stance taken by the respondent, the Appellant filed a suit for declaration, permanent injunction and Mesne profits. The respondent too instituted a suit for specific performance, cancellation of the tenancy agreement and permanent injunction. The stance canvassed by the respondent, in her suit for specific performance, was that when the Appellant came to Pakistan (October 2000) a deal qua the House was reached between the parties. In consequence earnest money amounting to Rs,50,000/- was given to the Appellant and it was agreed that the rest of amount will be paid to the sister of the Appellant. Contrary to the stance taken by the respondent in her reply to the Legal notice as well as the written statement filed by her in the Appellant's suit, the total sale consideration was stated as Rs,20,00,000/. This was also the first time that payment of earnest money to the Appellant was alleged by the respondent.

4. The learned Single Judge decreed the suit of the Appellant while the suit filed by the respondent was dismissed vide judgment and decree dated 09.02.2016. Appeal filed against the consolidated judgment, by the respondent,' was allowed and her suit for specific performance of the oral agreement to sell was decreed through the impugned judgment.

5. At the very outset, the learned ASC for the Respondents was confronted with the question whether a power to sell the subject property given to Mst. Sakina in the special Power of Attorney.

He candidly agreed that there was none. We have carefully gone through the document and find that no such power was given to Mst. Sakina. On the contrary the special Power of Attorney was clearly issued for limited purpose of letting out the property, receiving rent and doing things directly related thereto or specifically spelt out. There was no power, express or implied that could even remotely be interpreted to confer a power to sell and receive the sale consideration. It is settled law that the language of a Power of Attorney must be strictly construed. We are in no manner of doubt that there was no stipulation in the Power of Attorney that could be construed by any stretch of the language to confer a right of sale. In this regard it has been held by this Court in various pronouncement that even when a general POA has been executed "it is wrong to assume that every "general" POA on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said subject." it has further been held by this Court that the rule of strict construction applies to such an instrument and if a power to sell a property has been given even then the same needs to be exercised strictly in the manner specified in the POA.

Reliance is placed on Imam Din v. Bashir Ahmed (PLD 2005 SC 418).

6. In Imam Dins' case supra the authority was vested with a power of sale of land by means of a registered sale deed and an oral sale made by the Authority was declared to be a nullity on account of the rule of strict construction. In the instant case we have observed that authority to sell the property was not provided let alone an oral sale. At most the power to manage the properties and rent out the same had been granted which is clear from a plain reading of the language of the instrument. In such a scenario the superstructure based on an illegal exercise of authority would have to fall.

7. The alleged Oral agreement to sell in favour of the Respondent too, appears to be concocted for various reasons. Firstly, the date of the agreement as stated by the respondent in the Legal notice was 02.05.2002. In the written statement no reference to the alleged agreement to sell was made and reference merely, to receipt of the payment by Appellant's sister had been made whereafter vacant possession had allegedly been delivered to the respondent. In contradiction to the stance taken in the reply to the legal notice, it was contended by the respondent in her suit that the agreement between the parties was arrived at in October, 2000 through her brother Asghar Ali on her behalf, when the Appellant had come to Pakistan. It was also the first time when payment of earnest money Rs,50,000/- to the Appellant was alleged by the respondent.

8. We find that no date, time, place or names of witnesses of the alleged oral agreement have been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent. The learned counsel attempted to argue that the said gaps had been filled by the witnesses of the Respondents in their affidavits in evidence. We are not impressed by this argument. These improvements are clearly beyond the pleadings and constitute and attempt to improve the case of the Respondents as an afterthought. Such course of action is not permitted by law. These requirements are sine qua non to prove an oral agreement to sell which have been settled by this Court in numerous judgments time and again. These are clearly missing in this case. Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed. It is imperative that all of these requirements spelt out by Courts with a view that only bona fide oral agreements lead to grant of decrees, need to be strictly enforced and Courts must insist that these be fulfilled at the earliest so as to ensure that an oral agreement is fully proved and the device of oral agreement is not abused by unscrupulous and devious litigants to get decrees by fraud, deceit, skillfully made improvements at different stages the trial.

9. Even otherwise, it is settled law that no amount of evidence can be considered on a plea of fact which was not raised in the pleadings by the parties. Reference may be made to Government of West Pakistan v. Haji Muhammad (PLD 1976 SC 469) and Abrar Ahmad v. Irshad Ahmed (PLD 2014 SC 331).

10. Similarly, the belated plea of receipt of earnest money by the Appellant too, is unacceptable as it was neither pleaded in the reply to the legal notice nor in the written statement filed by the respondent in the Appellants suit. Moreover, the alleged payment of earnest money which was said to have been made, remained unproved.

11. The learned counsel for the Respondents attempted to argue that the tenancy agreement executed by Mat. Sakeena and the amount paid thereunder was in fact meant to incorporate the sale transaction between the parties which was covered by the special power of attorney executed by the appellant in favour of his sister. The said argument to say the least is novel but unusual bordering or bizarre. In the facts and circumstances of the present case, it is totally devoid of legal substance. We cannot stretch the facts, circumstances, pleadings, evidence and other documents produced by the parties in order to cobble together a sale agreement which is otherwise not evident from the record nor does it appear to have been in contemplation of the parties at any stage.

12. In short, the Respondents neither succeeded in proving the oral agreement through legally acceptable evidence nor did the special power of attorney confer any right on Mst. Sakeena to sell the property in favour of the Respondents. Further, the alternate prayer of the Respondent that she sought specific performance of an oral agreement to sell remained unproved in view of the fact that neither the date, time, place or terms of the oral agreement could be proved nor any witnesses were named at any stage who could have provided substance and proof to the plea of the Respondents. We are therefore convinced that the impugned judgment of the learned Division Bench of the High Court of Sindh dated 12.05.2017 is not sustainable. It is accordingly set aside. The judgment dated 09.02.2016 passed by the learned Single Judge of the High Court is upheld and maintained. Consequently, the appeal is allowed,

13. In view of the fact that the Respondents have indulged in frivolous litigation for many years and wasted valuable time of the Courts of law, costs in the sum of Rs,100,000/- are imposed upon them which shall be deposited in Supreme Court of Pakistan - Diamer Bhasha and Mohmand Dams - Fund. The receipt evidencing such payment shall be submitted with the Registrar of'this Court. In case, the said amount is not paid by the Respondents, the same shall be recovered from them as arrears of land revenue.