Ejaz Ahmad Versus Additional District Judge, Pasroor and others

Civil Petition No. 630-L of 2014, decided on 17th April, 2024.

Result: Petition dismissed.

Summary

This civil petition for leave to appeal arose from a suit for specific performance of an oral agreement, which was decreed just four days after filing based on the statement of a purported attorney, prior to the return date of the summons. The defendant subsequently challenged the decree under Section 12(2) of the Code of Civil Procedure 1908, alleging fraud. The application was allowed, and the decision was upheld by both the revisional court and the High Court. The Supreme Court of Pakistan dismissed the petition, holding that the decree was unsustainable. The Court observed that the trial court failed to verify the identity of the attorney, examine the original power of attorney, or pass an order ante-dating the hearing. The Court laid down the principle that a court must strictly verify the identity and authority of a power of attorney holder before decreeing a suit on their statement, and that obtaining a decree through such procedural lapses constitutes fraud, justifying the imposition of costs for protracted litigation.

Questions settled in this judgment

Can a suit be validly decreed on the statement of an attorney without the court verifying the original power of attorney and the attorney's identity?
Is a decree sustainable if passed before the return date of the summons without any formal application or order for ante-dating the hearing?
Whether an application under Section 12(2) of the Code of Civil Procedure 1908 is maintainable against a decree obtained through a purported attorney without proper service of summons?

Laws & provisions referred

Section 12(2), Code of Civil Procedure 1908

specific performanceoral agreementpower of attorneyfraudulent decreeante-datingcivil revisioncosts

ORDER

Qazi Faez Isa, CJ. Learned counsel for the petitioner states that an oral agreement (date of which was not mentioned) was entered into between the petitioner and Muhammad Boota who is now represented through his legal heirs (respondents Nos. 3 to 7). A suit seeking specific performance of the said oral agreement was filed on 25 January 1996 and summons were issued to the defendant, Muhammad Boota for 19 February 1996. But, on 29 January 1996, a person stating to be Shahbaz Ahmad (respondent No. 8) came forward stating that he was the attorney of Muhammad Boota and that he had no objection if the suit is decreed. The suit was accordingly decreed.

2.Muhammad Boota on coming to know of the decree filed an application under section 12(2), Code of Civil Procedure, 1908 which was allowed by the learned Civil Judge on 13 May 2008. The petitioner challenged the order by filing civil revision, which was dismissed on 12 February 2009. The petitioner then invoked the constitutional jurisdiction of the High Court but did so unsuccessfully, his writ petition was dismissed on 27 February 2014. Against these three concurrent decisions, the instant civil petition for leave to appeal has been filed. Learned counsel states that the said application was not maintainable and that the suit was decreed in accordance with law.

3.We have heard the learned counsel and have examined the documents on record, and are of the opinion that the suit should never have been decreed, amongst others, for the following reasons:

(i)The suit was filed on 25 January 1996 and the return date for the summons issued to the defendant (Muhammad Boota) was 19 February 1996, however, only after four days, that is, on 29 January 1996, the suit was decreed;

(ii)No application for ante-dating the date, that is, 19 February 1996, was submitted in the suit, and no order was passed ante-dating the date already fixed;

(iii)The order of 29 January 1996 states that the counsel for the defendant was in attendance, but it is not explained when service of summons was affected and who engaged the counsel to represent him, nor who had signed his va kalatnam a;

(iv)The suit was decreed on the statement of the purported attorney, namely, Shahbaz Ahmad, therefore, it was incumbent upon the learned Judge to satisfy himself as to his identity, to ensure that he was the duly constituted attorney of the defendant (Muhammad Boota) and that the power of attorney authorized the attorney to agree to the suit being decreed, but none of these aspects were noted by the learned Judge; and

(v)The stated power of attorney was also not exhibited, and, if it's photocopy was produced then the learned Judge had to see the original thereof and exhibit it, after comparing it with the original and noting that it was a true copy thereof.

Since none of the aforesaid aspects were considered the judgment and decree dated 29 January 1996 was not sustainable.

4.Therefore, the said application was maintainable and was rightly allowed. Consequently, leave to appeal is declined and this petition is dismissed.

5.We enquired from the learned counsel, who was in possession of the subject property, and were told that it is with the petitioner. Thus, it seems that for a period of 28 years first Muhammad Boota and then his legal heirs were deprived of the property on the basis of a so called oral agreement, then through a judgment and decree obtained fraudulently, and then through procrastinated and frivolous litigation. Therefore, we impose costs on the petitioner throughout which are to be paid to respondents Nos. 3 to 7; copy of the order passed today be sent to the said respondents, as well as to the concerned revenue authority.

Judges on this bench

Qazi Faez Isa788 judgments
Shahid Waheed482 judgments