Mst. SHEREEN GUL Versus JAMEEL AHMED PARACHA

1. AMANULLAH KHAN YASINZAI, J.‑‑‑ This appeal under section 96, C.P.C. is directed against the judgment and decree dated 3‑4‑1998 passed by Civil Judge‑II, Quetta whereby suit filed by respondent for specific performance was ordered to be decreed.

2. Briefly stating the facts of .the case are that, respondent Jamil Ahmad Paracha filed a suit for possession through specific performance of contract and injunction, which was transferred on the file of learned Civil Judge‑II, Quetta. It was averred that, plaintiff entered into an agreement to sell of house belonging to defendant‑appellant bearing No.114‑A situated in Block‑IV, Satellite Town, Quetta, measuring 3,936 sq. ft. for a sale consideration of Rs.10,50,000 vide agreement dated 31‑5‑1994 and Rs.50,000 was paid as earnest money and remaining amount was agreed to be paid after redeeming the property froth the House Building Finance Corporation, as at the time of sale house was mortgaged with the Corporation. It was further averred that despite repeated approaches and demands made in this behalf, appellant failed to transfer the property in favour of plaintiff and further pointed out that, defendant‑appellant at times, stated that the house will be transferred in his name as soon as she purchased another house for herself and it was further pointed out that, even the plaintiff tried his best and also showed some houses to her and her attorney, but the same were rejected by the defendant. It was further stated that the plaintiff‑respondent was willing to perform his part of obligation, but the defendant‑appellant refused to do the same, as she sent a notice through Mr. K.N. Kohli, Advocate on 25‑3‑1996, wherein it was stated that agreement stood cancelled. The said notice was also replied by the plaintiff and finally notice was given to the‑defendant‑appellant calling upon her to specifically perform her part of obligation and thereafter instant suit has been filed.

3. Defendant‑appellant filed a written statement, wherein suit was contested and it was averred that, husband of defendant was not even authorized to sell the said property. Out of the pleadings of parties, following issues were framed:‑‑

(1) Whether the plaintiff has failed to abide by the terms and conditions of agreement dated 5‑7‑1994?

(2) Whether the plaintiff is entitled for the relief claimed for?

(3) Relief.

4. After framing of the issues, the plaintiff‑respondent produced P. Ws. Muhammad Siddique, Jamil Ahmad, Khalid Ahmad, Abdul. Razzaque, Muhammad Nasrullah, Muhammad Anwar, who produced documents Exhs. P/2 to P/5 being the mortgaged documents of the house, with H.B.F.C. Abdul Rehman, who produced Exh.P/6, the power of attorney dated 9‑9‑1984 executed by defendant‑appellant in favour of her husband and Mr. K.N. Kohli, Advocate, who produced legal notice Exh. P/7 issued to plaintiff‑respondent and reply to the said notice Exh. P/8. Thereafter the statement of plaintiff was recorded, who also produced the copies of the notice. In rebuttal, appellant‑defendant produced D.Ws. Nadeem, Muhammad Ismail and lastly statement of her attorney Muhammad Kamran was recorded.

5. After recording of evidence, learned Civil Judge‑II, Quetta, decreed the suit vide impugned judgment dated 30‑9‑1998. Hence this appeal.

6. Mr. Basharatullah, learned counsel raised the intentions:‑‑

7. A. Specific objection was raised in the written statement that the appellant had not authorized her husband to sell the house, but no issue was framed on the same, causing prejudice to the appellant.

8. B. At the time of agreement to sell, the property was mortgaged with the House. Building Finance Corporation, but no relief was sought by the respondent for redeeming the same.

9. C. The learned trial Court has misinterpreted the Power of Attorney dated 9‑9‑1984, executed by appellant in favour of her husband, as it was in respect of a plot only, but later on a house was constructed on the same, and the husband was never authorized to sell the house on the basis of said power of attorney.

10. D. No precaution was taken by the trial Court to protect the interest of a Purdahnasheen" and an illiterate lady in view of the guidelines laid down by the superior Courts.

11. E. Even the agreement to sell cannot be enforced, as the husband of appellant has posed himself as sole owner of the property in dispute and there is nothing in the agreement to show that the husband of the appellant was acting as attorney on behalf of appellant, thus this would prove that, appellant had no knowledge about the agreement to sell.

12. Mr. Mujeeb Ahmad Hashmi, learned counsel argued, that the attorney had accepted the sale of the house by her conduct, as it was brought in her knowledge that the house has been sold by her husband and further the learned trial Court on the basis of material, has rightly come to the conclusion that the plaintiff is entitled for the decree as claimed for.

13. We have heard the learned counsel for the parties and also perused the record of case.

14. During the course of arguments, even it was suggested for the remand of case to frame an additional issue, but we are not persuaded to agree with the contention of learned counsel for remand of case.

15. Adverting to the argument of Mr. Basharatulah, learned counsel that the husband of appellant was not authorized to sell the house on the basis of power of attorney, executed by the appellant in favour of her husband. It is pertinent to point out that power of attorney was admittedly executed in the year 1984 and at that time, there was not construction whatsoever on the said plot and at the time, when the sale agreement was executed, admittedly construction has been raised on the said plot. Though defendant‑appellant has specifically denied in the written statement that, she had not authorized her husband to sell the same and only the power of attorney was executed in favour of the husband for management of the property. Be that as it may, it may be pointed out that at the time of agreement to sell i.e. on 5‑7‑1994, house in dispute, stated to have been sold on the basis of said agreement, was under construction and in this respect the plot was also mortgaged with the House Building Finance Corporation. There is nothing on record to show that attorney Rehman Khan was authorized to sell the house in dispute, or such powers were given by appellant to her husband. Thus, the trial Court, was under legal obligation to have taken precaution to protect the interest of a 'Purdahnasheen' lady. As observed hereinabove, the Power of Attorney was executed by appellant in the year 1984 in respect of a plot and thereafter while the house was under construction, agreement to sell was executed in the year 1994, after, a period of ten years, thus in such circumstances appellant should have been called to rectify the Power of Attorney. From the evidence produced by respondent‑plaintiff, there is nothing to infer or conclude that, defendant‑appellant was ever informed about the sale agreement. Thus, in such circumstances to confirm the sale, prudence required that, appellant should have been produced in the Court. In this regard reference may be made to 1992 SCMR 1488 and 1998 SCMR 96.

16. The contention of Mr. Basharatullah, learned counsel has substance that there is yet an additional ground, required consideration that, even the agreement to sell was the result of misrepresentation by the husband of defendant‑appellant. A perusal of the agreement to sell would show that Muhammad Rehman, husband of appellant had posed himself to be the sole owner of the property in dispute as it has been executed on behalf oil appellant as attorney. It would be relevant to refer to said clause of the agreement, which reads as under:‑‑

17. A perusal of the above would indicate that, agreement to sell was executed by him, as sole owner and not in the capacity of the Attorney Holder and thus the said sale agreement could not be enforced against the appellant defendant and at the time of execution of the sale agreement, the plaintiff respondent should have looked into the title documents of the property in dispute. Admittedly at the time of agreement of sale the property was not in the name of Muhammad Rehman, husband of appellant, thus he was not competent to enter into sale agreement, in his personal capacity.

18. In view of the above it can be safely concluded that, agreement was executed without the consent of defendant‑appellant.

19. Reverting to the next contention of Mr. Basharatullah, learned counsel that, at the time of sale of property, it was even mentioned in the sale agreement that, since the property was mortgaged with the H.B.F.C. and it. was agreed that the balance amount will be paid after the same is redeemed from the H.B.F.C. It may not be out of place to mention here that at the time of filing of suit, it was within the knowledge of plaintiff‑respondent that the house in dispute still stood mortgaged with the H.B.F.C., but no prayer for redemption of the property was made and on this score also, the suit filed by plaintiff/respondent was not maintainable.

20. Thus in view of the above discussion, in our considered estimation the suit filed by plaintiff merits dismissal and the learned trial Court has not taken into consideration the aforestated facts, in its true perspective.

21. As a result, the appeal is accepted, impugned judgment and decree dated 3‑4‑1998 is set aside and suit filed by respondent is dismissed.

22. Since appellant‑defendant has deposited the earnest money with the Court, therefore, the respondent‑plaintiff is entitled to receive the same.

23. Parties are left to bear their own costs.

24. H.B.T./191/Q Appeal accepted