ABDUL AZIZ vs MUHAMMAD ASHIQ and others

' This Revision calls in question the order dated 4-12-1990 of the lean Additional District Judge, Lahore, whereby he dismissed the petitioner-plaint appeal against refusal on the part of the trial Court to give him temporary injunction.

2. The petitioner's contention was that he occupied the plot in dispute ever since 1972 as its transferee under the orders of the then District Housing Officer, Lahore Township Scheme, Lahore; paid up all its dues vide receipt dated 23-4-1986; on his refusal to sell it to respondent-defendant No,2 he threatened to occupy it forcibly; faced with this threat he brought a suit on 21-1-1988 wherein he was able to obtain a temporary injunction; meanwhile defendant No,3 correspondingly brought a rival suit before another Civil Judge; obtained an injunction therein and acting under the cover of the same, dispossessed him. He added that he reported his illegal dispossession to the police before whom the respondents-defendants put up a bogus power of attorney stated to have been executed by him in favour of defendant No,1, and likewise another bogus power of attorney executed by defendant No,1 in favour of defendant No,2, and a forged agreement to sell dated 19- 10-1987 executed by defendant No,1 in favour of defendant No,3 about the plot. He brought the present suit to assail the validity of those documents denying categorically having been a privy or party to them. He made an application for temporary injunction in order to restrain the respondents from acting upon the aforesaid forged documents or changing the nature of the plot or making its further alienation.

3. The petition was contested by the respondents, in particular by respondent No,3 who claimed to he bona fide purchaser of the plot stating that the injunction will cause irreparable loss to him.

4. The Courts below concurrently took the view that since the two powers of attorney were registered documents, there was no occasion to issue the temporary injunction.

5. The revision petition was admitted by another Bench taking note of the fact that presumption of correctness of the registered documents had no basis in law and that it required evidence to prove whether the power of attorney stated to have been executed by the petitioner-plaintiff was genuine. Reliance was placed upon Article 79 of the Qanun-e-Shahadat, 1984 in support of the assertion that when execution of a registered document was denied by the executant, it had to be proved by producing attesting witnesses as is usually done in proving documents required to be attested in law. Upon this view of the matter, counsel contended that since the appellant had categorically denied execution of the power of attorney in favour of defendant No,1 the so-called presumption attaching to it was entirely displaced and that it had to be proved by examining attesting witnesses etc. In the other words, counsel urged that due to denial of its execution on the part of the petitioner, the document lost sanctity of being presumed to be correct and that its veracity would depend upon the quantum and the quality of evidence to be produced to prove its execution. The contention was not without force. Counsel for the respondents had nothing substantial to urge against it.

6. The factum of registration was materially affected by denial of the execution on the part of the executant. Unless it was proved by producing impeccable evidence, one could not rest merely on presumptions. This factor alone justifies interference with the view adopted by the Court below. In fact the contents of Article 79 ibid were not kept in view, The conclusion appeared to be considerably erroneous.

7. As a result the revision petition is allowed, the impugned order is set aside and the respondents are restrained from changing the nature of the plot or making its further alienation till final decision of the suit.

Revision .