MUHAMMAD MIAN vs Syed SHAMIMULLAH and 2 others

1. ' The dispute in this revision application relates to a quarter bearing No,46-C, situated in Paposh Nagar, Karachi. This quarter is a part of the project undertaken by the Pakistan Refugees Rehabilitation Finance Corporation for settlement of refugees who migrated to Pakistan on partition 'of India. In 1982 the Pakistan Refugees Rehabilitation Finance Corporation was succeeded by the House Building Finance Corporation.

2. ' The quarter in dispute was earlier allotted to Muhammad Mian, the applicant herein. In the year 1971, Muhammad Mian executed a General Power of Attorney in favour of Syed Shamimullah, respondent No,1, and handed over its possession to him. Ultimately, Syed.Shamimullah, respondent No,1, on the basis of General Power of Attorney, executed in his favour by the applicant, transferred the quarter in dispute to his wife Mst. Khalida Begum, respondent No,2 herein, by way of valid gift.

3. He cleared the dues of the quarter in favour of House Building Finance Corporation. Applicant Muhammad Mian after he became aware of the steps taken by respondent No,1 to have the quarter in question transferred to respondent No,2 revoked his Power of Attorney granted by him earlier to respondent No,1 and recorded his objection to the transfer of quarter before the House Building Finance Corporation (respondent No,3). The House Building Finance Corporation, however, transferred the quarter in question in favour of respondent No,2.

4. ' The applicant after the quarter was transferred in favour of respondent No,2 instituted a second class suit for declaration, injunction and cancellation of mutation. The three respondents herein as defendants in that suit resisted the suit. The Trial Judge on appraisal of the evidence led by the parties both oral and documentary decreed the suit by his judgment dated 2-5-1985.

5. ' The first two respondents being aggrieved by the judgment and decree passed by the trial Judge filed an appeal in the Court of District Judge, Karachi (West), which was ultimately heard by the III Additional District Judge, Karachi (West). The Appellate Court by its judgment dated 30-4-1988 accepted the appeal and dismissed the suit.

6. ' It is against the judgment and decree of the Appellate Court that the present application under section 115, Civil Procedure Code has been filed by the applicant (the plaintiff in the suit).

7. ' Mr. Ahsan Ali T. Khawaja, Advocate for the applicant, mainly questioned authority of the House Building Finance Corporation to have ordered mutation of the quarter in favour of respondent No,2 particularly when the General Power of Attorney in favour of respondent No,1 was revoked and agreement to sell produced by respondent No,1 could not have been made the basis for such transfer by them. He further agitated that there is no evidence to prove that the sale was legally concluded in favour of respondent No,1.

8. ' Mr. Rana Muhammad Rafi Khan, Advocate for respondent No,3, contended that according to the practice and rules of the House Building Finance Corporation, the Corporation is competent to transfer quarters, houses, etc. As a matter of pre-lease transfers. The quarter in question was not yet leased out to the applicant and, therefore, there was no bar to transfer of the quarter in favour of respondent No,3 under their own regulations. To support his contention he referred to Office Instruction No,57 contained in the Manual of Office Procedure of the House Building Finance Corporation, 1976 Edition, Volume 1, which authorises the Corporation to transfer loans. Instruction No,57 is reproduced herein below:- "57. Loans already sanctioned and being repaid regularly can also be transferred on the sale or gift of the property mortgaged with the prior consent of the Corporation. The prospective transferee should fulfil all the formalities as done by the original borrower. The following documents would be required:

(a) Sale agreement or declaration of gift executed on valid stamp paper and attested by two witnesses.

(b) Transfer fee of Rs,100 and application fee @ Rs,1 per thousand to a minimum of Rs,10 for the balance amount of loan. No transfer fee in case of gift will be charged.

(c) Loan application by the vendee/donee with the forwarding letter from the original borrower/donor.

(d) Letter of guarantee on HB-21 attested by. Two witnesses duly executed by the purchaser/donee as the case may be.

(e) Sale Deed duly executed as per pro forma approved by the Corporation. In the Sale-Deed Corporation shall be a consenting party.

(t) In case of gift, Redemption Deed in Form L-15 and Mortgage Deed in Form HB-16-E should be registered simultaneously and in the Mortgage Deed donor should also be an attesting witness.

9. ' The Gift Deed should be drawn in the prescribed Form HB-17.

(g) The transferee should have repayment capacity or should furnish solvent surety."

10. ' Mr. Yousuf Ali, advocate for respondents Nos.1 and 2 has raised the following two points:--

(1) That the revision application itself was filed after a lapse of a year.

(2) That the applicant admittedly had parted with the possession of the quarter in question and was out of possession on the date he filed the suit for declaration and cancellation of documents and the suit is not maintainable without suing for recovery of possession under section 42 of the Specific Relief Act.

11. ' As regards the first contention of Mr. Ahsan Ali T. Khawaja, Advocate for the applicant, that the House Building Finance Corporation in view of the revocation of Power of Attorney and objection recorded by the applicant before them were not competent to effect mutation as it became a disputed case, the proceedings to transfer loan and consequently transfer of quarter, plot or house by the House Building Finance Corporation through proceedings initiated before them in contravention of provisions of section 54 of the Transfer of Property Act and 17 of the Registration Act are not competent in law. Such authorities can at best decide such cases at the risk of the transferee on admitted facts in a given case. Where the facts are disputed authorities will refrain from deciding such cases and refer the parties to have their dispute decided by a competent Civil Court, as otherwise they will not only be usurping the powers of a Civil Court but also depriving the Provincial Government of their legitimate right to receive fees recoverable on registration of such documents. In the present case where the original allottee had revoked his general power of attorney and recorded objections in mutation proceedings before the House Building Finance Corporation the Corporation ought to have declined to allow transfer of the quarter in question.

12. The tranfer of loans and plot or quarter by the Corporation before it is leased out to the allottee in accordance with law can only be effected by the consent of the original allottee as is provided in Instruction No,57(c) reproduced hereinabove. The transfer of quarter in this case was not made in conformity of the provision contained in Instruction No,57.

13. As regards the contention raised by Mr. Yousuf Ali, Advocate for respondents Nos. 1 and 2, that the revision has been filed beyond reasonable delay, nothing has been pointed out in the memo. Of revision or otherwise to justify such a delay. Although no period of limitation is prescribed for filing revision application but it can only be filed within a reasonable time. In this case lapse of over 12 months on the part of applicant remained unexplained. The revision application has been filed beyond a reasonable period.

14. The second contention of Mr. Yousuf Ali, Advocate for respondents Nos. 1 and 2, that the applicant did not seek relief for recover possession of the disputed quarter appears to be weighty. Nothing has been shown by Mr. Ahsan All T. Khawaja, Advocate for applicant, that under the circumstances of the present suit without seeking relief for possession of quarter in question such a suit was competent. The suit in this case has been filed in violation of the mandatory provision of section 42 of the Specific Relief Act and no relief could have been granted to the plaintiff.

15. ' The suit filed by the appellant cannot for the reasons mentioned above be decreed. The conclusion reached by the Appellate Court appears to be correct though lacking proper reasoning on such important aspect of the case. The revision application must in any case fail and is dismissed with no order as to the costs.