Pakistan Case LawMUHAMMAD SHARIF and 3 others Versus RAJAB and 21 others
The petitioners filed a civil suit for a declaration of ownership in respect of agricultural land, which was decreed by the trial court and affirmed in first appeal. However, in second appeal, the High Court converted the suit into one for specific performance of certain agreements with the consent of the petitioners' counsel, exercising powers under Order XLI Rule 33 of the Code of Civil Procedure 1908, and granted a modified decree based on two exhibits while excluding others. The petitioners sought leave to appeal before the Supreme Court, arguing that the High Court failed to direct specific performance regarding remaining documents. The Supreme Court held that the grievance was without substance as one document was merely a power of attorney containing no obligation to sell, and regarding the other document, the executant lacked authority. Consequently, the Supreme Court dismissed the petition for leave to appeal, affirming the principle regarding the proper scope of specific performance and appellate court discretion.
- Whether an appellate court can convert a suit for declaration into a suit for specific performance with the consent of parties?
- Whether a power of attorney containing no obligation to sell can be enforced as an agreement for sale?
- Can leave to appeal be granted against a modified decree where the appellant's counsel consented to the conversion of the suit?
ORDER
SAAD SAOOD JAN, J.---The petitioners filed a civil suit, inter alia, for a declaration to the effect that they were owners in possession of certain agricultural land situate in Chak No, 469/JB, Tehsil Toba Tek Singh. The suit was decreed in their favour by the trial Court and in the first appeal before the Additional District Judge the decree of the trial Court was affirmed. In Second Appeal, the High Court took the view that proper remedy for the petitioners was to seek specific performance of certain agreements in pursuance of which they had entered into possession of the property in dispute. At their request the High Court converted their suit into one for specific performance of the said agreements and allowed the same in respect of two agreements evidenced by two documents exhibited as Exh. P-3 and Exh.P-4. In the result the decree existing in favour of the petitioners was modified. As the modified decree does not cover the entire land in dispute the petitioners seek leave to appeal from this Court.
2.It is to be noticed that the suit of the petitioners was converted into one for specific performance of agreements for sale of land with their consent. In this context, reference may be made to the following passage appearing in the judgment of the High Court:
"Learned counsel for the respondents (now, the petitioners) when faced with this difficultly did not seriously dispute the correctness of the finding arrived at by me as discussed above and argued that the suit filed by the respondents/plaintiffs may be treated as a suit for specific performance of agreements of sale Exh. P.1 to Exh. P.5 and mark 'A' and a decree be modified as decree for specific performance of the same, and possession of land in favour of the said respondents on the basis of the evidence produced on the record. He argued that according to principles of Islam this Court should exercise discretion in favour of granting relief as prayed for to the modified form because it has been ordained by Almighty God that a person should be called upon to abide by his covenants. This prayer engaged my serious considerations. After considering the said circumstances of this case, I am inclined to exercise discretion vested in this Court under Order 41, Rule 33, C.P.C. To grant relief to respondents/plaintiffs in modified form as prayed for treating the suit as a suit for specific performance of agreements of sales."
3.The main grievance of the petitioners now is that the High Court has failed to direct specific performance of the agreements evidenced by Exh.P-5 and the document marked 'A'. This grievance is clearly without any substance. Exh. P-5 is not an agreement for sale of land but is a power of attorney. It does not contain any obligation therein for the sale of any land. As regards the document marked 'A', the High Court was of the view that its executant Ghulam Ali, did not have the authority to execute it. We see no justification to take a different view in the matter. This petition is therefore dismissed.
Judges on this bench
- Saad Saood Jan2,559 judgments
- Muhammad Rafiq Tarar605 judgments
- Manzoor Hussain Sial807 judgments