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| Specific Performance. |
جنرل پاور آف اٹارنی مؤثر ہونے کے دوران فروخت کا معاہدہ بعد میں منسوخی سے متاثر نہیں ہوتا
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JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.81422 of 2021
Muhammad Dilshad Versus
Muhammad Khaleel & another
JUDGMENT
Date of hearing:
30.06.2026.
Petitioner by:
M/s. Yasir Javed Malik and Tayyab Mumtaz Qureshi, Advocates.
Respondents by:
M/s. Muhammad Kashif Saeed Bhatti and Salah-ud-Din Siddiqui, Advocates.
MUHAMMAD SAJID MEHMOOD SETHI, J. Through this civil revision petition, the petitioner has assailed the judgments and decrees dated 09.12.2019 and 30.09.2021 passed by the learned Civil Judge and Additional District Judge, Bhalwal, respectively, whereby the suit instituted by respondent No.1 for specific performance of agreement to sell along with permanent injunction was concurrently decreed.
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Briefly stated, respondent No.1/plaintiff instituted a suit for specific performance of an agreement to sell dated 26.08.2011, along with permanent injunction, on the basis that petitioner, through his general attorney (respondent No.2), had agreed to sell the suit property for a consideration of Rs.9,00,000/-, out of which Rs.7,00,000/- was paid as earnest money. Petitioner contested the suit by disputing the authority of respondent No.2, alleging prior revocation of the power of attorney and asserting that the agreement was ante-dated and collusive, whereas respondent No.2 admitted the respondent No.l's claim. The learned Trial Court decreed the suit vide judgment and decree dated 09.12.2019, which was upheld by the learned appellate Court through the impugned judgment and decree dated 30.09.2021, giving rise to the instant revision petition.
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Learned counsel for the petitioner contends that respondent No.2, being the petitioner's attorney, acted in collusion with respondent No.1, who is his close relative, and misused the authority conferred
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upon him by executing the alleged agreement to sell without the petitioner's knowledge or consent. He further contends that the General Power of Attorney did not authorize respondent No.2 to alienate the suit property and that the power to sell had been fraudulently incorporated therein. He further submits that the agreement to sell is antedated, unsupported by reliable evidence, and that both the learned Courts below misread and failed to properly appreciate the evidence while granting the discretionary relief of specific performance. In support, he has referred to Allah Bakhsh through L.Rs and others v. Muhammad Riaz, and others (PLD 2025 Supreme Court 63).
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Conversely, learned counsel for the respondents supports the impugned judgments and submits that the agreement to sell stood duly proved through legally admissible evidence, including the testimony of both attesting witnesses. Ile further argues that respondent No.2 admittedly acted as the petitioner's duly constituted General Attorney under a registered General Power of Attorney which remained operative on the date of execution of the agreement, and that the petitioner failed to substantiate his allegations of fraud, collusion or want of authority by producing any convincing evidence. In support, he has relied upon Mir Ajam Khan v. Mst. Quresha Sultana and others (PLJ 2007 SC 75).
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I have heard the learned counsel for the parties and examined the record.
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The principal controversy revolves around the execution and enforceability of the agreement to sell dated 26.08.2011 (Ex.P-1). The record reveals that respondent No.1 produced the original agreement and examined both its attesting witnesses, namely PW-2 and PW-3. who consistently deposed regarding its execution, identified their respective signatures and thumb impressions thereon, and categorically affirmed that respondent No.2, acting as the petitioner's General Attorney, received an advance amount of Rs.7,00,000/- out of the agreed sale consideration of Rs.9.00,000/-, The scribe of the agreement had admittedly expired prior to institution of the suit, which fact was substantiated through the death certificate (Ex.P-2). Thus, the agreement stood proved through legally admissible evidence in conformity with the requirements of the Qarun-e-Shahadat Order,
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Nothing has been pointed out to demonstrate that the appreciation of this evidence by either of the learned Courts below suffers from any material infirmity.
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Equally significant is the admitted position regarding the General Power of Attorney (Fx.P-5). The petitioner himself admitted in his written statement that he had appointed respondent No.2, his real brother, as his General Attorney through a registered instrument dated 27.04.1998. The plea advanced by the petitioner that the authority to sell had been fraudulently inserted in the General Power of Attorney remained wholly unsubstantiated. Both the learned Courts below examined the document and concurrently found that it contained no cutting, overwriting or interpolation and expressly empowered respondent No.2 to alienate the property and receive sale consideration. Fraud is a serious allegation which must not only be specifically pleaded but also strictly proved. Reliance is placed upon the decision of the august Supreme Court in Aamir Afzul and another v. S. Akmal (deceased) through 1.Rs. and 2 others (2024 SCMR 1649), wherein it was specifically held that:
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...It is noted that rule 4 of order VI of the C.P.C. explicitly provides that in all cases in which the party pleading relies, inter alia, on fraud, shall state in the pleadings particulars with dates and items if necessary. It is settled law that the parties are required to plead all facts that may constitute a cause of action for any relief or in defence, as the case may be. A party which alleges a fact has to prove the same and the ingredients of fraud have to be narrated and stated by giving particulars thereof. It is settled law that fraud must be specifically alleged and its particulars unequivocally stated. This Court has consistently held that general allegations, however strong the words may be, are insufficient to constitute an assertion of fraud and that vague allegations in a plaint are not enough. In the case before us the assertion regarding fraud was of a general nature and no particulars had been stated in the plaint..."
The petitioner failed to produce any documentary or oral evidence whatsoever to establish such plea. The concurrent rejection of this contention, therefore. does not suffer from any legal infirmity.
- The chronology of events also militates against the petitioner's case. The agreement to sell was executed on 26.08.2011, whereas the deed cancelling the General Power of Attorney (Ex.D-1) was
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admittedly executed on 25.06.2012, almost ten months thereafter. Consequently, on the date of execution of the agreement, respondent No.2 continued to possess authority under the subsisting General Power of Attorney. Both the learned Courts below rightly relied upon the settled principle embodied in Section 226 of the Contract Act, 1872, that acts lawfully performed by an agent during the subsistence of his authority bind the principal. Reference is made to Concentrate Manufacturing Company of Ireland and 3 others v. Seven-Up Bottling Company (Private) Limited and 3 others (2002 CLD 77). Relevant extract is provided below:
- From the above, it is clear that in effect an agent is the connecting link between the principal and third person--a sort of conduit pipe or an intermediary. This intermediary has the powers to create legal relationship between the principal and third party. He has competence to make the principal responsible to the third person. He is an imperative bridge by crossing which, the third person can reach the principal to enforce his legal right or vice versa. The principal is liable to the third person for all the act and deeds performed, within the authonty of agency, by his agent, as if those were personally performed by him..."
The subsequent revocation of the agency could not invalidate a transaction already lawfully concluded during its subsistence.
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The allegation that the agreement to sell was antedated and prepared in collusion between respondent No.1 and respondent No.2 was also rightly discarded. The petitioner neither pleaded nor proved any specific date on which the alleged fabrication occurred, nor did he produce any evidence capable of discrediting the date borne by the agreement. Mere allegations of collusion. unsupported by evidence, cannot displace an otherwise duly proved written transaction, particularly where the execution thereof stands corroborated by both attesting witnesses as well as by the attorney who admittedly executed the agreement.
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Another circumstance rightly taken into consideration by both the learned Courts below is the petitioner's failure to enter the witness box. Instead of appearing personally, the petitioner examined his wife as Special Attorney, whose cross-examination reveals that her knowledge regarding the disputed transaction was admittedly derived
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from what had been narrated to her by the petitioner. Iler testimony was, therefore, essentially hearsay in respect of the material facts. In Mrs. Zakia Hussain and another v. Sved Farooq Hussain (PLD 2020 Supreme Court 401), this principle of evidence was well elaborated as under:
- ...An attomey is competent to act on behalf of the party in the light of specific authority given to him. The question before us requiring determination is whether a witness not fully conversant with the facts and circumstances of the case would be a competent witness within the meaning of Rules 1 and 2 of Order, III C.P.C. The case law of the country so far developed regarding this question is based on the facts and circumstances of each case. Initially, it is the party itself to depose about the first hand and direct evidence of material facts of the transaction or the dispute and its attorney having no such information cannot be termed as a competent witness within the meaning of Order III, Rules 1 and 2 of C.P.C. Yes! The attorney can step-in as a witness if he possesses the first hand and direct information of the material facts of the case or the party had acted through the attorney from the very inception till the accrual of cause of action..."
The petitioner, being the person asserting fraud, want of authority and absence of consent, withheld his own testimony despite being the best available witness. The adverse inference drawn by the learned Courts below on this account cannot be said to be either arbitrary or contrary to law.
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It is equally noteworthy that respondent No.2, who executed the agreement as attorney of the petitioner, not only filed a conceding written statement but also entered the witness box and fully supported the plaintiff's case regarding execution of the agreement and receipt of consideration. His testimony substantially corroborated the plaintiff's version and further strengthened the evidentiary foundation upon which the decree rests.
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Although the grant of relief of specific performance is discretionary, such discretion has to be exercised judicially upon the facts of each case as was decided by the august Supreme Court in the case of Mrs. Zakia Hussain and another supra. Relevant part is reproduced hereunder:
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It is time and again held by this court that specific performance of a contract is essentially an equitable and discretionary relief and the court seized of the matter is in a better position to decide and resolve not simply according to the spirit of the law but also in accordance with the
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A.H.S.
principles of substantial justice by keeping in mind peculiar facts and circumstance of each case. It cannot be claimed as a matter of right. The discretion to be exercised by the court requires that it should not be arbitrary but should be sound and reasonable guided by judicial principles and capable of correction by a court of appeal. Such an exercise of grant or refusal of relief would depend on the facts and circumstances of each case and also the conduct of the pardies..."
In the present matter, the plaintiff successfully established the execution of the agreement, payment of substantial sale consideration, continuous readiness and willingness to perform his part of the contract, and the subsistence of the attorney's authority on the relevant date. No equitable circumstance has been brought on record which would justify denial of the relief granted by the Courts below. The minor discrepancy regarding the recital of the area of the property in the appellate judgment is evidently clerical in nature and does not affect the merits of the controversy.
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Learned counsel for the petitioner has been unable to identify any specific instance of misreading or non-reading of evidence by either of the learned Courts helow. The grounds urged in the revision petition are largely general in nature, asserting that the judgments are against law and facts or based upon weak evidence, without demonstrating how any material piece of evidence has been ignored or misconstrued. In essence, the petitioner seeks a fresh appraisal of the evidence already examined by both the learned Courts below, which is impermissible within the limited ambit of revisional jurisdiction. Reference is made to Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21). The case law cited by the learned counsel for the petitioner is clearly distinguishable on facts and is, therefore, inapplicable to the controversy in hand.
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Consequently, finding no merit in this revision petition, the same is dismissed. No order as to costs.
(Muhammad Sajid Mehmood Sethi) Judge
APPROVED FOR REPORTING
Judge