1. This suit has been filed by the plaintiff seeking declaration, cancellation of documents, damages and permanent injunction. The brief facts are that the plaintiff is the lawful owner of Bungalow No,F-61, Block B, North Nazimabad, Karachi, hereinafter referred to as the "suit property". On 30th September, 1990, she came to know, through a notice published in the local newspaper that Muhammad Afzal Ahmed son of Iqbal Ahmad had entered into an agreement of sale in respect of the suit property with the plaintiff. The plaintiff published a public notice objecting to such sale agreement in two different newspapers and also got an F.I.R (No,396/1990) lodged against the said Muhammad Afzal. In the month of July, 1993, the plaintiff received a notice under section 160, Cr.P.C. From Inspector Muhammad Haneef Awan of F.I.A, Commercial Banking Circle, requiring the Plaintiff to appear before him along with case file of the suit property in connection with some fraudulent loan secured by some unauthorized persons. On 25-7-1994, the plaintiff filed her objections against such illegal and unauthorized mortgage. During the course of investigation by F.I.A in this case, the plaintiff, for the first time, came to know that defendant No,1, Muhammad Asif, has dishonestly and fraudulently prepared a General Power of Attorney, purported to have been executed by the A plaintiff in his favour, allegedly by producing some fake lady before the Registration Authorities. She also states that after original lease deed of the suit property was also fraudulently, dishonestly and unauthorized received by some unidentified person from the office of the Sub-Registrar, in collusion with the office staff of the said office, as the original receipt is lying with the plaintiff. It is in view of the circumstance and fact that the plaintiff has filed this suit for declaration, cancellation of documents, damages and permanent injunction, with the following prayer:--
(a) To declare that the forged General Power of Attorney in favour of the defendant No,1 was at no time executed by the plaintiff in favour of the defendant No,1 before the Sub-Registrar concerned in the month of July, 1992 at Serial No,3761 in the office of the Sub-Registrar 'T' Division, Karachi;
(b) to cancel the General Power of Attorney and all other forged documents purported to have been signed and or executed by the plaintiff in favour of defendant No,1 his men and agents etc;
(c) to grant damages to the plaintiff in the sum Rs,75,00,000 (Rupees seventy, five lace only) for execution of the gorged General Power of Attorney and deposit of Lease Deed for securing substantial loan by the defendant No,1 from defendant No . 2 ;
(d) for grant of Permanent Injunction restraining the defendant No,1 his men and agents from creating any charge, lien and or encumbrance of whatsoever nature and or dealing with the property of the plaintiff in any manner whatsoever and or interfering with the peaceful enjoyment and possession of the said bungalow in any manner;
(e) cost of the suit; (0 any other further and or better relief and or reliefs which this Honourable Court may deem just proper and expedient under the circumstances of the case. Upon service of summonses of the suit the defendants filed their respective written statements.
2. Defendant No,1, though not denying the execution of the General Power of Attorney in his favour completely distanced himself from the entire transaction and put the whole blame on one Hussain Aftab. Defendant No,2, Habib Bank Limited in their written statement denied knowledge of any forgery as alleged in the plaint and held the plaintiff herself responsible for being negligent in protecting her rights. On the basis of the pleadings of the parties, the following issues were framed:--
(1) Whether registered mortgage of suit property in favour of defendant No,2 is invalid?
(2) Whether title deeds of suit property have not been deposited by the plaintiff as security for advance to Messrs Pak Shipping Company?
(3) Whether the signatures of the plaintiff on Memo of deposit are not genuine? If so, to what effect?
(4) Whether registered power of attorney does not bear genuine signatures of the plaintiff? If so, to what effect?
(5) Whether the plaintiff herself has allowed to remain the title deeds of her property with defendant No,1? If so, to what effect?
(6) Whether the defendant bank had acted in good faith in accepting the deposit of title deeds? It so, whether the security of equitable mortgage is not relied?
(7) What should the decree be? The plaintiff, in support of her case, examined herself as Exh.4. She filed her affidavit in evidence?
3. And was cross-examined by the counsel for defendant No,2. She also produced various documents from Exh.4/1 to Exh.4/9. Defendant No,1 did not lead any evidence. However, defendant No,2 examined its Manager of Kashmir Road Branch as Exh.5. He filed his affidavit in evidence and was cross-examined by the counsel for the plaintiff, he produced the judgment and decree passed in Suit No,2034/1995 filed by defendant No,2 Bank against Pak Shipping Company and others, including the plaintiff. I have heard learned counsel for the parties and have gone through the record of the case. My findings of the issues are as under:-- Issues Nos. 1 & 4: These issues are inter-related and are, therefore, taken up together. The primal issue in these related issues is the question of genuineness, or otherwise, of the General Power of Attorney, purported to have been executed by the plaintiff in favour of defendant No,1. While the plaintiff denies having executed such a General Power of Attorney, defendant No,1 takes an evasive action by saying in his written statement that such power of attorney was procured by one Hussain Aftab.
4. He denies having ever appeared before the Sub-Registrar for execution the said power of attorney.
5. Defendant No,1 expressly denied having any involvement in this matter and lays the claim of alleged fraud at the door of Hussain Aftab and requests that the said Hussain Aftab be made a party to this suit. However, strangely enough no efforts were made to make Hussain Aftab a party to this suit and no criminal proceedings seem to have been instituted against him.
6. The power of attorney carries signatures purported to have been of defendant No,1 but the defendant No,1, in respect of such signatures; has preferred to keep silent. He does not say whether these are sham or genuine. The plaintiff alleges that she has not executed any power of attorney in favour of defendant No,1 and defendant No,1 specifically did not controvert such plea. Not only that but the defendant No,1 abstained from appearing in the Witness-box to lead any evidence.
7. Ordinarily, where a party abstains from giving evidence, in his own case about the facts concerning his personal knowledge, presumption would be that truth lay on the other side. Obviously there is nothing in rebuttal against the evidence led by the plaintiff to prove that the power of attorney was bogus, fabricated and invalid document. It did not contain the signatures of the plaintiff.
8. In view of the above, issues Nos. 1 and 4 are answered in the affirmative and it is declared that the power of attorney was not executed by the plaintiff in favour of defendant No,1 and that any mortgage, created in consequence of such power of attorney, is also declared illegal and both these documents are cancelled as ' prayed.
9. Issues Nos. 2, 3 & 6: These issues, in substance, relate to the creation of mortgage by deposit of title deeds and are distinct from the above issues Nos. I and 4, which relate to the execution of the power of attorney and the registered mortgage created pursuant thereto, apart from the said General Power of Attorney, the Bank allowed finance facility to Messrs.' Pak Shipping Company on the basis of an equitable mortgage created by deposit of title, deeds and the memo. Of deposit of title deeds is signed by the plaintiff herself. An attested copy of this memorandum has been produced by the plaintiff, in her cross-examination, as Exh.4/13. It is allegedly signed by the plaintiff and, as per the banking practice such a document is signed by the mortgagor in the bank's premises personally. A perusal of the prayer clause of the plaint in the suit reveals that there is no prayer in respect of cancellation of the memorandum of deposit of title Deed. The transaction between the Bank, defendant No,2, and Pak Shipping Company, in respect of which the suit property was mortgaged as security, was a transaction involving a huge amount and any negligence, let alone connivance or abetment, on the part of the bank personnel would have exposed them to criminal, civil as well as departmental actions. Therefore, it cannot be presumed that the bank would deviate from the established procedure of calling the owner of the property to the bank at the time of creation of an equitable mortgage. In view of the above discussion, I answer issues No,3 in the negative. As regards issue No,6, it is answered in the affirmative. However, some of the reasons for arriving at such a conclusion are given in the discussion in respect of issue No,5 below.
10. Issue No,5: ' There cannot be two opinions about the fact that the suit property is a valuable property and every prudent person would act with highest degree of caution to safeguard his interests in such a property. In the present case, according to the averments made in para 3 of the plaint, the suit property was leased in favour of the plaintiff by Karachi Development Authority on 11-4-1979 before the Sub-Registrar, T-Division, Karachi, and a receipt for delivery of the registered sale-deed was issued to the plaintiff. However, as per the plaintiff, such lease deed was never obtained from the office of the Sub-Registrar and, in the year 1994, she found that some won person: has obtained the same from the office of the Sub-Registrar. It is mind boggling that a prudent person: would sleep over his or her right for such a long time. She has not produced anything to show that what steps were taken by her to secure the lease deed from the office of the Sub-Registrar. The delay is not the routine delay which happens in the Government office but is inordinate and inexplicable delay of 15 (fifteen) long years from the date of issue to, the receipt/execution of the lease deed and the date on which the present suit was filed. The plaintiff, 13 of the plaint, has alleged that the defendant No,2 has recklessly sanctioned the loan of a very substantial amount to the defendant No,1 on the documents belonging to the plaintiff without her knowledge. In fact, it is the plaintiff herself who was reckless and negligent because the date of delivery for the registered lease deed, as shown in the receipt issued by the office of the Sub-Registrar, Karachi Exh.4/4, was 11-5-1979, but, the plaintiff failed to obtain the same till she came to know about the publication of the notice in the newspaper on 30-9-1990 about the sale of the suit property. Even in the affidavit-in-evidence states that the document (lease deed) was to be returned on 11-5-1979 but she gave the receipt to her son who was out of country for some time and on return to Pakistan presented the said receipt to the Registration Authority for collection of the documents but he was given an evasive reply by which the plaintiff became upset and started moving relevant Authorities for the redressal of the grievance and during this process she came to know about the publication dated 30-91990 where after she got registered a case (F.I.R No,396/1990) on 1-101990. However, there is no explanation for the long intervening period from 11-5-1979 to 1-10-1990. This shows that during this period the original lease documents were in the hands of the plaintiff or under her control due to which she was sitting quietly. She has not produced any evidence to show that she had made any complaint to the office of the Sub-Registrar for non-delivery of the said documents or that she have taken any action against anyone between 11-5-1979 and 1-10-1990. Issue No,5 is answered accordingly. Issue No,7: In view of my findings on the above issues, this suit is decreed to the extent that the General Power of Attorney, purported to have been executed by the plaintiff in favour of defendant No,1, is declared to be a forged document and the same is hereby cancelled. Before parting with the case I would like to state that though some cases were cited by the learned counsel for the parties, but since they were not of any help to the plaintiff, and were distinguishable on facts, therefore, they are not discussed.