' MUHAMMAD MUZAMMAL KHAN, J.---This civil revision assails judgments and decrees, dated 24-4- 2003 and 16-10-2003 passed by learned Civil Judge and learned Additional District Judge, Sheikhupura, deciding lis against the petitioner, respectively.
2. A short factual background of the case is that the petitioner filed a suit for declaration with permanent injunction to the effect that he being a real brother and joint owner of agricultural land with respondent No,1, appointed him as his attorney to look after his holdings on account of his ailment/inability to manage the affairs of his property. The petitioner also pleaded -that respondent No,1 betrayed his confidence and through fraud and forgery alienated his land in favour of his daughter (respondent No,2) without his knowledge or permission. Sale-deed by respondent No,1 in favour of respondent No,2 was executed and registered on 18-6-1998. The petitioner along with his suit filed an application under Order XXXIX Rules 1 and 2, C.P.C. Seeking temporary injunction that the respondents may be restrained from alienating the property in dispute.
3. The respondents contested the suit filed by the petitioner, as well as, application for grant of temporary injunction by filing their written statement and written reply. The learned trial Judge who was seized of the matter while dismissing application of the petitioner under Order XXXIX Rules 1 and 2, C.P.C., rejected the plaint as well, on the grounds that since the petitioner has not challenged the power of attorney executed by him, he must file a suit for damages against respondent No,1 for violating the agency, so created. It was also observed that suit by the petitioner is one under section 42 of the Specific Relief Act, 1877 whereas he should file suit under section 39 of the Act ibid. The other ground for non-suiting the petitioner was that the petitioner was required to pay ad valorem court-fee on the plaint, on the basis of price mentioned in the sale-deed. Stay application and plaint of the petitioner, were rejected vide order, dated 24-4-2003.
4. The petitioner aggrieved of the decision of the trial Court, dated 24-4-2003 filed an appeal before the learned Additional District Judge but remained unsuccessful as his appeal was dismissed on 16-10-2003. Thereafter he filed instant revision petitioner and respondents have appeared through their counsel, in response to notice by this Court.
5. Learned counsel for the petitioner submits that plaint filed by the petitioner did disclose a cause of action and his suit was not barred by any law, as such, the order impugned could not have been passed. It has further been contended that the reasons which weighed with the two Courts below, in non-suiting the petitioner, are neither lawful nor had any relevance for determination of point involved in the case. He further submits that suit filed by the petitioner was under section 39 of the Special Relief Act but has correctly been said by the two Courts below, to be one under section 42 of the Specific Relief Act. Similarly, according to his submissions, suit for cancellation of any document/for its adjudgment, does not require advalorem court-fee. It has further been contended that the petitioner had challenged authority of respondent No,1 to sell out his land in favour of respondent No,2 and as such, both the Courts below have incorrectly remarked that the petitioner should file suit for damages against his attorney. It is also urged on behalf of the petitioner that sale inter respondents is in violation of section 214 of the Contract Act, being direct transfer in favour of the attorney himself, without consent of the principal. A reference to the case of Sultan and another v. The State (2003 SCM R 494) was also made in this behalf.
6. Learned counsel for the respondents controverted the assertions of the petitioner, supported the judgments and decrees of the two Courts below and urged that the petitioner did not challenge the power of attorney in his suit, as such, he should have filed suit for damages against respondent No, 1/his attorney, to recover loss, if any, occasioned, on account of his mis-use of authority.
According to the submissions of the learned counsel for the respondents, suit in the form filed, was not maintainable at law, because the petitioner should have filed suit for cancellation of power of attorney and sale-deed under section 39 of the Specific Relief Act and thus the plaint was rightly rejected by the trial Court. It has also been argued that concurrent findings returned by two Courts below cannot be disturbed in revisional jurisdiction of this Court, as no illegality has been committed by them. He further submits that respondents No, 2 is in possession of the land, lawfully purchased by her and its title cannot be controlled by the petitioner. In this manner he opposed the grant of temporary injunction in favour of the petitioner.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. A plaint can be rejected under Order VII Rule 11, C.P.C. Only if pre - requisites mentioned therein are fulfilled and two of these, are that suit is barred by any law or the plaint does not disclose a cause of action. Now if we read the plaint, its paragraph Nos.4 and 5 clearly demonstrate that the petitioner challenged the power of attorney for the purposes of sale, as well as, sale-deed by respondent No,1, on the ground that he was appointed as an attorney to manage the properties of the petitioner, on account of his ailment and that the sale in favour of respondent No,2 is fictitious, without consideration and contrary to facts. These assertions to disclose a cause of action to maintain a suit, like the one in hand. It is not shown that such a suit is barred by any law. As regards form of the suit, it is a suit under section 39 of the Specific Relief Act which seeks ad-judgment of the sale-deed No,261, dated 18-6-1998 and fulfills all the requirement needed for a suit for cancellation of any documents under section 39 of the Act, ibid. All the assertions made in the plaint regarding fictitious nature of the documents in question, sale is not for consideration or is without an authority or consent of the petitioner or that respondent No,1 was appointed as an attorney to transfer land of the petitioner in favour of respondent No,2, can only be determined after a full-fledged trial of the suit, after recording of evidence. All these allegations could not have been determined in a summary manner at the initial stage of the suit while deciding stay application. Besides provisions of section 214 of the Contract Act, law regarding alienation by the attorney in favour of his kith and kins, is almost settled whereunder the primary requirement is that for such transaction attorney is needed to have consent of the principle because transfer in favour of daughter of the attorney, as in the case in hand, will be considered, a transfer in favour of the attorney himself. Judgments in the cases of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 314), Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCM R 818), Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCM R 1811) and Sultan and another v The State (2003 SCM R 494) clearly lay down the principles which are directly applicable to the case in hand, hence, rejection of plaint in a summary manner, was not at all justified.
8. Learned trial Court, while, hearing application under Order XXXIX Rules 1 and 2 C.P.C. Filed-by the petitioner, not only dismissed this application but also rejected the plaint and since rejection of plaint was not justified, as noted above, I would examine the justification for dismissal of application for grant of temporary injunction. It is not denied before me that respondent No,2 is in possession of the land in question, at the present. The petitioner had prayed injunction, restraining the respondents from further alienating the land in question, pending suit. Law regarding grant and refusal of temporary injunction is clear by this time and in order to succeed in this prayer, the petitioner has to show prima facie, arguable case, in his favour, suffering of irreparable loss in case of refusal of the relief and that balance of convenience lies in his favour. On the face of the record, since attorney has executed sale-deed in favour of his real daughter, tentatively without written consent of the petitioner, thus, he had a prima facie and arguable case in his favour, for grant of temporary injunction prayed. It is also clear from the facts of the case that in case the property in question is transferred to some body else, he will suffer irreparable loss and injury, likewise balance of convenience also lies in his favour and there is no probability of suffering of any inconvenience by the respondents. Even otherwise, in order to provide smooth trial of the suit, it was necessary that no further alienation be made pending it, to avoid further complications and multiplicity of the proceedings. Respondent No,2 who is already in possession of the property and is enjoying usufruct of the land, will not be put to any awkward situation if she is restrained from alienating the property, subject of suit.
9. For what has been discussed above, both the Courts below have erroneously decided the lis before them and incorrectly relied on the considerations which were not relevant, at all. All the three reasons noted in the impugned judgments namely, payment of ad valorem court-fee, filing of damages suit against the attorney and non-challenging of power of attorney, can be put to issues, requiring the parties .To produce their respective evidence on these points, as those could not have been decided without this exercise but these aspects of the case escaped notice of them and they erroneously rejected the plaint which could not have been rejected on this score. Since the judgments and decrees, dated 24-4-2003 and 16-10-2006 passed by the learned Civil Judge and learned Additional District Judge, Nankana Sahib, suffer from patent illegalities/ irregularities, above noted, those cannot be allowed to be maintained, consequently, these are set aside, by accepting this civil revision, with the result that suit filed by the petitioner will be deemed to be pending before the trial Court which shall be decided after framing of issues and recording of evidence, in accordance with law. Application filed by the petitioner for grant of temporary injunction is accepted and parties are required to maintain a status quo with all respects with regard to land in dispute, pending suit.
10. Parties are directed to appear before the trial Court on 25-2-2004. There will be no order as to costs.