1. ' MUSHIR ALAM, J.--- The applicant has impugned concurrent judgment and decree of Courts below. It appears that applicant Imdad filed the suit for Specific Performance of contract in respect of land measuring 92-39 acres situated in Deh 107 Nusrat Taluka and District Nawabshah, total value of the land is shown to be Rs,5,68,000 under the agreement of sale dated, 22-3-2000. It was claimed that defendant No,1 had received Rs,4,50,000 and balance consideration of Rs,1,18,000 was agreed to be paid after Fouti Khata Bdal from the name of father of defendants Nos.2 to 4 in the record of rights. It is stated that on stipulated date i,e, 15-6-2000 when the plaintiff contacted the defendant No,1, 15 days time was requested but he failed to turn up therefore, the suit was filed.
2. ' It seems that the defendants were not served in regular mode and the learned trial Court effected the service through publication. The plaintiff filed the affidavit in evidence and so also one of the witnesses Anwar Ali reiterating the facts as narrated above. Learned trial Court took into consideration the fact that the plaintiff claims to have entered into sale agreement in respect of the properties succeeded by defendants Nos.2, 3 and 4 through his attorney Maqsood Ahmed. The Court took note of the fact that neither the power of attorney was produced along with plaint nor in the evidence. It was not known whether the power of attorney is registered or otherwise. Court also considered that neither the Notary Public and Oath Commissioner were examined nor it was established to the satisfaction of the learned trial Court that whether defendant No,1 had any authority on behalf of the defendants Nos.2 to 4. Court on consideration of the fact that merely because it being ex parte, will not strengthen the case of the plaintiff who has to stand on his own legs. Consequently, the suit was dismissed vide judgment and decree dated 31-10-2003. Appeal was preferred. Respondent was again served through substitute mode. The learned trial Court concluded that appellant has failed to discharge his burden on account of execution of sale agreement as required by law. The appellant has not led required evidence with regard that competent person had entered into sale agreement with him. Neither he has examined the marginal witness nor produced any documentary evidence to show that he has paid sale consideration to the owner of the suit land. It appears that power of attorney was produced before the Appellate Court. The Court examined the signature of the purported attorney Maqsood Ahmed, respondent No,1 herein, on the NIC and agreement of sale, and his signature on the purported special power of attorney. The Court took judicial notice and observed the dissimilarity in the signature of Maqsood Ahmed on NIC, purported sale agreement and on purported power of attorney. Consequently, the appeal was also dismissed vide impugned judgment, dated 3-11-2004.
3. ' Mr. Kamaluddin, learned counsel for the applicant contended that it is ex parte proceeding.
4. Statement of applicant was contained on oath and so also his evidence had gone un-rebutted. It was urged that there was nothing in rebuttal therefore, suit ought to have been decreed, which power is conferred on Court in terms of clause (a) to sub-rule (1) of Rule 6 of Order IX, C.P.C. He has placed reliance on the case of Korangi Feed Limited v. Muhammad Yousaf Omer 1987 M LD 868 Karachi in cited case it appears that the learned trial Court dismissed the suit on the ground that promissory note has not been tendered in respect of the agreement of sale. The dismissal was set aside and the Court concluded that Courts could have passed an ex parte decree. Under Order IX, rule 6(a), C.P.C. And the photo copy should have been admitted in evidence. Mr. Kamal has further placed reliance on the case of Jameel Ahmed v. Saifuddin PLD 1994 SC 501 to support his contention that decree could have been passed on the basis of averments made in the plaint or in affidavit in proof filed by the plaintiff in ex parte proof.
5. ' I have heard the learned counsel and perused the record.
6. ' Indeed Order IX Rule 6(1)(a), C.P.C. Empowers the Court to proceed ex parte and pass the judgment and decree even without recording evidence. Use of word "may" cited in sub-rule 6(1)(a) indeed confers discretion in Court to pass decree without recording evidence. It would be anomalous to say that such power is to be exercised badly and without application of mind. It is now well-settled that discretion must be exercised judiciously and fairly and not arbitrarily or in fanciful manner. (One may refer to 1999 SCM R 900 and PLD 1978 SC 89). The Court of law is not expected to shut its eyes and mechanically pass the judgment and decree invariably in favour of plaintiff. Such power also envelopes power to pass judgment and decree to dismiss the suit as well.
7. The Plaintiff has to stand on his own legs to satisfy the conscience of the Court as to existence of any right, sufficiency or otherwise of evidence, bar of limitation or otherwise. In ex parte proceedings Courts are expected to be more conscious and not to mechanically pass the judgments and decrees in favour of plaintiffs.
8. ' Admittedly, the applicant/Plaintiff claims agreement of sale on the strength of purported power of attorney said to be executed to respondents Nos.2 to 4 in favour of respondent No,1, which power of attorney was not produced before the learned Trial Court. It was produced in the Appellate Court, the Appellate Court took judicial notice of the fact that signature of the purported attorney on the power of attorney, purported sale agreement and so also on the purported NIC do not tally.
9. Therefore, the authority of the defendant/respondent No,1 to enter into transaction on behalf of the respondents Nos.2 to 4. Was not established. Consequently, the appeal did not find favour with the learned Appellate Court.
10. ' In order to satisfy myself, as suggested by Mr. Kamaluddin, learned counsel for the appellant, I have also examined the signature of the purported attorney Maqsood Ahmed, on the NIC, agreement to sell and power of attorney. It is noted that signature of purported attorney on NIC is clearly read as "Maqsood Alam", which name is also mentioned in sale agreement and so also power of attorney however, signature reads as "Maqsood Ahmed". Even his name in entire pleading is described as "Maqsood Ahmed". In sale agreement "d" in Ahmed on margin of each page in the form of loops upward and side way and falling down in a hook form. In purported power of attorney "d" in Ahmed ends up more in the form of Omega. Both the legs in "A" are distinctly separate whereas in sale agreement it is joined in Oval form. I am thus, not convinced that signature in the NIC, Sale agreement and power of attorney are of one and the same person.
11. ' I see no jurisdictional error in the Judgments and Decrees recorded by Courts below, therefore, the revision is dismissed.