1. MUSHIR ALAM, J.---The applicant has imp.ugned concurrent judgment and decree of Court below.
2. 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.
3. 1,18,000/- was agreed to be paid after fouti khata bdal from the name of father of defendants Nos.
4. 2 to 4 in the record of rights. it is stated that on stipulated date i.e. 15-6-2000 when the plaintiff contacted defendant No.1, 15 days time was requested but he failed to turn up therefore the suit was filed.
5. 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 wns produced alongwith plaint nor in the evidence. It was not known whether the pdwer-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 No. 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 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 N.I.C. 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 N.I.C., purported sale agreement and on purported power-of- attorney. Consequently the appeal was also dismissed vide impugned judgment dated 3-11-2004.
6. Mr. Kamaluddin, learned counsel for the applicant contended that it is ex parte proceedings.
7. Statement of applicant was contained on oath and so also his evidence had gone unrebutted. 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 9, C.P.C. He has placed reliance on the case of Korangi Feed Limited v. Muhammad Yousaf Omer (1987 M LD 868)
8. 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 9, 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 S.C. 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.
9. I have heard the learned counsel and perused the record.
10. Indeed Order 9, 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 work "may" in cited 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 baldly and without application of mind. It is now well-settled that discretion must be exercised judicially and fairly and not arbitrary 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. The plaintiff has to stand on his own legs to satisfy the conscious 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 the plaintiff.
11. Admittedly, the applicant/plaintiff claims agreement of sale on the strength of purported power- of-attorney said to be executed 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 N.I.C. do not tally. 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 found favour of the learned Appellate Court.
12. 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 N.I.C., agreement to sell and power-ofattorney. It is noted that signature of purported attorney on N.I.C., 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 Ahmad 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 convicted that signature in the N.I.C., sale agreement and power-of-attorney are of one and the same person.
13. I see no jurisdictional error in the judgments and decrees recorded by Courts below, therefore, the revision is dismissed.