1. ' ARSHAD NOOR KHAN, J.--- By this order, I intend to dispose of application under Order VII, rule 11, C.P.C., filed by defendant No,1, praying therein for rejection of plaint under Order VII, rule 11, C.P.C.
2. ' The facts, leading rise to the present application, in brief, are that the plaintiff filed the suit for specific performance of the contract, perpetual injunction and damages against the defendants, stating therein that the plaintiff entered into an agreement of sale dated 31-8-2005 for the purposes of all that piece and parcel of an immovable property with 1/5th undivided share of Flat No,4 on first floor, measuring 1400 sq. Ft. In the building known as Coronation Building constructed on Plot No,273/1, survey sheet AM, situated in Artillery Maidan Quarters, Preedy Quarters, Karachi, (hereinafter referred to as the "suit property") for a total sale consideration of Rs,26,00,000. It is further stated in the plaint that defendant No,6 for self and representing as attorney of defendants Nos.1 to 5, being brothers and sisters, with the assurance to supply photocopy of the power of attorney, received a sum of Rs,15,00,000 through Pay Order No,P-0410717 dated 24-8-2005 and Rs,5,00,000 through Pay Order No,0410731 dated 31-8-2005 and balance amount of Rs,6,00,000 was agreed to be paid at the time of registration of sale-deed. At the time of execution of sale agreement, defendant No,6 also handed over peaceful physical possession of the Suit property to the plaintiff along with photocopies of title documents. After obtaining possession of the suit property, the plaintiff spent Rs,10,00,000 over its repair and renovation. It is further stated in the plaint that in pursuance of the aforesaid agreement, the plaintiff got a notice dated 8-9-2005 published in daily "Jasarat" inviting objections regarding transfer of the suit property and prepared sale-deed according to valuation table and affixed stamp duty on' it. The plaintiff on so many occasions requested the defendant No,6 to supply copy of power of attorney having obtained from the remaining defendants and to fulfil the obligation on his part, but he vaguely and evasively avoided execution of the sale-deed. The plaintiff after obtaining possession of the suit property also paid all the utility bills but on avoidance of the defendant No,6, served a legal notice, dated 12- 10-2006 which was followed by reminder, dated 16-11-2006 which was falsely replied by the counsel for Dr. Aziz A. Manzar, the defendant No,2, dated 20-12-2006, which was also properly replied by the plaintiff's counsel on 17-1-2007. It is further stated in the plaint that the plaintiff always remained ready and willing to purchase the suit property but the defendant No,6 avoided to fulfil his commitment, therefore, the plaintiff filed the present suit with alternate prayer of damages to the tune of Rs,5,000,000.
3. ' The defendant No,6 was served with the notice of the suit, who filed his written statement.
4. ' The defendant No,1 was also served, who appeared through her counsel and filed the present application for rejection of plaint stating therein that the suit property, being joint property, could not be disposed of by defendant No,6 nor defendants Nos.1 to 5 executed any power of attorney in favour of defendant No,6 and even they were unaware about the alleged disposal of the suit property by defendant No,6. It is further averred in the said application that in absence of any power of attorney by. Defendants Nos.1 to 5, the defendant No,6 possesses no legitimate right to dispose of suit property on their behalf. As such the suit itself is not maintainable.
5. ' Notice of this application was served on the plaintiff, who also filed his counter-affidavit to this application, inter alia, denying therein the averments contained in the application and reiterated that the defendant No,6, who was a legal heir of deceased Dr. Manzaruddin Manzar, and also attorney of the remaining defendants, within his powers, has rightly sold the suit property to the plaintiff and the plaintiff has paid Rs,20,00,000 out of total sale consideration of Rs,26,00,000 and possession of the suit property in pursuance of the aforesaid sale agreement was handed over to him as such the defendant just to avoid execution of sale-deed are protracting the proceedings of the present case.
6. ' I have heard Mr. S.M. Gharib Nawaz Daccawala, Advocate for defendant No,1 and Mr. Abdul Wajid Wyne, Advocate for plaintiff.
7. ' Learned counsel for defendant No,1 vehemently argued that the defendants Nos.1 to 5 did not execute any power of attorney in favour of defendant No,6 and the suit property, being joint property of all the defendants, could not be disposed of by defendant No,6 without having proper power in his favour. He further contended that according to section 25 of the Specific Relief Act, the property could not be disposed of by the attorney and the defendants did not execute any power of attorney in favour of defendant No,6 as such whatever act, deed and things have been done by defendant No,6, that all are purely at the entire risk and cost of the defendant No,6 for which the defendants Nos.1 to 5 could not be blamed. He further contended that from the averments of the plaint, it is crystal clear that neither any power of attorney was executed by the defendants Nos.1 to 5 in favour of defendant No,6 nor even the plaintiff has gone through the said power of attorney as such nobody else could be blamed by the plaintiff for his chronic mistake. He further contended that the address of the defendants Nos.1 to 5 has also wrongly been mentioned in the plaint with the intention that they may not be served and appear in Court to controvert the claim of the plaintiff. , According to him, the relief could not be finally awarded in favour of plaintiff as such further proceedings of the suit would be a luxury of the litigation which is not the spirit of law. In support of his contentions, he relied upon the case of Muhammad Sohrab Khan v. Mumtaz Begum reported in PLD 2005 Kar.
8. 280.
9. ' Mr. Abdul Wajid Wyne, Advocate for plaintiff vehemently controverted the arguments advanced on behalf of defendant No,1 and contended that for the purpose of rejection of plaint, the averments contained in the plaint and its supporting documents are to be looked into, and if from the contents of the plaint, the suit appears to be barred under any law, only then the plaint could be rejected. According to him, the plaint has been filed with two-fold prayers viz. Specific performance of the contract as well as damages against the defendants as such the multifarious causes of action have been shown in the plaint and the plaint could not be rejected partly. He further contended that the Court has to record the evidence by framing preliminary issues in order to arrive at a substantial decision of the case. He further contended that the defendant No,6 is the lawful attorney of the defendants Nos.1 to 5 who has legitimately executed sale agreement with the plaintiff as such all the defendants are duty bound to execute the sale-deed in favour of plaintiff. In support of his contention, he has relied upon the cases reported in 1992 CLC 1036, 1994 M LD 874, 2005 CLC 671, 2004 CLC 1339, 2004 SCM R 826, PLD 1987 Kar. 676, 1987 M LD 669, 2000 YLR 2606, 2005 CLC 848, 1998 CLC 563, 1997 CLC 742, 2003 CLD 1185, 2003 YLR 943 and PLD 1993 Lah.
10. 183.
11. ' I have considered the arguments advanced on behalf of parties and have gone through the contents of the plaint as well as relevant law on the subject.
12. 'There could be no cavil to the proposition that for the purpose of rejection of plaint, the Court has to look into the averments contained in the plaint and its supporting documents and if from the contents of the plaint, the suit appears to be barred by any law or the plaintiff has no cause of action to file the suit or the proper court-fee has not been paid, in spite of direction of the Court, the Court can reject the plaint under Order VII, rule 11, C.P.C. Admittedly, the plaintiff has filed the present suit for specific performance of the agreement against all the defendants with alternate prayer of damages to the tune of Rs,50,00,000, in case, of non-execution of sale-deed. The suit property originally belonged to deceased Dr. Manzaruddin Manzar son of Mujeeb Ahmed, the predecessor-in-interest of the defendants. After the death of deceased Dr. Manzaruddin Manzar, the property devolved amongst all of his legal heirs. It is not borne out frpm the contents of the plaint that the suit property, in any manner, was mutated according to respective shares of the defendants. All the defendants are, therefore, entitled to inherit the estate left by deceased Dr. Manzaruddin Manzar. It is also not borne out from the plaint that the suit property was distributed according to share of all the legal heirs of deceased Dr. Manzaruddin Manzar. It is, therefore, quite clear that after the death of deceased ,Dr. Manzaruddin Manzar, all the present defendants are owners of the suit property jointly, and the defendant No,6 alone for himself as well as attorney for remaining defendants, is competent to dispose of the suit property, in case, he has been invested with such powers by the remaining defendants to dispose of the suit property and any attempt to dispose of the suit property in absence of specific and legitimate powers assigned to him by the remaining defendants, he cannot dispose of the suit property. In para.1 of the plaint, the said proposition seems to be crystal clear wherein the plaintiff has stated about 1/5th undivided share of the defendant No,6 in the suit property. Para.1 of the plaint is reproduced hereinbelow for the sake of convenience:-- "That the plaintiffs entered into agreement of sale dated 31-8-2005 for the purchase of all that piece and parcel of an immovable property with 1/5th undivided share of Flat No,4 on first floor measuring 1400 sq. Ft. In the building known as Coronation Building constructed on Plot No,273/1, Survey Sheet AM, situated in Artillery Maidan Quarters, Preedy Quarters, Karachi (hereinafter called the said property) against the total sale consideration of Rs,26,00,000 (Rupees twenty-six lac only)."
13. ' The wording employed in para.1 of the plaint itself shows that 1/5th share goes to the defendant No,6 as such defendant No,6 could not exceed beyond 1/5th undivided share in the suit property.
14. The defendant No,6 in his written statement has also admitted in para.2 about non-execution of any power of attorney by the defendants Nos.1 to 5 in his favour to dispose of the suit property and he stated that he represented himself as attorney for defendants Nos.1 to 5 in good faith due to the understanding between brothers and sisters and hence there was a deed of relinquishment in favour of defendant No,2 and defendant No,2 would give power of attorney to him (defendant No,6). The said admission of the defendant No,6 is self-explanatory which shows that the defendant No,6 possesses no power of attorney executed in his favour by the defendant No,2 or other defendants to dispose of the suit property. Even the contents of paras.1, 2, 7 and 10 of the plaint show that the plaintiff demanded copy of the power of attorney from defendant No,6 but the defendant No,6 avoided to hand over the photocopy of power of attorney to him. The said assertions of the plaintiff in the plaint itself shows that at the time of execution of alleged sale agreement, the plaintiff did not assure himself that the suit property was clear and the defendant No,6 was invested with all the lawful powers to convey the suit property to him, and, in case, the plaintiff himself committed any mistake to make it clear that whether the defendant No,6 was invested with the powers to convey the suit property to him or not, he himself could be blamed and not to any other else. In the case of Muhammad Sohrab Khan (supra) it was observed that there was nothing on record of that case to show that the defendant No,3 was duly authorized agent of his mother to enter into such agreement in respect of the property involved in that case and merely on the said ground that the son of the owner of the property in question possess no lawful right on her behalf to dispose of the property, the suit was held to be incompetent and was B rejected under Order VII, rule 11, C.P.C. The dictum laid down in the aforesaid case is, therefore, fully attracted to the circumstances of the present case.
15. ' Section 25 of the Specific Relief Act postulates that a contract for the sale or letting of property whether movable or immovable, cannot be specifically enforced in favour of a vendor or lessor, who knowing himself not to have any title to the property, has contracted to sell or let the same or that though he entered into the contract believing that he had a good title to the property cannot, at the time filed by the parties or by the Court for the completion of the sale or letting give the purchaser or lessee a title free from reasonable doubt, or who, the previous to entering into the contract, has made a settlement though not founded on any valuable consideration, of the subject matter of the contract.
16. 'The scope of section 25 of the Specific Relief Act is very narrow which provides that the seller must be in knowledge that he possesses good title to dispose of the property and unless the title of property devolves in him or he has been invested with specific powers to convey the said property, he cannot dispose of the property without proper title of the property in question.
17. 'In the present case, admittedly, the defendant No,6 being one of the legal heir of deceased Dr. Manzaruddin Manzar was the share-holder and was not undisputed and absolute owner of the suit property to convey the property to any other person nor as per the circumstances of the present case, he possesses any power to act on behalf of other legal heirs of the deceased to dispose of the same to any other person and, in case, he has entered into a sale agreement, the sale agreement is voidable at the option of the defendants Nos.1 to 5 in view of section 55 of the Contract Act but since the defendants Nos.1 to 5 are denying the execution of any power of attorney in favour of defendant No,6, nor the said power of attorney is in existence, the sale agreement seems to be void so far as the right of the defendants Nos.1 to 5 are concerned in the suit property.
18. ' In the present case, I do not find any reasonable ground to frame a preliminary issue regarding powers of defendant No,6 to convey and dispose of the suit property on behalf of defendants Nos.1 to 5 to the plaintiff nor the said powers, in fact, exist lawfully as such any attempt to frame the preliminary issue would be an attempt in the futility. .
19. 'The contention of the learned counsel for the plaintiff that the defendant No,6 was invested with the powers by the remaining defendants to execute sale agreement, in my humble opinion, is devoid of any force for the simple reason that at the time of alleged execution of sale agreement, the plaintiff himself did not go through any power of attorney allegedly executed by the defendants Nos.1 to 6 in favour of defendant No,6 as such it could not be said that the defendant No,6 was competent to execute the sale agreement and execution of sale agreement by the defendant No,6 in favour of plaintiff is a personal act of the defendant No,6 for which remaining defendants could not be held responsible and, in case, any harm has been caused to the plaintiff, the defendant No,6 solely could be held responsible for that, and not the remaining defendants as such the claim of damages by the plaintiff carries no weight nor could be awarded finally against defendants Nos.1 to 5 under the peculiar circumstances of the present case. The case-law relied upon by the learned counsel for the plaintiff, in my humble opinion, are quite distinguishable from the circumstances of the present case and are inapplicable.
20. ' For all the aforesaid reasons and circumstances, I am of the firm opinion that the defendant No,6 was not competent to execute sale agreement regarding share of defendants Nos.1 to 5 in the suit property nor he was invested with any power by the defendants Nos.1 to 5 to act on their behalf and dispose of their share from the suit property. In such state of affairs, the suit finally could not succeed. The application is, therefore, allowed and the plaint is hereby rejected under Order VII, rule 11, C.P.C. Leaving the parties to bear their own costs.
21. Plaint rejected.