MUHAMMAD AKHTAR SHABBIR, J. --- This judgment will dispose of R.F.As. Nos. 127 and 128 of 2005 as both have arisen out of one and the same impugned judgment.
2. Facts giving rise to the present R.F.As. Are to the effect that plaintiff-respondent Fayyaz Ahmad had filed a suit for Specific Performance of the agreement dated 21.5.2003, executed between plaintiff and defendant No: 1 through his attorney defendant No. 2. The plaintiff averred in the plaint that he had entered into a sale agreement on 21.5.2003 for the purchase of House No. 11, Street No. 78, Sector G/6-4, Islamabad (measuring 666 Sq. Yards) with defendant No. 1, through defendant No. 2 who being Attorney of defendant No. 1 had signed the sale agreement. The sale consideration of the house had been settled as Rs. 97,00,000/- and the plaintiff paid Rs. 4,00,000/- as earnest money to the defendants through cheque No. CD 30681, dated 21.5.2003 to be drawn from Union Bank, Islamabad. The receipt of the earnest money was also acknowledged in the sale agreement.
It was settled between the parties that remaining sale amount Rs. 93,50,000/- will be paid within two and half months or at the time of transfer of the property in the name of plaintiff or his nominee. Fifteen days' grace period was also provided.
3. The defendant instead of completing the agreement served a notice upon plaintiff on 12.6.2003, whereby he disagreed to sell the property in dispute and offered the plaintiff to receive the earnest money. The plaintiff was ready to perform his part of contract to make payment of the balance amount. The defendants were under legal obligations to transfer the house in the name of the plaintiff. Now the plaintiff came to know that defendants Nos. 1 and 2 were planning to sell the suit house to some one else at a little bit higher price. The plaintiff had approached defendant No.. 2, asking him to honour the agreement executed between them but he was reluctant to do so. Hence, this suit.
4. The suit was contested by defendant No. 1, who filed his written statement. Defendant No. 2 had also filed his written statement separately wherein, in paragraph No. 1 he admitted that he being attorney of the owner/defendant No. 1 with permission of original owner, validly entered into an agreement with the plaintiff for sale of suit house.
5. The defendant No. 1 has taken the stand that the suit agreement is without. Consideration.. Iqbal Ahmad Ansari defendant No. 1-appellant had also filed a suit fdr declaration and cancellation of documents and perpetual injunction against Fayyaz Ahmad and another-plaintiff contending that the plaintiff is owner of house No. 11, Street No. 78, Sector G-6/4, Islamabad and defendants being collusive with each other has prepared a document dated 6.5.2003 in which it has been shown that plaintiff has authorized the .Defendant No. 2 to negotiate the sale of the suit house for a consideration of Rs. 97,50,000/- and to finalize the deal on plaintiffs behalf at Pak Rs. 90,00,000/- and to receive advance amount not exceeding Rs. 400,000/-
6. Both the suits, were consolidated by the Trial Court vide order dated 6.1.2005 and from the factual controversy appearing on the pleadings of the parties, the Court led to frame the following issues:---
(1) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD
(2) Whether the suit is barred by time? OPD
(3) Whether the suit is false, frivolous and vexatious, hence, the defendants are entitled to the special costs under Section 35-A of C.P.C.? OPD
(4) Whether the execution of the agreement to sell between the parties is illegal, void, ab initio and liable to be cancelled? OPD
(5) Whether the agreement is without consideration. If so, its effect? OPD
(6) Whether the plaintiff is entitled to the Specific Performance of the agreement dated 21.5.2003?
OPP
(7) Whether the plaintiff of suit titled Iqbal Ahma.d Sabri v. Fayyaz Ahmad, etc. Is entitled to the relief as prayed in the plaint for the cancellation of documents i.e. Authority letter and the agreement to sell? OPD (8.) Whether the plaintiff of suit titled Iqbal Ahmad Sabri v. Fayyaz Ahmed etc. Is estopped by his words and conduct to file the suit? OPP
(9) Relief.
7. After framing of issues the parties were directed to produce their respective evidence in support of their claim and denial. The plaintiff Fayyaz Ahmad appeared in the Court as his on witness as PW-1. Muhammad Iqbal son of Manzur Khan appeared as PW-2, whereas Muhammad Masood son of Ch. Sher Muhammad appeared as PW-3. The plaintiff had also produced documentary evidence i.e. Agreement to sell dated 21.5.2003 (Ex.P1), original power-of-attorney (Ex.P2), legal notice dated 12.6.2003 (Ex.P3), registered envelope (Ex.P4), bank receipt (Ex.P5), bill of telephone as mark "A" and proclamation in daily Jang (Ex.P6), while on the other hand Farhat Mehmood Lodhi son of Habib Ullah Khan Lodhi appeared as DW.1. In documentary evidence copy of powerof-attorney was also produced as Mark "A":
8. After recording and appreciating the evidence of the parties, the Trial Court vide impugned judgment and decree dated 6.6.2005 decreed the suit of Fayyaz Ahmad plaintiff for Specific Performance of contract and dismissed the suit filed by the appellant against Fayyaz Ahmad for declaration and cancellation of documents and perpetual injunctions..
9. Learned counsel for the appellant has objected the observation- made by the Trial Court on issues Nos.4 and 5 vehemently. He has raised the following objections:---
(i) That power-of-attorney (Ex.P2) has not been registered in accordance with Registration Act.
(ii) That the said power-of-attorney has not been proved in accordance with Qanoon-e-Shahadat Order, 1984.
(i.e) That the alleged attorney Adnan Shabbir has not appeared to prove the said document. further argued that agreement to sell (Ex.P2) is not atteste.d y two witnesses in accordance with the provision of Article 17 of Qanoon-e-Shahadat Order. Further submitted that ocuments (Ex.P1) and (Ex.P2) are inadmissible in evidence nd no finding on the basis of said documents can be given. Further added that said agreement to sell is without consideration and the plaintiff- respondent No. 1 is not entitled for the decree for Specific Performance of the Contract.
10. On the other hand, learned counsel for the respondent No. 1 has vehemently opposed the arguments of learned counsel for the appellant contending that appellant has executed the power-of-attorney in favour of his attorney Adnan Shabbir which was duly attested by Vice Consulate General of Pakistan, Toronto which is per se admissible document. Further argued that the appellant has not specifically denied the execution of said document. In his written statement he has only asserted that said agreement is without consideration. Learned counsel further submitted that in the legal notice the execution of the agreement to sell in dispute is admitted and the defendant-appellant offered to return the earnest money, received from the plaintiff.
11. We have heard the learned counsel for the parties and perused the record.
12. Article 95 of the Qanoon-e-Shahadat Order, 1984, gives presumption to power-of-attorney which reads as under for ready reference:- "Presumption as to powers-of-attorney.-- The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice Consul, or representative of the Federal Government, was so executed and authenticated."
13. The power-of-attorney (Ex.P2) had been executed by Iqbal Ahmad Sabri, defendant No. 1- appellant in foreign country Canada which is reproduced as under:--- TO WHOM IT MAY CONCERN
(1) I am sole owner of the House No. 11, Street 78, G-6/4 Islamabad, Pakistan. (2) I intend to sell the above-mentioned property.
(3) I authorize Sayyed Adnan Shabbir (N.I.D. Card No. 6110117714547) son of Sayed Shabbir Hussain, resident of 52 Bazar Road, G-6/4, Islamabad Pakistan to negotiate the sale of the property on my behalf.
(4) I authorize him to finalize the deal on my behalf at Pak Rs. 9,00,000.00 (Rs.
90. Lacs) and receive advance amount not exceeding Rs. Four hundred thousand only (Rs. 400,000).
(5) I intend to come to Pakistan in next three to six months and will receive the remaining amount myself and will transfer' the above-mentioned property in the name of the purchaser.
Executant's Signatures . Attested This power-of-attorney .Was presented before Vice Consul, Consulate General of Pakistan, Toronto who had attested the same on 8.5.2003.
14. The presumption as to the authenticity and genuineness of power-of-attorney has been attached under the provisions of Article 95 of Qanun-e-Shahadat Order that every document purporting to be a power-of-attorney and to have been executed before the authentication by, a Notary Public or any Court, Judge, Magistrate, British Counselor Vice Counselor representative of Federal Government, was so executed and authenticated, The authentication is not merely attestation, but something more. It means that the person authenticating has assumed himself of the identity of the person who has signed the instrument as well as the fact of execution. It is for this reason that a power-of-attorney bearing the authentication of notary public or an authority mentioned in Art. 95 is taken as 'sufficient', evidence of the execution of the instrument by the person, who appears to be the execution face of it. This provision of Article 95 of Qanun-e- Shahadat Order, 1984, is mandatory and it is open to the Court to presume that all the necessary requirements for the proper execution of the power-of-attorney have been duly fulfilled. In this context reference can be made to the cases of Wali Muhammad Chaudhry v. Jamaluddin Chaudhry (AIR 1950 All. 534), Jugrej Singh and another v. Jaswant Singh (AIR 1971 SC 761) and Right Society v. Indian Morning Restaurant (AIR 1939 Bombay 347).
15. In case of Jugrej Singh (sUpra) it had been observed by the Court that there was a presumption of regularity of official act and the Court is satisfied that the authenticating authority must have satisfied himself in the discharge of his duties that the person who was executing it was the said person. The same view was also followed by the Hon'ble Judge of Karachi High Court in ANZ- Grindlays Bank Ltd. v. Saadi Cement Company Ltd's Case (PLD 2001 Karachi 143).
16. The burden to prove the issues Nos.4 and 5 was on the appellant-defendant who failed to discharge his duty to establish these issues. Where a purported power-ofattorney has actually been acted upon but does not qualify for the presumption under Article 95 of the Qanun- eShahadat Order, 1984, those, who seek to rely upon it or are, allegedly, affected thereby may resort to due modes of its proof, which may include examination of its attesting witnesses. None of this, however, would be necessary if the donor of the power or its executant himself/herself admits its execution. In such an event the principle underlying Article 81 of the Order would become applicable and the admission of the executant shall be sufficient proof of execution as against himself or herself. Reliance in this respect can be made to the case of Ziauddin Siddiqui, reported as 1990 CLC 645.
17. In the case in hand (Ex.P2) power-of-attorney had been executed by the appellant which was attested by the Consulate General of Pakistan, Toronto and the appellant had not denied the execution of said document. In paragraph No. 2 of facts of his written statement, the appellant has asserted that the answering defendant has received nothing and the suit agreement is without consideration and he nowhere stated or denied the execution of power-of-attorney.
18. Order 8, Rule 3, C.P.C. Envisaged that it, shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages and Order 8, Rule 5, C.P.C. Further denotes that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. In this context, reference can be made to the cases of lnam Naqashband v. Haji Shaikh ljaz Ahmad (PLD 1995 SC 314), National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. (1996 CLC 79), (1999 SCMR 2633) and (2003 SCMR 1864).
19. During proceedings of the case, Iqbal Ahmad Sabri appellant had filed an application on 30.3.2004, in paragraph No. 2 of which, he had stated that the said sale agreement was not approved by defendant No. 1 as mentioned in the suit and the said cheque of Rs. 4,00,000/-was never encashed only with this intention that defendant No. 1 is not willing to sell the said house and has decided to return to Pakistan alongwith his family members for spending future calm life in Pakistan. It would mean that execution of agreement as provided on Order 8, Rule 5, C.P.C. Has been admitted by the appellant. He has also admitted the receipt of cheque of rupees four lacs in advance and to substantiate this argument clause 4 of the power-of-attorney is reproduced as under;--- "I authorize him to finalize the deal on my behalf of at Pak Rs. 9,000,000,00 (Rupees ninety lacs) and receive advance amount not exceeding Rupees four hundred thousand only (Rs. 400,000/-).
20. As per power conferred on the attorney Adnan Shabbir he has received advance money through cheque which is in the hands of the appellant-defendant, it has not been encashed. The appellant has neither denied the powerof-attorney nor agreement to sell and as per contents of the application he has not approved the same, so, admitted documents need not to be proved in accordance with the provision of Qanun-e-Shahadat Order, 1984.
21. The power-of-attorney was executed in foreign country in the office of Vice-Consulate General Pakistan in Toronto, it needs not to be proved in accordance with Qanun-e-Shahadat Order, 1984.
Firstly; the presumption of genuineness is attached to such document under Article 95 of the Order, secondly, it is admitted document and has not been denied specifically by the appellant- defendant No. 1.
22. The most important feature of the case which cannot be ignored is that defendant No. 2/attorney had also filed his separate written statement who had admitted the execution of power-of-attorney in his favour and in this respect paragraphs Nos. 1 and 4 of his written statement are reproduced as below:--- "1. That para No. 1 is correct to the extent that the answering defendant being attorney of the owner/defendant No. 1 with .Permission of original owner, validly entered into an agreement with the plaintiff for sale of the suit house.
(4) that para 4 is correct. The notice was served upon the plaintiff, as subsequently, the owner changed his mind. Therefore, the plaintiff was requested to receive the earnest money back."
23. The legal notice dated 12.6.2003 had been issued through the counsel of defendant No. 2 to respondent No. 1, wherein, the execution of said power-ofattorney is admitted and in paragraph No. 2 of said notice it was further stated that owner of the house/appellant had disagreed with the said agreement and is wilIing to return the earnest money paid to him i.e. Rupees four lacs from respondent No. 1. The written statement of defendant No 2/attorney, powerof-attorney (Ex.P2) and legal notice (Ex.P3) proved the execution of power-of-attorney, the sale agreement. No specific plea as discussed earlier has been raised, denying the execution of said document by the appellant/defendant No. 1. It means that the case of the plaintiff-respondent No. 1 stands proved.
24. Article 81 of Qanun-e-Shahadat Order, 1984, has provided admission of execution by patty to attest document. The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested: and a document which is covered under Article 95 of the Order and admitted by a party need not to be proved attested as required by Qanun-e-Shahadat Order. Reliance in this regard can be made to case of Ziauddin Siddiqui referred to above.
25. It was the duty of the appellant to appear in the Court and not appear in Court and he had produced only Farhat Mahmood Lodhi, his general attorney, who was not an eye-witness or the attesting witness of these documents i.e. Ex.P2 and Ex.P3. No such evidence except the sole statement of DW-1 has been produced on record by the appellant to contradict the documentary evidence of plaintiff-respondent No. 1.
26. In the instant case, Article 113 of Qanun-e Shahadat, 1984 would also come into play and applicable to the case at respondent No. 1 which enshrines as under:--- "113. Facts admitted need not be proved.-- No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings."
27. It is settled law that oral evidence could not be given preference over documentary evidence.
The documentary evidence particularly registered document carries presumption of truth which covers within the provision of Article 95 of Qanun-e-Shahadat Order, 1984 as laid down in case of Mst. Ghafooran Jan v. Muhammad Anwar Khan (2001 CLC 1332).
28. An evidence with regard to power-of-attorney executed outside Pakistan and a person or witness holding such power-of-attorney, even if not taken into consideration then also documents on record which stood admitted by both the parties would substantiate the case of the plaintiff while dilating upon the issue. In this respect reference can be made to case of 1991 CLC 1950.
29. The appellant vendor-defendant No. 1 has conferred authority on the attorney Syed Adnan Shabbir defendant No. 2, authorizing him to finalize the deal on his behalf at Pak Rs. 9,000,000.00 (Rupees 90 lacs) and receive advance money not exceeding rupees four hundred thousand only and under the authority given to him the said., attorney had made an agreement (Ex-P1) with respondent. No. 1 under the same terms and conditions and received Rupees four lacs in advance.
He has made an agreement to sell only and not executed -the sale-deed. This agreement was admitted. The receipt of cheque amounting to rupees four lacs is also admitted by the appellant in his application filed before the Trial Court for day to day proceedings. In paragraph No. 2 of the application it was admitted by the appellant that cheque of rupees- four lacs has not been encashed, it would mean that cheque was with the appellant, though it was not presented for encashment. The stand of the appellant that the agreement is without consideration is belied from his on admission as well as by his attorney admission available on record.
30. Another important feature of the case is that the appellant-defendant No. 1 has filed a suit for cancellation of documents, challenging the vires of the same on the basis of his pleadings. The issues Nos.4 and 5 were settled and onus to prove these issues was laid on the appellant- defendant No. 1, who failed to prove these issues by producing sufficient and convincing evidence while he produced only one witness DW-1/Farhat Mahmood Lodhi. No other witness was produced to corroborate the statement of DW1. The sole statement of DW1 to .Contradict the evidence of PW1 to PW3 as well as documentary evidenceEx.P1 to Ex.P3, is not sufficient to discard the same. For the foregoing reasons, the findings of learned Trial Court on issues Nos.4 and 5 are affirmed.
31. The agreement to sell had been executed on 21.5.2003 between the parties, whereby, advance earnest money, amounting to rupees four lacs had been received by the attorney. As per term No. 3 of the agreement to sell the balance sale consideration a sum of Rs. 93,50,000/-(Rupees ninety three lacs fifty thousand only) had to be paid to the vendor within two and a half months at the time of transfer of above-said property with fifteen days grace period.
32. The legal notice was issued to the plaintiff- respondent offering him to receive earnest money which gave him a cause of action on the said date and he then was constrained to file the suit on 4.7.2003 while the"limitation for filing the suit for Specific Performance of the Contract has been provided in Article 113 of the Limitation Act, as three years, hence, it has validly been filed within time. The appellant and his attorney issued a legal notice to the plaintiff-respondent that he is disagreed with the sale agreement (Ex.P1) and offered the plaintiff to receive the earnest money and in case of failure, it was told that legal remedy shall be availed of by ,the appellant under the law which gave right to the plaintiff to file the instant suit, therefore, the plaintiff having a locus standi and cause of action filed the instant suit. Thus, the findings of the Trial Court on issues Nos. 1 and 2 are also affirmed. No other objection/argument with regard to remaining issues has been raised by the learned counsel for the appellant. In view of the above discussion, we find no substance in these appeals, hence, dismissed. There shall be no order as to costs.