' AZIZULLAH M. MEMON, J.--- Heard learned counsel for the appellants as well as for respondent No,1 Kokab Benazir Fatima.
2. The plaintiff/appellants filed Suit No,455 of 2007 in the original jurisdiction of this Court with the following prayer clauses:-- "(i) Decree the suit of the plaintiffs for specific performance and the defendants be directed to execute the sale-deed in respect of Flat No,4 on first floor, measuring 1400 sq. Ft. In the buildihg known as Coronation Building constructed on Plot No,273/1, Survey Sheet AM, situated in Artillery Maidan Quarters, Preedy Street, Karachi, in favour of the plaintiffs and deliver the original title documents of the said property.
(ii) Grant the injunction against the defendants restraining them from selling out, mortgaging and alienating the said property or further creating any third party interest in the said property.
(iii) In alternative, decree for sum of Rs,20,00,000 along with interest of 8.5% against the defendants which amount they have received as part payment.
(iv) Decree for Rs,50,00,000 for damages against the defendants for not fulfilling the contract jointly and severally as they have abetted, assisted and acted negligently.
(v) Award Cost.
(vi) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the case."
3. Paragraphs 1 to 4 of the memo. Of plaint read as under:--
(1) 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 Street, Karachi, (hereinafter called the said property) against the total sale consideration of Rs .26,00,000. (Rupees Twenty Six lac only).
Photocopy, of the Sale Agreement dated 31-8-2005 is annexed hereto as Annexure P.
(2) That the defendant No,6 for self and representing himself as attorney of the other defendants Nos.1 to 5 being brothers and sisters with the assurance to supply the photo copy of the power of attorney received a sum of Rs,15,00,000 (Rupees Fifteen lac only) through Pay Order No,P0410717 dated 24-8-2005 and Rs,5,00,000 (Rupees Five lac only) through Pay Order No,0410731 dated 31-8- 2005, Photo copies of Pay orders are annexed hereto and marked as Annexures P/1 and P/2.
(3) That the balance amount of Rs,6,00,000 will be paid by the plaintiffs to the defendants at the time of registration of sale deed. That at the time of Sale Agreement the defendant No,6 handed over peaceful physical possession of the said property to the plaintiffs along with all its Photostat copies of the title documents. Photo copies of title documents are annexed hereto and marked as Annexures P/3 and P/4.
(4) That after obtaining possession of the said property the plaintiffs have spent a sum of Rs,10,00,000 (Rupees Ten lac) on the said property for repair and renovation thereon."
4. The defendants Nos.1 to 5 did not file any written statement in the suit and instead the defendant/respondent No,1, Kokab Benazir Fatima, as stated above, filed application under Order VII, Rule 11, C.P.C. With prayer to reject the plaint of the suit on the grounds, inter alia, that no power of attorney was ever executed by the defendants Nos,1 to 5 in favour of the defendant No,6 and that any sale agreement which may have been executed by the defendant No,6 on behalf of defendants Nos.1 to 5 is without any legal validity and could not be given any force and, therefore, the plaintiffs having no cause of action had filed the suit for specific performance of the contract and for damages as well as permanent injunction which was not maintainable and, therefore, the plaint of the suit needed to be rejected.
5. However, the defendant No,6 filed written statement in the suit wherein he admitted having executed the agreement to sell of the 1/5th share of the Flat No,4, First Floor, admeasuring 1400 sq.
Ft. In the building known as Coronation Building on Plot No,273/1, Survey Sheet A.M. Situated in Artillery Maidan Quarters, Preedy Street, Karachi and he never pleaded that he was not appointed as an attorney by defendants Nos.1 to 5; the contents of the written statement filed by the said respondent No,6 tend to clearly suggest that not only that agreement was so executed by him for defendants Nos.1 to 6 but he was also having such an authority from the other defendants for all such purposes of entering into a sale agreement on their behalf in respect of the plaintiff's premises.
6. Be that as it may, it is not necessary to enter into the factual controversy involved in between the parties; suffice it to say, as stated herein above, that excepting the defendant No,6, defendants Nos.1 to 5 never filed any written statement and that instead the respondent No,1/defendant filed application under Order VII, Rule 11, C.P.C.
7. Learned counsel for the appellants has relied upon section 187 of the Contract Act which reads as under:-- "187. Definitions of express and implied.---An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case, and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case."
8. Learned counsel for the appellants has argued that the doctrine of implied agency as enunciated by Honourable Supreme Court of Pakistan in the case reported as PLD 1963 SC 244 held to the following effect:-- "The main plea on behalf of defendant No,1 if we hold the telephonic talk to be proved is that the written consent of defendant No,1 was essential before a contract could be entered into by defendant No,2 on behalf of defendant No,
1. To this contention there are two answers. The first is that in accordance with section 237 of Contract Act if the agent has apparent authority to enter into a particular contract on behalf of the principal the contract is valid even though in fact he has no such authority. The plaintiff had no knowledge of the terms relating to written consent between defendant No,1 and defendant No,2. If he found that the General Manager of defendant No,1 had agreed on the telephone to this contract he would be justified in presuming that henceforth Intizar Hussain had authority to enter into this contract. Any term in a contract of agency which places restrictions on the authority of an agent is unavailing against parties who are not aware of such term if the circumstances are such as to confer an apparent authority on the agent to act on behalf of the principal.
' Another aspect of the matter is this. A term like this binds the agent. It does not bind the principal who is entitled at any time to waive it. If the principal has given directions to the agent that he is not to act on his behalf in the absence of certain circumstances, the principal can still confer upon him authority in the absence of those circumstances for acting on his behalf. The term between the parties that the agent will not without the written consent of the principal enter into a contract on his behalf does not create a law which debars the principal Henceforth from conferring authority on the agent in violation thereof. The law of this country allows the principal to confer authority by word of mouth, and this right of his is not at all affected by a condition which he has himself imposed on his agent. The condition he can always withdraw or waive. At the same time there is an element of estoppel in the circumstances with which we are dealing. The principal having in fact orally agreed to a bargain being struck by his agent cannot afterwards plead that he had no right to confer authority on the agent. The other party is entitled to rely upon the word of the principal and regard the contract as good and binding. In the present case it is a matter for consideration that if it was defendant No,1 who wanted to enforce the agreement, the plaintiff would have no answer.
' Whether we regard the agreement, therefore, as a contract between defendant No,1 and the plaintiff or we regard it was contract between the plaintiff and defendant No,2 as representative of defendant No,1 it is binding on defendant No,1".
9. Learned counsel for the appellants further relied upon 2008 SCM R 236 wherein following observations were recorded by Honourable Supreme Court at paras 9, 10 and 11, which read as under:-- "(9) It requires no lengthy discussion and there cannot be two opinions about the fact that the matter had already been remanded to the trial court by this Court on 10-42003 for settling the above narrated points and for deciding application under section 12(2), C.P.C. Obviously, an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence. It is for this purpose that that the Supreme Court had allowed and fixed a period of one year for the decision involved. Despite orders of the Supreme Court, the trial Court never proceeded to record evidence of the parties about their assertions and counter- assertions involving serious questions of fact to be settled on both sides. The only motivating factor for rejection of application was the repIy/written statement of the arbitrator and his earlier statement, dated 1-7-1979. This was a novel procedure adopted by the trial Court and endorsed by the higher Courts, in that, the pleadings of parties could never be taken as an evidence particularly when the arbitrator was not even examined in Court in support of his written statement much less his cross-examination by the party desiring so to do. A mere written statement by a respondent has not at all been a valid ground for guillotining a serious application filed by the ladies and by- passing the order, dated 10-4-2003 of the Supreme Court. The trial Court did not exhibit a judicial behaviour and the higher Courts endorsed it with no application of mind.
(10) The very terminology used in Order VII rule 11, C.P.C. Is indicative of the fact that it pertains to suits and plaints in particular. The Court should have realized the difference between a regular suit and in application. Section 141, C.P.C. Cannot be attracted as it pertains to the ordinary procedure laid down in Civil Procedure Code that may be followed in deciding an application but a substantial requirement of recording of evidence on pure and serious question of fact could not be bypassed by unjustifiable involving of Order VII, Rule 11, C.P.C. It appears that even the implication of Order VII, rule 11, C.P.C. Were not properly appreciated and applied. The order can be attracted only when a plaint by itself does not disclose any cause of action. It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff/petitioner to prove his case on the basis of assertions made in the pleadings. If the principle in hand adopted by the courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the basis of written statement.
(11) Consequent upon what has been discussed above, the petition after conversion into appeal is accepted and the case is remanded to trial Court with direction to decide the application under section 12(2), C.P.C. After recording evidence of both the parties and in the light of this Court previous order, dated 10-4-2003. The entire exercise shall be completed and the matter shall be decided within six months."
10. Thus, for the purposes as to whether or not the defendant No,6 in the suit was actually granted authority to execute the sale agreement for and on behalf of defendants Nos.1 to 5 essentially demanded the record of the evidence' furthermore the plaintiffs also made further prayers of damages as well as permanent injunction in the plaint of the suit and for such further prayers also learned single Judge was duty bound to allow the parties proper and due opportunity to produce their respective evidence in support of their respective pleas. The same having not been done, learned counsel for the appellants has argued that the impugned order stands vitiated for the reasons, inter alia that only contents of the memo. Of plaint were A to be referred for the purposes of application under Order VII rule 11, C.P.C. Whereas the learned Single Judge impliedly discussed the entire merits of the case while there, being no evidence in support of the case of the plaintiffs or any evidence against the case of the plaintiffs.
11. Under the circumstances, this appeal is hereby allowed with the result that the impugned order is set aside and the suit stands remanded to learned single Judge with a request to further proceed with the suit strictly in accordance with settled principles of law.
' As a consequence, two applications bearing C.M.A.No,1137 of 2008 and C.M.A.-1138 of 2008 stand disposed of accordingly.