' SYED QALB-I-HASSAN, J.---Brief facts of the case for the purpose of disposal of instant revision petition are that the petitioner and respondent No,2 entered into an agreement to sell. Short details of the agreement to sell, dated 2-4-2002 are that the petitioner will purchase a piece of land measuring 12 kanals along with incomplete bungalow known as Sunshine Villa, situated at Estate No,12, having a small gifted mosque thereon at Kashmir Point, Murree, District Rawalpindi against A consideration of Rs,45 million and out of total consideration respondent No,2 has received an amount of Rs,1 25,000 along with House No,28, Street No,63, F-10/3, Islamabad. A separate general power of attorney in respect of the said house has also been executed in favour of respondent No,2 in consideration of Rs,2,00,00,000 as price of the house and in this way a sum of Rs,1,25,00,000 and Rs,2,00,00,000 was treated as part payment of the land measuring 12 kanals situated in Murree. It was further agreed that the petitioner will pay a sum of Rs,25,00,000 to respondent No,2 within a period of two months from the execution of agreement to sell and a sum of Rs,1,00,00,000 will be paid by the petitioner within period of six months from the expiry of two months. Respondent No,2 issued a Cheque No,346003, dated 21-5-2002 drawn on ABL, Chur Harpal Branch, Peshawar Road, Rawalpindi Cantt. Of Rs,3,25,00,000 to the petitioner as security for the fulfilment of the above said agreement with the condition that in case he fails to get the said land transferred in the name of the petitioner or his nominee within stipulated period, the petitioner will be at liberty to present the cheque in the Bank for encashment. It was further agreed that the property known as Kaikobad, Mansion, Habib Bank, Mall Road Murree, District Rawalpindi is to stand on further charge within meaning of Transfer of Property Act, for the completion of the above said agreement and it is agreed that in case of failure of respondent No,2 to complete the agreement to sell the said property can be recovered and sold through Court of law to recover his amount paid or to be paid by the petitioner for the purchase of land measuring 12 kanals situated in Murree. It was further agreed that the petitioner will also be entitled to get damages to the tune of Rs,50,00,000 in addition to the amount paid by him to respondent No,2 in the case of failure on the part of respondent No,2 to transfer the land mentioned in the agreement to sell.
2. That in pursuance of general power of attorney executed by the petitioner in favour of respondent No,2, with respect to House No,28, Street No,63, F-10/3, Islamabad respondent No,2 further entered into an agreement to sell with respondent No,1 in respect of the said house in consideration of Rs,1,20,00,000 and received an amount of Rs,20,00,000 from respondent No,1 in cash and hrough cheques. Respondent No,1 filed a suit for specific performance of the agreement, dated 20-4-2002 and impleaded the petitioner as defendant No,2 whereas respondent No,2 was impleaded as defendant No,1 in the said suit. Respondent No,2 accepted service of summons on behalf of the petitioner and appeared in the trial Court on 10-6-2002 and conceded the claim of respondent No,1 and the suit was decreed in favour of respondent No, 1 .
3. The petitioner filed an application under section 12(2) of C.P.C. Against the respondents. They entered appearance and contested the same and the learned trial Court dismissed the application under section 2(2) of C.P.C. Vide its order, dated 4-6-2003. The petitioner has challenged the validity of the order, dated 4-6-2003 through the instant revision petition.
5. Learned counsel for the petitioner has placed on record judgment and decree, dated 24-1-2002 in favour of Messrs Habib Bank Ltd. In respect of land measuring 12 kanals situated in Murree.
District Rawalpindi, dishonoured slip of the cheque issued by respondent No,2 to the petitioner as security and evidence about the other property mentioned as security for the fulfilment of agreement to sell which was not owned by respondent. No, 2, to support his contentions that the land in lieu of which the general power of attorney was executed as part payment to the tune of Rs,2,00,00,000 was not owned by respondent No,2 at the time of execution of agreement to sell, dated 2-4-2002 and in this way he has committed fraud with the petitioner. Learned counsel contended that although a general power of attorney was executed in favour of respondent No,2 but in any case he was bound to inform the petitioner before entering into an agreement to sell with respondent No,1 and relied upon the observations of the Hon'ble Supreme Court in Malik Riaz Ahmad v. Mian Inayat Ullah and others (1992 SCM R 1488) which reads as follows:-- ' Attorney was duty bound to have brought to the notice of the executants of power of attorney the intended sale prior to entering into the agreement to sell and sought instructions in that behalf--- Failure of attorney to do so was a complete failure on his part to discharge his duty in this regard.
6. Learned counsel further contended that respondent No,1 filed a suit against respondent No,2 and the petitioner and in the plaint address of the petitioner was mentioned as Muhammad Shafi Khan son of Raj Muhammad Khan, resident of village Abbaspur, Poounch, Azad Kashmir but the service of summons was got effected on altogether a new and non-existing address and that too without any formal order of the Court and in this view of the matter, respondents have committed fraud with the proceedings of the trial Court. Learned counsel pointed out that on plain perusal of the order sheet it is crystal clear that the suit was adjourned from 7-6-2002 to 10-7-2002 but later on the date was changed from 10-7-2002 to 10-6-2002 but surprisingly on the next date i,e, 10-6-2002 the figure 6 was again over-written and it was changed from 10-7-2002 to 10-6-2002 which proved that both the orders were changed on one and same day. The learned counsel further maintained that in any case respondent No,2 was bound to satisfy the learned trial Court about the non- availability of the petitioner at the time of appearance in the Court as general attorney of the petitioner by placing reliance on Rasool Bukhsh and another v. Muhammad Ramzan (2007 SCM R 85) on the observation of the Hon'ble Supreme Court which reads as under:- ' It is also a well-established legal proposition that a person who has been validly authorized to alienate the property of another, he has to satisfy the Court that at the time of entering into a transaction of sale of a property, the principal was not available and if there is no such evidence then the transaction does not hold good unless it is established on record that the transaction has been made with knowledge and with consent of the principal while entering into general power of attorney as laid down by this Court in Fida Muhammad's case PLD 1985 SC 341.
7. The learned counsel further supported his contentions by relying on Mst. Basri v. Abdul Hamid (1996 M LD 1123) and referred the observations by the Hon'ble learned single Judge of the Lahore High Court as follows:-- ' Transaction of sale on basis of alleged power of attorney=-Validity--Person who had been validly authorized to alienate property of another, has to satisfy Court that at the time of entering into transaction of sale of property, principal was not available and in absence of such evidence transaction would not hold good unless it was established on record that same had been made with the knowledge and consent of the principal---Nothing was brought on record to establish that at the time of sale, plaintiff was not available or could not be contacted, therefore, there being admittedly no reference to her, at the time of sale, such sale was not valid---Findings of Courts below holding sale in question as valid were set aside in circumstances.
8. Learned counsel further argued that in view of the facts established on record and the law laid down by the superior Courts, the learned lower Court has erred while passing the impugned order without providing opportunity to the petitioner to establish his case by leading evidence on the assumption that general power of attorney has been admitted, therefore, no fraud was committed with the proceedings of the suit.
9. Learned counsel for respondent No,1 vehemently opposed the contentions raised by the learned counsel for the petitioner and contended that respondent No,1 is bona fide purchaser and no fraud was committed with the proceedings of the Court as general power of attorney was admittedly executed by the petitioner without reference to the agreement to sell plated by the learned counsel for the petitioner on record. The learned counsel while relying on PLD 1973 Lahore 186 also referred Order III, Rule 1, 2(a)3 and Order V, Rule 9 of C.P.C. To support his contention and prayed for dismissal of the revision petition.
10. On 5-2-2008 Muhammad Ilyas Siddiqui Advocate had submitted his memo. Of appearance on behalf of respondent No,2 and thereafter Mr. Naseer Muhammad Khan Advocate submitted power of attorney on behalf of respondent No,2 but both the learned counsel have not appeared on the date of arguments, therefore, respondent No,2, is proceeded ex parte.
11. Arguments heard and record perused.
12. Now the contentions raised by the 'learned counsel for the petitioner and supported by the law laid down by the Superior Courts and on the contrary stand taken by respondent No,1 that general power of attorney was admittedly executed by the petitioner without any reference of agreement to sell and paid consideration to the validly executed attorney are serious questions of law and fact which cannot be decided without recording of evidence, therefore, the learned lower Court has D committed material irregularity while passing the impugned order without framing of issues and providing opportunity of leading evidence by both the parties to prove their respective contentions, therefore, the impugned order is set aside. The learned trial Court is directed to frame proper issues in the petition under section 12(2), C.P.C. And allow them to lead evidence in support of their respective contentions and then decide the same on merits.
13. Before parting with this case, I would like to say that whatever is contained in this order has been stated with a view to dispose of this revision petition and it shall not, in any way, influence the final result of the application under section 12(2) of C.P.C., which shall be decided strictly on merits in the light of evidence to be produced before it and according to law.