'KHALID ALI Z. QAZI, J.---This is a suit filed by the plaintiff against the defendant seeking recovery of Rs,50,00,000 with costs and interest with the following reliefs:- "(a). Defendant be directed to pay a sum of Rs,50,00,000 to the plaintiff, forthwith.
(b) Defendant be directed to pay interest from 1-2-2001 on the principal amount of Rs,50,00,000 at 18% per annum and the amount to date is Rs,27,00,000.
(c) Cost of the suit be borne by the defendant.
(d) Any other relief that the Honourable Court may deem fit and proper in the circumstances of the case."
2. Brief facts of the case as disclosed in the memo. Of plaint are that the plaintiff is a consultant and established a firm in the name of "American Consultants Inc" and in this capacity he has been associated with a number of projects in U.S.A. The plaintiff came into contact with the defendant through one Waseem Jaffery who was working with the defendant in a responsible capacity of plaintiff's twenty years technical experience. Waseem Jaffery talked to the defendant, who desired to acquire plaintiff's service for obtaining lease rights on a very lucrative and important project of Defence Housing Authority in respect of D.H.A. Cricket and Stadium located at Khayabane-e-Rahat, Phase IV D.H.A., Karachi, comprising 46,976,66 sq yards of land. Before acquiring the services of plaintiff, the defendant has rented the stadium from D.H.A. On monthly rental basis, and was not allowed to make any alternation, addition or repair in the existing stadium. The plaintiff took pain and agony to prepare an International Level Scheme for the Re-development of the Stadium and presented it to D.H.A. Officials including the Administrator, and convinced him to allow a presentation of the scheme to the Board of Directors of the D.H.A. The defendant has registered a General Power of Attorney in favour of the plaintiff on 6-1-2000 to handle the entire affairs on his own legally had assured him that once the D.H.A. Shall be fully compensated for his services, and shall be given due share in the project. Finally the plaintiff's proposal was accepted by D.H.A., and they agreed to grant lease of the Stadium for 30 years with renewal of two further terms of 30 years each. The entire scheme of the project was formulated and reduced in writing, one being sub- lease deed dated 2nd day of January 2000, between Pakistan Defence Officers Housing Authority on the one part and defendant on the other part and second being a "financial agreements Modification Agreement" between Pakistan Defence Housing Authority and present plaintiff as attorney of present defendant and such agreements, which contained terms and conditions and financial implications, which were extremely beneficial to the defendant on account of plaintiff's skillful consultancy.
3. It is averred in the plaint that the first of the two agreements created great financial gain to the defendant and the second agreement, took away entire burden from the defendant and created constant gain to the Pakistan Defence Housing Authority on perpetual basis. However, second agreement could not be materialized and consequently no any liability or gain ensured therefrom in favour of Pakistan Defence Housing Authority, Defendant or the plaintiff. It has no existence in the eyes of law, having become infructuous. However, making unreasonable comments, the Defendant cancelled the plaintiff's General Power of Attorney and thrown him out of the project affairs, without any explanation. Moreover, a cheque of Rs,50,000,000 bearing No, 043878 dated 1-2-2001 drawn on Citi Bank, Karachi issued by the Defendant in favour of the plaintiff against the part payment of his consultancy fees was not cashed, and returned by the Bank with remarks "Return to Drawer". The plaintiff contacted the defendant personally for the payment of said amount, the defendant asked for time as he was unable to make payment due to some financial difficulty and asked the plaintiff to wait for some time. However, neither the payment of said amount is made so far nor the said cheque is enchased. The defendant corresponded with the plaintiff and made contradictory statements, on the one hand the defendant appreciated the moves made by the plaintiff and on the other hand asked for return of the cheque while acknowledged on that the plaintiff was assigned to "perform certain functions and work on project." Such functions were not specified by the defendant yet it is established without any doubt that the plaintiff's function was of consultancy and materialization of contract between defendant and Pakistan Defence Housing Authority was the result of such consultancy and consequently plaintiff settled fee for such consultancy was to be paid for which cheque was issued by the defendant as part payment. The defendant has wilfully and deliberately avoided payment of the amount of cheque for Rs,5,000,000 and in addition to payment of the said amount to the plaintiff, the defendant is also criminally liable for, the breach of trust for which the plaintiff prays to this Honourable Court to start criminal proceedings against the defendant if the amount of cheque is not paid by the defendant forthwith.
4. In response to the summons the defendant has filed his written statement denying the allegations levelled in the plaint and raised certain preliminary objections about the maintainability of suit viz. The plaint does not disclose the cause of action; suit is barred under the provisions of Order XXIX & XXX Rules 1 and 10, C.P.C. r/w section 69 of the Partnership Act, 1932; and, suit is barred by misjoinder/non-joinder of D.H.A. As necessary and, mandatory party. Besides the above legal objections raised by the defendant in his written statement, it is submitted that the plaintiff is partner of the firm under name and style of American Consultants, Inc. It is submitted that the D.H.A. Cricket Stadium situated as Khayaban-e-Rahat Phase V D.H.A , Karachi admeasuring 46976.99 Square yards was rented out to the defendant vide agreement dated 3-7- 1991 with existing construction and structures of the stadium. The subsequent sub-lease on revocation of the rent agreement was executed and registered on 2-2-2000 between the D.H.A.
And the defendant under the terms and conditions enumerated in the memorandum of sublease for entitled period of 30 years (renewable) along with the schedules of payments without any assistance, support, consultancy and without any technical scheme feasibility report prepared by the plaintiff for the purpose. The sub-lease dated 2-7-1991 for initial period of Ten years and the defendant independently discussed, negotiated, finalized and executed the terms of sub-lease with the D.H.A. It is asserted that during the period 1998 and 1999 when the plaintiff met the defendant and he put himself the expert in dealing with such projects and is very influential and effective person to deal with the D.H.A. And he is able to lease out the said property for 99 years on lucrative terms, as such he was authorized vide authority letters dated 10-4-1998 and 23-4-1999 respectively to attend meeting with D.H.A. But soon he proved ineffective in his claim and delayed the issue, therefore the defendant personally negotiated, settled and executed the sub-lease dated 2-2-2000 for 30 years period extendable by two more terms. It is stated that D.H.A. Also refused to correspond with the plaintiff vide its letter dated 31-7-1998. However, the plaintiff was duly paid for his acquired services and no amount is due' against the defendant.
5. It is admitted that the plaintiff was constituted attorney of the defendant vide Registered- General Power of Attorney executed on 6-1-2000 independent to the sub-lease deed executed dated 2-2-2000 to performs specific functions under the terms of the GPA. The specific functions were assigned to the plaintiff to negotiate lease terms and conditions to submit approval of the conceptions drawings. To approve and to present for approval to .All the relevant authorities, the plans of the proposed construction, modifications, alternations and complete there to and secure approval and sanction of the relevant authorities for the same. On completion of prescribed functions the defendant undertook to pay Rs,50,00,000 to the services charges and expenditures cost incurred in respect of constructions plans including additions, alternatives or revise plans from relevant authorities. Therefore, a post-dated cheque was delivered to the plaintiff at the time of execution of GPA therefore the cheque encashment date was set after completion of all functions on 1-2-2001. As to the Financial Arrangement Modification Agreement is concerned it was executed by the plaintiff with the D.H.A. Karachi without authorization of the defendant. The plaintiff neither mentioned the date of execution nor exhibited copy of the agreement, which shows the plaintiff, has concerned the material facts and has not come to this Court with clean hands. It is surprising that the sub-lease was executed on 2-2-2000 and prior to that the plaintiff signed financial arrangement modification agreement on 27-1-2000, which modify the sub-lease. On coming to the knowledge of existence of above Financial Arrangement Modification Agreement, the defendant had written numerous letters to the plaintiff to supply authenticated copy of the said agreement along with all correspondence/ documents made as attorney with D.H.A. Or other authorities, but he intentionally avoided to deliver the required documents.
'It is submitted that the plaintiff has failed to perform functions assigned to him in GPA dated 6-1- 2000, therefore, the defendant revoked the GPA vide Revocation Deed dated 26-8-2000 and intimated to all concerned including the plaintiff and also . Stopped payment of post dated cheque dated 1-2-2001. The defendant also served notice to the D.H.A. Through his counsel dated 13-10- 2000 in regard to unauthorized and unlawful Financial Arrangement Modification Agreement dated 27-1-2000 and revocation of Power of Attorney dated 13-8-2000 in favour of plaintiff. It was further assured to D .H . A . That the defendant is bound to abide the terms of sub-lease as well as the undertaking signed by him. The defendant was also constrained to give undertaking/Confirmation dated 9--2-2001 to save the said property vide sub-lease dated 2-2-2000 by payment of additional amount of Rs,14,700,000 in seven instalments beyond the terms of above sub-lease.
6. It is further submitted that the defendant has not issued post-dated cheque dated 1-2-2001 to plaintiff against any part payment of his consultancy fee and same was not encashed. It is submitted that the time of execution of GPA dated 6-1-2000 in favour of the plaintiff and assigned specific functions for approval, modification, sanctions of the plans of the said property from the concerned departments/authorities within period of one year as such post dated cheque Rs, 5 Million was delivered to him in consideration of completion of his job on 1-2-2001, but plaintiff miserably failed to perform his assigned work, contrary to that he misused his authority acted against the interest of the defendant. It is further submitted the plaintiff miserably failed to produce iota of material in support of his claim of consultancy in execution of sublease dated 2-2-2000 and the post dated cheque dated 1-2-2001 was balance fee of consultation. It is submitted that no cause of action accrued against the defendant as such the plaintiff is not entitled any amount as claimed with interest thereon. It is also submitted that since the execution of FAMA and non- performance of functions assigned to the plaintiff, the defendant is suffering from mental shock, mentalstress, ulcer and physical disorders apart from financial losses incurred in form of extra payment of D.H.A. Delayed approval and construction of the plans of the project and payment of Bank markups. The total losses accumulated to the amount of Rs,300 Million. The defendant reserve its right to institute a separate suit for compensation and damages of Rs,300 million as well as Criminal proceedings against the plaintiff. It is submitted that the defendant issued legal notice to the plaintiff dated 10-11-2002 for payment of compensation/ damages, but no response from the side of the plaintiff till today and the above suit is the counter-blast of the notice of the defendant.
7. Out of the pleadings of the parties following issues were framed on 18-5-2005:-- "(1) Whether the plaintiff has exceeded the powers given to him under the power of attorney dated 6-1-2000?
(2) Whether the post dated cheque bearing dated 1-2-2001 was not liable to be encashed?
(3) What, should the decree be?"
8. After framing of Issues, Commissioner was appointed for recording of evidence. Plaintiff has examined himself as Exh.-P and produced documents as Exh.P.W.1/1 to Exh.P.W.1/11. He was also cross-examined by Mr. Shoukat Hayat, Advocate for defendant. Thereafter defendant Abdul Wahab has filed his affidavit-in-evidence and produced documents as Exh.DW-1 to Exh.DW-22/1.
He was cross-examined by learned counsel for the plaintiff Mr.S. Zaki Muhammad. Defendant in support of his claim also examined one witness namely Col. (R) Sulaiman Ahmed Abid. He was also cross-examined by the learned counsel for the plaintiff.
9. I have heard Mr. S. Zaki Muhammad, learned counsel for plaintiff and Mr. Shoukat Hayat, learned counsel for defendant and perused the material available on record as well as the case law cited at the bar. Since both the issues are interconnected, therefore, I will deal together. My findings and reasons are as under.
10. The plaintiff himself appeared in witness-box to prove his case. He produced his affidavit-in- evidence and produced documents as exhibits P. W. 1/1 to P.W.1/11. He reiterated and repeated the facts as mentioned in early part of judgment. In this evidence, the plaintiff admitted that he executed on 27-1-2000 an agreement as attorney or defendant with the D.H.A. Title as "Financial Arrangement Modification Agreement" hereinafter referred as FAMA (Exh. P. W.1/01) which contained terms and conditions and financial implications, which were extremely beneficial to the defendant on account of plaintiff's skilful consultancy for both the agreements.
11. The defendant also appeared as witness and produced his affidavit-in-evidence as DW-1 and documents as exhibits D/1 to D/22. He reiterated and repeated the facts, as per written statement as mentioned in earlier part of judgment. He stated in evidence that he has executed General Power of Attorney on 6-1-2000 (Exh.P.W.1/6) in favour of the plaintiff mentioning the functions at paras. 1 to 3 of General Power of Attorney for his performance. He further deposed that he had also delivered a post dated cheque of Rs,5,000,000 (Rupees Five Million Only) of Citi Bank, Karachi (Exh.P.W.1/1) at the time of execution of General Power of Attorney dated 6-1-2000 encashed on 1-2- 2001 after completion of work assigned to the plaintiff. The defendant further stated in his evidence that the plaintiff by misusing the authority conferred under General Power of Attorney dated 6-1- 2000 without his knowledge and permission unlawfully in connivance with Secretary D.H.A., Karachi, had executed FAMA dated 27-1-2000 (Exh.P.W.1/8) prior to execution of sub-lease deed on 2-2- 2000 (Exh.P.W.1/4) for payment of extra amount of Rs,1,47,00,000 payable in seven equal instalments of D.H.A. And in case of nonpayment, the whole sub-lease was liable to be cancelled.
The, defendant further stated that on the face of FAMA dated 27-1-2000, it is a manipulated documents manufactured after signing the sub-lease deed dated 2-2-2000. He further deposed that plaintiff after realizing the foul play further manipulated record FAMA dated 4-2-2000 in league with the Secretary of D.H.A. As such committed fraud with him. He further stated on oath that the FAMA dated 27-1-2000 and dated 4-2-2000 are the unlawful and unauthorized contracts/ agreements to extort huge amount of Rs,1,47,00,000 by fraudulently under the terms of above FAMA and further payable to the plaintiff vide the schedule mentioned in para-3 of FAMA dated 27-1- 2000. The defendant further stated in evidence that as the plaintiff has not rendered required services mentioned in General Power of Attorney was revoked on 26-8-2000, the plaintiff is not entitled to claim payment of Rs,5 Million of post dated cheque encashable on 1-2-2001 in consideration of services/work of which he had never performed. He repeatedly required the plaintiff to return above cheque and also stopped payment by writing letter to the Bank on 13-3- 2001.
12. The plaintiff in cross-examination admitted that Exh.P.W.1/4 has no concern with present D.H.A.
Cricket Stadium Phase-VI. He voluntarily says that he negotiated with D.H.A. On the basis of Exh. P.
W.1/4 and Exh. P. W. 1/5 . He admitted signing the two FAMA dated 27-1-2000 and 4-2-2000. The plaintiff admitted that in Para-1 of FAMA dated 4-2-2000 it is mentioned that F.M. Roll No,U-269192 Block--1 dated 2-2-2000 while dated in sub-lease Exh.P.W.1/7, it is mentioned M.F. Roll No,U-269192 dated 9-2-2000. He admitted that he has not filed any conception drawing of sub-lease project with the plaint and affidavit-in-evidence. Voluntarily says that all these documents are part of sub-lease Exh.P.W.1/7. He admitted that he has not exhibited any document in support of assignment of work under clauses 2 and 3 of General Power of Attorney dated 6-1-2000. He denied that he has not brought into the knowledge or, intimated to the defendant of signing FAMAs dated 27-1-2000 and 4-2-2000. The plaintiff admitted that he has approached the DHA to reimburse Rs,1,47,00,000 in his favour without delay which has been deposited by the defendant under FAMA dated 27-1-2000 and 4-2-2000. He admitted that he has filed Suit No,127/2004 against the defendant and DHA in High Court and DHA filed written statement therein Exhs.D/22 and D/23. He admitted that he received letter dated 13-12-2000 from defendant and replied on 12-3-2001. That he had written letter dated 17-8-2002 to the defendant as Exh.D/17. Original letter was produced by defendant. The plaintiff objects the following line:-- "Sir, I admit the mistake of not informing you about this for which I regret it personally."
' The original letter Exh.D-17/1 produced by defendant and plaintiff also produced the copy of the said letter dated 17-8-2002 which is not mentioned the said line in the letter Exh.D-17/2. The plaintiff admitted that the defendant has mentioned his letter dated 17-8-2002 as Exh.D-I3 in his written statement and also in Para-6 as well. He admitted that he had not disputed the letter dated 17-8- 2002 written by him to the defendant in regard to the disputed line. He admitted that legal notice dated 11-10-2002 (Exh. D-18) is in his knowledge.
13. To resolve the controversy whether the plaintiff has exceeded the powers given to him under the Power of Attorney dated 6-1-2000, it shall be convenient to reproduced the General Power of Attorney dated 6-1-2000, FAMA dated 27-1-2000 and plaintiff's letter dated 17-8-2000:-
(a) GENERAL POWER OF ATTORNEY 'KNOW ALL MEN BY THESE PRESENTS THAT I, ABDUL WAHAB S/0 ABDUL RAZZAQ, Muslim adult, holding NIC No,510-64-125568, resident of 18-C, ' Commercial Area, Lane No,3, Main Zamzama Boulevard Defence Housing Authority, Karachi, do hereby send greetings:-- ' Whereas a contract entered into a lease agreement in respect of an Immovable property identified as DHA Cricket Stadium, located at Khayaban-e-Rahat, Phase VI, DHA, Karachi comprising 46976.66 Square Yards of land or thereabout together with existing construction and structures thereon, hereinafter referred to as the Said Property, between Pakistan Defence Officers Housing Authority and Abdul Wahab s/o Abdul Razzak and Lease is to be executed in favour of Abdul Wahab for the use as a Cricket Stadium and multiple Sports facilities.
' And Whereas in case I am not able personally to enter with the Lease Agreement in respect of the said property with Pakistan Defence Officers Housing Authority.
' NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS THAT I, do hereby nominate, constitute, appoint and authorize to Mr. S. Imtiaz H. Rizvi son of Late Syed Naseer H.Rizvi, Muslim adult, holding NIC No,502-88-713563, resident of Suit No,302, Aamir Trade Centre, Crossing of Shahrah-e-Quadeen and Tariq Road, Karachi, on and behalf of Messer American Consultants INC, as my duly constituted and lawful attorney in my name, for me and on my behalf to look after and manage the said property more particularly to do all or any of the following acts, deeds, things and matter namely:--
(1) To present me for getting the DHA Stadium of long terms lease for the purpose he can do presentation, attending the meeting with DHA Officials, Negotiation Lease terms and Conditions submit approval of conception drawings. However he is not authorized to sign on Lease Agreement/Contract, cheques on my behalf also he not taking any loan, therefrom this Power of Attorney is only confined for DHA Cricket Stadium, Khayaban-eRahat, Phase VI, DHA Karachi.
(2) Approve and to present for approval to all the relevant authorities the plans of the proposed construction, modifications, alterations and complete thereto and to secure approval and sanction of the relevant authorities for the same.
(3) To serve, send, receive and accept all notices and communications from all sources in respect of the said plot of land with or without building thereof and to send or ignore to send replies to them and/ or expedient by my said Attorney. This includes the power to receive notices of completion of the proposed building on the said plot and to respond or ignore to respond to the terms thereof in sole discretion and without any reference to me.
' AND GENERALLY TO PERFORM AND EXECUTE ALL the lawful deeds, acts and things which my said attorney may do in respect of the said property in matters and things referred to above and for the purpose specified therein by virtue and on the strength of these presents.
'IN WITNESS WHEREOF I have set and subscribed it on my hand on the 6th day of Jan.
2000."
"(b) FINANCIAL ARRANGEMENTS MODIFICATION AGREEMENT ' THIS AGREEMENT is made on this 27th day January 2000 at Karachi.
'BETWEEN ' THE PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY established under Article 4 of Pakistan Defence Officers Housing Authority Order, 1980, having its Office at 2/B, East Street, Phase-I, Defence Housing Authority, Karachi through its Secretary Col. (Retd.) ATHER ALI KHAN S/O MUKKARAM ALI KHAN (hereinafter called Lessee) of the First Part.
AND ' MR. SYED IMTIAZ H. RIZVI S/O LATE SYED NASEER H. RIZVI holding NIC No,502-88- 713563 ATTORNEY of the sub-Lease, doing business under the name and style of American Consultants INC., at Suit # 302, Aamir Trade Centre, Crossing of Shahrah-e-Qaideen & Tariq Road, P.E.C.H.S, Karachi (hereinafter called the Attorney of the Sub- lessee) which term shall include their respective heirs, successors & assigns of the SECOND PART.
(1) Whereas the Lessee has signed a Lease Agreement with the sublease of DHA Cricket .Stadium located at Khayaban-e-Rahat, Phase-VI,, DHA, Karachi comprising 46976.66 Square Yards of land or thereabout and registered vide registration No,291 MF Roll No,U269192, Book No, 1 dated 2-2-2000 in the office of the Sub-Registrar T-DIV (2A) Karachi;
(2) AND, WHEREAS it had been agreed in an undertaking by the sub-leasee that the sub-lessee would pay additional sum of Rs,2,100,000 (Rupees Two Million One Hundred Thousand Only) to the Lessee with each lease Payment for seven consecutive arrangements thus making a total sum of Rs,14,700,000 (Rupees Fourteen Million and Seven Hundred Thousand only). And whereas this undertaking takes care of the medications made in the Lease Agreement for the convenience of making financial arrangements.
(3) AND, WHEREAS the financial arrangements have been made by the sub-lessee in a way that the seven consecutive additional six monthly payments of Rs,2,100,000 each (making a total of Rs,14,700,000) would be received by the Lessee direct from the sublessee, the lessee undertakes to reimburse all such payments on encashment without any undue delay to Messrs American Consultants INC., through crossed cheques/pay order against Bank Guarantee from a scheduled Bank which will be released proportionate to the amount received from Messrs American Consultant INC. All expenses on account of transfer of these amount will be chargeable to Messrs American Consultants INC., and Lessee in no way will be responsible for any liabilities on this behalf.
Messrs American Consultants INC, undertake to indemnify the lessee from any other liabilities/charges created against such payment received by the lessee on its behalf incidental to any other reasons. And whereas Messrs American Consultants INC., agree to make payments to the lessee in lieu of the above arrangement in the following manner:---
(i) From the beginning of 4th year of signing of the lease Agreement, dated 2 January, 2000 till the end of 10th year, 900,000 every six month (i.e, Cad Rs,150,000 p.m.)
(ii) From the beginning of 11th year, till the end of 20th year, Rs,1,350,000 every six months (i.e, @ Rs,225,000 p.m.)
(iii) From the beginning of 21st year till the end of 30th year, Rs,2,025,000 every six months (i.e, Rs,337,500 P.m.)
(4) In case of any delayed payments regardless of the delay period a surcharge @ 15% p. a. Would be payable along with payment to be made vide para 3 i, ii and iii ante. Payment schedule is attached as Annexure "A".
(5) Any failure to make payments to the lessee as agreed in this modified agreement will invoke the relevant clauses of the lease agreement dated 2 January 2000.
'In Witness Whereof the parties hereto have set subscribed their respective hands on the date first above mentioned.
(Sd.)(Sd.)
Signed And Delivered Signed And Delivered On Behalf of On Behalf of Lessee American ConsultantAuthorized.
INC. Authorized.
In Presence ofIn Presence of (Sd.)(Sd.)
SaifuddinLt. Col. (R.)
561-91-024305Muhammad Azam Khan, Law Officer Pakistan Defence Officers Housing Authority, Karachi."
"(c) August 17, 2002 Mr. Abdul Wahab Cricket Center Pakistan Cricket Stadium DHA Phase VI, Karachi.
' Sub: FINANCIAL ARRANGEMENT MODIFICATION AGREEMENT AND ITS REVOCATION Dear Mr. Wahab: ' This letter is to reiterate my personal assurance KEEPING THE ALMIGHTY "ALLAH IN PRESENCE that the modification agreement was done in the best interest of the Project, because DHA had refused to proceed for the lease Deed without this agreement.
' I managed not to get this agreement executed, although it took me a little while but with the help of Almighty "Allah" I have managed to get the above mentioned agreement revoked, thus your ownership document, i.e, Lease Deed agreement stands absolutely clean.
' Sir, I admit the mistake of not informing you about this, for which I regret it personally.
' I pray the Almighty Allah for the timely completion of the project and its successful operation under your ownership and management. With your permission, I would like to be proud of the successful efforts I made under your guidance in getting the Lease Deed registered for one of the best upcoming Club in Pakistan.
' Thank you very much. Very truly yours, (Sd.)
' Syed Imtiaz H. Rizvi"
14. From bare perusal of contents of above documents it appears that power of plaintiff was limited to those only mentioned therein specifically in Paras 2 and 3 of General Power of Attorney. The FAMA dated 27-1-2000 has been examined by me at typed page-4 it can be seen that the plaintiff has "signed and delivered on behalf of American Consultant Inc. On 2 January 2000" in presence of the two witnesses namely Saifuddin 516-910024305 and Lt. Col. (R) Muhammad Azam Khan, Law Officer DHA, Karachi while on page-1 on stamp paper it has been mentioned that the said agreement was executed on 27-1- 2000 between DHA and plaintiff as attorney of sub-lessee (i.e, defendant). On bare reading the contents of FAMA dated 27-1-2000, whereby the sums paid to the DHA by defendant pursuant to his undertaking were to be repaid by DHA to plaintiff, as and when the instalments payable thereunder are received by DHA from defendant. The said FAMA also went on to charge the plaintiff with a liability to refund to the DHA the amount covered by the undertaking by paying Rs,900,000 every six months with effect from 4th year of signing of lease agreement, at the rate of Rs,150,000 per month till the end of 10th year of the lease and thereafter from the beginning of the 11th year till the end of 20th year, Rs,1,35,000 every six months at the rate of Rs,225,000 per month. Again from beginning of 21st year till the end of 30th year a sum of Rs,2,025,000 was payable every six months at the rate of Rs,337,000 per month. Another feature of this FAMA appears to be that any failure to make payment to lessee DHA as agreed therein entitle DHA to invoke the relevant clauses of lease agreement.
15. I am of the opinion that execution of the said aforesaid FAMA was wholly beyond the powers of plaintiff as attorney of defendant. He exceeded the powers given to him under the power of attorney dated 6-1-2000. Furthermore, the plaintiff A admitted that the contents of his letter dated 17-8-2002 and he has admitted that he approached the DHA to reimburse Rs,1,47,000 (Rupees One Crore Forty Seven Lacs Only) in his favour without delay which has been deposited by the defendant. Under FAMAs dated 27-1-2000 and 4-2-2000. It is settled principle of law that where an act purporting to be done under a power of attorney is challenged as being in excess of authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument, the authority in question is to be found within the four corners of the instrument either in express terms or by necessary implication. The limit of 'necessary implication' are indicated by section 188 of Contract Act, 1872. Reference is invited to Paboodan Goolabchand v. M.J.V. Miller and another (AIR 1938 Madras 966).
16. In Gopi Chand and others v. Pohlaj Rai and others (PLD 1992 Quetta 30) it has been held that if a principal confers his authority on a person as his agent, the agent can act only within the compass of the A authority so conferred on him under the power of attorney. However, if such power is challenged it will be the function of the Court to see on a fair construction of the whole instrument, the authority in question either in express words or by necessary implication. In the instant case the defendant has not given the power to execute and sign FAMA, dated 27-1-2000 and 4-2-2000.
17. Mr. Shoukat Hayat learned counsel for the defendant has relied upon the case of Muhammad Ali Rizvi Khan v. Muhammad All Zaki Khan and others 2007 MLD 54 wherein a learned Single Judge of this Court has held that power of attorney can be revoked by communication to the attorney through any mode and does not require on stamp paper a formal document as deed of cancellation. He has also relied upon the case of Muhammad Hussain v. Bashir Ahmed and others (PLD 1987 Lahore 392) wherein it has been held that Rule 2 of Order III of the C.P.C. Permits the performance of act on behalf of the parties by their recognized agent and they are specified to be, among others. Therefore, to sustain an act done by one person on behalf of others, a specific power to do such an act on his behalf has to be established. Sections 226 and 227 of the Contract Act and section 2 of the Power of Attorney Act, VII of 1892 also referred and it has been held that a power of attorney hold to confer only those powers as are specified therein so that the agent can neither go beyond the terms of power of attorney nor deviate therefrom.
18. From perusal of record it reveals that in para 1 of the General Power of Attorney executed by the defendant on 6-1-2000 in favour of plaintiff, the plaintiff was specifically not authorized to sign any lease agreement/contract, receipt of cheques or for loan etc. On discovery that plaintiff entered into the FAMAs dated 27-1-2000 and 4-2-2000 with DHA without a valid authority, unlawfully and without the knowledge and consent of the defendant, he immediately revoked the General Power of Attorney dated 6-1-2000 vide deed of revocation dated 26-8-2000, and duly intimated to DHA vide his letter dated 26-8-2000. The plaintiff had filed suit No,127/2004 against the defendant and DHA in which he has inter alia claimed restoration of General Power of attorney. The said suit has been dismissed. The plaintiff has miserably failed to perform work assigned to him as mentioned in General Power of Attorney dated 6-1-2000. The plaintiff services were acquired being B the Engineer/Architect and designer of the building structure for sports complex in premises of DHA Cricket Stadium. The plaintiff has to submit drawings, plans, amendment before the relevant authorities B of DHA and others for approval and sanction within six months of signing the sub- lease, but the plaintiff has not performed any task/work assigned in paras. 1 to 3 of General Power of Attorney dated 6-1-2000 till August 2000, and delayed the project, as such caused huge financial loss to the defendant. The plaintiff remained out of country as well. On the other hand plaintiff without any permission or lawful authority executed the above-mentioned FAMAs against the interest of defendant. It is pertinent to mention that on 17-8-2002 the plaintiff in supra letter written to the defendant and admitted his illegal act and disclosed that FAMA was done as DHA refused to proceed for the lease deed without agreement and further admitted that sir, I admit the mistake of not informing defendant about this for which he regret personally. The plaintiff in his cross-examination admitted the letter, but denied the above line written by him, which shows the guilty mind of the plaintiff.
19. The defendant also produced Col. (R.) Suleman Ahmed Abid as witness who is Chief Executive of Messrs A & D Associates, Karachi and rendering the services to the defendant being the Project Manager & Consultant of DHA Cricket Stadium Phase VI Karachi. He has produced his affidavit-in- evidence. He supported the defendant's contention that after failure to render services against payable post-dated cheque amount on the part of the plaintiff, the project was over delayed and financially over burdened, therefore, under the compelling circumstances after revocation of power of attorney of the plaintiff new contractors were engaged to complete the project vide agreement with Messrs Consultant Associates dated 20-9-2001, with Messrs A & D Associates dated 6-10-2001 and Messrs Sem Engineers dated 20-12-2001 respectively.
20. The plaintiff has failed to produce any document, drawing, plan, design and its approval in evidence with regard to the construction of Sports Club of DHA Cricket Stadium to show performance of C work/function assigned in General Power of Attorney dated 6-1-2000 till the day of revocation of General Power of Attorney dated 28-8-2000. He has also not produced any copy of his International scheme prepared by him and presented to DHA for redevelopment of the stadium in support of his claim and any minutes of meeting with DHA and intimation to defendant being the part of his services allegedly performed by him. The plaintiff has not given evidence with regard to alleged consultancy, its nature and time support of its claim.
21. Mr. S. Zaki Muhammad learned counsel for the plaintiff attempted to argue that on account of successful continued negotiation for an year by the plaintiff on the basis of authority letter dated 10-4-1998 and 23-4-1999 (Exh. P . W .1/4 and P.W.1/5), the best results were achieved as much as the outcome of the plaintiff's expertise and negotiations with DHA following advantage were granted to the defendant:--
(a) That sub-lease dated 2-2-2000 was executed by the DHA in favour of defendant. The plaintiff signed the same as witness.
(b) The rate was decreased from Rs,5000 per square yards to Rs,1700 per square yards giving great financial advantage to the defendant who had to pay Rs .7 , 98,60,322 instead of Rs,23,48,85,000, which saved the amount of Rs,15,50,24,678 to him towards costs (Exh.D/4).
(c) The lease was enhanced from tenure of 10 years to 30 years followed by two more periods of 30 years each (Exh.D/4)
(d) 10% commercial area was allowed to the defendant without any extra payment (Exh.D/4).
(e) The defendant was given full liberty to transfer the sub-lease as per terms of sub-lease to any person and was allowed to avail the advantages (Exh.D/4).
(f) On 10% Commercial area the defendant was allowed all commercial activities and social events to his advantage and earn heavy profit on the same.
22. Mr. Shoukat Hayat learned counsel for defendant controverted the arguments of Mr. S. Zaki Muhammad and submits that the plaintiff has filed other suit bearing No,127/2004 in this Court (which has been dismissed) against the defendant and the DHA, Suit for declaration, compensation and restoration of power of attorney dated 6-1-2000 on non-payment of.
Rs,1,47,00,000 to the plaintiff against DHA under terms of unlawful and unauthorized FAMAs dated 27-1-2000 and 4-2-2000. The DHA in its written statement has totally denied the contents of paras.
2, 6, 7, 8, 9, 10, 13 & 14 respectively of the plaint of the suit, stating that the plaintiff has never took pain and agony to prepare an International level scheme of the redevelopment of stadium and presented to Board of Director of DHA and the sublease dated 2-1-2000 prepared by him. He submits that the plaintiff also claimed to be very influential person to deal with DHA and capable to acquire land and lease out the same for 99 years period on very lucrative terms. Thereafter plaintiff was authorized to discuss with DHA to get plot of land and lease for 99 years period on favourable terms as such two letters dated 10-4-1998 and 23-4-1999 were issued Exhs . P. W. 1/4 and P. W. 1/5 respectively. He asserted that the plaintiff was soon proved ineffective, as DHA had flatly refused to discuss him on any plot of land and more particularly the DHA Cricket Stadium for onward lease for 99 years, therefore, the plaintiff had not performed any work for defendant against the above said authorization. The plaintiff thereafter never discussed the issue of plot and lease of 99 year as such the chapter was closed with the plaintiff. He further contended that on 18-9-1999 DHA Karachi published an advertisement for invitation in Daily `Dawn' to offer for rental/lease of DHA Cricket Stadium for a period of 30 years with condition enumerated in the publication. On defendant's offer to further lease the property in favour of defendant and settlement of terms with DHA, finally executed the sub-lease deed dated 2-2-2000 for 30 years period extendable by two more terms by revoking and cancellation of tenancy agreement dated 3-7-1991 which had been shown part of sub-lease deed as Annexure . All efforts were made by the defendant himself.
23. It is well settled principle of law that where plaintiff had failed to prove that suit amount was due to him from defendant D such suit merit dismissal. The defendant in his evidence clearly stated that the plaintiff's claim completely false. I have in earlier part of judgment has held that plaintiff has exceeded the powers given to him under the power of attorney dated 27-1-2000 and 4-2-2000 without permission and without authority on behalf of defendant. From the evidence on record it has been established that the plaintiff has failed to perform functions assigned to him by the defendant in General Power of Attorney, dated 6-1-2000, therefore, the defendant revoked the same vide Revocation Deed dated 26-8-2000 and intimated to all concerned including the plaintiff and also stopped payment of post dated cheque dated 1-2-2001 and suit of plaintiff was also dismissed. It is established that the defendant has not issued post dated cheque dated 1-2-2001 to the plaintiff against any part payment of his consultancy fee and same was not encashed. The said cheque of Rs,5 million was delivered to plaintiff by defendant in consideration of his job but plaintiff miserably failed to perform his assigned work, contrary to that he misused his authority acted against the interest of defendant. In my opinion under the facts and circumstances of the case plaintiff is not entitled to receive the sum of Rs,5 Million as he has not completed his assigned work.
24. I am, therefore, satisfied that the plaintiff has failed to prove that the suit amount is due to him from the defendant. I, therefore, dismiss the plaintiff's suit. However, the costs of the suit shall be borne by the parties in view of the special circumstances of the case.