' AMIR HANI MUSLIM, J.---Through these proceedings the plaintiff seek following relief against the defendants:--
(a) To declare that the plaintiff is lawful exclusive owner of plot bearing No,E-123, Block-7, Gulshan- e-Iqbal Karachi, measuring 1800 sq. Yds., from defendant No,2, through registered General Power of sub-Attorney vide registration No,3888, Block No,IV, Sub-Registrar T-Divison Gadap Town Karachi, dated 5-11-2008 MFU No,88939-5514, dated 26-11-2008.
(b) To direct the defendants Nos.3 and 4 to produce the document in respect of plot bearing No, E- 123, Block-7, Gulshan-elqbal, Karachi, on the basis of these fake documents the defendant No,3 availed the facility of finance from the defendant No,4.
(c) To declare that the documents of plot bearing No,D-123, Block 7, Gulshan-e-Iqbal, Karachi, obtained by the Defendant No,3 with the connivance and collusion of defendants Nos. 1, 2, 4 and 5 are fake and bogus as such treated as cancel.
(d) To pass a judgment and decree in favour of the plaintiff and against the defendants thereby directing the defendant No,2 to execute necessary registered Sale Deed in favour of the plaintiff in respect of plot bearing No,E-123, Block-7, Gulshan-e-Iqbal, Karachi, measuring 1800 Sq. Yds., before the concerned Registrar, and in case of failure of defendant No,2 to execute the registered sale deed in favour of plaintiff then the Nazir of this Honourable Court may be directed to get register the sale deed in favour of the Plaintiff in respect of suit property before concerned Registrar.
(e) To grant permanent injunction thereby restraining the defendants, their agents, workers, officials, subordinates and or any body else acting through them or on their behalf from selling, gifting, mortgaging, alienating or otherwise transferring the suit plot bearing No,E-123, Block-7, Gulshan-e-Iqbal, Karachi, measuring 1800 Sq. Yds., till final decision of the suit.
(f) Cost of the suit.
(g) Any other relief which this Honourable Court may deem fit and proper under the circumstances of the case.
2. The facts as they appear from the pleadings of the parties are that the plaintiff claims to have purchased the subject land on 8-11-2008 from the defendant No,2 on the basis of registered General Power of Sub-Attorney executed on 8-11-2008 coupled with Sale Agreement dated 5-11- 2008.The plaintiff further claims that the defendant No,1 who was the original owner sold the suit property to the defendant No,2. On 24-6-1984 the sale agreement and on 25-6-1984 an unregistered General Power of Attorney was signed by the defendants Nos. 1 and 2. The sale consideration of Rs,53,00,000 was paid against a receipt dated 24-6-1984 signed by the defendant No,1. The mode of payment of the sale consideration has not been mentioned.
3. In paragraph No,7 of the plaint, it has been pleaded that on purchase of the suit land, the defendant No,2 had also handed over all the original title documents of the suit property to the plaintiff along with its physical possession. In paragraph No,8 of the Plaint it has been further pleaded that in October, 2008, the defendant No,3 came at the residence of the plaintiff, posing himself as the owner of the suit property and extended threats of dire consequences in case of plaintiff does not vacate the suit property and hand over its possession to them. It has been further pleaded that on 25-11-2008 the defendant No,3 at the instance of defendant No,1 has lodged F.I.R.
Against the plaintiff which was numbered as 630/2008 under sections 448, 506, 34, P.P.C. At Police Station Gulshan-e-Iqbal, Karachi, complaining therein that Muhammad Yahya, Chowkidar of the defendant No,1 was dispossessed by the plaintiff and his men from the suit land. The plaintiff, in this regard, claims to have addressed an undated letter to the DO, Land, CDGK, who in turn has called the defendant No,1 but he did not appear before him.
4. Notices on the Injunction Application were issued and on 11-5-2009 the counsel for the plaintiff has made an Application for urgent hearing, inter alia, on the ground that the defendant No,5 has initiated attachment proceedings. Another Application was also made by the plaintiff seeking direction of personal appearance of the defendant No,
1. On 29-5-2009 the defendant No,1 appeared in person and after hearing the parties at some length the matter was adjourned by this Court dispensing with the attendance of defendant No,1, who was otherwise represented by a Counsel. It was also observed in the order that the parties shall produce the original documents of the suit property in their possession on the next date. On 25-8-2009, again this Court passed a detailed order with direction that the parties shall produce the original documents of the suit land, on which they rely.
5. Copies of counter-affidavit and affidavit-in-Rejoinder were exchanged between the parties and the matter was fixed for hearing of the two Applications filed by the plaintiff. C.M.A. No,4219 of 2009 made by the plaintiff, for procuring attendance of the defendant No,1, which in fact has become infructuous on appearance of the defendant No,1 in Court coupled with the order dated 29-5-2009 passed by this Court and is accordingly dismissed.
6. The learned counsel for the plaintiff has contended that he is a bona fide purchaser and has purchased the property in dispute after making payment of entire sale consideration of Rs,1,20,00,000 (one Crore Twenty Lacs Only) to the defendant No,2. He has contended that this payment was made in cash. According to the learned Counsel for the plaintiff the defendant No,3 has lodged a false F.I.R. Of the incident on 25-11-2008, which allegedly took place on 9-11-2008. His next contention was that the entire amount of sale has been paid, therefore, he is entitled to seek specific performance of the Sale Agreement dated 5-11-2008. He, however, concedes that he was not in possession of the original title documents of the suit property as these documents were never handed over by the defendant No,2 to him. On a question from the Court as to why the plaintiff has made the entire sale consideration without obtaining original documents. The learned counsel could not offer any plausible explanation except that he contended that plaintiff was illiterate, therefore, he could not visualize the importance of procuring the original title document of the suit property from the defendant No,2 on purchase of the suit property.
7. The counsel for the defendant No,2 has contended that defendant No,2 has entered into a sale agreement with defendant No,1 way back on 24-6-1984 and the entire sale consideration of Rs,53,00,000 was paid to the defendant No,1, who in turn has also executed unregistered General Power of Attorney attested by the Judicial Magistrate First Class, Court No, IIIrd, Karachi (East). The learned counsel for the defendant No,2 has, however, conceded that on the date of execution of General Power of Attorney and sale Agreement in favour of the plaintiff, or on any subsequent date the defendant No,2 was not the owner of the suit property by virtue of the documents, which he claims to have been executed by the defendant No,
1. He also specifically conceded that the General Power of Attorney claimed to have been executed by the defendant No,1 in favour of defendant No,2 was unregistered and does not confer title upon the defendant No,2.
8. On the other hand, the learned counsel for the defendant No,1 has contended that the defendant No,1 has never sold the suit property to the defendant No,2 and his signatures appearing on the alleged General Power of Attorney dated 25-6-1986, sale Agreement and receipt dated 24-6-1984 are forged. According to the learned counsel for the defendant No,1, the plaintiff in connivance with the defendant No,2 has unauthorizedly dispossessed him from the suit property. He next contended that the defendant No,1 is a permanent resident of Lahore, the erstwhile KDA has allotted/leased the suit land to him and he is lawful owner. It was further contended that since he was residing in Lahore and could not look after the suit property personally, he has executed the General Power of Attorney in favour of the defendant No,3 to look after his interest in the suit property. The learned counsel for the defendant No,1 has denied that at any point of time the possession of the suit property was ever handed over to the defendant No,2 and/or any other person, including the plaintiff. He submitted that the suit property was in the exclusive possession of the defendant No,1, who has deputed his chowkidar and the plaintiff and his men threw out the chowkidar on 9-11-2008 for which an F.I.R. Was registered. He next contended that as the defendant No,1 has availed finance facility from the defendant No,4 by creating a mortgage, all the original title documents of the suit property were with the defendant No,4 on the date when the alleged sale Agreement and Power of Attorney were executed by the defendant No,2 and the plaintiff. He further contended that the Director, Land Management CDGK, has also verified the original title documents of the defendant No,1 and has addressed a letter to Sub-Inspector of Police, Gulshan-e-Iqbal police station, on 7-3- 2009 stating therein that the defendant No,1 is the actual owner and the suit property was mortgaged with the defendant No,4. According to the learned counsel for the defendant No,1, the suit is misconceived and is liable to be dismissed, being based on bogus documents besides prayers made in the suit could not be granted on account of the inherent defects in it.
9. I have heard the learned counsel for the parties and have perused the record. Neither the plaintiff nor the defendant No,2 has produced original title documents of the suit property before this Court in terms of the orders passed on 29-5-2009 and 25-8-2009 for which the Counsel for the plaintiff and defendant No,2 could not offer any plausible explanation. They submitted that the plaintiff and defendant No,2 were never in possession of the original title documents of the suit property. Even these parties have not produced the original documents, which they claim to have been signed either by the plaintiff or defendant No,1 or defendant No,2. The orders dated 19-5-2009 and 25-8-2009 were passed by this Court in terms of Order X, C.P.C. As against this, the learned counsel for the defendant No,4, however, has produced the following original documents in Court, which were seen and returned:--
(1) Indenture of lease between KDA and Mr. Khalid Bashir Reg. No,125 dated 10-9-1980.
(2) Search Certificate (App. No,1530) dated 7-9-2000.
(3) Search Certificate(App. No,389) dated 9-9-2000.
(4) Site plan of the property.
(5) Acknowledgement of possession bearing No,KDA/Land/Govt./ E-123/7/3383, dated 9-9-1971.
(6) Appraisement/valuation of property at E-123, Block-7, KDA Scheme No,24, Gulshan-e-Iqbal, Karachi dated 16-11-1994.
(7) Possession order No, KDA/Land/Govt./E-123/7/3382 dated 10-8-1971.
(8) Allotment order No, KDA/Land/Gul./E-123/17/3022 dated 19-5-1971.
(9) Acknowledgement of possession No, KDA/Land/Gul/E-123/7/ 3382 dated 9-9-1971?
(10) Memorandum confirming deposit of title deeds dated 31-8-2000 executed by Mr. Khalid Bashir in favour of Soneri Bank Ltd.
(11) Challan No, 5695/398 dated 4-12-1989 deposited in HBL on 9-1-1990.
(12) Letter of KDA dated 23-12-1989 bearing No,KDA/L&E/Gul./E123/BL -7/89/3131 dated 23-12-1989.
(13) Challan No,35103 dated 26-11-1987.
(14) Last and final notice issued by KDA to Mr. Khalid Bashir A bearing No,KDA/E-123/89/123 dated 6- 10-1987.
(15) Receipt dated 14-4-1985 in respect of payment received by chowkidar of the plot from Mr. Khalid Bashir (two receipts).
10. In view of the aforesaid reasons, I am of the view that the present suit was not maintainable. The learned counsel for the plaintiff provisions of sections 22 and 25(a) of the Specific Relief Act, 1877, as was asked to show as to how the suit is maintainable in view of the B the defendant No,2 could not enter into a sale agreement with the defendant No,1 nor could he convey the title to the plaintiff as the defendant No,2 was neither the owner of the suit property nor had any authority in law to execute General Power of Attorney. A suit under Specific Relief Act is in the nature of discretionary remedy and a party cannot seek such discretionary relief as a matter of right unless it is shown that it has approached the Court with clean hands. In the case in hand, the plaintiff claims that he has purchased the suit property from the defendant No,2 who is admittedly neither the owner of the property nor has, in law, any authority either to execute sale agreement or to execute D General Power of Attorney. The documents on the basis of Which the defendant No,2 claims ownership of the suit property are the Sale Agreement dated 24-6-1984, unregistered Power of Attorney dated 25-6-1984 and a receipt of Rs,53,00,000 signed by the Defendant No,l.
11. I have examined the original title documents produced by the defendant No,4, which are in their possession as security owing to the loan facility availed by the defendant No, 1 . The sale agreement, receipt dated 24-6-1984 and the unregistered General Power of Attorney dated 25-6- 1984, which were claimed to have been executed/signed by the defendant No,1 in favour of the defendant No,2, ex facie, are forged documents. In the first place, there is no document authorizing the defendant No,2 to convey and/or sale the suit property to the plaintiff or can claim ownership of the suit property. What is interesting is that the copy of unregistered General Power of Attorney dated 25-6-1984, which runs into three pages and the original of which has not been produced by the plaintiff, has two round seals on each page. One round seal is of the Judicial Magistrate First Class, Court No,III, Karachi (East) and the other round seal is of Sub-Registrar, Gadap Town, Karachi.
It is claimed that the Judicial Magistrate First Class, Court No,III, Karachi (East) has attested the unregistered General Power of Attorney on 25-6-1984.Vide Notification No,V(2)S0J/85, dated 1-7- 1985 the Judicial District, Karachi was bifurcated into three new Judicial Districts, namely Karachi (South), Karachi (East) and Karachi (West). Moreover, in 1984 there was no Court of Judicial Magistrate in entire Province. In fact, the appointments of Judicial Magistrates were made for the first time in April, 1992, after the pronouncement of the Judgment of the Honourable Supreme Court of Pakistan in the case of Government of Sindh v. Sharaf Faridi reported in PLD 1994 SC 105 whereby the Honourable Supreme Court has separated the Judiciary from the Executive. In view of this position, which is matter of record, and of which this Court has taken judicial notice, the attesting signature of the Judicial Magistrate First Class, Court No,III, Karachi (East), on unregistered Power of Attorney claimed to have been signed by the defendant No,1 in favour of defendant No,2, was a fabricated document as there was neither Judicial District, Karachi (East) nor the Court of Judicial Magistrate in 1984, when it was claimed to have been attested by him.
12. Additionally, I have also compared the signatures of the defendant No,1 appearing on the sale agreement dated 24-6-1984, unregistered Power of Attorney dated 25-6-1984 and receipt dated 24-6-1985, which are completely different than the admitted signatures, which appear on the counter-affidavit, vakalatnama and letter dated 16-2-2009, which he has addressed to DDO, CDGK.
In the face of this material the plaintiff has no case. The documents produced and relied upon by the plaintiff are ex-facie bogus for the aforesaid reasons. The defendant No,2 has neither perfected his title nor had the authority, in law, to enter into sale transaction of the suit property with the plaintiff. In the given circumstances, sections 22 and 25 of the Specific Relief Act clearly debar the plaintiff from seeking any of the relief claimed by. The plaintiff in these proceedings. In the case of S.M. Shafi Ahmed Zaidi v. Hassan Ali Khan reported in 2002 SCM R 338 the Honourable Supreme Court has held that "It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes." Following the dicta laid down by the Honourable Supreme Court of Pakistan in the aforesaid case, this Court under its inherent jurisdiction has the power to dismiss such a suit for the reason stated herein-above. I accordingly dismiss the suit with the listed application.
' Above are the reasons for my short order passed on 26-1-2010.