1. ' TUFAIL H. EBRAHIM, J.--- The plaintiff has filed this suit for declaration, permanent injunction, cancellation of documents and damages against defendants 1 to 5.
2. ' Brief facts of the case are that plaintiff claims to be lawful owner of open vacant Plot bearing No,17-B, Street No,10, Gulshan-eFaisal Cooperative Housing Society Limited (Bath Island) Karachi (hereinafter referred to as a suit plot). The suit plot having been purchased by the plaintiff from the original allottee Farahat Iqbal Farooqui through sale-deed duly registered with the Sub-Registrar T-Division-II, Karachi at Serial No,5641 pages 137 to 156 Volume 1794 dated 10-9-1978. The plaintiff's claims to be in possession of all the original title documents of the suit plot including Sub-lease Deed. Rectification Deed, Allotment Letter,Possession Letter and Certificate of Demarcation and Challan. The plaintiff vide letter dated 14-9-2004 requested defendant No,4 (Society) for clearance of dues as plaintiff intended to commence construction on the suit plot. In reply defendant No,4 informed the plaintiff defendant No,3 had submitted copy of sale-deed and general power of attorney for the purpose of mutation of the suit plot in the name of defendant No,2. The plaintiff on examination of the said fake, forged documents informed the defendant No,4 and also reported the matter with concerned S.H.O. And F.I.R. No,KYC 286 of 2004 was registered against defendants 1 to 3, for committing fraud or forgery. Thereafter the plaintiff has filed this suit for declaration, permanent injunction cancellation of documents and damages against defendants 1 to 5. The suit against defendants Nos.5(i) to (v) being functionaries of formal defendants was disposed of vide order dated 25-4-2005 on the statement made by the learned counsel of the said defendants that the defendants Nos.5(i) to (v) will follow the decree in letter and spirit as and when passed in respect of other prayer clauses. Defendant No,1 was declared ex parte vide order dated 27-2-2006.
3. Defendants 2 and 3 have filed their respective written statements denying contents of the plaint, defendant No,4 has filed written statement dated 25-2-2008 stating that defendant No,4 will abide by order of this Court. This Court was pleased to adopt the following issues on 4-2-2008:---
(1) Whether the plaintiff is bona fide/rightful owner of the plot No,17-B, Street No,10, Gulshan-e-Faisal Cooperative Housing Society Limited (Bath Island) Karachi, so what effect?
(2) Whether the defendants Nos.1 to 3 prepared fake/forged documents specifically general power of attorney dated 11-5-2004. Sale-deed dated 8-7-2004 and the undertaking with fake signatures of plaintiff in respect of subject property, if so, to what effect?
(3) Whether the plaintiff is entitled to damages/compensation against the defendants Nos.1 to 3 on account of mental torture, agony, if so what effect?
(4) Whether the plaintiff is entitled to all the relief/reliefs claimed in the prayer para?
(5) What should the decree be?
4. ' After settlement of issues, the plaintiff as per the orders of this Court had filed his affidavit-in- evidence on 28-3-2008 and was examined by the counsel on 14-5-2008. None of the counsel for the defendants except for counsel of defendant No,3 had cross-examined the plaintiff. None of the defendants have led any evidence and the side of the defendants was closed on 26-5-2009.
5. Issues Nos.1 and 2.
6. ' Learned counsel for the plaintiff has argued that the plaintiff is the lawful owner of the suit plot and is in possession of all the original title documents in respect of suit property and is also in possession of the suit property. Her name has been duly registered in the record of rights maintained by defendant No,4.
7. ' Learned counsel for the plaintiff has further argued that the General Power of Attorney dated 11-5- 2004 duly registered under Registration No,333 with the Sub-Registrar 'T' Division l'B Karachi is forged and fabricated document allegedly executed by a fake/ impersonated lady in favour of defendant No, 1 . The signatures and pictures of the plaintiff on the alleged power of attorney and on NIC's are fake/forged and are of an unknown/fake lady whose own signatures vary on each document, whereas signatures of the plaintiff are exactly same on the original sale-deed as per her old/new NIC's. ' Learned counsel further submits that photocopy of the alleged identity card of the plaintiff attached to the general power of attorney is not that of plaintiff and the same has been forged and fabricated by defendant Nos.1 to 3. Learned counsel has further argued that forged and fabricated sale-deed has been executed and registered on the basis of forged and fabricated general power of attorney, the fraudulent conduct of defendants is further evident that the sale- deed has been executed on the basis of certified copy of sale-deed in favour of the plaintiff obtained by the defendants from the relevant authority on the basis of fake undertaking and F.I.R.
8. The learned counsel has further argued that the plaintiff has also filed F.I.R. Against the said defendants and criminal Case No,SC-65 of 2006 is pending in the 1st Additional Sessions Judge, Karachi South.
9. ' After hearing the learned counsel of the plaintiff and perusal of the documents/records of this case, I have come to the conclusion that the plaintiff is the true and lawful owner of the suit property. The original documents of the suit property along with the vacant physical possession of the suit property have always been with the plaintiff and the defendants in collusion with each other have prepared the forged and fake documents of the suit property. The contents of the plaintiff in her affidavit in evidence have remained unchallenged and gone unrebutted. It is apparent from the examination of the documents submitted by the plaintiff that the alleged signatures of the plaintiff on the general power of attorney dated 11-5-2004 have been forged and fabricated and the sale-deed dated 8-7-2004 has been obtained through fraudulent means in collusion between defendants Nos.1 and 2 and the same are liable to be cancelled and revoked.
10. Issues Nos.3 and 4.
11. ' Learned counsel for the plaintiff has argued that the plaintiff has been mentally tortured and .Suffered agony and expenses towards the legal proceedings on account of fraud, forgery perpetuated by defendants Nos.1 to 3 jointly and severally and therefore is entitled for damages compensation to the tune of Rs,50,00,000. The learned counsel for the plaintiff has argued that criminal proceedings are pending before the 1st Additional Sessions Judge, Karachi South being Case No,S.C.65/2006 and defendants 1 to 3 had filed Criminal Petitions Nos.31-K of 2005 and No,32- K of 2005 before the honourable Supreme Court for bail before arrest but the said petitions were dismissed on 29-4-2005. The plaintiff has not filed any proof or any other document in support of her claim of mental torture, agony and expenses towards the legal proceedings, however the learned counsel has submitted that the affidavit in evidence filed by the plaintiff which has gone unrebutted and unchallenged may be considered as affidavit and ex parte proof and the plaintiff should be granted damages/compensation to the tune of Rs,50,00,000. The learned counsel has argued that this Court is fully competent to grant damages/ compensation considering the facts and circumstances of the case and is not restricted by the provisions of sections 73 and 74 of the Contract Act of 1872 as there is no privity of contract between the parties and this case is of forgery with the intent to fraudulently deprive the plaintiff from her property.
12. ' After hearing the learned counsel of the plaintiff and perusal of the documents I have come to the conclusion that the evidence as to claim of damages/compensation is not conclusive and the plaintiff did not lead any evidence as to actual loss suffered by the plaintiff; however, the plaintiff has fully established that forgery with the intent to fraudulently deprive the plaintiff from her property had been committed by defendant No,1 and defendant No,2 and there was some act of collusion by defendant No,3 and further they should be punished for their illegal acts, failing which they would be encouraged to other unlawful activities in future. It is also evident that in the given circumstances the plaintiff would have suffered shock and mentally aggrieved on coming to know about the alleged fraudulent transfer of her valuable property through forgery and sham documents. The plaintiff must have suffered financial losses and damages as the plaintiff was not able to use and enjoy her property and must have lost several lucrative opportunities to sell her property during boom economic periods in addition to the legal costs and expenses for pursuing legal cases against the defendants.
13. ' In such circumstances as aforesaid the suit of the plaintiff is decreed with costs in favour of the plaintiff to the extent that (a) the plaintiff is the lawful owner of the suit property (b) the general power of attorney dated 11-5-2004 and sale-deed dated 8-7-2004 are forged and fabricated documents and the same are hereby cancelled and revoked, (c) defendant No,1 is liable to pay a sum of Rs,15,00,000 as damages/ compensation to the plaintiff for committing forgery and preparing fake power of attorney and sale-deed with the intent to fraudulently depriving the plaintiff from her property, (d) defendant No,2 is liable to pay a sum of Rs,10,00,000 as damages/compensation to the plaintiff for committing forgery and/or preparing fake power of attorney and sale-deed with the intent to fraudulently depriving the plaintiff from her property, and
(e) defendant No,3 is liable to pay a sum of Rs,2,50,000 as damages/ compensation to the plaintiff for colluding with defendants Nos.1 and 2 and submitting application for mutation/transfer on the basis of forged document with the intent to fraudulently depriving the plaintiff from her property. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.