' CH. SHAHID SAEED, J.---Through this civil revision, the petitioner assails the judgment dated 23-5- 2008 passed by learned Additional District Judge, Lahore who dismissed the appeal of the petitioner and upheld the order dated 23-7-2007 passed by learned trial court whereby the plaint of the petitioner was rejected under Order VII, Rule 11, C.P.C.
2. Briefly stated the facts of the case are that the petitioner filed a suit for specific performance of agreement to sell and declaration with consequential relief regarding Plot No,36, Block-1, Sector C-I, Township Scheme, Lahore. It was averred in the plaint that the said plot was originally allotted to one Syed Ajmal Hussain deceased (predecessor of defendants Nos.1 to 10). On 8-12-1975, Ajmal Hussain executed a general power of attorney in favour of defendant No,11 Syeda Shareen Qaisar Bokhari and also registered agreement to sell in favour of defendant No,12 Salim Qaiser, the payment was made and the possession was also delivered. Defendants Nos.11 and 12 are mother and son. Syeda Shareen Qaiser, alleged attorney, through a registered sale-deed No,198, dated 12- 1-1982 sold the disputed plot to defendant No,14 and also executed a special power of attorney in favour of defendant No,13. It has also been asserted in the plaint that the petitioner-plaintiff has purchased the plot from defendant No,14 vide agreement to sell dated 25-4-1987 through defendant No,13, alleged special power of attorney. The plaintiff further avers that he has paid the consideration amount vide receipt dated 26-4-1987 and the possession of the property has also been handed over to him, therefore, he be declared lawful owner of the demised property. It is worthy to note here that the original allottee Syed Ajmal Hussain expired on 8-9-1976, just after one year of the agreement in favour of defendant No,12 and general power of attorney in favour of defendant No,11. During the lifetime of Syed Ajmal Hussain, no legal proceedings were initiated about the alleged sale agreement whereas defendant No,11 executed special power of attorney in favour of defendant No,13 after about seven years of death of the principal Ajmal Hussain.
3. The suit was contested by the respondents. During the pendency of the suit, respondents Nos.1 to 10 filed an application under Order VII, Rule 11, C.P.C. Contending that predecessor-in-interest of the respondents Nos.1 to 10 namely Ajmal Hussain is not bound by any agreement executed by respondent No,11, therefore, the suit is barred by law. After hearing the parties, the learned trial court proceeded to allow the said application and rejected the plaint under Order VII, Rule 11, C.P.C.
Feeling aggrieved, the petitioner filed an appeal which was dismissed by the learned appellate court vide judgment dated 23-5-2008. Hence this civil revision.
4. Learned counsel for the petitioner submits that both the learned courts below have rejected the plaint of the petitioner only on the ground that with the death of the original allottee/principal, the general power of attorney executed by him in favour of defendant No,11 has also ceased to exist, therefore, subsequent power of attorney and agreement to sell carry no weight. Learned counsel inter alia contends that the learned courts below have misinterpreted the law as where an agent has himself interest in property, which formed subject-matter of agency, such agency, in absence of any express contract, could not be terminated to the prejudice of such interest and would become irrevocable, as provided in section 202 of the Contract Act, 1872. He avers that the learned courts below have fallen in error while passing the impugned judgment/order, therefore, the civil revision in hand be allowed, the impugned judgment/order be set aside and the suit of the petitioner be decided by the learned trial court on merit.
5. On the other hand, learned counsel for the respondents vehemently oppose this civil revision and fully support the impugned judgment/order. They are of the view that the powers, whatsoever, delegated by the principal will automatically lapse on his death, therefore, the civil revision having no substance merits dismissal.
6. Despite repeated calls, none is present on behalf of respondents Nos. 11 to 16, as such, they are proceeded against ex parte.
7. Arguments heard. Record perused.
8. The sole question put before this Court through the instant case is whether the general power of attorney executed by the principal in favour of defendant No,11 still exists after his death or not and whether defendant No,11, after death of the principal was entitled to further execute a special power of attorney in favour of defendant No,13.
9. There is no denial that predecessor-in-interest of defendants Nos.1 to 10 Syed Ajmal Hussain, the original allottee of the disputed land, sold the suit property to defendant No,12 vide registered agreement to sell dated 8-12-1975. On the same day, he also executed a registered general power of attorney in favour of defendant No,11 as defendant No,12 was minor at that time. It is also not disputed that the Syed Ajmal Hussain after receipt of consideration amount handed over the possession of the suit property to defenders Nos.11 and 12. However, later on 8-9-1976, Syed Ajmal Hussain expired. After about 5-1/2 years of his death, defendant No,12 sold the property to defendant No,14 through registered sale-deed No,198, dated 12-1-1982 and defendant No,11 also executed a special power of attorney in favour of defendant No,13 who further agreed to sell the property in dispute to the plaintiff vide agreement to sell dated 25-4-1987 and after receipt of consideration amount vide receipt dated 26-4-1987, the possession of the demised property was also handed over to the petitioner-plaintiff. It is worth mentioning that neither legal proceedings were initiated during the lifetime of Syed Ajmal Hussain and also, the sale in favour of defendant No,12 and general of attorney in favour of defendant No, 11 was never challenged by the successors of Syed Ajmal Hussain, which clearly shows that they are well aware of the sale agreement in favour of defendants Nos.11 and 12 and have no concern with the suit property.
10. Section 202 of the Contract Act is of very much relevance in the case in hand which is reproduced below:- "202. Termination of agency where agent has an interest in subject-matter.---Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
11. Bare perusal of the above provision makes it crystal clear that where an interest has created in favour of the agent in the property forming the subject matter of the property, then the agency cannot be terminated as it would prejudice to the interest of the agent. The general power of attorney executed by Syed Ajmal Hussain in favour of defendant No,11 itself mentions that it is irrevocable. Further, it was not mere a general power of attorney but also it was coupled with an agreement to sell which was duly got registered in favour of defendant No,12. Both the documents date the same. It means that Syed Ajmal Hussain, predecessor in interest of defendants Nos.1 to 10, with his free will, sold the disputed property to defendant No,12 and since defendant No,12 was minor, he also executed a general power of attorney in favour of defendant No,11 (mother of defendant No,12). In this view of the matter, the general power of attorney executed in favour of defendant A No,11 by Syed Ajmal Hussain is with interest is thus irrevocable even after his death by virtue of section 202 of the Contract Act, 1872. Further, defendants Nos.11 and 12 have got interest in the suit property which is subject matter of the agency, they are owner of the same and have every right to sell the property in favour of anyone else. In the instant case, she has sold the property to defendant No,14 through registered sale-deed No,198, dated 12-1-1982 alongwith special power of attorney in favour of defendant No,13 who has agreed to sell the property in favour of the petitioner-plaintiff against consideration vide receipt dated 26-4-1987. When defendant No,11 Syeda Shareen Qaiser Bokhari was lawful attorney of the principal and undisputed owner of the property in dispute, then her execution of special power of attorney in favour of defendant No,13 would also be legal and lawful. When the consideration amount was paid by defendant No,11 to the original allottee who executed agreement to sell and also power of attorney in favour of defendants Nos.11 and 12 enabling them to get all rights of the land as and when required. As the plot was allotted to the principal by Housing and Physical Planning Department and such properties are not transferred in ordinary mode until and unless the completion certificates are provided. The original allottee undeniably transferred his rights to defendants Nos.11 and 12 coupled with possession after receipt of consideration amount, so they became owner of the suit property and the petitioner after payment of full consideration amount to subsequent transferee stepped into the shoe of the original allottee. It cannot be inferred that the rights got by first transferee will never be transferred to anyone else. In this perspective, I am of the considered opinion that learned courts below have erred in law while passing the impugned order/judgment. In the given circumstances, the learned trial court was obliged to frame issues, record evidence of the parties and then proceed with the matter in accordance with law. Respectful reliance is placed on the dictums laid down by the Hon'ble Supreme Court of Pakistan in case Mst. Hajran Bibi and others v.
Suleman and others (2003 SCM R 1555).
12. The result of the whole discussion is that the instant civil revision is allowed, the impugned judgment/order are set aside and the case is remanded to the learned trial court with the direction to decide the suit on merit after framing issues and recording of oral as well a documentary evidence to be adduced by the parties. The parties are directed to appear before the learned trial court on 7-1-2012.