' FAROOQ ALI CHANNA , J.---The appellant in this IInd Appeal has called in question the judgment and decree dated 29-10-2010 and 30-10-2010 passed by learned IInd Additional District Judge, Malir Karachi (hereinafter referred as Appellate Court) dismissing the Civil Appeal No, 56 of 2010 (Re: Shakeel v. H. Syed Masroor Ahmed and others) maintaining the judgment and, decree dated 29-4-2010 and 16-5-2010 passed by learned IInd Senior Civil Judge, Malir (hereinafter referred as trial Court) decreeing the Suit No, 6 of 2006 filed by respondent No,1 against the appellant and respondents Nos. 2 to 6.
2. Brief facts of the case are that H. Syed Masroor Ahmed, the respondent No,1, filed a civil suit for declaration, cancellation of Sale Deed dated 19-1-2005, General Power of Attorney dated 20-10- 2004, possession, permanent injunction and the recovery of mesne profit against appellant Shakeel Ahmed and respondents Nos.2 to 6. The respondent No, 1 in his plaint has alleged that he purchased a plot No,8, Sector B, Type 'D', measuring 1023.23 Sq. Yds Ahsanabad Cooperative Housing Society Limited (hereinafter referred as Suit Property). The original lease/ownership documents of suit property were misplaced, such report was lodged with Police Station Ferozabad and publication was made in daily "Jassarat". The respondent No,1 in connection with his job resides in USA therefore he nominated his brother-in-law Waqar Masood Syed as his legally constituted attorney and executed such General Power of Attorney, who on 2-11-2005 visited the suit property and was shocked to see that some persons had occupied the suit property. On enquiry the occupants informed his Attorney that they have purchased the suit property from its owner through his Attorney Saleemuddin, the respondent No,2. It was further case of respondent No,1 that he had not executed General Power of Attorney on 19-1-2005 in favour of Saleemuddin, the respondent No,2 and on the said date he was in USA as such the Power of Attorney was a fake, bogus and forged document and on the basis of said bogus Power of Attorney document the registration sale deed in respect of suit property in favour of appellant Shakeel, will be deemed to be a null and void document having no sanctity in the eye of law.
3. After service the appellant Shakeel made appearance before the trial Court, filed written- statement denying the allegations of respondent No,1 and stated that he has purchased the suit property through Saleemuddin the Attorney of respondent No,1 nominated through Registered General Power of Attorney, against the sale consideration of Rs,10,40,000. The respondents Nos. 2 to 6 were served but did not appear, therefore they were debarred from filing written-statement.
4. From the pleadings the trial Court framed the following issues :- Issue No, 1: Whether the suit of the plaintiff is not maintainable ?
Issue No,2: Whether the defendant No,1 is the bona fide purchaser of the suit property on the basis of the registered General Power of Attorney dated 20th October, 2004, and sale deed vide M.F. Roll No U-12386 dated 18-2-2005, in favour of defendant No,1 ?
Issue No,3: Whether the plaintiff is entitled to the mesne profit from defendant No,1 at the rate of Rs,2000 per month from January 2005 till handing over the possession of the suit property ?
Issue No,4: Whether the plaintiff is entitled to the relief claimed ?
Issue No,5: What should be decree ?
' Both the parties led their respective evidence, the trial Court after hearing the counsel for both the parties decreed the suit of respondent No,1 vide judgment and decree dated 29-4-2010 and dated 16-5-2010 respectively. The appellant assailed the said judgment and decree of the trial Court in Civil Appeal No, 56 of 2010, the same was dismissed vide Judgment and Decree dated 29-10-2010 and 30-10-2010 respectively which are impugned in this IInd Appeal.
5. I have heard Messrs M. Ishaq Ali and Co, for the appellant, Mr. Abdul Sami for the respondent No,1 and perused the record.
6. The trial Court while deciding the issues Nos. 1 and 2 has considered the oral evidence of both the parties and has observed that defendant No 1 (now appellant) has failed to prove that he was bona fide purchaser of suit property on the basis of Registered General Power of Attorney dated 20-10-2004, the. Said General Power of Attorney appeared to be forged document.
The trial Court from the evidence of appellant had drawn the inference that appellant had purchased the property in the month of January, 2004 and got it registered on the basis of General Power of Attorney executed on 20-10-2004 about 9 months after the execution of Registered Sale Deed as such decided the issue No,2 in negative.
7. The Appellate Court has also dismissed the Civil Appeal No, 56 of 2010 in the same line observing that the evidence of the respondent No,1/appellant shows that he purchased the suit property in the month of January, 2004 in the sum of Rs,10,24,000, the said transaction had taken place prior to execution of Power of Attorney in favour of Saleemuddin, the respondent No,2.
8. Both the Courts below have considered, discussed and relied upon the oral evidence of appellant without examining the documents i,e, Registered Power of Attorney executed by H. Syed Masroor Ahmed, respondent No,1 in favour of Saleem ud din and the registered sale deed executed by Saleemuddin as Attorney of respondent No,1 in favour of appellant Shakeel, the said documents were produced by the appellant before the trial Court in his evidence as Exhibit D/1 and D/2. The General Power of Attorney as per the endorsement of Sub-Registrar was registered at Serial No, 865 dated 20-10-2004, the photograph of executant H. Syed Masroor Ahmed is affixed on the General Power of Attorney, whereas the Sale Deed in respect of suit property, as per the endorsement of Sub-Registrar was executed under Register No, 417 dated 25-1-2005 about 3 months after the execution of General Power of Attorney, as such both the Courts below have given preference to the oral evident over the documentary evidence which amounts to miscarriage of justice and violation of Articles 102 and 103 of Qanun-eShahadat, 1984 which relates to exclusion of oral evidence when the terms have been reduced into writing to form a document, oral evidence led to contradict the contents of a document would be inadmissible. Reliance can be placed on a matter reported as (Ali Muhammad v. Ghulam Haider) 2001 CLC 1440.
9. Besides the facts stated hereinabove it would not be out of context to mention that base of the case of H. Syed Masroor Ahmed, respondent No,1 was that the General Power of Attorney executed in favour of Saleemuddin was a fake/forged document and on the date of execution of said Power of Attorney he was not in Pakistan and was in USA as such it was obligatory for trial Court to frame proper issue so as to resolve the controversy regarding the genuiness of Power of Attorney in favour of Saleemuddin and non-avaiability of respondent No,1 in Pakistan, at the time of execution of said Power of Attorney. Both the Courts below have ignored the above legal aspects of requirement to be resolved. Above compelling questions of facts and law, calls for the interference of this Court in 'Ind Appeal. I therefore while exercising the powers conferred upon this Court under section 100, C.P.C. Set aside both the impugned judgments and Decrees passed by learned IInd Additional District Judge, Malir Karachi in Civil Appeal No, 56 of 2010 and learned IInd Senior Civil Judge, Malir Karachi in Civil Suit No, 6 of 2006 and remand the case to the trial Court for deciding the same afresh after framing the additional issue mentioned below:- ADDITIONAL ISSUE ' Whether, General Power of Attorney registered under No,865 Book No IV, Sub-Registrar 'T' Division VIII, Karachi dated 20-10-2004 was a fake/bogus document and whether on the date of execution of said Power of Attorney i,e, 20-10-2004 H. Syed Masroor Ahmed was not in Pakistan?
10. In view of above terms the IInd Appeal is allowed.