1. ' AFTAB AHMED GORAR, J. Through this Civil Revision Application the applicant has challenged the judgment dated 12-1-2011 passed by learned IVth Additional District Judge, Karachi Central whereby he dismissed Civil Appeal No,89/2010 filed by the applicant and upheld Order dated 17-5- 2010 passed by learned 1st Senior Civil Judge, Karachi Central whereby he rejected the plaint under Order VII Rule 11, C.P.C. In Suit No,162/2010 filed by the applicant.
2. ' Precisely the facts of the case are that the applicant filed a civil suit for declaration, cancellation, direction and permanent injunction stating therein that the applicant is the owner and in possession of property being Flat No,B-19, Prince Corner, F.B. Area, Karachi for the last many years having purchased the same from its original owner through sale agreement dated 3-6-2006 and on payment of entire sale consideration, the owner had executed a registered General Power of Attorney dated 3-6-2006 in favour of the applicant. The applicant then executed Sub General Power of Attorney dated 29-10-2007 in favour of respondent No,1 who is his real paternal uncle and handed over all the original documents of the property to him at his request that he would arrange loan from the bank on the basis of these documents. Respondent No,1 also executed an undertaking dated 29-10-2007 in favour of the applicant promising to return all the original title documents in due course. According to the applicant, thereafter respondent No,1 became dishonest and asked the applicant to vacate the suit property. The applicant sent legal notices dated 17-2-2010 and 18-2-2010 to respondent No,1 as well as respondent No,2 warning them not to create third party interest in the property. The applicant also got published public notice dated 18- 2-2010 in the newspaper with regard to cancellation/revocation of the said Sub-Power of Attorney.
3. However, when no positive response was received from the respondent side, the applicant instituted civil suit, as stated above.
4. ' Respondent No,1 instead of filing written statement, moved an application under Order VII Rule 11, C.P.C. For rejection of the plaint on the ground that the suit filed by the applicant was barred by various provisions of law.
5. ' The learned trial court after hearing the parties, rejected the plaint vide order dated 17-5-2010 which was assailed by the applicant in civil appeal which was also dismissed, hence this civil revision application.
6. ' I have heard learned counsel for the parties and have gone through the material available on the record.
7. ' Learned counsel for the applicant contended that the order of the learned trial court as well as the judgment passed by the appellate court are bad in law, illegal and based on conjectures and surmises and violative of principles enunciated by the superior courts; that the learned trial court while rejecting the plaint acted in haste without considering the law on the point. He further contended that in appropriate cases this court under its revisional jurisdiction can interfere even in the concurrent-findings. On this point he relied upon 2006 SCMR 1410 and PLD 2007 Karachi 347. He further contended that even on the ground of misjoinder or non-joinder of necessary parties, plaint cannot be rejected, in support he relied upon 2009 SCMR 1368 and 2004 CLC 782. He lastly contended that the plaint cannot be rejected when controversial question of law is involved or matter requires recording of evidence. He prayed for setting aside of the orders of the courts below.
8. ' Conversely, learned counsel for the respondent No,1 contended that the revision application against the concurrent findings is not maintainable. On this point he relied upon 2002 SCMR 1114 and 2012 CLC 165. He further contended that the suit filed by the applicant was not maintainable as sale agreement by itself does not create any right, title or interest in the property. He submitted that the orders of the two courts below are in accordance with the law and sound and cogent reasons have been assigned for passing the impugned order/ judgment. He prayed for dismissal of the revision application.
9. ' Learned counsel for official respondents while adopting the arguments of learned counsel for respondent No,1, supported the impugned judgments and prayed for dismissal of the revision application.
10. ' From the perusal of the impugned order/judgment, it appears that both the courts below have mainly stressed their findings on the ground that the General Power of Sub-Attorney executed by the applicant in favour of respondent No,1 does not contain condition of cancellation/ revocation of power of sub-attorney, hence the applicant was not competent to revoke/cancel the power and secondly that mere Agreement of sale does not create title in favour of the applicant in respect of the property in question.
11. So far as first ground is concerned, from the bare perusal of General Power of Sub-Attorney, it is apparent that the same is not an "irrevocable" Power of Sub-Attorney and neither in the caption nor in its contents there is any mention that the same is irrevocable . And the principal is not authorized to revoke/cancel the same. On the other hand, clause (5) of the General Power of Attorney executed by the original owner namely Zaki-ur-Rehman in favour of the applicant Hidayat Shah provides that the Attorney viz. The applicant was authorized to appoint Attorneys/Sub- Attorneys and was also authorized to remove any of them at any time. For the sake of convenience the said clause (5) is reproduced as under:- "To appoint any other Agent(s)/ Attorney(s)/ Sub-Attorney(s) of his/her choice with the same power as are conferred on her/him by me or with limited power to whom 1 shall also remain responsible in the same under and to remove any of them at any time as he/she may deem fit and proper."
12. ' In this view of the matter there is no weight in the first ground.
13. As regards the ground that mere agreement of sale does not create title in favour of the applicant in respect of the property in question, there is no cavil to this proposition of law, however, at the same time the two courts below have ignored the important aspect of the case that besides agreement of sale, the applicant also possesses registered General Power of Attorney and that too for consideration in his favour. Needless to emphasize that there is huge difference between a simple General Power of Attorney and a General Power of Attorney for consideration and the latter remains intact even after the death of the principal/executor. See PLD 2011 Karachi 183. Admittedly there' is no dispute regarding the execution of the said General Power of Attorney by the original owner in favour of the applicant and, in fact, it is on the basis of this very General Power of Attorney that respondent No,1 claims to have acquired General Power of Sub-Attorney from the applicant.
14. It is now well settled that while rejecting the plaint under Order VII, Rule 11, C.P.C. The controversial question of facts cannot be resolved and for that purpose the parties are entitle to lead evidence in support of their respective claims. In this case the learned trial court has not been able to show that the suit itself was barred by any law or that it does not show any cause of action. I am of the view that in the peculiar circumstances of this case, without recording evidence of the parties. It will not be possible to properly adjudicate upon the issues involved in the suit.
15. Regarding the plea of respondent No, 1 that the applicant did not implead the original owner in his suit who was a necessary party as such the plaint was rightly rejected, suffice it to say that no civil proceedings in a Court of Law would be defeated due to misjoinder or non-joinder of necessary party. In this context reference may be made to 2009 SCMR 1368 and 2004 CLC 782.
16. ' So far as the plea that this court under its revisional jurisdiction cannot interfere with the concurrent findings of the two courts below is concerned, it may be observed that normally a concurrent finding of fact cannot be interfered in revisional jurisdiction, however, if it is found that the courts below have exercised their jurisdiction not legally and properly or that in arriving at a question or fact, if the Courts below have committed an error of law, which caused grave injustice, then High Court can interfere in revisional jurisdiction. In the instant case, in view of what has been stated in the preceding paragraphs, I am of opinion, that grave injustice would be caused if the applicant is non-suited without recording of evidence keeping in view the peculiar circumstances of the case. If any authority is needed reference can be made to 2006 SCMR 1410 C and PLD 2007 Karachi 347.
17. ' The upshot of above discussion is that, in view of the facts and circumstances of the instant case, it would be appropriate that the case is decided on merits after recording evidence of both the parties. Consequently the impugned judgment and order passed by the appellate court and the trial court respectively are set aside and the case is remanded to the trial court for fresh decision on merits after giving opportunity to both the parties to adduce their respective evidence. It has been pointed out that respondent No,1 has also filed civil suit in respect of the same, transaction being Civil Suit No,752/2011 which is pending, in the court of 1st Senior Civil Judge, Karachi Central. It is directed that both the suits should be consolidated and heard and decided together. The applicant would be at liberty to add any party including the original owner Zaki-urRahman in his suit, if so advised. The Revision Application stands disposed of in the above terms.