SHAHNAWAZ TAM, J.--- Through the captioned Constitution petition, petitioner M/s Muhammad Muqeem Sohail Builder and Developers through its Managing Partner Muhammad Muqeem has impugned judgment dated 27.09.2012,passed in Civil Revision application No.21 of 2010, passed by the Court of learned Additional District Judge, Kotri, and order dated 24.09.2010, passed by the Court of Senior Civil Judge, Kotri, in Suit No.28 of 2009. Petitioner has sought the following reliefs:-- "(a) To declare that order passed by the learned Senior Civil Judge, Kotri is illegal null and vide against the principle of natural justice and facts while dismissing application under Order VII Rule 11 C.P.C.
(b) To declare that judgment dated 27.09,2012 while up holding order dated 24.09.2010 is illegal and against the natural justice and facts.
(c) To declare that power of attorney on behalf of deceased person is no value under the law.
(d) Cost be borne.
(e) Any other relief(s), which this Hon'ble Court deems fit andproper be granted in favour of petitioner."
2. Relevant facts narrated in instant petition are that respondents Nos.1 to 3 filed F.C. Suit No.28 of 2009, against petitioner and 50 others, for declaration, dissolution of partnership, cancellation of sale deeds, injunction, partition of property and restoration of property, narrating that late Abdul Ghafoor Bhatti and his family had entered into partnership with petitioner and 4 others, and partnership deed was registered with Registrar of Firms, Hyderabad vide Registration No.22183 on 04.02.2002, for carrying out business under the name and style of M/s M. Muqeem Sohail Builders and Developers (herein after referred as "the firm"). Respondents Nos. 1 to 3 were partners to the extent of 45% share in the said firm and petitioner was nominated as the Managing Partner to look after the affairs of the firm. The said firm purchased 79 residential plots situated in Arbab Jan Muhammad Town Housing Scheme, Kotri, from R.S.No.265 (part) and 267 (part) at Kotri Jageer, Taluka Kotri, District Jamshoro, from one Abdul Khalique Shaikh through registered sale deed No.74, dated 04.02.2003, in favour of the said firm, which was totally financed by late Abdul Ghafoor and other, and such entry was kept in concerned Revenue record was mutated vide entry No.284 in the name of firm through its Managing Partner. It is further stated that initially, power of attorney was executed in favour of respondent No.1 by late Abdul Ghafoor, Mst. Faiz Batool, Muhammad Rashid, late Muhammad Nasir and Muhammad Anwar, but subsequently Abdul Ghafoor Bhatti died in the year 2005 and Muhammad Anwar revoked the power of attorney executed in favour of respondent's attorney.
' Afterwards, power of attorney was executed by Mst. Faiz Batool, Muhammad Nasir and Muhammad Rashid in favour of respondent No.1, Shamsher Ali and they followed F.C. Suit No.74 of 2004, filed by late Abdul Ghafoor against petitioner, but plaint of the said Suit was rejected by the trial Court. Respondents filed Suit No.32 of 2005, which was also rejected by the trial Court.
Respondents approached the Revenue Authorities and transaction in entry No.284 was stayed by District Officer (Revenue), Jamshoro. It is also averred that petitioner filed Suit No.16 of 2007, against the order passed by District Officer (Revenue), Jamshoro, and respondent No.1 was also impleaded as a necessary party to said Suit by filing application under Order I Rule 10, C.P.C., but said Suit was unconditionally withdrawn by petitioner. It is further stated that respondent No.1 approached Anti- Corruption Authorities and lodged FIRs Nos.173 of 2008 and 331 of 2008 with Police Station Kotri against petitioner and others. During the course of investigations, police obtained certificate from Additional District Account Office, Hyderabad that stamp papers used for preparing the dissolution of the firm were forged and bogus as there was no stamp vendor registered with said name within Hyderabad. The stamp papers on which forged dissolution of firm was prepared, were also submitted by petitioner in F.C. Suit No.16 of 2007 and F.C. Suit No.29 of 2008. It is also stated that petitioner had executed illegal sale deeds in his personal capacity and disposed of 40 plots though he was well aware that said plots were purchased in the name of the firm.
3. Petitioner filed written statement and denied the averments and allegations mentioned in plaint and prayed dismissal of Suit by pleading legal grounds. Petitioneralso filed application under Order VII, Rule 11, C.P.C., seeking rejection of plaint on the following grounds:-
(a) Plaintiff has no cause of action to file Suit.
(b) Suit is not maintainable.
(c) Suit is barred by Specific Relief Act.
(d) Plaintiff has not come with clean hands before the to the Court.
(e) Plaintiff has no title or right to file Suit.
4. Learned counsel for petitioner contended that respondent No.1 has filed subject Suit on the basis of general power of attorney of Mst. Faiz Batool wife of late Abdul Ghafoor and Muhammad Rashid son of Abdul Ghafoor and Muhammad Nasir son of late Abdul Ghafoor and concealed the fact of death of Muhammad Nasir as said power of attorney has lost its legal authenticity. He further contended that respondent No.1 has also failed to file fresh power of attorney of legal heirs of Muhammad Nasir who had died before filing of main Suit. He further emphasized that deceased Abdul Ghafoor in his lifetime had filed F.C. Suit No.74 of 2004 for declaration and mandatory injunction against petitioner and plaint of said Suit was rejected but no appeal was filed. He further contended that respondent No.1 had also filed Suit No.32 of 2005 against petitioner seeking several reliefs but plaint of said Suit was also rejected and respondent No.1 did not file appeal against said order, He also submitted that respondent No.1 has failed to show any cause of action in plaint as all the issues involving in the present Suit were already agitated in previous Suits, therefore, nocause of action has been accrued to respondent No.1 to file instant Suit. He also contended that learned Trial Court as well as learned Revisional Court have dismissed application under Order VII, Rule 11, C.P.C. Without applying their judicial mind, hence impugned order and judgment passed by both the Courts below may be set-aside.
5. Learned counsel for the respondents Nos. 1 to 3 vehemently contended that respondent No.1 has not filed Suit in his personal capacity but in the capacity of the attorney of other co-sharers. He further contended that attorney of the respondent No.1 is coupled with interest and section 202 of the Contract Act protects the interest of respondent No.1 as mentioned in para No.2 of the plaint of the Suit. He further emphasized that cancellation of forged sale deeds executed in 2009 were not sought earlier, whereas former Suits were filed prior to the said execution i.e. In the year 2004 and 2005. He further contended that the cause of action is mentioned in plaint, while the parties as well as reliefs sought in earlier Suits were different. He further contended that issues involved in the present Suit were not decided on merits after affording opportunity to the parties to adduce their evidence, as such section 11 C.P.C. Is not attracted in present Suit. He also contended that the petitioner wants to misguide the - Court merely by agitating the legal technicalities and has failed to point out any illegality or irregularity committed by the learned Revisional Court as well as Trial Court. He lastly contended that the petitioner fraudulently sold out the plots to different persons in personal capacity on the basis of forged documents without the permission of firm with sole purpose to deprive co-shares from their legal rights.
6. We have heard the arguments advanced by the learned counsel for the parties and examined material available on record thoroughly. It has emanated that the parties entered into a partnership deed which was duly registered by the Registrar of Firms, Hyderabad and said firm purchased about 79 plots. It is significant to mention that during pendency of the application under Order VII Rule 11, C.P.C. Filed by petitioner, respondent No.1 pressed his application under Order XXXIX Rules 1 and 2 C.P.C. And both applications were disposed of by the learned Senior Civil Judge, Kotri, vide order dated 24.09.2010, whereby application under Order VII Rule 11 C.P.C. Was dismissed, while application under Order XXXIX Rules 1 and 2, C.P.C. Was allowed to the extent of any other further transaction over entry No.284 in respect of 79 plots and no third party interest should be created.
7. While adverting to the merits of the case in hand, the first contention raised by petitioner relates to the failure to show cause; of action, we have 'examined the memo of plaint which reflects that respondents have alleged that petitioner had committed fraud in collusion with revenue authority and prepared the stamp paper regarding dissolution of subject partnership deed, white as per, evidence of the Accountant of District Accounts Officer, Hyderabad, there was no stamp vendor with such name registered at Hyderabad who had issued stamp paper for the alleged partnership deed. Indeed Suit No.16 of 2007 filed by the petitioner was dismissed as withdrawn, while the claim of joint ownership raised by respondents over subject plots is still unresolved andsubjudice before the competent Court, thus factum of existence of partnership has created cause of action to the respondents. The above facts and circumstances prima facie established that the subject partnership deed is still in existence, until its status is determined by the competent Court. Moreover, on the basis of said partnership deed, petitioner had already disposed of about 40 plots in personal capacity without any proper permission or involvement of the firm. Consequently, we conclude that the plaint did disclose cause of action to file the present Suit.
8. Regarding the next contention raised by the petitioner that Suit is barred by res-judicata, it is significant to mention that Abdul Ghafoor along with other family members and Muhammad Anwar executed power of attorney in favour of the respondent No.1 on 24.05.2003. Meanwhile Muhammad Anwar changed his mind and allegedly joined the petitioner in his fraudulent activities and revoked the said General Power of Attorney executed in favour of the respondent No.
1. When the financer of the firm Abdul Ghafoor came to know about the alleged fraud of the petitioner, he filed F.C. Suit No.74 of 2004, for declaration and mandatory injunction before the Court of learned Senior Civil Judge, Kotri, for changing the entry in the name of firm instead of in personal name of the petitioner, but the plaint was rejected as barred under Partnership Act and Land Revenue Act on 20.09.2004. Respondent No.1 again filed Suit bearing No.32 of 2005 for declaration, cancellation and permanent injunction and recovery of Rs.40,000/- on new cause of action for selling one of the plots illegally and unlawfully with fraudulent means but the same was also rejected being barred by Partnership Act and Land Revenue Act, and was directed to get dissolution of the firm and avail the remedy to approach the Revenue Authorities. Said Abdul Ghafoordied on 15.08.2005, therefore, the remaining partners namely Mst. Faiz Batool, Muhammad Nasir and Muhammad Rashid executed agreement of sale of the above said property and executed Irrevocable General Power of Attorney coupled with interest in favour of respondent No.1 on 30.08.2006. Thereafter respondent No.1 approached the revenue authorities and moved application to District Officer Revenue, Jamshoro, on 24.11.2006, and transaction on entry No.284 of revenue record was stayed. Petitioner filed Suit bearing No.16 of 2007 against the above said order of the D.O(Rev), Jamshoro, with the plea that the firm in question has been dissolved and he did not join the other partners of the firm as party and prayed for issuance of the sale certificate and execution of the sale deeds. The Mukhtiarkar Jamshoro filed his written statement that petitioner is not the owner of the property but the said property was purchased in the name of the firm. During the proceedings of the above Suit, the EDO (Rev), Jamshoro passed order on application No.474 of 2007 on 11.05.2007, that the petitioner in collaboration with other Revenue Officials had committed the forgery by applying correction fluid over the original record and showed himself as the sole owner of the property instead of the firm, and rectified the entry No.284 to its original position and the title remained in the name of the firm viz. M/s M. Muqeem Sohail Builder and Developers through its Managing Partner Muhammad Muqeem Memon. It is further stated that respondent No.1 also filed application under Order I Rule 10, C.P.C. Before the Court on 19.03.2007, to join him as necessary party in Suit No.16 of 2007 which was allowed on 04.08.2007, and he filed his written statement on 12.12.2007, but on the same day petitioner movedapplication for withdrawal of the said Suit unconditionally and finally order was passed on 01.03.2008, and Suit was dismissed with the cost of Rs.5,000/-. At this juncture, we would like to refer relevant case law as follows:-
(i) In case of Messrs United Bank Ltd v. Messrs Iftikhar and Company and 6 others, PLD 1990 Lahore 111, it was observed as under:-- "Dissolution of partnership on account of death of a partner is subject to a contract between the partners and is not a mandatory provision to take effect in all eventualities and without exception.
Intention to continue the business in partnership by the surviving partners along with the legal representatives of the deceased partner can also be gathered from the conduct of partners."
' It was further observed as follows:-- "Where no intimation was ever given to the loaner bank or for that matter to the general public about the death of the deceased partner or of the dissolution of the firm, partnership business was continued as such by the surviving partners who also were the legal representatives of the deceased partner and bank account was continued to be operated in the same manner as was done during the lifetime of the deceased partner, intention of the surviving partners to continue the business partnership notwithstanding the death of the said partner was clear and unambiguous."
(ii) In case of Syed Ghulam Hyder Shah alias Umaz Shah and 4 others v. Mst. Bibi Amir un Nissa and 4 others, PLD 2011 Karachi 183, it was observed as under :- "S.215. Transfer of principal's property by attorney in favour of a person closely related to both principal and attorney. Such transfer could be challenged only by principal himself and none else."
' It was further observed as follows:-- "That if legal heirs of principal were of the view that attorney had deprived their father of his property as he was a person of unsound mind, then they or any one of them could have filed Suit on his behalf as his next friend for cancellation of sale-deed. Legal heirs or any one of them had no legal character or right to file present Suit, which was not maintainable."
(iii) In case of Bolan Beverages (Pvt.) Ltd. v. Pepsico. Inc. And 4 others (PLD 2004 Sc 860), the Hon'ble Supreme Court has observed as under:- "The close examination of section 202 of the Contract Act would show that it can be spelt up into two parts. The first part contemplates that the interest of the agent himself should exist in the property that forms the subject matter of agency. The second part of the section is that when such an interest is created, it cannot be terminated to the prejudice of agent unless it is expressly provided in the contract. The first portion of the section is clearly indicative of the fact that either the agent must have an interest pre-existing in the property or creation of such interest should be direct result of the agreement itself'.
(iv) In case of M/s Time N Visions International (Pvt.) Ltd. v. Dubai Islamic Bank Pakistan Ltd. (PLD 2007 Karachi 278), it was observed as under :- "The concept an 'agency coupled with interest' is a special concept. It envisages a pre-existing interest of the agent in the subject matter of the agency which is sought , to be protected through creation of the agency and not an interest arising there from. It was further observed that where the agency is created by deed or for valuable consideration, and the authority is given to effectuate a security to secure the interest of the agent, the authority cannot be revoked. Thus, if an agreement is entered into on a sufficient consideration whereby an authority is given for the purposing of securing some benefit to the, donee of the authority, the authority is irrevocable on the ground that it is coupled with an interest."
(v) In case of Mst. Zakia Begum v. Niaz Ahmed (1999 MLD 3156), it was observed as under:- "where agent had himself an interest in property which formed subject-matter of agency, the irrevocable power of attorney could not be terminated to prejudice of such interest, in absence of any express contract."
(vi) In case ofAnis Fatima v. Anwar Hussain (1992 CLC 2137), it was observed as under:- 'Attorney as an agent of his principal subsequently acquiring an interest in property in question, forming part of agency within meaning of S.202, Contract Act, 1872. Principal / respondent was thus not competent to revoke authority given to general attorney. Principal had entailed his legal disability by his own act by inserting fact of irrevocability of general power of attorney in the deed itself as also in the collateral agreement, thus, incurring liability by operation of law as per terms of S.202, Contract Act, 1872. Cancellation deed of such power of attorney by the principal would have no legal effect and same could not operate against authority general attorney, given to him by general power of attorney itself'.
The above cited case law has strengthened the view that after death of deceased Muhammad Nasir, the irrevocable general power of attorney and sale agreement executed in favour of respondent No.1 which was neither challenged nor revoked by legal heirs of deceased Muhammad Nasir, being the authority coupled with interest in favour of the attorney is still in existence and valid. We are of the considered view that Suit No.74 of 2004 and Suit No.32 of 2005 filed by the respondent No.1, were not finally decided on merits but their plaints were rejected being barred under Arbitration Act,Partnership Act and Land Revenue Act. Therefore, respondents Nos.1 to 3 have cause of action to file Suit against petitioner, hence objection raised by petitioner has no legal substance for consideration. Consequently, the provisions of section 11, C.P.C. Are neither attracted in present Suit nor same is hit by the principles of res-judicata.
9. As regard to the contention raised by petitioner regarding non issuance of fresh authority by the legal heirs after death of one of the executants of power of attorney namely Muhammad Nasir, it would be appropriate to mention that the questioned power of attorney was executed by Mst. Faiz Batool, Muhammad Rashid and Muhammad Nasir in favour of respondent No.1 and after death of Muhammad Nasir, remaining executants have not revoked their authorization, therefore, petitioner cannot defeat the claims of respondents on mere non execution of fresh power of attorney by the legal heirs of deceased Muhammad Nasir in favour of respondent No. It is only prerogative of the legal heirs to agitate, the authority already executed in favour of respondent No.1 but, they have not revokedsaid authorization, therefore, the authenticity of said power of attorney cannot be challenged by petitioner. In case of Javaid Arshad Mirza through legal, representatives v. Trustees of Haji Sir Abdullah Haroon and others (PLD 2005 Karachi 684), it was observed that even in case some of the executants of power of attorney had expired during the pendency of the proceedings, authorization on behalf of the remaining executes, who still survived, would continue to remain in force. In view of the above cited case, Suit filed by respondents Nos.1 to 3 is not barred by non-filing of fresh power of attorney by the legal heirs after death of Muhammad Nasir, therefore, objection raised by petitioner is without any legal force.
10. Furthermore, petitioner had already filed his written statement and learned trial Court settled the issues and respondents have adduced their evidence and now it is for petitioner to lead his evidence in rebuttal of the claim of the respondents.
11. Considering the above facts, circumstances and case law, we are of the considered view that petitioner has failed to point out any illegality or material irregularity committed by learned Appellate Court as well as learned trial Court while passing impugned judgments whereby application under Order VII Rule 11, C.P.C. Filed by the petitioner was dismissed. Consequently, instant Constitution petition being devoid of legal substance stands dismissed.
12. The observation made supra are tentative in nature and learned trial Court shall decide the suit strictly on merits.