RASHIDA ASAD, J. Masood Ahmed Khan, appellant, has preferred the captioned High Court Appeal challenging the Judgment an Decree dated 05.05.2015 passed by the learned Single Judge, in Suit No.1821 of 2010, dismissing the suit filed by the appellant.
2. The facts relevant as narrated by the appellant are that respondent was owner of land measuring 20.25 acres situated in Survey Nos. 392 to 397 (old Survey No.21), part of Survey No. 402 (old Survey No.27), part of Survey Nos.403 and 404 (old Survey No.28), part of Survey Nos.405 to 408 (old Survey No.29), part of Survey Nos.409 to 431 (old Survey No. 36) and part of Survey Nos.414 to 417 (old Survey No.37) and part of old Survey Nos.34 and 35 forming part of Gulshan-e-Millat Town Scheme in Deh Phihai, Tapo Landhi District East, Karachi, which was purchased by respondent No.1 from respondent No.3 namely M/s Bagh-e-Korangi (Pvt.) limited vide Sale Agreement dated 16.11.2000 and two General Powers of Attorney dated 29.05.2004 and 08.10.2008 respectively. Out of said land, respondent No.1 had sold out land measuring 10-25 acres out of Survey Nos. 29, 386, 387 and 34 situated in Deh Phihai, Tapo Landhi, Sectors 10 and 11, Korangi Township, District Karachi East (hereinafter referred to as the subject property) to the appellant against total consideration of Rs.23.375,000/- vide Agreement to Sell dated 29.05.2004. Out of the said amount, according to the appellant he had paid Rs.20,875,000/- at different times and the remaining amount of Rs.25,00,000/- was to be paid at the time of execution of Sale Deed. As a part performance, respondent No.1 handed over vacant physical possession of the suit property along with title documents. Appellant claimed that he approached several times to the respondent No.1 for execution of Sale Deed, who kept him on false hopes, he finally sent a Legal Notice dated 14.09.2010 to the respondent No.1 for execution of Sale Agreement, but the same was never replied. Appellant, after coming to know that the respondent No.1 was attempting to sell the subject property to some other party, filed Suit No.1821/2010 before this Court for Specific Performance, Perpetual Injunction and Monetary Compensation.
3. Upon admission, notices were issued to the respondents, but respondent No.1 (Khalid Anwar Khan) and respondent No.2 (Province of Sindh) chose to remain absent and after completing required formalities, the Court proceeded ex-parte against them. However, respondent No.3 filed written statement admitting that the land was sold to respondent No.1 through Sale Agreement dated 16.11.2000 and execution of General Power of Attorneys dated 29.05.2004 and 08.10.2008, whereafter, the respondent No.1 became sole owner of the said land. Thereafter, the appellant filed affidavit-in-evidence along with original documents and after his examination, the matter was posted for final arguments. It is further asserted that after filing of the said Suit, the respondent No.1 admitted claim of the appellant and had executed a General Sub Power of Attorney dated 04.05.2011 duly attested by the Consular, Pakistan Embassy, USA in favour of appellant, whereby, the appellant was authorized to sell/transfer the subject property. Appellant also filed an application under Order XII, Rule 6, C.P.C. for pronouncement of judgment in his favour. Learned Single Judge after hearing the arguments of the learned counsel for the appellant dismissed the suit of the appellant by judgment dated 05.05.2015. Hence this appeal.
4. Learned counsel for the appellant mainly argued that findings recorded by the learned Single Judge are contrary to law as in ex-parte proceedings when there is no denial, the contents of the plaint are to be treated as true and correct; that finding of the learned Single Judge that appellant was required to examine attesting witnesses in an ex-parte suit is contrary to law as in the suits of Specific Performance there is no requirement of attestation by two witnesses and even on oral agreements the superior Courts have decreed the suits; that no issue of fact or law was framed by the learned Single Judge, hence the appellant was not required to give evidence regarding existence or non-existence of execution of Sale Agreement; that the learned Single Judge passed the impugned judgment in slipshod manner without appreciating the material available on record.
The learned counsel for appellant, therefore, prayed that the impugned judgment may be set aside and the suit filed by the appellant may be decreed as prayed.
5. On the other hand learned counsel for the Board of Revenue while recognizing the status of land in question, tendered his no objection if the appeal is allowed.
6. We have heard Mr. Abbas Rasheed Razvi, learned counsel for the appellant, Mr. G.N. Qureshi, learned counsel for the Board. of Revenue and Mr. Imran Ahmed Khan Abro, learned Assistant Advocate General, Sindh, and perused the record minutely.
7. Record reflects that after admission of Suit, notices were issued to the parties. In pursuance whereof, respondent No.3, filed written statement wherein it has been clearly admitted that the land was sold out to respondent No.1 by respondent No.3 through Sale Agreement dated 16.11.2000 and General Powers of Attorney dated 29.05.2004 and 08.10.2008 and all the rights associated with the land were relinquished in favour of respondent No. 1. However, respondent No.1 did not come forward and chose to avoid appearance, Admission on the part of the respondent No.3 clearly establishes the fact that respondent No.1 was owner of the subject property and was fully authorized to alienate/dispose of the property which he did as per Sale Agreement dated 29.05.2004. We have no cavil with the proposition that in the suit for specific performance burden always lies upon the plaintiff to prove the factum of the Sale Agreement. In our opinion the provisions of Article 79 of the Order 1984 are only applicable in those cases where execution of a document is disputed between maker of document and the person in whose favour purportedly the same is executed only then such document is to be proved by producing two marginal witnesses. Reliance is placed on the case of Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others (2021 SCMR 415), wherein the Honourable Supreme Court has held as under: .......The provisions of Article 79 (Q.S.O., 1984), are applicable only in those cases where execution of a document is disputed between maker, of document and fire person in whose favour purportedly the same is executed........."
However, in the present case the documents filed by the appellant remained un-rebutted and unchallenged as respondent No.1 chosen to remain absent, hence, no denial or dispute regarding, execution of Sale Agreement has been brought on record. Therefore, provisions of Article 79 of Qanun-e-Shahadat Order, 1984 are not applicable in the case in hand.
8. As regards to the findings of learned Single Judge that sub-power of Attorney which was executed by the respondent No.1 was not brought to the notice of respondent No.1, are not tenable in law for the reason that sub-power of attorney was executed by the respondent No.1 (in exercise of powers conferred upon him vide clause 16 of the power of attorney dated 29.05.2004 executed by the respondent No.3 in favour of respondent No.1 along with Agreement to Sell), before the Attach E Consulate of Pakistan Houston, USA. Presumption as to the authenticity and genuineness of power of attorney has been attached under the provisions of Article 95 of Qanun-e-Shahadat Order, 1984, that every document purporting to be a power of attorney and to have been F executed before and authenticated by, a Notary Public, or any Court, Judge, Magistrate, British Counsel or Vice-Counsel or representative of Federal Government, was so executed and authenticated. The authentication is not merely attestation, but something more. It means that the person authenticating has assumed himself of the identity of the person who has signed the instrument as well as the fact of execution. It is for this reason that a power of attorney bearing the authentication of notary public or an authority mentioned in Article 95 is taken as "sufficient", evidence of the execution of the instrument by the person, who appears to be the executant on face of it. This provision of Article 95 of Qanun-e-Shahadat Order, 1984, is mandatory and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duty fulfilled; therefore, such sub power of attorney executed by the respondent No.1 after fulfilling all requirements was an undisputed document and could be relied upon even if it was not brought on file.
9. In the present case, the appellant is holding original documents i.e. Sale Agreement, certain payment receipts as well as sub-power of Attorney executed by the respondent No. 1. The official respondent has also extended no objection if the instant Appeal is allowed, we, therefore, for the aforesaid circumstances, vide order dated 17.01.2022 allowed this appeal, set aside the impugned judgment dated 05.05.2015, which reads as under: "For the reasons to be recorded later on and in view of no objection by the official respondents, impugned order is set aside and instant High Court Appeal is allowed, however, subject to deposit of Rs.2.5 million by the appellant along with other expenses for the purposes of execution of Sale Deed of subject land by the appellant or his Agent/Nominee through Nazir of this Court on behalf of the respondent No.1, in accordance with law, whereas, such amount shall be intimated by the Nazir to the appellant within fifteen (15) days. The Nazir fee in the sum of rupees thirty thousand only (Rs.30,000/-) shall be paid in evidence by the appellant."
These are the reasons for the short order dated: 17-01-2022.