1. ' 1 & 2. Heard arguments. Reserved for orders.
3. This application has been moved by the Intervenors. Mr. Muhammad Yaseen Azad, learned counsel for the Intervenors has prayed through this application under section 151, C.P.C. that either of the parties or the Nazir of this Court be directed to execute the lease deeds in favour of the Intervenors which were granted the leases of the plots earlier by the plaintiff. He further states that after the leases in favour of the present Intervenors, portion of the land was taken over by the defendant No,2 for the Super Highway Project and other land in lieu thereof was given to the plaintiff. Mr. Muhammad Yaseen Azad, learned counsel states that thereafter the plaintiff gave plots through lease in lieu of the land taken over by defendant No,2, and that at present the said leases are in force and the Intervenors are in possession under those leases. In this view of the matter the Intervenors who are not party to the suit would not be entitled to any relief directly in the suit but their rights, if any, stand protected under section 53-A of the Transfer of Property Act. In view of this observation Mr. Muhammad Yaseen Azad, learned counsel does not press this application, which is accordingly dismissed as not pressed.
2. 4 & 5. These applications are moved by the learned counsel for defendant No,1 which are not pressed and are accordingly dismissed as not pressed.
3. (Sd.) Abdul Rahim Kazi, Judge For hearing of C.M.As. Nos.3345J5618 of 1991: Mr. Khalilur Rehman, Adyocate for the Plaintiff. Mr. Munawwar Malik, Advocate for Defendant No,1. Mr. Muhammad Yaseen Azad, Advocate for Intervenors. None for Defendant No,2.
4. These are the two (2) applications under Order 39, Rules 1 and 2, C.P.C. moved by both the plaintiff and defendant No,1.
5. ' Briefly the case of the plaintiff is that the defendant No,1 is a builder, contractor and developer who deals in purchase and sale of plots in different schemes and that he had acquired Survey Nos.71, 75, 76 and 77 in Scheme No,33 situated at Super Highway in Deh Gujro, Tapo Songal Karachi. The defendant No,1 floated a housing project on the said land after dividing the same in Residential and Commercial Plots. However, subsequently a dispute arose between defendant No,1 and his allottees who filed Suit No,31 of 1982 before this Court. This suit was disposed of by judgment dated 20-2-1990 whereby the defendant No,1 was directed to deliver the possession of the respective plots to these allottees in whose favour the lease deeds were registered. The defendant then approached the plaintiff and the parties agreed and an agreement of joint venture was executed on 6-5-1990 (Annexure A). On the same date the defendant No,1 executed an irrevocable Power of Attorney in favour of the plaintiff (Annexure B) as the plaintiff had invested a sum of Rs,300,000 in the project and also authorised the plaintiff to do the work of sale, purchase and ,leasing out of the plots and to pay compensation to the encroachers. At that time two suits pertaining to the said project were pending in this Court which are still pending. One is Suit No,144 of 1981 in respect of pre-emption rights in Naclass No,70 and the other Suit No,58 of 1988 relating to the grant of land in lieu of the land acquired by the Government from the abovesaid land for widening of Super Highway. It is further the case of the plaintiff that he had taken over the management of the project, handed over the possession of the plots to the allottees in obedience of judgment in Suit No,31 of 1982 and also spent more money in addition to Rs,300,000. Again on 16-1-1991 parties entered into a partnership deed (Annexure C). Again thereafter the defendant No,1 approached the plaintiff, this time with an offer to sell the entire project for Rs,37,00,000 which offer was accepted by the plaintiff and agreement of sale was executed on 2-2-1991 (Annexure D). By this time the plaintiff had spent a total of sum of Rs,16,18,971 over the project and received a sum of Rs,635,661 from the allottees. Thus it was agreed that the net amount of Rs,983,310 would be adjusted against the purchase price and the balance of Rs,27,16,689 shall be payable after the conclusion of the above- said two suits pending in this Court. It was, however, further agreed that plaintiff will be entitled to the benefits of the decisions, if any, of the two suits and the land to be received from the Government in lieu of acquired land. The plaintiff then on 2-5-1991 went to the office of defendant No,2 where the defendant No,1 also appeared and informed the defendant No,2 that he had cancelled the Power of Attorney mentioned above and prevented the defendant No,2 from acting upon any documents executed by the plaintiff. The plaintiff therefore filed the present suit and also moved the application C.M.A. No,3345 of 1991 praying for the injunction that the defendant No,1 by himself or through his staff etc. be restrained from interfering with working and management of Ali Town Housing Project comprising of the land in suit.
6. ' The defendant No,1 filed his counter-affidavit. He has denied the agreement of joint venture and sale dated 6-5-1990 and 2-2-1991 (Annexures A & D) but has admitted Irrevocable Power of Attorney and Partnership Deed (Annexures B & C) which are dated 6-4-1990 and 16-1-1991. He has further contended that agreements of joint venture and sale are forged documents and cannot be enforced in law as the same also suffer from non-registration. He has denied his signatures on the two documents. His case further is that the relief sought by the plaintiff in suit cannot possibly be granted in law and the plaintiff can at the most file a suit for damages. The defendant No,1 filed his counter-affidavit. He has denied the agreement of joint venture and sale dated 6-5-1990 and 2-2- 1991 (Annexures A & D) but has admitted Irrevocable Power of Attorney and Partnership deed (Annexures B & C) which are dated 6-4-1990 and 16-1-1991. He has further contended that agreements of joint venture and sale are forged documents and cannot be enforced in law as the same also suffer from non-registration. He has denied his signatures on the two documents. His case further is that the relief sought by the plaintiff in suit cannot possibly be granted in law and the plaintiff can at the most file a suit for damages. The defendant No,1 has further stated that he revoked the power of attorney because he detected fraud in accounts and false preparation of statements. He has also moved an application for grant of injunction C.M.A. No,5618 of 1991.
7. ' I have heard the learned counsel for the parties and perused their affidavits, counter-affidavits and documents filed by the plaintiff with his suit. The defendant No,1 did not file any document. First I will take up for consideration the two admitted documents that is Irrevocable Power of Attorney and Partnership Deed. By the Power of Attorney the defendant No,1 has authorised the plaintiff to do all the necessary acts with regard to the Housing Project which amongst others include plotting, demarcating, mutation, selling and leasing of plots. These all acts and maintenance of office and staff do certainly entail causing expenditure. The plaintiff has submitted the copies of ledger and statements of accounts. This fact has not been denied by the defendant No,1 nor he has brought anything on record to rebut the same. In paragraph No,11 of the Power of Attorney it is specifically mentioned that this is Irrevocable Power of Attorney which shall be binding on defendant No,1 and shall not be revoked without the consent of Attorney.
8. ' In partnership deed, paragraphs Nos. 8 and 9 have a reference to the Power of Attorney which shows that the present plaintiff had been constituted as Attorney by the defendant No,1 and that he is fully empowered to look after, manage and supervise the said business and to dispose of and sell the plots and to deliver the possession thereof. This partnership deed stands admitted and hence the authority of the plaintiff cannot be denied even if the agreement of sale is not taken into consideration. It is not the case of the defendant No,1 that the said partnership deed is not binding.
9. ' In these circumstances, even if the joint venture deed and sale agreement are not taken into consideration then also in view of the admitted documents i.e. Power of Attorney (irrevokable) and partnership deed it can prima facie be ascertained that the plaintiff had the authority to perform such acts and that relying on the said documents the plaintiff has spent substantial amount in the project and has acquired an interest therein. Sections 202 and 204 of the Contract Act lay down:--- "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.
204. Revocation where authority has been partly exercised.---The principal cannot revoke the authority given to his agent after the authority has been partly exercised so far as regards such acts and obligations as arise from acts already done in the agency."
10. In this view of the matter I have come to the conclusion that the plaintiff has a strong prima facie case in his favour. However, I am also inclined to observe that this is a fit case where the interest of the defendant No,1 should also be safeguarded and the plaintiff be put to terms. I, therefore, allow the application made by the plaintiff (C.M.A. 3345 of 1991) and grant the injunction as prayed subject to the condition that the plaintiff will furnish a surety in the sum of Rs,5 million to the satisfaction of the Nazir of this Court. The plaintiff will also submit quarterly accounts in the Court with a copy to the defendant No,1. In view of the above order the application C.MA. No,5618 of 1991 moved by the defendant No,1 stands dismissed.
11. ' The observations made in this order are tentative in nature and will have no bearing on the merits of the suit. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.