JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT
Civil Revision No.835/2008
(Muhammad Tahir Nadeem vs. Syed Qasim Ali Zaidi Zafar etc.)

JUDGMENT
Date of Hearing: 19.12.2011
Petitioner by: Ch. Inayat Ullah, Advocate.
Respondents No.1-10 by: M/s Mian Belal Ahmed, Asadullah
Siddiqui and Moeen Ahmad
Siddiqui, Advocates.

CH. SHAHID SAEED, J:- Through this civil revision,

the petitioner assails the judgment dated 23.05.2008 passed by

learned Additional District Judge, Lahore who dismissed the

appeal of the petitioner and upheld the order dated 23.07.2007

passed by learned trial court whereby the plaint of the petitioner

was rejected under Order VII, Rule 11, C.P.C.

2. Briefly stated the facts of the case are that the petitioner

filed a suit for specific performance of agreement to sell and

declaration with consequential relief regarding plot No.36, Block-

1, Sector C-I, Township Scheme, Lahore. It was averred in the

plaint that the said plot was originally allotted to one Syed Ajmal

Hussain deceased (predecessor of defendants No.1 to 10). On

08.12.1975, Ajmal Hussain executed a general power of attorney

in favour of defendant No.11 Syeda Shareen Qaisar Bokhari and

also registered agreement to sell in favour of defendant No.12

Salim Qaiser, the payment was made and the possession was

also delivered. Defendants No.11 and 12 are mother and son.

Syeda Shareen Qaiser, alleged attorney, through a registered

Civil Revision No.835/2008 2

sale deed No.198, dated 12.01.1982 sold the disputed plot to

defendant No.14 and also executed a special power of attorney

in favour of defendant No.13. It has also been asserted in the

plaint that the petitioner-plaintiff has purchased the plot from

defendant No.14 vide agreement to sell dated 25.04.1987

through defendant No.13, alleged special power of attorney. The

plaintiff further avers that he has paid the consideration amount

vide receipt dated 26.04.1987 and the possession of the property

has also been handed over to him, therefore, he be declared

lawful owner of the demised property. It is worthy to note here

that the original allottee Syed Ajmal Hussain expired on

08.09.1976, just after one year of the agreement in favour of

defendant No.12 and general power of attorney in favour of

defendant No.11. During the lifetime of Syed Ajmal Hussain, no

legal proceedings were initiated about the alleged sale

agreement whereas defendant No.11 executed special power of

attorney in favour of defendant No.13 after about seven years of

death of the principal Ajmal Hussain.

3. The suit was contested by the respondents. During the

pendency of the suit, respondents No.1 to 10 filed an application

under Order VII, Rule 11, C.P.C. contending that predecessor-in-

interest of the respondents No.1 to 10 namely Ajmal Hussain is

not bound by any agreement executed by respondent No.11,

therefore, the suit is barred by law. After hearing the parties, the

learned trial court proceeded to allow the said application and

Civil Revision No.835/2008 3

rejected the plaint under order VII, Rule 11, C.P.C. Feeling

aggrieved, the petitioner filed an appeal which was dismissed by

the learned appellate court vide judgment dated 23.05.2008.

Hence this civil revision.

4. Learned counsel for the petitioner submits that both the

learned courts below have rejected the plaint of the petitioner

only on the ground that with the death of the original

allottee/principal, the general power of attorney executed by him

in favour of defendant No.11 has also ceased to exist, therefore,

subsequent power of attorney and agreement to sell carry no

weight. Learned counsel inter alia contends that the learned

courts below have misinterpreted the law as where an agent has

himself interest in property, which formed subject matter of

agency, such agency, in absence of any express contract, could

not be terminated to the prejudice of such interest and would

become irrevocable, as provided in Section 202 of the Contract

Act, 1872. He avers that the learned courts below have fallen in

error while passing the impugned judgment/order, therefore, the

civil revision in hand be allowed, the impugned judgment/order

be set aside and the suit of the petitioner be decided by the

learned trial court on merit.

5. On the other hand, learned counsel for the respondents

vehemently oppose this civil revision and fully support the

impugned judgment/order. They are of the view that the powers,

whatsoever, delegated by the principal will automatically lapse

Civil Revision No.835/2008 4

on his death, therefore, the civil revision having no substance

merits dismissal.

6. Despite repeated calls, none is present on behalf of

respondents No. 11 to 16, as such, they are proceeded against

ex parte.

7. Arguments heard. Record perused.

8. The sole question put before this Court through the instant

case is whether the general power of attorney executed by the

principal in favour of defendant No.11 still exists after his death

or not and whether defendant No.11, after death of the principal

was entitled to further execute a special power of attorney in

favour of defendant No.13.

9. There is no denial that predecessor-in-interest of

defendants No.1 to 10 Syed Ajmal Hussain, the original allottee

of the disputed land, sold the suit property to defendant No.12

vide registered agreement to sell dated 08.12.1975. On the

same day, he also executed a registered general power of

attorney in favour of defendant No.11 as defendant No.12 was

minor at that time. It is also not disputed that the Syed Ajmal

Hussain after receipt of consideration amount handed over the

possession of the suit property to defenders No.11 & 12.

However, later on 08.09.1976, Syed Ajmal Hussain expired.

After about 5 ½ years of his death, defendant No.12 sold the

property to defendant No.14 through registered sale deed

Civil Revision No.835/2008 5

No.198, dated 12.01.1982 and defendant No.11 also executed a

special power of attorney in favour of defendant No.13 who

further agreed to sell the property in dispute to the plaintiff vide

agreement to sell dated 25.04.1987 and after receipt of

consideration amount vide receipt dated 26.04.1987, the

possession of the demised property was also handed over to the

petitioner-plaintiff. It is worth mentioning that neither legal

proceedings were initiated during the lifetime of Syed Ajmal

Hussain and also, the sale in favour of defendant No.12 and

general of attorney in favour of defendant No.11 was never

challenged by the successors of Syed Ajmal Hussain, which

clearly shows that they are well aware of the sale agreement in

favour of defendant No.11 & 12 and have no concern with the

suit property.

10. Section 202 of the Contract Act is of very much relevance

in the case in hand which is reproduced below:

“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.”

11. Bare perusal of the above provision makes it crystal clear

that where an interest has created in favour of the agent in the

property forming the subject matter of the property, then the

agency cannot be terminated as it would prejudice to the interest

Civil Revision No.835/2008 6

of the agent. The general power of attorney executed by Syed

Ajmal Hussain in favour of defendant No.11 itself mentions that it

is irrevocable. Further, it was not mere a general power of

attorney but also it was coupled with an agreement to sell which

was duly got registered in favour of defendant No.12. Both the

documents date the same. It means that Syed Ajmal Hussain,

predecessor in interest of defendants No.1 to 10, with his free

will, sold the disputed property to defendant No.12 and since

defendant No.12 was minor, he also executed a general power

of attorney in favour of defendant No.11 (mother of defendant

No.12). In this view of the matter, the general power of attorney

executed in favour of defendant No.11 by Syed Ajmal Hussain is

with interest is thus irrevocable even after his death by virtue of

Section 202 of the Contract Act, 1872. Further, defendant No.11

& 12 have got interest in the suit property which is subject matter

of the agency, they are owner of the same and have every right

to sell the property in favour of anyone else. In the instant case,

she has sold the property to defendant No.14 through registered

sale deed No.198, dated 12.01.1982 alongwith special power of

attorney in favour of defendant No.13 who has agreed to sell the

property in favour of the petitioner-plaintiff against consideration

vide receipt dated 26.04.1987. When defendant No.11 Syeda

Shareen Qaiser Bokhari was lawful attorney of the principal and

undisputed owner of the property in dispute, then her execution

of special power of attorney in favour of defendant No.13 would

also be legal and lawful. When the consideration amount was

Civil Revision No.835/2008 7

paid by defendant No.11 to the original allottee who executed

agreement to sell and also power of attorney in favour of

defendants No.11 & 12 enabling them to get all rights of the land

as and when required. As the plot was allotted to the principal by

Housing and Physical Planning Department and such properties

are not transferred in ordinary mode until and unless the

completion certificates are provided. The original allottee

undeniably transferred his rights to defendants No.11 & 12

coupled with possession after receipt of consideration amount,

so they became owner of the suit property and the petitioner

after payment of full consideration amount to subsequent

transferee stepped into the shoe of the original allottee. It cannot

be inferred that the rights got by first transferee will never be

transferred to anyone else. In this perspective, I am of the

considered opinion that learned courts below have erred in law

while passing the impugned order/judgment. In the given

circumstances, the learned trial court was obliged to frame

issues, record evidence of the parties and then proceed with the

matter in accordance with law. Respectful reliance is placed on

the dictums laid down by the Hon’ble Supreme Court of Pakistan

in case Mst. Hajran Bibi and others vs. Suleman and others

(2003 SCMR 1555).

12. The result of the whole discussion is that the instant civil

revision is allowed, the impugned judgment/order are set aside

and the case is remanded to the learned trial court with the
Civil Revision No.835/2008 8

direction to decide the suit on merit after framing issues and

recording of oral as well as documentary evidence to be

adduced by the parties. The parties are directed to appear

before the learned trial court on 07.01.2012.

(Ch. Shahid Saeed)

Judge
Approved for reporting.

Judge.

Akram*