Present: Syed Asghar Haider, J.
ABDUL SATTAR and another--Appellants
RSA No. 4 of 2008, decided on 30.1.2009.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 100 & 107--Punjab Pre-emption Act, 1991, S. 13--Pleading contiguity common source of irrigation, passage and co-sharers--Regular Second Appeal--Effect of production of witnesses and documentary evidence--Numerical strength of witnesses--Parameters for determining the propositions are foreclosed within the rights granted u/S. 100, CPC and are, therefore, required to be examined--Section 107, CPC bestows upon High Court same powers as are conferred upon the Court of original jurisdiction--Appellate Court also has discretion to substitute findings of a lower Court if it has exercised them capriciously and against legal principles.
[P. 249] A & C
Evidence in Civil Cases--
----It is always the quality of evidence, which decides the fate of the dispute, the numerical strength of witnesses or documents if they are doubtful and open to dispute does not help the cause--No cross-examining a witness, in civil proceedings, means that the statement to that extent stands admitted. [P. 249] A & B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 79 & 95--Principle of "Lex Situs" the requirements as enunciated in
Pakistan, under the power of Attorney Act, 1882 and Arts. 79 and 95 of Qanun-e-Shahadat Order, 1984, have to be examined--These requirements incidentally are not violative of English Jurisprudence or law but, infact, are in harmony with them--If a document is required to be attested by law, it shall not be used as evidence until two attesting witnesses, at least have been called for the purpose of proving its execution--There is nothing on record to prove the due execution of power of attorney in England as required and stated--This condition is further qualified by Art. 95 of Qanun-e-Shahadat Order, 1984, it states that every power of attorney executed should be certified and authenticated by a notary public or any Court, Judge, Magistrate, counsel or vice counsel or representative of the Federal Government. [P. 251] D
1984 PSC 939 & PLD 1984 SC (AJK) 157, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 3--Cross objection--Legal question--Interfere and reverse the findings--Maintainability of suit--If cross objections are not filed such matters cannot be touched, however, the rule in this context is not absolute but is subject to interference, if the appellate Court perceives, that ultimate relief prayed for, emerges from incidental and collateral issues not under challenge, on which the findings are illegal, but have not been assailed by the other party, however, they effect the maintainability of the suit--It than has manifest powers to set right any illegality committed in law by the Courts below while deciding a specific issue in his context by exercising corrective powers as contained in Order XLI Rule 33, CPC for doing complete justice--Appeal dismissed. [P. 252] E
Mian Israr-ul-Haq, Advocate for Appellants.
Mr. S.M. Masud, Advocate for Respondent.
Date of hearing: 4.12.2008.
This single judgment shall decide RSAs No. 4, 5 and 6 of 2008, inter se the same parties, more or less upon the same cause of action.
2. Facts necessary for adjudication of the present dispute are that the respondent/defendant Muhammad Iqbal purchased the disputed land from Amjad Ali, Kalsoom Akhtar, Saddaf, Sehar Ali, Kiran Ali and Samar Ali, for a consideration of Rs. 4,39,50,000/-, vide registered Sale-Deed No. 12488, dated 1.8.2005. The appellants/plaintiffs filed a suit on 15.10.2005, for possession of the disputed land as contemplated by Sec. 13 of the Punjab Pre-emption Act, 1991, pleading contiguity, common source of irrigation, passage and co-sharers, it also was averred, that the price of the suit land is inflated and fictitiously mentioned as Rs. 75 Lac. per acre, instead of Rs. 25 Lac, as actually paid. The respondent/defendant contested the suit. Of the divergent pleadings of the parties seven issues were framed. The parties were put to trial and thereafter the suit was dismissed on 14.10.2006, on Issues No. 1 and 5. However, affirmative findings were returned on Issues No. 2 and 3 in favour of the appellants/plaintiffs. Issues No. 4 and 6 were also decided against the respondent/ defendant. The respondent did not file appeal or cross objections qua Issues No. 2, 3, 4 and 6 decided against him. The appellants/ plaintiffs filed an appeal against adverse decision upon Issues No. 1 and 5, but it was dismissed by the lower appellate Court on 20.10.2007. Hence this second appeal.
3. The learned counsel for the appellants/ plaintiffs contended that the appellants produced six witnesses, including the Post-man and Post-master. The respondent only produced Muhammad Riaz, D.W.1 and no independent witness, yet the trial Court dismissed the suit on basis of Issues No. 1 and 5 regarding Talb-i-Muwathibat and Talb-i-Ishhad, it thereby committed an illegality, as positive findings qua Issues No. 4 and 6, in favour of the appellants/ plaintiffs holding that power of attorney as valid and non-filing of appeal or cross objections, these issues attained finality, and now, therefore, cannot be permitted to be argued or challenged, therefore, the dispute be limited to Issues No. 1 and 5 only. There is a little difference between RSA No. 4 of 2008 and the other two appeals, as superior right of pre-emption of the plaintiffs also has not been accepted therein. Thereafter the learned counsel for the appellants stated that P.Ws. 2, 3, 4 and 6 affirm the stance of the plaintiffs/appellants, as the receipt of the post office is on record as Exh. P-1, notice of Talb-i-Ishhad as Exh. P-2, copy of registered envelope as Exh P-3/1, copy of acknowledgement due as Exh. P-3/2, thus the plaintiffs/appellants adequately discharged onus. But it concurrently was ignored by the Courts below. The counsel thereafter stated that the testimony and evidence of P.W.2 to 4 clearly reflects upon Talb-i-Muwathibat and its due performance, there is nothing on record to show that these witnesses were cross-examined on this point, thus, under the law of civil proceedings, anything which is not cross-examined is deemed to have been accepted correct, therefore, their testimony is above board. But this principle also was ignored. The solitary witness of the defendant did not specifically advert to this issue clearly, in these circumstances both the Courts fell in error and committed misreading and non-reading of evidence. The parameters of Talb-i-Muwathibat and Talb-i-Ishhad were duly proved in accordance with law. The defendant did not appear in person, but was represented by an attorney, his absence should have been adversely construed, but it was ignored. The documentary evidence on record was not appraised properly, disparaging and uncalled for, remarks were passed by the lower appellate Court against P.W.1 without examining the impact and import of Exh. P-2, which proved his presence in
Pakistan, therefore, a legal illegality also was committed.
4. The learned counsel for the respondent stated that the case as put up by the plaintiffs/appellant was that they were informed through Muhammad Ali in
United Kingdom that the disputed land had been sold, thereafter a notice was sent as required by law to the respondent on 14.9.2005 and a suit was instituted. Both the Courts below held that Talb-i-Muwathibat was not proved, as the requirements of Sec. 13 were not fulfilled, as commanded by law, there are concurrent judgments of two Courts below on Issues No. 1 and 5, qua the right of pre-emption, therefore, the same cannot now be permitted to be raised in second appeal, which has a limited scope, Exh. P-9 and Exh. P-10 clearly indicate that the property is located in municipal limits and, therefore, its status stands changed, so no right of pre-emption exists, therefore, the suit was not maintainable. (Reference Abdul Aziz Versus Sheikh Fateh Muhammad 2007 S.C.M.R. 336). It also was emphatically pleaded by the learned counsel that power of attorney was not executed in accordance with legal dictates and requirements of law, the date of knowledge of sale of disputed land, as mentioned in plaint is 14.9.2005, around 7 P.M. U.K. time. The power of attorney was executed in the name of Rehmat Ali on the same day, it is impossible to prepare a power of attorney in so short a time frame, further it was endorsed by an unauthorized person of the Pakistan Embassy, therefore, the document itself has no legal sanctity, thus, the suit filed on basis of this document was not maintainable and all consequential proceedings are ultra vires of law.
6. The admitted facts culminating in the filing of the present suit are :--
Amjad Ali, Kalsoom Akhtar, Saddaf, Sehar Ali, Kiran Ali and Samar Ali were owners of the disputed land. They sold the same to the respondent, Muhammad Iqbal, through a registered Sale-Deed No. 12488, dated 1.8.2005. The appellants, who are residents of
United Kingdom, were informed of this sale by Muhammad Ali and his wife Mehmooda Begum at their residence, 122 Terry, . They immediately reacted and raised demand of pre-emption, claimed superior right in presence of two truthful witnesses. Rehmat Ali was appointed later as their attorney, who performed Talb-i-Ishhad and (Talb-i-Khusumat) by filing the suit on 15.10.2005. Glasgow, England
7. Important legal propositions raised by the learned counsel are the effect of production of 6 witnesses and documentary evidence Exh.
P-1 to Exh. P-15 by the plaintiffs in affirmative, in comparison to a solitary witness of respondent/defendant Muhammad Riaz as D.W.1. This is a second appeal, the parameters for determining the propositions are foreclosed within the rights granted under Section 100 C.P.C. and are, therefore, required to be examined in this context. It always is the quality of evidence, which decides the fate of the dispute, the numerical strength of witnesses or documents if they are doubtful and open to dispute does not help the cause. In the present matter the witnesses produced by the plaintiffs/petitioners are of a poor quality, there are serious lapses in their testimony tendered, it is correct that not cross-examining a witness, in civil proceedings, means that the statement to that extent stands admitted. But in the present matter as stated earlier, a part of testimony, not cross-examined cannot be read in isolation, upon appraisal of entire evidence, the view point of the Courts below is correct and thus unexceptionable. Likewise the pivotal document Exh. P-1 is manifestly doubtful, qua not only the manner and mode in which it was executed but also serious legal omissions in due execution rock the very foundation of this document, therefore, the numerical strength of the petitioners' witnesses or documents is of no use.
8. The trial Court and the lower appellate Court concurrently dismissed the suit of the appellants/plaintiffs on Issues No. 1 and 5 regarding Talb-i-Muwathibat and Talb-i-Ishhad. Issue No. 4 was decided against the defendant/respondent holding that the power of attorney granted to Rehmat Ali, P.W.1, was valid, but no cross objections were filed against this finding, although prima facie there is a conflicting decision on Issues No. 1 and 4, it therefore, is necessary to re-determine, these issues. The legal proposition which emerges thus is that can this Court interfere on Issue No. 4 or not, if, the decision is contrary to law and against record. Before venturing further, Section 107 C.P.C. bestows upon this Court same powers as are conferred upon the Court of original jurisdiction. Thus it has uninhibited powers to examine record and pass any order which the trial Court could have (Reference North West Frontier Province Government, Peshawar through Collector, Abbottabad and another Versus Abdul Ghafoor Khan through legal heirs and 2 others (P.L.D. 1993 S.C. 418), Further the appellate Court also has discretion to substitute findings of a lower Court if it has exercised them capriciously and against legal principles. The foremost question for determination by this Court, therefore, is whether the power of attorney Exh. P/1, is valid document or not, and are the findings of the trial Court and the lower appellate Court correct and in accordance with parameters governing Section 13 of the Act. The important facts in this context are that plaintiffs gained knowledge of the instant transaction from Muhammad Ali and his wife, who were in
England on 14.9.2005, at 7 p.m., local time. Talb-i-Muwathibat was made in their presence (Muhammad Ali and Mehmooda Begum), they appeared as P.Ws.2 and 3, respectively. The cause of the plaintiffs/appellants was pursued by P.W.1, Rehmat Ali, as attorney. The power of attorney referred to is available on record as Exh. P-1. The opening paragraph of the power of attorney reflects complete details of the disputed property, qua which, authority was delegated to Rehmat Ali. He appeared as PW. 1 and stated in his cross-examination, that he does not remember the Khewat or Khatooni numbers of the disputed land, likewise, Muhammad Ali, P.W.2, also stated that he does not remember the Khewat number of the disputed land as enunciated in the power of attorney. Therefore, it is clear that plaintiffs/appellants had knowledge of the sale of the disputed property earlier and through other sources, because neither P.W.1 and P.W.2 could divulge details of property mentioned in the power of attorney, this casts a grave doubt on their credibility, as well the document Exh.P/1. Muhammad Ali, the informant, could not divulge, correct details of Sand as incorporated in Exh. P-1, therefore, he also does, not qualify the test of a truthful witness within the ambit of Pre-Emption Act. Thus his evidence has no sanctity or force. The matter which needs paramount consideration is the validity of power of attorney, Exh. P-1 or otherwise, as the fate of filing of suit and all subsequent proceedings hinges upon it. Because if it was executed in consonance with legal requirements, the filing of suit and all consequential proceedings are legal, otherwise (Exh.P-1) is legally ineffective and thus would result in dismissal of the suit.
9. The perusal of Exh. P-1 (power of attorney) reflects that it was executed on 14th September, 2005, it is admitted on record that the appellants gained knowledge of the transaction in dispute also on 14.9.2005, at 7 p.m. through Muhammad Ali and his wife Mehmooda Begum, who came to a dine with them. It also is clear from record that the appellants and Rehmat Ali were both resident in
England ( United Kingdom) where power of attorney was executed. The question now arises is whether this power of attorney would be governed by the laws of United Kingdom or Pakistan. The law of power of attorney in the United Kingdom clearly ordains that an attorney can use, power of attorney (which is known there as lasting power of attorney) after it has been executed by the principal, affirmed by a Solicitor and registered with Office of Public Guardian, earlier, thereto any transaction, upon its strength and basis is void. (The procedure ordained in this context lays guide lines for execution of a power of attorney which are incorporated in the Mental Capacity Act, 2005 (Code of Practice). As stated earlier a power of attorney is required to be drawn by a Solicitor, who certifies the same, in presence of two witnesses. If examined from this angle, it is clear that the power of attorney, Exh.P-1, does not fulfill any of these conditions. As it has not been drawn by an attorney/Solicitor, it also has not been registered, or notarized as required, therefore, under the law of England (United Kingdom) it is not a validly executed document. Even for the sake of argument if it is assumed that as the disputed property is located in Pakistan, therefore, the transaction in question would be governed by the laws of Pakistan, in accordance with the principle of "Lex Situs" the requirements as enunciated in Pakistan, under the Power of Attorney Act, 1882 and Articles 79 and 95 of the Qanun-e-Shahadat Order, 1984, have to be examined. These requirements incidentally are not violative of English jurisprudence or law but, in fact, are in harmony with them. Article 79 clearly spells that if a document is required to be attested by law, it shall not be used as evidence until two attesting witnesses, at least have been called for the purpose of proving its execution. There is nothing on record to prove the due execution of power of attorney in England as required and stated. This condition is further qualified by Article 95 of the Qanun-e-Shahadat Order, 1984, it states that every power of attorney executed should be certified and authenticated by a Notary Public or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul or representative of the Federal Government. The perusal of power of attorney on these premises shows that it has not been endorsed or issued by any of the said authorities. There is no seal of any Notary Public, nor certification or endorsement, qua the fact that power of attorney was signed by the executant in presence of authorized official, therefore, it has no legal validity under Article 95. Reference: Qurban Hussain etc. Vs. Hukam Dad (1984 PSC 939--P.L.D. 1984 S.C. (AJK) 157). Though a seal of Pakistan Embassy is affixed upon the same but it again is highly improbable that Exh. P/1 could be got executed after 7 p.m., when the Embassy stood closed. A further doubt upon its authenticity is cast, as it has been attested by Abdul Ghaffar, Accountant. Law does not bestow this authority upon an Accountant, it only bestows this power upon Pakistan Consul or Vice-Consul. Even if any such power was bestowed upon the Accountant of Pakistan Embassy in Glasgow, he was bound to divulge the details and record them upon the document, but this also is missing, therefore, it is clear that power of attorney was not executed in accordance with the procedure ordained by law, but was executed in violation of the same, therefore, it has no legal sanctity and validity, mere registration of power of attorney in Pakistan is a rebutable presumption and cannot give credence to a transaction, which is legally void. There is sufficient material on record to over ride this presumption. This dimension was noted by the trial Court as it adverted to the same while deciding Issue No. 1 in the following manner:-
"... It is next to impossible that after 7.00 p.m. plaintiffs drafted the power of attorney with every minute detail (especially with regard to detail of khasra No. and detail of address of the vendee defendant) and on the same day it was presented in the Embassy of Pakistan and immediately it was attested by the Consulate especially when the working hours are already over".
But strangely it decided Issue No. 4 in affirmative accepting its validity, completely misconstruing Article 95 of the Qanun-e-Shahadat Order, 1984. Therefore, as stated earlier there is conflict in the judgment of the trial Court qua findings on Issues No. 1 and 4. The reasoning of the trial Court on Issue No. 1 and the discussion made above, clearly reflects that the suit was incompetently filed as the power of attorney, executed by the principals has no legal validity, consequently the suit also was filed incompetently.
10. The next legal question, which arises is, can this Court interfere and reverse the findings on Issue No. 4 when no cross objections or appeal has been filed by the appellants. Normally the Courts refrain from entering into this dimension, as ordinarily, if cross objections are not filed such matters cannot be touched, however, the rule in this context is not absolute but is subject to interference, if the appellate Court perceives, that ultimate relief prayed for, emerges from incidental and collateral issues not under challenge, on which the findings are illegal, but have not been assailed by the other party, however, they effect the maintainability of the suit. It than has manifest powers to set right any illegality committed in law by the Courts below while deciding a specific issue in this context by exercising corrective powers as contained in Order XLI Rule 33 C.P.C. for doing complete justice. Reference: Ghulam Hussain and another Versus Faiz Muhammad and 7 others (P.L.D. 1991 S.C. 218), Central Government of Pakistan and others Versus Suleman Khan and others (P.L.D. 1992 S.C. 590), North West Frontier Province Government Peshawar through Collector, Abbottabad and another Versus Abdul Ghafoor Khan through Legal Heirs and 2 others (P.L.D. 1993 S.C. 418) and Province of Punjab through Collector, Rajanpur District and 2 others Versus Muhammad Akram and others (1998 S.C.M.R. 2306). Therefore, the precedents referred to Muhammad Aslam and 2 others Versus Syed Muhammad Azeem Shah and 3 others (1996 S.C.M.R. 1862) and Muhammad Nawaz Versus Mst. Ahmad Bibi and 3 others (1995 S.C.M.R. 266) pale into insignificance. In the present proceedings Issue No. 4 was not correctly decided as the findings on Issues No. 1 and 4 are in conflict with each other and also because as, held (above) the power of attorney is legally invalid, therefore, the findings on the same are reversed. As far as the issues challenged by the appellants through the present appeal are concerned, as stated earlier, they do not fall within the parameters of second appeal under Section 100 C.P.C., therefore, the findings on the same are unexceptionable.
In view of what has been discussed above, these appeals have no merits and are, therefore, dismissed leaving the parties to bear their own costs.
(M.S.A.) Appeals dismissed.