2016 Y L R 240

[Sindh]

Before Shahnawaz Tariq and Nadeem Akhtar, JJ

Messrs MUHAMMAD MUQEEM SOHAIL BUILDERS AND DEVELOPERS through

Managing Partner---Petitioner

Versus

SHAMSHER ALI and 43 others---Respondents

C.P. No. D-2210 of 2012, decided on 16th April, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S. 11----Specific Relief Act (I of 1877), Ss. 42, 39, 54 & 55---Partnership Act
(IX of 1932), S. 40---Contract Act (IX of 1872), S. 202---Constitutional petition---Res judicata---
Applicability---Rejection of plaint---Cause of action---Determination---Dissolution of
partnership on death of partner---General power-of-authority in favour of partner---
Revocability--Plaintiff filed suit for declaration, dissolution of partnership, cancellation of sale
deeds, injunction, partition of property and restoration of property, against defendant claiming
that a partnership agreement was entered between parties, and defendant being managing partner
of firm, purchased suit property in name of the firm and revenue entries were made accordingly,
but he subsequently by executing illegal sale deeds in his personal capacity disposed off the
same without permission of the firm---Defendant sought rejection of plaint of suit under O. VII,
R. 11, C.P.C., contending that partnership had already been dissolved and plaintiffs had no title
in suit property---Both Trial Court and revisional court dismissed defendant's application for
rejection of plaint---Contentions raised by defendant were that plaintiff had filed the suit on basis
of general power of attorney which had lost its authenticity after death of its executants/other
partners; that plaintiff did not file any fresh power of attorney, and that plaint disclosed no cause
of action as previous suits filed by plaintiffs were dismissed---Plaintiff took the plea that he had
filed suit as attorney of other co-sharers/plaintiffs, and his power of attorney was coupled with
interest which was protected under S. 202 of Contract Act, 1872, and that previous suit were not
decided on merits and reliefs sought in earlier suits and the present suit were different---
Validity---Plaintiff had alleged in the plaint that defendant had committed fraud in collusion with
revenue authorities and prepared stamp paper regarding dissolution of partnership deed---As per
available evidence, stamp vendor who had issued said stamp paper was not registered---
Plaintiff's claim of joint ownership over suit property was still unresolved and subjudice before
Trial Court---Parnternship, prima facie, existed until it was determined by court---Factum of
existence of partnership deed had created cause of action to plaintiffs---Irrevocable general
power-of-attorney executed in favour of plaintiff having never been challenged or revoked by
legal heirs of deceased partner, being authority coupled with interest in favour of attorney
regarding suit property, was still in existence and valid---Earlier suits filed by plaintiff were not
finally decided on merits and their plaints were rejected being barred under the law---Provisions
of S. 11, C.P.C. nor principle of res judicata were attracted to the present suit---Suit filed by
plaintiff was not barred by non-filing of fresh power-of-attorney by legal heirs, as in case some
of the executants of power of attorney had expired during pendency of proceedings,
authorization on behalf of remaining executants would continue to remain in force---Defendant
failed to point out any illegality or material irregularity committed by courts below while
dismissing application under O. VII, R. 11, C.P.C.---Constitutional petition was dismissed in
circumstance.

Messrs United Bank Ltd. v. Messrs Iftikhar and Company and 6 others PLD 1990 Lah. 111;
Syed Ghulam Hyder Shah alias Umaz Shah and 4 others v. Mst. Bibi Amir un Nissa and 4 others
PLD 2011 Kar. 183; Bolan Beverages (Pvt.) Ltd. v. Pepsico. Inc. and 4 others PLD 2004 SC
860; Messrs Time N Visions International (Pvt.) Ltd. v. Dubai Islamic Bank Pakistan Ltd. PLD
207 Kar. 278; Mst. Zakia Begum v. Niaz Ahmed 1999 MLD 3156; Anis Fatima v. Anwar
Hussain 1992 CLC 2137 and Jawid Arshad Mirza through legal representatives v. Trustees of
Haji Sir Abdullah Haroon and others PLD 2005 Kar. 684 rel.

Muhammad Sachal Awan for Petitioner.

Raja Jawad Ali Sahar for Respondents Nos. 1 to 3.

Allah Bachayo Soomro, Addl. A.G. for the State.

Dates of hearing: 11th February 2014 and 11th April, 2015.

ORDER

SHAHNAWAZ TARIQ, 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 and proper 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. Petitioner also 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, no cause 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, while 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 and subjudice 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
Ghafoor died 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 moved application 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 of Anis 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. 1.
It is only prerogative of the legal heirs to agitate, the authority already executed in favour of
respondent No.1 but, they have not revoked said 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, authorisation on behalf of the remaining executants,
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.

SL/M-45/Sindh Petition dismissed.

P L D 2005 Karachi 684

Before Anwar Zaheer Jamali, J

JAWAID ARSHAD MIRZA through Legal Representatives---Petitioner

Versus

TRUSTEES OF HAJI SIR ABDULLAH HAROON and others---Respondents

Constitutional Petitions Nos.213, 383, 431,436 to 444, 562, 585, 640 and 895 to 897 of 2003,
decided on 24th June, 2005.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(2)(vi), (3)(4)---Sindh Cultural Haritage (Preservation) Act (XII of 1994), Ss.6, 10 &
19---Constitution of Pakistan (1973), Art.199---Constitutional petition---Ejectment of tenants
was sought on the sole ground of demolition and reconstruction of property which was protected
and notified under the Sindh Cultural Heritage (Preservation) Act, 1994---Landlord of the
property (Wakt), before filing ejectment applications had obtained permission for demolition and
reconstruction plan from the competent Authority, which was the requirement of S.15(2)(vi) of
the Sindh Rented Premises Ordinance, 1979---Tenants also fully enjoyed the protection of S.
15(3)(4), the Sindh Rented Premises Ordinance, 1979---Jurisdiction of Rent Controller would
not be barred in respect of the premises declared as protected heritage by virtue of S. 19, Sindh
Cultural Heritage (Preservation) Act, 1994---Demolition of building and reconstruction was only
possible when the dispute between the owner/landlord and the concerned Authority under Sindh
Cultural Heritage (Preservation) Act, 1994 was resolved in terms of the said Act and in
accordance with law and in the given situation passing of ejectment order in favour of landlord,
subject to the condition of its executability against the tenants only after grant of no
objection/permission for demolition/reconstruction by the Committee under the Sindh Cultural
Heritage (Preservation) Act, 1994, was balanced and equitable course followed by the lower
forums, which called for no interference from the High Court in exercise of its Constitutional
jurisdiction under Art. 199 of the Constitution---Principles.

Rashid Brothers, Faisalabad v. Ch. Muhammad Anwar Khan and another 1981 SCMR 782;
Dawood Adam Kabari v. Mst. Khatija Bai 1984 CLC 1713; Hassan and others v Fancy
Foundation PLD 1975 SC 1 and Muhammad Yousuf and another v. Muhammad Sarfraz
Cheema, Additional District Judge and others PLD 1987 SC 20 ref.

(b) Power of attorney---

----Held, 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 executants, who still
survived, would continue to remain in force.
(c) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 15(4)---Ejectment on ground of demolition and reconstruction of building---Held, it was

not a condition imposed by statute upon the landlord that for the purpose of raising new
construction he had to keep in mind the provision for accommodating the existing tenant or to
design the new construction of the building in a way so as to suit the requirement of the
tenant(s).
(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Grant of relief under Art.199

of the Constitution is purely discretionary in nature and in case when the concurrent findings of
the two. Courts were based on proper appreciation of evidence, there would be no justification to
interfere in the impugned orders.
Tassawar Hussain Rizvi for Petitioners (in Constitutional Petition No.213 of 2003).

Khawaja Samiul Hassan, for Petitioners (in Constitutional Petitions Nos.436, 437, 438, 439, 440,
441, 442, 443, 444, 562 of 2003 and 895 to 897 of 2003).

K.A. Wahab for Petitioner (in Constitutional Petition No.585 of 2003).

Muhammad Younus for Petitioner (in Constitutional Petition No.383 of 2003).

Ghulam Abbas Peshori for Petitioner (in Constitutional Petition No.640 of 2003).

Iftikhar Jawaid Qazi for Petitioner (in Constitutional Petition No.431 of 2003).

Syed Ehsan Raza for Respondent No.1 ((in all the Constitutional Petitions).

Dates of hearing: 25th April and 2nd May, 2005.

JUDGMENT

ANWAR ZAHEER JAMALI, J.---By this common judgment I intend to dispose of above
numbered eighteen Constitutional Petitions, relating to different tenements in the buildings
bearing Nos. 42 SB-6, 28 SB-6 and 53 SB-4, all owned by respondent Haji Sir Abdullah Haroon
Wakf, as the same arise out of similar set of facts and contain common questions of law for
consideration.
2. The relevant facts forming background of this litigation are that the respondent, Haji Sir
Abdullah Haroon Wakf (hereinafter referred as respondent No. 1), is owner of building
constructed over plots No.42 SB-6, 28 SB-6 and 53 SB-4, Raja Ghazanfar Ali Road, Karachi,
which consists of several residential and commercial tenements (herein after referred to as rented
premises), in possession of different petitioners, at different rates of rent. In respect of these
rented premises, respondent No.1 filed separate ejectment applications against each
tenant/petitioner seeking their ejectment on the sole ground of demolition and reconstruction of
the said properties. It was stated in the application that such demolition and reconstruction of
new building, for which respondent No. I have permission and approved plan from the
competent authority, will provide better facilities in the building and it will also improve the
general outlook of the area.

3. The petitioners in their respective written objections denied the claim of the respondent No.
1, being not bona fide; claimed themselves to be old tenants in the building and some of them
also pleaded payment of Pagri however, they did not dispute the ownership/landlordship of
respondent No.1 and availability of permission for reconstruction and approved building plans
with them. In some of the rent cases maintainability of ejectment applications was also
challenged as the persons who had filed the ejectment application was not duly authorized to do
so on behalf of the respondent No. 1.

4. After usual proceedings in all the rent cases, in rent cases Nos.842 of 1992 and 167 of 1995,
which are now subject-matter of Constitutional Petition No.213 of 2003 and 640 of 2003
respectively, the ejectment applications of respondent No.1 were dismissed by the Rent
Controller with the observations that the approved building plan produced by
respondent No.1 had expired during the pendency of rent case and further the disputed buildings
have been declared as notified property under the Sindh Cultural Heritage (Preservation) Act,
1994. However, in Rent Appeals Nos. 1269 of 2001 and 116 of 2002, relating to these two rent
cases, such orders of the Rent Controller were set aside by impugned judgments dated 18-11-
2002/1-4-2003, with the condition that the ejectment order passed by the Appellate Court in
favour of respondent No.1 will not be executable against the petitioner until necessary
permission/no objection for demolition/reconstruction of the disputed building is obtained by
respondent No.1 under the Sindh Cultural Heritage (Preservation) Act, 1994, (hereinafter
referred to as the Act of 1994) from the competent authority. In all the other rent cases i.e. Rent
Case Nos. 804, 805, 810, 811, 813, 814, 815, 819, 821 to 827 and 847 all of 1992, the ejectment
applications filed by respondent No.1 were allowed by the Rent Controller on the ground of
reconstruction, through various orders passed in these cases. The appeals preferred by the
petitioners against such ejectment orders were also dismissed with similar condition as contained
in the ejectment order passed by the Appellate Court in Rent Appeal No.1269 of 2001, that the
tenants shall not be evicted from the rented premises till permission is obtained by the landlord
from the Authorities concerned for reconstruction of the building under the provisions of Sindh
Cultural Heritage Protection Act, 1994. It is against such identical orders of ejectment passed by
the learned Rent Controller and the Appellate Court of Additional District Judge (South)
Karachi, in various rent appeals, that these petitions have been preferred by the petitioners.

5. Mr. S. Tasawar Hussain Rizvi, learned counsel for the petitioner in Constitutional Petition
No.213 of 2003, in his arguments, contended that in view of the promulgation of Sindh Cultural
Heritage (Preservation) Act, 1994, and declaration of the disputed property as protected heritage
in terms of section 6 of the Act, vide Notification published by the Government of Sindh, the
rented premises in possession of the petitioners could not be vacated from them on the ground of
demolition and reconstruction. In such circumstances, even passing of conditional ejectment
order by the Appellate Court is not justified. Learned counsel, however, did not dispute that the
requirement of section 15(2)(vi) of the Sindh Rented Premises Ordinance, 1979, for seeking
eviction of the tenant on the ground of re-construction were fulfilled by respondent No.1 by
production of Approved Building Plans and permission for reconstruction from the competent
authority.

6. Mr. Khawaja Samiul Hassan, Advocate representing petitioners in other Constitutional

petitions Nos. 436 to 444, 562 and 895 to 897 of 2003, also strongly urged the same ground. He
also made reference to section 19 of the Sindh Cultural Heritage (Preservation) Act, 1994, and
contended that since the Act of 1994 has overriding effect on any other law contrary to it,
therefore, the ejectment applications filed by the respondent No.1 for seeking ejectment of
petitioners from the rented premises situated in the disputed buildings, which have been declared
as protected heritage, were not maintainable. Learned counsel, however, did not dispute that
there is no dispute as regards the relationship of landlord and tenant between the parties since the
time of commencement of ejectment proceeding till this date, as stated by the petitioners in their
respective written objections and that at the time of filing of ejectment applications in the year
1992 the Sindh Cultural Heritage (Preservation) Act, 1994, was not even promulgated. The
learned counsel also did not dispute about the availability of valid approved building plans and
permission of reconstruction with the respondent No.1 in respect of the disputed properties at the
time of filing of ejectment applications.

7. Mr. Abdul Razzak, Advocate, holding brief for Mr. K.A. Wahab, Advocate for the petitioner
in C.P. No.585 of 2003, and Mr. Muhammad Younus, Advocate in C.P. No.383 of 2003, adopted
the arguments of M/s. Tassawar Hussian Rizvi and Khawaja Samiul Hassan, Advocates. Mr.
Ghulam Abbas Peshori, Advocate for petitioner in C.P. No.640 of 2003 in addition to adopting
the arguments of M/s. Tassawar Hussain Rizvi and Khawaja Samiul Hassan, Advocates, further
contended that the ejectment applications filed on behalf of respondent No.1 were not
maintainable in law as the person, who has filed the ejectment applications, was not holding any
valid authority on behalf of Sir Haji Abdullah Haroon Wakf. He also contended that in the
approved building plans no provision for accommodating the tenant (his client) in the newly
constructed building was provided by the landlord to frustrate the spirit of section 15(4) of the
Ordinance of 1979. Thus, without providing specific provision in this regard to safeguard the
interest of the petitioner/tenant, ejectment application should not have been allowed by the Rent
Controller and the Appellate Court. Mr. Iftikhar Jawaid Qazi, Advocate for petitioner in C.P.
No.431 of 2003 also advanced his arguments in line to the submissions of other learned counsel,
as noted above.

8. In reply, Mr. Ehsan Raza, learned counsel for respondent No.1 in all these petitions contended
that the whole action for declaring the disputed properties as protected heritage, was taken by the
concerned authorities without any notice or opportunity of hearing to respondent No. 1, during
the pendency of ejectment applications before the Rent Controller, however, as soon as
respondent No.1 came to know about this development they have immediately initiated
proceedings in terms of sections 6(2) and 10(3) of the Sindh Cultural Heritage (Preservation)
Act, 1994, which proceedings are still sub judice before the concerned committee for
determining the status of the disputed property or its deletion from the notified list of protected
heritage. Making reference to the provisions of section 15(2)(vi) of the Sindh Rented Premises
Ordinance, 1979, learned counsel contented that the only requirement of law for seeking
ejectment of tenant by the landlord on the ground of reconstruction is the approved building
plans and permission for reconstruction from the competent authority, and in such cases even the
question of examining the bona fide of the landlord is not involved. Further by virtue of section
15(3) of the Ordinance the rights of the tenant ejected on the ground of reconstruction are fully
protected in case the owner/landlord of the property fails to demolish the building within six
months of the delivery of possession or he fails to raise construction within two years thereafter.
In the present case, not only such protection is fully available to the petitioners and they will also
be entitled for restoration of possession after reconstruction as provided under section 15(4) of
the Ordinance of 1979, but in addition to it, while ordering ejectment, through impugned orders,
the Appellate Court has further safeguarded their interest by imposing additional condition upon
the respondent No.1 that they will not be entitled to execute the impugned ejectment orders
against the petitioners, unless necessary permission/no objection was obtained by them under the
Sindh Cultural Heritage (Preservation) Act, 1994 for reconstruction of the building. Thus in all
fairness these petitions being devoid of any legal cause are liable to be dismissed. To fortify his
submissions learned counsel placed reliance on following cases:--

(a) Rashid Brothers, Faisalabad v. Ch. Muhammad Anwar Khan and another (1981 SCMR 782).

(b) Dawood Adam Kabari v. Mst. Khatija Bai (1984 CLC 1713).

(c) Hassan and others v Fancy Foundation (PLD 1975 SC 1).

(d) Muhammad Yousuf and another v. Muhammad Sarfraz Cheema, Additional District Judge
and others (PLD 1987 SC 20).
In the case of Rashid. Brothers (supra), it was held that renewal of sanction expired during the
pendency of ejectment proceedings would not affect the maintainability or the merits of
ejectment application as it would be only a formality. In the case of Dawood Adam Kabari
(supra), ejectment of tenant on the ground of reconstruction, of property was allowed subject to
the condition of eviction of premises by other tenants of the same building as reconstruction was
not possible without eviction of all the tenants. In the case of Hassan and others (supra), while
dealing with a case relating to ejectment of tenant on the ground of reconstruction, it was held
that it is well-settled principle in general, when substantive law is altered during the pendency of
an action, the rights of the parties are decided according to law as it existed when the, action was
begun unless the new statute shows that clear intention to vary such rights. In the case
Muhammad Yousaf (supra), while dealing with a civil petition, arising out of ejectment
proceedings filed against the tenant on the ground of reconstruction, it was held by the
Honourable Supreme Court of Pakistan that the question whether property was required for the
purpose of reconstruction by the landlord reasonably and in good faith in terms of the Rent
Restriction Ordinance (VI) of 1959 section 13(2)(iv) was one of fact and concurrent findings are
not open to question in writ jurisdiction.

9. I have carefully considered the arguments advanced by the learned counsel for the parties and
perused the material placed on record. Before I proceed to examine above-noted contentions of
the learned counsel with reference to the various provisions of Sindh Cultural Heritage
(Preservation) Act, 1994, and the Sindh Rented Premises Ordinance of 1979, it will be
advantageous to reproduce hereunder the relevant provisions of both the enactments which read
as under:---

Section 6 of the Act of 1994.

6. Declaration of protected heritage.--(1) Government may, by notification in the official

Gazette on the recommendation of Committee or otherwise declare any premises of
historical, cultural or architectural value to be protected heritage within the meaning of
this Act.

(2) A copy of every notification published under subsection (1) shall be published in
newspapers and fixed up in a conspicuous place on or near such premises/object together
with an intimation that any objections to the issue of the notification received by
Government within one month from the date of the notification shall betaken into
consideration.

(3) On the expiry of the said period of one month, Government after considering the
objection, if any, may confirm or withdraw the notification.
 (4) A notification under this section shall, unless and until it is withdrawn, be conclusive
evidence of the fact that the premises or objects to which it relates is a protected heritage
within the meaning of this Act.

Section 10 of the Act of 1994

(10) (1) If it is apprehended that any person intends to destroy, remove, alter, deface or imperal
the protected heritage or to build on or near the site thereof in contravention of the terms
of an agreement for its preservation under section 8, the Committee may make an order
prohibiting any such contravention.

(2) If an owner or other who is bound by an agreement for the preservation or

maintenance of a protected heritage under section 8 refuses to do any act which is in the
opinion of the Committee is necessary to such preservation for maintenance, or neglects
to do any such act within such reasonable time as may be fixed by the Committee may
authorize any person to do any such act, and the expense of doing any such act or such
portion of the expense as the owner may liable to pay under the agreement may be
recovered from the owner as if it were an arrear of land-revenue.

(3) A person aggrieved by an order under this section may appeal to Government which
may cancel or modify it, and its decision shall be final.

Section 19 of the Act of 1994

19. Overriding effect.--The provision of this Act shall have effect notwithstanding anything to
the contrary contained in any other law for the time being in force.

Section 15 of the Ordinance of 1979

15. Application to Controller.---(1) Where a landlord seeks to evict the tenant otherwise than in
according with section 14, he shall make such application to the Controller.

(2) The Controller shall, make an order directing the tenant to put the landlord in possession of
the premises within such period as may be specified in the order, if he is satisfied that---

(ii)

(iii)

(iv)
(v)

(vi) the premises. is required by the landlord for reconstruction or erection of a new building at
the site and the landlord has obtained necessary sanction for such reconstruction or erection from
the authority competent under any law for the time being in force to give such sanction;

(vii)

(3) Where the landlord who has obtained the possession of the premises for the purpose of
reconstruction of the building or erection of a new building, shall demolish the existing building
within six moths of taking over of the possession of the premises or, as the case may be,
commence the erection of the new building within two years of the taking over of the possession
of the premises, and in case the landlord fails to demolish the building as aforesaid, the tenant
shall be entitled to be put into possession of the premises (and for the purpose he may apply to
the Controller for an order in that behalf.).

(4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the
old building may, before the completion of new building and its occupation by another person,
apply to the Controller for an order directing that he be put in possession of such area in the new
building as does not exceed the area of the old building of which he was in occupation and the
Controller shall make an order accordingly in respect of the area applied for or such smaller area,
as considering the location and type of the new building and the needs of the tenant, he deems
just and no payment of rent to be determined by him on the basis of rent of similar
accommodation in the locality.

10. A bare reading of the three sections from the Act of 1994, as reproduced above, would show
that the Government of Sindh on the recommendation of the Committee constituted under
section 3 of the Act of 1994, or otherwise can declare any premises as protected heritage within
the meaning of section 2(vi) of the Act. Upon publication of such Notification objections can be
filed within one month, and on filing of objections the Government could either confirm or
withdraw the Notification. However, in case of non-withdrawal of Notification, it shall be
considered as conclusive evidence of the fact that the property is protected heritage within the
meaning of the Act. Section 10 of the Act deals with the situation where any person intends to
destroy, remove, alter, deface or imperil the protected heritage or to build on or near the site
thereof construction in contravention of the terms of the agreement. In such situation for
preservation of protected heritage within the meaning of section 8, the Government may
authorize any person to do any such act to maintain and preserve the protected heritage or such
portion of it at the expense of the owner and in case such expense are incurred by the Committee
it shall be recovered as arrears of land-revenue. While subsection (3) to section 10 gives right of
appeal to a person against any decision taken in preceding subsections of section 10. Further,
section 19 of the Act of 1994 provides that the provision of this Act shall have overriding effect
not withstanding any thing to the contrary contained in any other law in force at the relevant
time.

11. On the other hand, the provisions of section 15(2)(vi) read with subsection (3) of the
Ordinance of 1979, provide for the conditions to be fulfilled by the landlord/owner of the
property for seeking eviction of his tenant on the ground of reconstruction and erection of the
building and the consequences in case such ejectment order has been obtained on the ground of
reconstruction but the property is not demolished or the construction is not commenced by the
landlord within the stipulated period. Subsection (4) to section 15 further confers right to the
tenant to be inducted in the newly constructed building in terms thereof.

12. In all these petitions, there is no denial of the fact that the respondent No.1 (owner/landlord
of the property) before filing of ejectment applications had obtained permission for demolition
and reconstruction of disputed buildings and approval of new construction plan from the
competent authority, which is the requirement of subsection 2(vi) to section 15 of the Ordinance.
There is also no denial of the fact that the ejectment of the petitioners from their respective
tenements in the disputed buildings has been sought by the respondent No. I on the sole ground
of demolition and reconstruction of the existing building over plots Nos.42 SB-6, 28 SB-6 and
53 SB-4, Raja Ghazanfar Ali Khan Road, Karachi. Thus, the petitioners fully enjoy the
protection under section 15(3) of the Ordinance, 1979, that if after their eviction, the building is
not demolished within six months or reconstruction is not carried out within two years, they will
be entitled for immediate restoration of possession of their respective tenements. In addition to it,
C after reconstruction, the petitioners will be again entitled for induction in the newly
constructed building in terms of section 15(4) of the Ordinance, 1979. Such protection provided
by the legislature in all fairness, is more than sufficient to discourage any landlord from seeking
eviction of his tenant(s) on the ground of reconstruction, if his intentions are not bona fide or
tainted with mala fide. It is for this reason that the legislature has done away with the condition
of bona fide, while allowing ejectment of the tenant(s) on the ground of reconstruction. In the
present case, admittedly, the Sindh Cultural Heritage (Preservation) Act, 1994 (Act XII of 1940)
was promulgated on 30th April, 1994 and subsequently by issuance of Notification in terms of
section 6 of the Act the disputed buildings have been notified as protected heritage. Thus it is
obvious that the demolition and reconstruction of these buildings is only possible when the
dispute between owner/landlord and the concerned authority under the Heritage Act is resolved
in terms of the said Act of 1994 and in accordance with law.

13. The learned counsel for respondent No. 1 has made a categorical statement before this Court
that an application in terms of section 10(3) of the Act of 1994 was submitted before the
Secretary Culture, Tourism, Sports and Youth Affairs Government of Sindh on 18-10-1995,
which is still pending for adjudication. Such statement is duly supported with the photostat
copies of the application and other material placed on record in some connected Constitutional
Petitions and the counter affidavit of Mr. Ameen Gul, Attorney/Rent Collector of respondent
No.1 Haji Sir Abdullah Haroon Trust. In such circumstances, more particularly when the Act of
1994 has come into force on 30-4-1994, during the pendency of ejectment applications, it would
have been unjust and unfair if the ejectment applications had been dismissed by the Rent
Controller or the Appellate Court with the observations that firstly the landlord should obtain
permission/no objection from the committee under the Act of 1994 for demolition of the building
and then to file fresh ejectment applications for eviction of tenants. In the given situation,
passing of ejectment order in favour of respondent No. 1, subject to the condition of its
executability against the petitioners only after grant of no objection/permission for
demolition/reconstruction by the committee under the Act, of 1994, seems to be balanced and
equitable course followed by the lower forums, which calls for no interference from this Court in
exercise of its Constitutional jurisdiction under Article 199 of D the Constitution.

14. The submission of the learned counsel that by virtue of section 19 of the Act of 1994
jurisdiction of Rent Controller would be barred in respect of the premises declared as protected
heritage, has no force as even in respect of such premises ejectment of tenant, on any of the
grounds available under sections 14 and 15 of the Ordinance of 1979, will be regulated by the
provisions of Ordinance, of 1979, therefore, the Rent Controller would be competent to entertain
and decide such cases. However, the right of owner/landlord for demolition of the building
declared as protect heritage will be further subject to the provisions of the Act of 1994. It will be
pertinent to mention here that in the instant case, by imposition of condition for obtaining prior
no objection for demolition from the committee, the Rent Controller and the Appellate Court
have virtually diluted the effect of the Act of 1994. Thus, it cannot be considered any more a
valid hurdle in granting ejectment applications in respect of such buildings on the ground of
reconstruction.

15. The submissions of Mr. Ghulam Abbas Peshori and Mr. Iftikhar Jawaid Qazi, Advocates,
that the rent applications were not maintainable in law as it were not filed by duly authorized
person, are devoid of any legal force as in several Constitutional petitions photostat copies of the
general power of attorney dated 6th October, 1982, executed by the Trustees of respondent No.1
(i.e. Yousuf A. Haroon, Mehmood A. Haroon and Abdullah Al-Hussain Haroon) in favour of
Faqir Muhammad s/o Mansoor Khan have been filed on the basis of which all the ejectment
applications were filed by the said attorney. Contents of this power of attorney reveal that it is a
general power of attorney, which authorizes the attorney to file rent cases and ejectment
applications on behalf of the Trust. The genuineness of this power of attorney and'its contents are
not in dispute and thus clearly prove the lawful authorization in favour of the attorney to initiate
proceedings on behalf of respondent No. 1. Even in case some of executant of this power of
attorney has expired during the E pendency of the proceedings, authorization, on behalf of the
remaining executants, who still survive, will continue to remain in force. The submission of Mr.
Ghulam Abbas Peshori as to the non-providing of proper provision for induction of tenant (his
client) in the newly constructed building in terms of sub-section (4) to section 15 of the
Ordinance of 1979 has also no force as it is not a condition imposed by statute upon the landlord
that for the purpose of raising new construction F he has to keep in mind the provision for
accommodating the existing tenant or to design the new construction of the building in a way so
as to suit the requirements of the tenant(s).

16. In the facts and circumstances discussed above, the orders of the Appellate Court as well as
orders of the Rent Controller in all the rent cases (except R.A. No.842 of 1992 and 167 of 1995)
are based on proper appreciation of relevant facts and the provisions of law and do not call for
any interference by this Court in exercise of its Constitutional jurisdiction under Article 199 of
the Constitution. Rather, looking to the peculiar facts and circumstances of these cases the
condition of obtaining permission/no objection from the Committee under the Act or 1994, as
condition precedent, for execution of ejectment orders is just, fair and equitable and from any
angle it cannot be termed as unwarranted by law.

17. Moreover, grant of relief under Article 199 of the Constitution is purely discretionary in
nature and in the given facts and circumstances of these cases, when the concurrent findings of
the two Courts, based on H proper appreciation of evidence, are in favour of respondent No. 1, I
find no justification to interfere in the impugned orders of ejectment passedagainst the
petitioners.

18. For the foregoing reasons all these petitions, being without substance, are dismissed in limine
along with pending applications.

M.B.A./J-25/K Petitions dismissed