Famous Civil Case

2019 S C M R 74

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ MOIZ ABBAS—Appellant Versus Mrs. LATIFA and others—Respondents

specific performance elements-Ss. 42 & 54—Suit for declaration, permanent injunction and mesne profits—Oral sale agreement—Special power of attorney—Authority of attorney—Property in question was owned by the appellant, who executed a special power of attorney in favour of the attorney inter alia authorizing her to rent out the property—Attorney executed a tenancy agreement with the respondent—Subsequently the respondent claimed that the subject property had been sold to him by the attorney by way of an oral sale agreement against a certain sale consideration, and the appellant was required to issue a general Power of Attorney for execution of a sale deed—Appellant filed a suit for declaration, permanent injunction and mesne profits, whereas the respondent filed a counter suit for specific performance, cancellation of the tenancy agreement and permanent injunction—Held, that attorney admitted that the power to sell the subject property was not given to her in the special Power of Attorney—On the contrary the special Power of Attorney was clearly issued for limited purpose of letting out the property, receiving rent and doing things directly related thereto or specifically spelt out—No power, express or implied was given to the attorney that could even remotely be interpreted to confer a power to sell and receive the sale consideration—Furthermore the alleged oral agreement to sell in favour of the respondent appeared to be concocted—No date, time, place or names of witnesses of the alleged oral agreement had been mentioned in the reply to the legal notice, the written statement, or the suit filed by the respondent—Such requirement was sine qua non for proving the oral sale agreement—Moreover the belated plea of receipt of earnest money by the appellant too, was unacceptable as it was neither pleaded in the reply to the legal notice nor in the written statement filed by the respondent in the appellant’s suit—Even otherwise alleged payment of earnest money which was said to have been made, remained unproved—Respondent had indulged in frivolous litigation for many years and wasted valuable time of the Courts of law—Suit filed by the appellant was decreed, whereas suit filed by respondent was dismissed with costs in the sum of Rs.100,000—Appeal was allowed accordingly.

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