Dr. Muhammad Javaid Shafi vs. Syed Rashid Arshad and others (2015 PLD 212 SC)

Dr. Muhammad Javaid Shafi vs. Syed Rashid Arshad and others (2015 PLD 212 SC)

Facts:

Respondent No. 1 (“R1”) was the owner of land which was acquired by LIT (predecessor body of LDA) for its residential scheme Garden Town Lahore in exchange for a plot being exempted in favour of R1 (“Plot”). R1 executed a registered general power of attorney (“POA”) in favour of Fazal-e-Azeem, Respondent No. 2 (“R2”) through which the Plot was sold to Manzoor Ahmed, Respondent no.3/defendant (“R3”) which was registered in 1971. Later on the Plot was sold with possession by R2 through sale deed in 1972 to R3. R3 through registered sale deed in 1973 sold the Plot with possession to the appellant (“Appellant”) who raised a bungalow during 1973-74.

R1 filed a suit, after 16 years from the date of execution/registration of the POA for declaration, cancellation of the POA and the sale deeds mentioned above, and sought possession of the Plot for relief. R1 contended that the documents were the result of fraud, forgery, misrepresentation and manipulation.

R3 abstained from contesting the matter, whilst, R2 and the Appellant filed their written statements and denied the allegations made against them. The following relevant issues were?inter alia?framed:

(1)??Whether the Suit is barred by limitation?

(2)??Whether the plaintiff is estopped from filing the suit?

(3)??Whether the documents executed are the results of forgery, misrepresentation, and consequently void and ineffective over the rights of R1?

The issues were ruled against R1 by the trial court and the suit was dismissed. R1 filed an appeal which was disallowed. However, in the revisional jurisdiction invoked by R1 the High Court set aside the two judgments and decrees of the courts below and decreed the suit in favour of R1 on the reason that the Appellant being the beneficiary failed to prove the POA and the sale deeds in the impugned suits. The High Court also held that the suit being for possession of immovable property was filed within twelve years and thus was within time.??

Consequently, the Appellant filed an appeal under Article 185(2)(d) of the Constitution before the Supreme Court. Additionally, the Appellant also filed a CMA (Civil Miscellaneous Application), asking permission of the court in the interest of justice to place on record:

(a)??the attested copies of the registered POA;

(b)??copy of registered sale deed in favour of R3;

(c)??copy of registered sale deed in favour of Appellant; and

(d)??the sanctioned site plan of the Plot in favour of the Appellant.

Arguments:

The Appellants contended that:

·??????Neither from oral or documentary evidence was it proved by R1 that the POA was invalid or that it was a result of fraud, forgery or fabrication.

·??????In R1’s cross examination R1 admitted that in the year 1971 he had come to know about the POA and R1 stated in his examination-in-chief that in the year 1974 he attained knowledge of the sale of the Plot. Despite the aforesaid, no suit was filed to challenge the sale. On this ground the suit is barred by time. Neither a case was made out under section 18 of the Limitation Act 1908 (“Limitation Act”) nor was any ground for exemption from the limitation period specifically set out in the plaint as per mandate of Rule 6 of Order VII of the CPC. No separate application was filed under section 14 of the Limitation Act as well.

·??????R2 pursued exemption with LIT on behalf of R1 under the POA, to which R1 never objected, but rather allowed R2 to act under the POA, which reflects consent of R1. Consequently, R1 is estopped by his own conduct from challenging the POA.

·??????Without prejudice to the Appellant, even if the POA and the sale to R3 turns out to be fraudulent, the protection of a bona fide purchaser shall be available to the Appellant.

·??????High Court has itself concluded that the POA is a valid document, but despite this the revision petition was allowed. Therefore, the High Court has not taken into account the evidence on record.

R1 contended that:

·??????The original POA have not been brought on record and, therefore, such documents cannot be taken into account.

·??????R1 came to know of the transfer of the Plot in 1978 (SC noted that per examination in chief it was 1974) to R3 and calculating a period of 12 years under Article 142 of the Limitation Act, the limitation would expire in the year 1990. The limitation shall be from the date of knowledge. Therefore, the suit was filed within time as it was filed in 1987.

·??????As the Appellant failed to prove the execution of the POA, the transactions of sale to R3 and the Appellant shall have no legal sanctity. The Appellant being the beneficiary of the sale to him had to prove the same transaction.

·??????The rule of estoppel shall not operate in the facts and circumstances of the case.

Issue No. 1:?Whether the suit filed by R1 was within time?

Held:?The suit is barred by limitation and is, therefore, liable to be dismissed.

Reasoning

·??????As the suit was for cancellation of documents on allegations of fraud, forgery and misrepresentation the dispute squarely fell under Article 91 of the Limitation Act under which the period of limitation is 03 years. The law of limitation is not a technicality, and, as per section 3 of the Limitation Act, it is obligatory upon the court to dismiss a suit which is bared by time, even if limitation is not put up as a defence.

·??????Where a plaintiff has joined several causes of action and sought multiple remedies, a question arises as to whether the cause of action/remedy entailing the maximum period of limitation should be resorted to. Taking the maximum period of limitation in such a case is not the absolute rule of law, but rather, this aspect is to be examined as per the facts of each case. In this regard it should be determined as to what is the main relief being sought and whether the other remedies asked for are ancillary, dependent and consequential to the main relief. In Bashir Ahmad vs. Partab (1989 MLD 4314) it was held that Article 144 (which provides for the limitation of 12 years for a suit for possession) would not be attracted to a suit merely because a prayer for possession of land is made. In this case it was held that the appellants could not be granted relief for possession of land?unless the sale deed in question was declared as void for fraud. Consequently, the period of limitation was for 03 years as provided under Article 91 of the Limitation Act, which was the limitation period for cancellation of an instrument (which includes sale deeds).

·??????The suit of R1 clearly shows that R1 is challenging the documents as being invalid, and, as a consequential relief, is seeking possession of the Plot. If the main relief is time barred and the bar is not surmounted by the respondent, the consequential relief has to go away with it.

·??????In the examination-in-chief, R1 admitted that R1 saw the Plot about 6/7 years before his statement (which was recorded on 30 January 1989) and at that time a bungalow had been constructed thereupon. This shows that R1 had knowledge of the POA since 1971. R1 also had knowledge about all the transactions in favour of R3 and the Appellant through the POA since 1974, but did not bring any legal action as prescribed under Article 91 of the Limitation Act.

·??????In relation to the view of the High Court with reference to section 14 of the Limitation Act, this provision was not set out by R1 in the pleadings as is required under Order VII, Rule 6 CPC. Nor was a case set out by R1 under section 18 of the Limitation Act, as also required under the same provision of the CPC. Additionally, even if set out in the pleadings was not attracted in the present case. Section 14 provides that time spent by a plaintiff in proceedings in good faith in a court which turns out to not have jurisdiction is to be excluded in calculating limitation. This, however, has to be specifically pleaded with details of time spent in good faith in a court which later turned out to not have jurisdiction.

Issue No. 2:?Whether R1 in facts and circumstances of the case estopped by his own conduct from filing the suit?

Held: R1 in the facts and circumstances of the case is estopped by his own conduct from filing the suit.

Reasoning:

·??????As per Article 114 of the Qanun-e-Shahadat 1984 (“QSO”), where a person by his declaration, act or?omission, intentionally caused or?allowed another person to believe a thing to be true, and to act upon such belief, he shall not be allowed, in any suit or proceeding between himself and such person, to deny the truth of that thing. In other words, where a person is aggrieved of a fact, he has a right/duty to object thereto to safeguard his right, and if he fails to do so, he shall have been held to have waived his right to object. Subsequently, such person is estopped from raising such objection at a later stage. Such waiver may arise from mere silence or inaction of a person.

·??????R1 admittedly came to know of POA in 1971, but did not take recourse to proper legal action to challenge the sales made under it. Moreover, as per R1’s statement he was aware of the sale in favour of R3 in 1974 but took no action. R1 also never sought revocation of the POA as per section 203 of the Contract Act 1872 (“Contract Act”), nor was a notice of revocation issued under section 206 and 207 of the Contract Act. Additionally, R1 since 1971 never bothered to visit the Plot to see its condition, or ascertain whether it was vacant or constructed upon. Consequently, the rule of estoppel operates against R1 under Article 114 of the QSO.

Issue No. 3:?Whether the POA is forged and facbricated, and therefore, the transactions made under it cannot be sustained?

Held: The POA is not forged or fabricated, and, therefore, the transactions made under it are valid.

Reasoning:

·??????The alleged forgery in the POA is in relation to the portion in which R2 was authorized to sell the property in question. R2, however, denies having forged the POA. As per the High Court itself, there appears no difference in writing style etc. of the said portion from the rest of the POA.

·??????The burden of proof was on R1 to show that the POA was a forged and fabricated document. R1, however, remained silent.??

Issue No. 4:?Whether the non-production of the original POA, the sale deeds adversely affects the rights of the Appellant and consequently fatal to the pleas raised in defence?

Held: The non-production of the aforementioned documents does not adversely affect the right of the Appellant, nor is it fatal to the pleas raised in defence.

Reasoning:

·??????R1 was himself challenging the POA and the sale deeds made thereunder which were registered with the sub-registrar. Consequently, it was R1’s duty to bring on record the said documents and discharge the initial burden that those are invalid documents.

·??????When the High Court on the basis of evidence had formed the view that the POA was not forged, in such a situation the non-production of the sale deeds was not of much relevance. This is because if the POA was genuine, obviously it conferred authority on the attorney to sell the Plot and therefore the sales would be valid.

·??????If the case of the Appellant was that R2 had not sold the property to him (and that someone else did) the Appellant would then have to set out such a case (by producing the documents granting him ownership) and examine R2. In such circumstances the production of the sale deeds would be relevant. But this was not the case.

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