1021/2014 Suit Muhammad Ali Zubair. (Plaintiff) V/S Sabira Khatoon & another. (Defendant)
Sindh High Court
Bench: Hon'ble Mr. Justice Nazar Akbar, Hon'ble Mr. Justice Nazar Akbar
Order Date: 12-JAN-15
(a) Specific Relief Act (I of 1877)--- ----S. 12---Civil Procedure Code (V of 1908), O. XXIII, R. 3 & O. VII, R. 11---Suit for specific performance of agreement to sell---Compromise---Cause of action---Power-of-attorney---Rejection of plaint---Scope---Executant of power of attorney died prior to the execution of agreement to sell---Effect---Agreement was not validly entered into by and between the parties after the death of principal---Said agreement to sell was not enforceable at law even if contesting parties were ready and willing to abide by its terms---Sub-attorney who claimed to have entered into an agreement of sell with the attorney had not invited objections on entering into agreement of sale of suit property---Even (present) plaintiff after entering into agreement of sale with the sub-attorney had not issued any public notice in newspapers for inviting any objection from public-at-large for transfer of title of suit property---Had such effort been made, legal heirs of the deceased executant of power-of-attorney could have warned the plaintiff before making any further payment of suit property---Search certificate of suit property was not obtained from the office of Sub-Registrar of the properties concerned---Defendant had already breached promise with the plaintiff---Broken promise by the compromising parties could not be endorsed by the court---Application for compromise of suit was liable to be dismissed---No cause of action existed for filing of suit against the defendant---Cause of action shown in the plaint was a false and collusive statement of plaintiff and defendant---Plaintiff had attempted to obtain a compromise decree from the court---Defendant had never refused to perform her part of contract---When cause of action had ceased to exist, provisions of O. VII, R. 11, C.P.C. would attract and plaint was liable to be rejected---Suit for specific performance was liable to be rejected once defendant had conceded that he was ready and willing to perform his part of contract---Nazir of the court could not be allowed to perform part of contract under circumstances---Suit had become infructuous and plaint was liable to be rejected---Both the suit and compromise application were dismissed with cost of Rs. 100,000/- to be jointly and severally borne by the plaintiff and defendant---Said cost should be paid within specified period and if the same was not paid, Nazir of the court should take step for recovery of cost including attachment of movable and immovable properties of plaintiff and defendant---Member Inspection Team of High Court was directed to examine the record and if any criminal case was made out, he should initiate or cause to initiate criminal proceedings against plaintiff and defendant in accordance with law. Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 1989 rel. (b) Civil Procedure Code (V of 1908)--- ----O. VII, R. 11---Rejection of plaint---Scope---Jurisdiction of civil court to exercise its authority to adjudicate between the parties would co-exist with the "cause of action" to settle the grievance of plaintiff against the defendant on his/her denial to accept/acknowledge certain rights of plaintiff---No suit could be filed without a "cause of action" and if at all such suit was filed, plaint should be rejected for want of cause of action---If cause of action had ceased to continue after filing of suit, nothing was left for the court to exercise its authority.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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