2017 M L D 158
[Balochistan]
Before Jamal Khan Mandokhail, J
Mir SHAH NAWAZ MARRI ---Petitioner
Versus
SUB -REGISTRAR, QUETTA and 2 others ---Respondents
Civil Revision No.121 of 2015, decided on 10th October, 2016.
Specific Relief Act (I of 1877) ---
----S. 39---Qanun -e-Shahadat (10 of 1984), Arts. 17 & 79 ---Suit for cancellation of power of
attorney ---Document, proof of ---Principles ---Contention of defendant was that plaintiff with her
free will and consent signed the power of attorney ---Suit was decreed con currently ---Validity ---
Presumption of correctness was though attached to a registered document but when its execution
was denied then sanctity of said document would depend upon the quantum and quality of
evidence ---Two attesting witnesses must be produced before the Court to prove the execution of
a document which was required to be attested ---Marginal witnesses were not only required to
identify the signature of the executant upon the document but also prove that the signature upon
the document was put by the executant in their presence ---Plaintiff did not sign the power of
attorney in front of Sub -Registrar ---Sub-Registrar was bound to verify from independent source
that the lady who was brought by the defendant on the day of alleged attestation was actua lly the
plaintiff and signature upon the document was hers ---Sub-Registrar who got registered the power
of attorney did not appear before the Trial Court as a witness to confirm on oath that plaintiff did
appear before him for the registration of document ---Author of power of attorney had also not
been produced by the defendant in support of his contention ---Defendant had not only failed to
prove the execution of power of attorney by the plaintiff but had also failed to prove the
signature on the said docum ent---No authenticity was attached to the power of attorney ---
Evidence available before the Trial Court was enough to pass a just and proper judgment ---Trial
Court had rightly declined to send the specimen of plaintiff to the expert in circumstances ---
Plaintiff had succeeded in proving that power of attorney was void whereas defendant had failed
to prove its lawful execution ---Judgments and decrees passed by the courts below were based on
law and facts ---No illegality, irregularity or jurisdictional defect was pointed out in the
concurrent findings recorded by the courts below ---Revision was dismissed in circumstances.
Syed Ayaz Zahoor for Petitioner.
Ghulam Mustafa Butt for Respondents.
Date of hearing: 1st July, 2016.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---The respondent No.2 filed a suit for cancellation
of power of attorney dated 24th December 2011 allegedly registered on 5th January 2012,
declaration and injunction against the petitioner and the respondents Nos.1 and 3 in the Court of
Senior Civil Jud ge-I, Quetta. The petitioner and the respondent No.3 filed joint written
statement, whereas the respondent No.1 filed his separate written statement and they contested
the suit on legal as well as factual grounds. The trial Court initially framed five issu es,
subsequently with consent of the parties, the trial Court struck out first four issues and thereafter
framed the following issues: --
1. Whether the power of attorney dated 24.12.2011, registered with Sub -Registrar
Quetta on 05.01.2012 is based on fraud and misrepresentation?
2. Whether the plaintiff is entitled to the relief claimed for?
The parties led their respective evidence and on conclusion of the case, the trial Court
decreed the suit by means of the judgment and decree dated 1st October 2014. T he petitioner,
feeling aggrieved, filed an appeal before the Court of the Additional District Judge -III, Quetta,
which was dismissed on 5th May 2015, hence this petition.
2. Learned counsel for the petitioner stated that the respondent No.2/plaintiff with her free
will and consent, signed the power of attorney in presence of the witnesses, where -after she did
appear before the Sub -Registrar, but now she with mala fide intention has refused to accept her
signature. The learned counsel added that the responde nt No.1, who registered the power of
attorney, in his written statement has confirmed the fact that the respondent No.2/plaintiff did
appear before him, who was identified by her brother, as such, she did not deny her appearance
before the Registrar. The l earned counsel stated that earlier five issues were framed by the trial
Court, but the same were deleted, therefore, the trial Court as well as the appellate Court have
wrongly decided the case, on the basis of which, the judgments and decrees impugned are bad in
the eyes of law. He stated that even otherwise, the burden of proving the issues was upon the
respondent No.2/plaintiff, but she has failed to do so, but despite such fact, the Courts below
have wrongly decreed the suit. The learned counsel further contended that the respondent No.2
through an application requested the trial Court to send her specimen signature to the
handwriting expert, but the trial Court did not entertain her request and opted to rely upon the
evidence available in the record, wh ich is an illegality and irregularity. The learned counsel for
the petitioner argued that the record of the sub -Registrar and the witnesses produced by the
petitioner fully proved the fact that all the formalities required for the registration of the power of
attorney were complied with, as such, it is established that the said power of attorney has legally
been executed and registered, but the Courts below have failed to consider this fact. The learned
counsel in the end contended that the Courts below hav e neither considered nor discussed the
material available on the record, as such, the judgment and decrees impugned passed by the
Courts below are result of mis -appreciation and non -appreciation of the evidence and the
material, which is an illegality and irregularity, on the basis of which the same are liable to be set
aside.
3. Learned counsel for the respondent No.2 opposed the contention and stated that the
petitioner has failed to establish the appearance of the respondent No.2 before the Sub -Registrar
and also failed to prove her signature upon the power of attorney. The learned counsel contended
that though the Sub -Registrar alleged that a lady who was sitting in a vehicle outside his office
was contacted, he did not follow the procedure to confirm th at the lady was actually the
respondent No.2. He added that the alleged power of attorney though contains signature of two
marginal witnesses, but the petitioner has produced only one witness out of them and from his
statement, it reflects that he did not establish the lawful execution of the document. The learned
counsel stated that the petitioner is a step brother of the respondent No.2 and there is a dispute
between them regarding their ancestral properties, therefore, the petitioner has fraudulently
managed the execution of the power of attorney in connivance of the respondent No.1. The
learned counsel in the end stated that the Courts below after proper appreciation of the evidence
and the material available on the record, has come to a correct conclusi on.
4. I have heard the learned counsel for the parties and have gone through the record. The
procedure for execution of any document, through which some one derives financial powers and
future obligations has been described under Article 17 of the Qanun -e-Shahadat Order, 1984,
which is reproduced herein below: --
"17. Competence and number of witness .---(1) The competence of a person to testify,
and the number of witnesses required in any case shall be determined in accordance with
the injunction of Islam a s laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or
any other special law,
(a) in matters pertaining to financial or future obligations, if reduced to writing, the
instrument shall be attested by two men, or one man and two women, so that one may
remind the other, if necessary and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or
one woman or such other evidence as the circumstances of the case may warrant."
The above provision of the law makes it mandatory that every document pertaining to
financial or future obligation must be attested by two men, or one man and two women. The
purpose of attestation of such instrument by two men or by one man and two women is that one
may remind the other to prevent doubt about the instrument, so as to protect the rights of the
parties.
5. In case of dispute over execution and authenticity of any registered document, a person
who seeks its cancellation, he shall approach a competent Court of law under section 39 of the
Specific Relief Act and must show that the instrument is void or voidable. To prove the
document, a specific procedure and requirement have been provided by Art icle 79 of the Order
1984, which is reproduced as under:
"79. Proof of execution of document required by law to be attested. If a document is
required by law to be attested, it shall not be used as evidence until two attesting
witnesses [at] least have bee n called for the purpose of proving its execution, if there be
two attesting witnesses alive, and subject to the process of the Court and capable of
giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the
execu tion of any document, not being a will which has been registered in accordance
with the provision of the Registration Act, 1908 (XVI of 1908) unless its execution by the
person by whom it purports to have been executed is specifically denied."
The provisi ons of Article 17 and Article 79 are mandatory in nature, therefore,
compliance of the same is must. Qanun -e-Shahadat Order, 1984 is a Code complete in itself as to
the mode of execution of a document creating financial and future obligation and proof of f acts
showing its execution, by way of oral and documentary evidence. Though presumption of
correctness lies to a registered document, but when its execution is denied, then its sanctity
would depend upon the quantum and quality of the evidence. To prove ex ecution of a document,
which is required by law to be attested, at least two of its attesting witnesses must appear before
the Court in support of the said document. The marginal witnesses are not only required to
identify the signature of the executant up on the said document, but must also prove that the
signature upon it was put by its executant in their presence. If the provisions of Article 79 of the
Order are not fulfilled, the document shall be adjudicated void.
6. Considering the case in hand on the touch stone of the above provision of law, though the
power of attorney contains the signature of two marginal witnesses namely Dostain Khan and
Ghulam Abbas Jatoi, but the 2nd marginal witness namely Ghulam Abbas Jatoi did not appear
before the trial Cour t to prove the lawful execution of the document, hence the requirement of
Article 79 of the Order 1984 has not been fulfilled. Besides, the respondent No.1 (Sub -Registrar)
in reply to Para No.2 of his written statement, stated that "it is submitted that a Power of
Attorney executed bearing the signatures of plaintiff was placed before answering defendant
which was registered after observing the formalities, lady was brought in a vehicle holding hands
a CNIC, which was parked outside the premises of the offi ce of the Sub -Registrar and was also
identified by the defendant No.2. Thus, it was not fell appropriate to make any further quarry a
lady introduced as plaintiff belongs to a highly respectable tribal family and was not required to
put to any task/questio n". According to the Sub -Registrar, he has received the power of attorney
which was already signed. It shows that the respondent No.2 did not sign it in front of the Sub -
Registrar. It was necessary for the Sub -Registrar to verify from independent sources t hat the lady
who was sitting in a car, brought by the petitioner on the day of the alleged attestation, was
actually the respondent No.2 and the signature upon the document was hers. Even otherwise, the
then sub -Registrar who got registered the power of at torney, also did not appear before the trial
Court as a witness to confirm on oath that the respondent No.2 did appear before him for the
registration of the document, or the lady present in the car on that day was actually the
respondent No.2. Moreover, t he author of the document has also not been produced by the
petitioner before the trial Court in support of his contention. The petitioner has since not only
failed to prove the execution of the document by the respondent No. 2, but has also failed to
prove her signature contained upon the document, thus, no authenticity is attached to it.
7. As far as the contention of the learned counsel for the petitioner that the specimen
signature of the respondent No.2 was not sent to the handwriting expert by the tri al Court is
concerned, suffice it to observe here that in view of the above discussion, it has already been
held that the petitioner has failed to fulfill the requirement for the execution and proof of the
document, therefore, the evidence available before it was enough to pass a just and proper
judgment. Under such circumstances, the trial Court has rightly declined to send the specimen
signature of the respondent No.2 to the expert.
8. Considering the arguments of the learned counsel regarding deletion of previous issues
and framing of fresh issues, the trial Court is very much competent to exercise such power under
Order XIV, Rule 5, CPC, as such, the trial Court has rightly exercised its power. Besides, this
was done with consent of the parties and more so, the petitioner did not raise such objection in
his memo of appeal before the appellate Court, therefore, the learned counsel for the appellant
cannot raise such objection for the first time before this Court.
9. The facts and circumstances of the case leads me to the conclusion that the respondent
No.2 has succeeded in proving that the Power of Attorney is void, whereas the petitioner has
failed to prove its lawful execution. The judgments and decrees impugned passed by the Courts
below are based on law and facts. The learned counsel for the petitioner has failed to point out
any illegality, irregularity 'or jurisdictional defect in the concurrent findings of fact arrived at by
the Courts below warranting interference.
Thus, in view of above, the petiti on is dismissed.
ZC/67/Bal Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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