S. 12 (2)---Specific performance of oral agreement to sell---Suit decreed on the purported statement of the defendant's attorney---Legality---Suit seeking specific performance of the oral agreement was filed

 2024 SCMR 1106
EJAZ AHMAD vs ADDITIONAL DISTRICT JUDGE, PASROOR

S. 12 ---Civil Procedure Code (V of 1908), S. 12 (2)---Specific performance of oral agreement to sell---Suit decreed on the purported statement of the defendant's attorney---Legality---Suit seeking specific performance of the oral agreement was filed on 25 January 1996 and summons were issued to the defendant for 19 February 1996---But, on 29 January 1996, a person came forward stating that he was the attorney of the defendant and that he had no objection if the suit was decreed---Suit was accordingly decreed---Defendant on coming to know of the decree filed an application under section 12 (2), Code of Civil Procedure, 1908 which was allowed by the trial Court, and such order was maintained upto the High Court---Validity---Suit filed by the plaintiff (petitioner) should never have been decreed---Suit was filed on 25 January 1996 and the return date for the summons issued to the defendant was 19 February 1996, however, only after four days, that is, on 29 January 1996, the suit was decreed---No application for ante-dating the date, that is, 19 February 1996, was submitted in the suit, and no order was passed ante-dating the date already fixed---Order of 29 January 1996 stated that the counsel for the defendant was in attendance, but it was not explained when service of summons was effected and who engaged the counsel to represent him, nor who had signed his vakalatnama---Suit was decreed on the statement of the purported attorney, therefore, it was incumbent upon the Judge to satisfy himself as to his identity, to ensure that he was the duly constituted attorney of the defendant and that the power of attorney authorized the attorney to agree to the suit being decreed, but none of these aspects were noted by the Judge---Stated power of attorney was also not exhibited, and, if it's photocopy was produced then the Judge had to see the original thereof and exhibit it, after comparing it with the original and noting that it was a true copy thereof---Since none of the aforesaid aspects were considered the judgment and decree dated 29 January 1996 was not sustainable---Application of defendant under section 12 (2), C.P.C. was maintainable and was rightly allowed---