Principle of law that the parties can execute a lawful contract, orally or in writing, and such oral agreements are enforceable, provided legal requirements are fulfilled as envisaged under Section 2(b) read with..............

 It is settled principle of law that the parties can execute a lawful contract, orally or in writing, and such oral agreements are enforceable, provided legal requirements are fulfilled as envisaged under Section 2(b) read with Section 10 of the Contract Act, 1872 (“the Act, 1872”), which contemplate that all the agreements are valid and enforceable if entered into by parties who are competent to contract i.e., having age of majority and of sound mind in terms of Section 11 and 12 of the Act, 1872, for lawful object and consideration and is not expressly declared as void. However, suffice to observe that the oral agreements are more prone to the dishonest improvements by the parties in the evidence and/or pleadings in order to succeed and for this purpose, it is obligatory on part of the party claiming existence of the oral agreement to clearly specify the date, time, place and names of the witnesses in their pleadings to substantiate when, how and in whose presence, the oral agreement was concluded as held in case reported as “Muhammad Riaz and others v. Mst. Badshah Begum and others” (2021 SCMR 605). Hence, the onus to prove is on the party who is beneficiary of the oral agreement.

In civil dispute conduct of the parties is of significant importance. There is no cavil to the preposition that Order III, Rules 1 and 2, CPC empower the holder of power of attorney to “act” on behalf of the principal. Order III, Rules, 1 & 2, CPC.

This Court is of the view that the word “acts” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts” done by the attorney in exercise of power granted by the instrument and would not include deposing in place and instead of the principal i.e., the respondent in the present case. In other words, if the attorney has performed some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit and only if the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. Similarly, if the attorney alone has personal knowledge of such acts and transactions and not the principal, the attorney shall be examined, if those acts and transactions have to be proved but the attorney cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge and the attorney was not associated with the same.

C.R. No.241-D/2022
Nasir Ali Versus Mst. Raheela Mahdi
Date of Hearing: 27.11.2024
2024 LHC 5787