QADIR BAKHSH Versus NIZAM-UD-DIN KHAN

FAZAL ILAHI KHAN, J. ‑‑‑This is an appeal against the judgment of learned Lahore High Court, Multan Bench, Multan, dated 19th April, 1994 passed in Regular Second Appeal No. 134 of 1984.

2. It would be proper to refer to the facts of the case briefly which gave rise to the present appeal. The appellants purchased land measuring 738 Kanals, 8 Marlas situated in village Qadirpur, District Vehari through registered sale deed dated 24‑4‑1975 from Mst. Abaida daughter of Nizam‑ud‑Din respondent for an ostensible price of Rs.11,34,000. Kh. Ghulam Moin‑ud‑Din respondent asserting his preferential right of pre‑emption instituted the present Suit No. 170 of 1976 on 22‑4‑1976 in the Civil Court.

2. On 23‑4‑1976 the appellant was called upon to deposit 1/5th of the amount before 12‑6‑1976 and a notice was issued to the appellant/defendant. However, on 7‑6‑1976 the respondents/plaintiff applied for extension in the time i limit for deposit on the ground that sale proceed of his wheat crop has not been paid to him. The Court extended the period up to 21‑6‑1976. On the last date i.e. 21‑6‑1976 further application was moved in which prayer was made for furnishing security instead of cash deposit which was allowed and he was directed to furnish bond within 7 days i.e. up to 28‑6‑1976. After filing his written statement resisting the respondent/plaintiff's suit the appellant made an application for amendment of his written statement to raise objection with regard to non‑payent of proper court‑tee and for non‑deposit of the pre‑emption money in compliance of the order of the Court and challenging the order for extension in time for deposit of pre‑emption money and the order for furnishing of bond instead of cash without notice to the appellant. The trial Court rejected the application but it was allowed in revision. Accordingly the written statement was amended in which the aforementioned objections were raised which reflected in Issues Nos.5 and 6 for decision on merits at the time of disposal of the case. After recording evidence of both the parties the learned trial Judge held that respondent/plaintiff has a preferential right of pre‑emption; that the sum mentioned in the registered sale‑deed was fixed and paid in good faith; that, the suit was barred by time for non‑payment of proper court‑fee in time; that the order for extension of time and subsequently substituted order of cash deposit by a bond was illegal and on such finding dismissed the suit. Aggrieved by the judgment and decree the respondent/plaintiff filed an appeal in the Court of Additional District Judge, Vehari through his general attorney.

4. According to the learned counsel for the appellant an objection was raised to the competency of the appeal on the ground that the general attorney had no power under the power of attorney executed in his favour to file the appeal in a suit for pre‑emption. The learned Additional District Judge, however, without giving any finding on the competency of the appeal reverted the findings of the trial Court on the issues with regard to non‑payment of court fee in time and regarding the respondent/plaintiff's failure to deposit the pre emption money in time and extension of time for deposit of money without notice to the appellant. Accordingly the judgment and decree of the trial Court was set aside and respondent/plaintiff's suit was decreed on payment of Rs.11,34,000 to be deposited within 2 months vide judgment dated 19‑7‑1974. The judgment and decree of the learned Additional District Judge was challenged in Regular Second Appeal No.134 of 1984 wherein apart from challenging the findings of the trial Court on the aforementioned Issues Nos.5 and 6 it was contended that the learned Additional District Judge failed to consider the objection to the maintainability of the First Appeal on the ground stated above. The learned High Court did not interfere with the finding on the aforementioned 2 issues recorded by the 1st Appellate Court, however, while considering the objection to maintainability of the 1st Appeal before the Additional District Judge it was observed:‑‑

"That the power of attorney appeared to have been drafted in somewhat loose language and in general terms, and it did not specifically exclude the property in question, as there was no stipulation made to that effect in the power of attorney, by which Allah Ditta was in fact being accredited Mohy‑ud‑Din's agent or attorney to act generally on his behalf. That it was a general and not a specific attorney and if at all objection could be raised against authority of the general attorney, the person who had executed the instrument in favour of Allah Ditta was empowered to have done it. If Allah Ditta had misused power of attorney or travelled beyond his domain he could have been stopped from doing it by the executant."

The learned High Court faced with the affidavit filed on behalf of Malik Iqbal Rasool that objection to the maintainability of the 1st Appeal was raised and argued but the learned Additional District Judge ignored it altogether it was observed that the learned Advocate might have just passingly and feebly urged this point and it escaped the notice of the learned Additional District Judge who decided the appeal on 19‑7‑1984. He had dealt with more formidable contentions raised before him by the learned counsel for the parties and he could also have examined the aforesaid objection and determined its effect on the case and result of the appeal. On such finding it was held that the objection had hardly any weight of material consequence. The learned High Court affirming the finding of the learned Additional District Judge maintained the judgment and decree passed in favour of respondent/plaintiff and dismissed the appeal.

5. Leave to appeal was granted to the appellant/defendant against the judgment of the learned High Court on the point whether in the facts and circumstances of the case the learned High Court was legally justified in affirming the finding of the Appellate Court on Issues Nos.5 and 6, if answer is in the negative, the effect of such finding on the pre‑emption decree to which the respondent was found entitled? Subsequently the appellant filed Civil Miscellaneous Application No.961 of 1996 wherein it was stated that the appellant had challenged the maintainability of the appeal filed by the general attorney before the learned Additional District Judge which did not find place in the judgment appealed against the learned High Court. This ground was specifically raised before the learned High Court and in support of the facts that such ground argued before the learned Additional District Judge and affidavit of the learned counsel was filed alognwith memo. of appeal, the learned High Court, however, rejected his objection. This point was also raised in the petition for leave to appeal and urged before this Court but failed to find place in the leave granting order. That the point raised is legal and important for just decision of the case may be allowed to be argued although not specifically mentioned in the leave granting order.

6. After hearing the learned counsel on the application although it is a general practice of this Court that the counsel is not allowed to agitate the point on which leave to appeal has not been granted but in numerous cases this Court has in the interest of justice and in exercise of its power under the Constitution for doing complete justice allowed a party to address arguments on the point not mentioned in the leave granting order. Reference can be made to judgment in Shamim Akhtar v. Syed Ali Hussain and others (1975 SCMR 16) wherein the law has been discussed in great detail. Accordingly, the appellant was allowed to address arguments on the point; whether the first appeal filed before the learned Additional District Judge was maintainable having been filed by an attorney who has not been specifically empowered for filing suit for pre‑emption on behalf of his principal.

7. In this case apart from the point regarding the maintainability of the first appeal before the learned Additional District Judge, Vehari the findings on Issues Nos.5 and 6 by'the 2 Courts below were challenged before us.

8. We have heard the learned counsel from both sides, perused the record and have gone through the judgments cited at the Bar. The points which have arisen for determination at present are as under:‑‑

(i) Whether the suit is barred by time on account of court‑fee having been paid after the institution of the suit?

(ii) Whether there existed any legal justification for the non‑deposit of 1/5th amount and extension in time for its deposit coupled with substitution by order modification with security?

(iii) Whether the appeal before the learned Additional District Judge filed by the general attorney in absence of expressed authority for filing a pre emption suit/appeal is maintainable?

9. As the last point goes into the roots of the case it, therefore, needs to be disposed before adverting to the other 2 issues reproduced above. It was contended by the learned counsel for the appellants that the first appeal in the case was filed by Allah Ditta general attorney of the respondent/plaintiff but from the perusal of the power of attorney no express authority has been conferred on him to file a suit for pre‑emption or to file an appeal arising out of the pre‑emption suit. In support of his contention that the power of attorney shall be strictly construed. The learned counsel for the appellant relied on:‑‑

(1) Shankar Tukaram Kakade v. Lakshmibai Shankarrao Ghadge (AIR 1928 Bombay 225).

(2) Jiwibai v. Ramkuwar Shriniwas Murarka Agarwala (AIR (34) 1947 Nagpur 17).

(3) D.H.M. Framji and others v. The Eastern Union Bank (AIR (38) 1951 Punjab 371). .

(4) The Prince Line, Ltd. v. The Trustees of the Post of Bombay (AIR (37) 1950 Bombay 130).

(5) Muhammad Afsar Khan and another v. Khadim Hussain and 3 others (PLD 1978 SC (AJ & K) 143).

(6) Gul Taj Begum v. Lal Hussain and another (PLD 1980 SC (AJ&K) 60).

(7) Muhammad Mehrban v. Sadrud Din and another (1995 CLC (SC AJ&K) 1541).

(8) Muhammad Aslam and another v. Mst. Inayat Bibi and 4 others (1995 CLC 1572 (SC AJ&K)).

(9) Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. And others (PLD 1969 Karachi 123).

In order to appreciate the arguments of the learned counsel for the appellants it would be helpful to reproduce the relevant part of the general power of attorney executed in favour of Allah Dad attorney of Kh. Moin‑ud‑Din.

From the perusal of the power of attorney the words (MAN MAKAR KI ARAZI ZARAI O SAKNI JAIDAD ZILA MULTAN ) are very significant as the following 'words'

These words empower the attorney to deal with his property situated in District Multan. Admittedly the suit property at the time of the execution of the power of attorney was not owned by the principal, therefore, the attorney had nothing to do or to deal with the property in suit or to file any suit or appeal in respect of the property which was not the subject‑mater of the power of attorney. The interpretation of the power of attorney of the like nature came for consideration in the judgments referred to above. In Shankar Tukaram Kakade v. Lakshmibai Shankarrao Ghadge (AIR 1928 Bombay 225) it was held by a Division Bench that "the power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument either in express terms or by necessary implication".

In Gul Taj Begum v. Lal Hussain and another (PLD 1980 SC (AJ&K) 60) someone similar psychology was used in the power of attorney and in that context it was held, basing reliance on PLD 1969 Karachi 123, as under:‑

"Reading of the document on the whole conveys a clear sense that the general power of attorney (Exh.DA) was executed in respect of the immovable property relating to land and built‑up houses in Tehsil Mirpur and restricted powers were given to Sajawal Khan in respect of his property authorising him to launch all sort of proceedings including a civil suit relating to this property only. It in no way allows Sajawal Khan to travel beyond and file the pre‑emption suit. The power of attorney is couched in clear terms and admits of no doubt that Sajawal Khan was not authorised to file a pre‑emption suit. "

In Muhammad Mehrban v. Sadruddin and another (1995 CLC 1541) (Supreme Court AJ&K) where while interpreting para. 7 of the power of Attorney which authorised the purchase, take on lease or otherwise acquire land or property in the name of principal and to institute any auction or other legal proceeding necessary to preserve his rights in the property and to defend all actions that may be brought against the executent in connection with such property, was held did not authorise or vests power in the attorney to institute any legal proceeding with regard to the suit land on the strength of the power of attorney. It was held that the above "words" are not to be read in isolation with other "words", rather they are to be read with the first part of para. 7:‑‑

"For me in my name to purchase take on lease or otherwise acquire any land or property or for that purpose."

Meaning thereby that the power of attorney did not authroise the agent to institute any legal proceeding in respect of any other property on the principle of general rule of construction that the power of attorney must be construed constructly as giving only such authority as thus conferred expressly or by necessary implication. Such power of attorney is not open to liberal interpretation.

11. Keeping in view the above broad principle in mind enunciated in I numerous judgments of the superior Courts the power of attorney in question did not authorise the agent to file an appeal in respect of the property which was not owned by the principal at the time of execution of the power of attorney. The finding of the learned High Court in disregard of the principles of interpretation of power of attorney in this regard is, therefore, set aside and reversed.

12. Non‑deposit of the pre‑emption money in pursuance of the order of deposit within the period fixed, subsequent extension in the time and substitution of cash deposit with the furnishing of bond at present is immaterial in view of our finding given above. We hold that the power of attorney did not empower the attorney to file an appeal before the Additional District Judge. The appeal as said was not maintainable. However, it is now well‑settled that once the period of limitation is fixed for deposit of pre‑emption money and in the meantime defendant makes appearance in Court, extension in time limit for deposit without notice to the opposite‑party, to whom valuable right accrues on non‑deposit of pre‑emption money, is objectionable. Notice of such application for extension of time to deposit the pre‑emption money, to the opposite‑party is necessary and the applicant would be required to show sufficient cause for seeking extension so that the impression of mala fide of the pre‑emptor for monetary gain is removed.

For the reasons the appeal is allowed. However, the parties are left to, bear their own costs.

A.A./Q‑70/S Appeal allowed.