MUHAMMAD MEHRBAN vs SADRUD DIN and another

' MUHAMMAD YOUNAS SURAKHVI, J.---This appeal with the leave of the Court has been filed to call in question the judgment and decree of the High Court, dated April 19, 1994 whereby while accepting the appeal of respondent Sadrud Din the judgment recorded by the District Judge, Mirpur on July 27, 1993, was set aside and the case was remanded to the Sub-Judge Dudyal directing him to proceed afresh.

2. Precisely the facts of the case are that Muhammad Mehrban appellant, herein, filed a suit for possession of the house built on Plot No, 321 measuring 1 Kanal situate in Sector-4, Dudyal against Sadrud Din, respondent, in the Court 'of Sub-Judge Dudyal, through his attorney, namely Muhammad Younus, on March 21, 1987. The suit was dismissed on December 15, 1992 on the ground of invalidity of power of attorney on the basis of which the suit was being prosecuted. In view of the learned Sub-Judge the power of attorney, on the basis of which the suit was filed, was valid only for two years, a condition stipulated on the power of attorney, and after the expiry of period of two years, the prosecution of the case was without any authority whatsoever. Hence the suit was dismissed. However, the Sub-Judge decided all other issues in favour of plaintiff-appellant.

3. On appeal before the District Judge the order recorded by the Sub-Judge was set aside and the learned District Judge observed that all the proceedings in the case including the arguments were concluded before the expiry of two years and it was for the Court to decide thereafter within time According to the learned District Judge the appellant-plaintiff well in time performed his part of obligations; he was not to be blamed for the lapse committed by the Court and thus decreed the suit of plaintiff. A learned Judge in the High Court vide his impugned order, dated April 19, 1994 opined that irrespective of the fact as to whether the power of attorney does or does not authorise the attorney to institute the suit, it was not validly executed to conform to the provisions contained in section 95 of Qanoon-e-Shahadat. The High Court also observed that after arriving at the conclusion that the suit was not maintainable, the trial Court ought to have taken its hands off from deciding the other issues and as such the suit was dismissed. Hence this appeal.

4. Mr. Nazir Ahmed Ghouri, the learned counsel for the appellant, while arguing the case on behalf of the appellant, submitted that the suit was filed on the basis of valid power of attorney which was duly authenticated in Azad Kashmir by a competent Authority. The learned counsel vehemently contended that in the written statement filed by the respondents-defendants, the validity of power of attorney was not challenged. So, in the estimation of the learned counsel, a point not agitated in the pleading cannot be allowed to be raised for the first time in the High Court. The learned counsel further contended that supposing the power of attorney to be defective or invalid, the subsequent power of attorney executed on April 20, 1988 ratified all the proceedings conducted before the execution of this power of attorney. In support of his contentions the learned counsel relied on PLD 1982 Kar. 72, 1992 CLC 15, PLD 1984 SC 12, PLD 1953 BJ 45, PLD 1966 Dacca 444 and AIR 1963 Raj.

147.

5. On the other hand the learned counsel for the respondents, Kh. Ali Muhammad, strenuously argued that the suit of the plaintiff-appellant was liable to be dismissed as the power of attorney on the basis of which the suit was filed was an invalid document, which did not confer any power on the attorney to institute the suit, The learned counsel submitted that the power of attorney was not executed and authenticated by any of the authorities visualised by section 95 of Qanoon-e- Shahadat. The learned counsel emphasised that the subsequent power of attorney, placed before the District Judge for the first time, and purported to have been executed on April 20, 1988 is also illegal and does not ratify the previous proceedings instituted by an unauthorised person as an attorney. The learned counsel maintained that when the suit was held to have been not maintainable the Court was not competent to decide the other issues.

6. We have heard the points convassed by the learned counsel for the parties and perused the record made available with care.

7. The point of vital and pivotal importance that needs resolution in this case is whether the power of attorney marked as Exh. PA attached with the file of Sub-Judge, admittedly executed in England, by Muhammad Mehrban appellant, herein, in favour of Muhammad Yunus on 24th of February 1987 and validated in Azad Kashmir on March 9, 1987 does or does not authorise the attorney to institute the suit regarding the suit land. In order to find out an answer we have to resort to the recitals contained in the power of attorney itself and to interpret them as they exist. To have the correct perception of the matter it will be useful to reproduce the relevant portions of the power of attorney:- "This power of attorney is made the 24th day of February one thousand nine hundred and eighty- seven by Muhammad Maharban of 863 Stratford Road Hall Green Birmingham England whereas I own property known as Plot and House No, 334 GT Road, New Dudyal in the District of Mirpur of Azad Kashmir in Pakistan and I am desirous of appointing an Attorney my brother Muhammad Yunus s/o Ali Muhammad who resides at Plot and House No,334, GT Road New Dudyal in the District of Mirpur Azad Kashmir in Pakistan to perform the following Acts in his sole discretion with regard to my interest in the property. Now this Deed witnesseth that I Muhammad Maharban hereby appoint the said Muhammad Yunus s/o Ali Muhammad to be my lawful attorney for me and in my name to perform the following acts:--

(1) ......

(2) ......

(3) ......

(4) ......

(5) ......

(6) ......

(7) For me in my name to purchase take on lease or otherwise acquire land or property and for that purpose to do in my name all such acts as are required or necessary and to sign seal execute and perfect and as my act and deed to deliver any contract conveyance mortgage deed or assurance whatsoever and to give such notices and institute any action or other legal proceedings necessary to preserve my rights and property and to defend all actions or other legal proceedings that may be brought against me in connection with such property

(8) ........

' In witness whereof I, the said Muhammad Maharban have hereunto set my hands and seal the day and year first before written."

(Underlining is ours).

8. The learned counsel for the appellant on the basis of words used and underlined by us in the later part of para. 7 "and to give such notices and institute any action or other legal proceedings necessary to preserve my rights and property and to defend all actions or other legal proceedings that may be brought against me in connection with such property", vehemently contended that the attorney was possessed with the power of instituting the proceedings and to defend any action that may be brought against the executant.

9. But in our considered view these words are not to be read in isolation with other words; rather they are to be read with the First part of para. No, 7 and underlined by us "for me in my name to purchase take on lease or otherwise acquire any land or property or for that purpose".

10. Reading para No, 7 as a whole, we have come to the conclusion that this para. Authorises the attorney to purchase take on lease or otherwise acquire land or property in the name of principal and to institute any action of other legal proceedings necessary to preserve his rights in the property and to defend all actions that may be brought against the executant in connection with such property. Obviously no power vests in the attorney to institute any legal proceedings with regard to the suit land on the strength of the power contained in recital No, 7 of the attorney.

11. The general rule of construction is that powers of attorney must be constructed strictly as giving only such authority as those confer expressly or by necessary implication.

12. In liwibai v. Ramkuwar Shriniwas Murarka Agarwala' (AIR 1947 Nag. 17), it was observed as follows:-- "A power of' attorney is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way, as would be necessary to carry into effect the authority that is expressly given. The power of attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instructions in commercial transaction."

13. In case reported as 'Muhammad Afsar Khan and another v. Khadim Hussain and others' (PLD 1978 SC (AJ&K) 143) it was opined that:-- "A power of attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance .Of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is accessary for the proper exercise of the special powers."

14. In case reported as 'Gut Taj Begum v. Lal Hussain and another' (PLD 1980 SC (AJ&K) 60, it was observed as under:-- "Order III, rule 2--Power of attorney--To be construed strictly and be so interpreted as to give only such authority as it confers expressly or by necessary implication---Important rule for construction of such a document: regard must be had to recitals which as showing object of power would control all general terms in operative part of instrument."

15. Respectfully following the principle laid down in the a ford said judicial pronouncements we hold that the power of attorney Exh. PA relied by the learned counsel for the appellant does not empower or authorise the attorney to institute the suit with regard to the suit land. The power of attorney is couched in such clear terms that the appellant cannot get out of its mischief. So, the logical and legitimate conclusion is that the attorney was not competent to institute the suit.

16. The next question that comes for consideration is as to whether any presumption can be drawn with regard to the execution of the power of attorney. It was held by the learned Judge in the High Court that the document does not conform to the requirements laid down is section 95 of Quanoon-eShahadat. -17. We have carefully gone through the power of attorney. It has not been authenticated by any of the authorities mentioned in the section i,e, Notary Public, any Court, Judge, Magistrate, (Pakistan)

Cousul or Vice-Consul. Moreover, the power of attorney does not fulfil the requirements as provided under sections 32 and 33 of the Registration Act.

18. Section 32 of the Registration Act reads as under:-- "Except in the cases mentioned in section 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented--

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assignee of such person, or

(c) by the agent of such person, representative or assignee, duly authorized by power of attorney executed and authenticated in manner hereinafter mentioned.

' The next relevant section is section 33 which is also reproduced:-- "33.--(1) For the purposes of section 32, the following power of attorney shall alone be recognized, namely:--

(a) .....

(b) ......

(c) if the principal at the time aforesaid does not reside in (Pakistan), power of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate (Pakistan) Consul or Vice-Consul or representative of the Federal Government: Provided (i)

(ii)

(iii) .........

(2) ............................................................

(3) .............................................

(4) .............................................

In view of the abovementioned provisions it becomes absolutely clear that in the absence of such authentication by any of the authorities referred in section 95 of Qaunoon-e-Shahadat and sections 32 and 33 of the Registration Act the D power of attorney cannot be relied upon, as no presumption can be drawn with respect to the due execution of the document. Our aforesaid view is fortified by the authority `Qurban Hussain and 2 others v. Hukam Dad' (PLD 1984 SC (AJ&K) 157), wherein it was observed:-- "Power of attorney--Validity--Power of attorney for purposes of its validity, must not only be authenticated by any of persons mentioned in class. (a), (b) & (c) of S. 33 (1), of the Registration Act, but must also be 'executed before' such person or authority."

' The learned counsel for the appellant, as said earlier took strong objection that the point with regard to the validity or the very competence to file the suit on the basis of power of attorney was not taken specifically in the written statement so it cannot be allowed to be raised for the first time in the High Court. We regret that this assertion of the learned counsel cannot be accepted. In our view the point being purely legal can be agitated for the first time even in the Supreme Court. It has been held by this Court in numerous cases that a legal point which does not need detailed inquiry can be raised for the first time even in the Supreme Court. So, we hereby repeal this objection.

19. The last and final point of controversy which requires resolution is whether the subsequent power of attorney purported to have been executed on April 20, 1988 ratifies the initial proceedings conducted by the attorney. The learned Judge in the High Court opined that since the subsequent power of attorney was produced for the first time in the Court of District Judge so no explicit reliance can be placed on the subsequent power of attorney. In our view this itself is no ground for discarding the subsequent power of attorney but at the same time it may be emphasised that a power of attorney only gives that power which is specifically mentioned in it and it operates prospectively and not retrospectively.

20. Order III, rule 1, C.P.C. Postulates that a party to a suit or proceedings may either appear or act himself or through recognized agent or pleader in the Court. Again rule 2 provides that recognized agent is a person who holds power of attorney to appear and act in the Court.

20-A.In the instant case, there is no doubt in our mind, that at the time of institution of the suit, Muhammad Yunus, the attorney had no G authority to institute the suit on behalf of Muhammad Meharban as he was not as recognized agent under law. So the subsequent power of attorney in no way ratifies the previous unauthorised acts.

21. The High Court in our view rightly reached the conclusion that in case the suit was held to be not maintainable by the Sub-Judge, he should not have decided the other issues. However, we do not see any wisdom to remand the case to the trial Court.

22.' We have carefully gone through the authorities cited by the learned counsel for the appellants.

In our view they have no bearing on the facts of the present case and the principles enunciated therein are totally different and not applicable to the facts of the present case.

23. Thus, we have come to a definite conclusion that the suit for possession filed by Muhammad Yunus as attorney for Muhammad Maharban was non-existent in the eye of law. It shall be deemed not to have been instituted at all. The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed, leaving the parties to bear their own costs. Since we have decided the appeal purely on technical grounds the appellant-plaintiff may file a fresh suit if so advised.