Find a Lawyer

Civil Revision No. 34 of 19130, decided on 18th June, 1985.

‑‑ O. III, rr. 2(a) & 4‑‑Institution of suit by attorney on behalf of principal‑Competency‑Person holding power‑of‑attorney autho rizing him, to make appearances, applications and do acts on behalf of principal, held, would be recognized agent of such party Such person could validly institute suit, and appoint c1unsel for conduct of case.‑[Power of attorney].

‑‑ S. 22 Civil Procedure Code (V of 1908), O. III r. 4‑Legal practitioner‑Document of appointment (Wakalatnama)‑Obligation of counsel to file in Court or Tribunal, document of appointment (Wakalatnama), signed by principal or his recognized agent, appoint ing him as counsel ‑ Such provisions being existent in both enactments viz. Act XXXV of 1973 and Act V of 1908, Wakalatnama duly signed by recognized agent of party filed alongwith plaint, held, would make suit validly instituted.

‑‑ O. III, r. 6‑Appointment of agent‑Mode of‑Appointment of person as agent whether special or general to accept service of process, held, was to be made by instrument in writing signed by principal‑ Certified copy of instrument was to be filed in Court if appointment was general‑Where, however, general attorney himself was recognized agent, provision of appointment in term of O. III. r. 6(2) C. P. C. would not be applicable as r. 6 pertains to agents appointed to accept service of process besides recognized agents- General Attorney appointed under general power of attorney would be competent to appoint counsel on behalf of principal for filing plaint.

‑‑ Ss. 32 & 33 (1)(c)‑Documents requiring registration‑Mode of presentation ‑ Documents requiring registration compulsory or optional, held, could be presented by person executing or claiming under same or by agent of such person duly authorized by power of attorney.

Section 32 of the Registration Act, 1908 provides that documents requir ing registration compulsory or optional shall be presented by some person executing or claiming under the same or by the agent of such person duly authorised by power of attorney executed and authenticated in the manner hereinafter mentioned. Section 33(1)(c) recognizes a power of attorney as a valid instrument for the purpose of section 32, if the principal at the time of its execution does not reside in Pakistan and the power of attorney is executed before and authenticated by a Notary Public or any Court, Judge, Magistrate. Pakistan Consul or Vice‑Consul or Representative of the Central Government.

‑‑ O.III. r. 4‑Registration Act (XVI of 1908), S. 33(1) (c)‑Suit Prosecution of General power of attorney used to prosecute suit on behalf of principal, held, would not necessitate registration compulsory or optional of such document.

PLD1980SCAJ&K60ref.

--O. III, r. 4‑General power of attorney‑Power exerciseable under‑Power of attorney, held, would vest in agent all present and future property rights and interests, real and personal of principal.

---S. 21‑Right of pre‑emption ‑Waiver of‑Pre‑emptor in posses sion of suit property at time of sale Possession delivered to vendee under warrant of possession‑Delivery of possession through execution of warrant of possession, subsequent to completion of_ sale to vendee even with consent, held, would not result in forfeiture of rights of preemption possessed by pre‑emptor‑Pre‑emptor would not be deemed to have committed positive act in completion of sale in circumstances.

‑‑ S. 21‑Civil Procedure Code (V of 1908), O.III, r. 4‑Right of pre‑emption‑Waiver and estoppel‑ Non‑acknowledgment of recog nized agent‑inconsistent pleas‑Effect of incompatible and inconsis tent pleas‑Pleas of incompetency of agent of pre‑emptor and waiver and estoppel claimed against acts of such agent being intrinsically incompatible and self‑contradictory, held, would not be available to vendee against pre‑emptor‑Vendee could not succeed on strength of inconsistencies of pleas.

‑‑ S. 115‑Revisional jurisdiction‑Appellate Court deciding appeal on incompatible and inconsistent pleas‑Such decision, held, would justify exercise of revisional jurisdiction by High Court to set aside same in revision.

Haji Ghulam Basit for Petitioner.

S. Abdus Salam Sarwar for Respondent.

Dates of hearing : 5th and 9th June, 1985.

Civil Revision No. 34 of 1980 is directed against the judgment and decree of the Court of Additional District Judge, Haripur, dated 23‑1‑1980 vide he reversed the findings of the trial Court on issues of the competency of the attorney to institute the suit and also of estoppal on his part and on acceptance of the appeal he set aside the judgment and decree of the trial Court and resultantly dismissed the pre‑emptor's suit.

2. Facts are that the suit land in half a share of some 15 Khasra numbers situate in Village 'Salam Khand' was purchased by Fida Muhammad Khan for Rs. 6000 vide a registered‑deed, dated 10‑8‑1967. The sale was pre‑empted by Rafaqat Ali Khan a co‑sharer through his general attorney in the person of his father vide the suit No. 299/1 instituted on 30‑7‑1968. Since some portion of the suit ‑ land was mortgaged with possession with the pre‑emptor, vendee had accordingly brought a suit for restitution in the Court of Collector, Haripur where from he obtained a decree for possession and was also delivered possession on the spot of a part of the suit land through a warrant of possession on 14‑4‑1968. Attorney of the pre‑emptor was also earlier allegedly approached through the vendor to purchase the suit land but he refused to purchase it. thus giving arise to the pleas of estoppel and waiver. The competency of the attorney to institute the pre‑emption suit was also contested for want of validly constituted power of authority in the attorney.

3. Issues framed in the case on the points of superior right of pre emption, actual payment of the sale price and and the market value were determined by the trial Court and also upheld by the Appellate Court, that the pre‑emptor possessed the superior right of pre‑emption and that the sale price of Rs. 6,000 was actually paid. The issues of the competency of the attorney to institute the suit and the estoppel on the part of the plaintiff through his attorney were determined by the trial Court in favour of the pre‑emptor while the Appellate Court reversed the findings under observations that since the original power of attorney was not placed on file in spite of the objection raised by the defendant in the written statement as such the suit shall be deemed to have not been instituted by a competent person as a duly recognized agent. As far the issue of estoppel the learned Appellate Court held, that the possession of the suit land was delivered to the vendee on the spot with the consent of Muhammad Zaman Khan the attorney of the plaintiff in pursuance to the warrant of possession through a family partition and that Muhammad Zaman Khan had acted in a representative capacity for and on behalf of his Son Rafaqat Ali Khan the plaintiff and that as such the plaintiff shall be deemed to have forfeited his right of pre‑emption within the meaning of section 21 of the N.‑W. F. P. Pre‑emption Act, 1950.

4. After hearing the learned counsel for the parties, Haji Ghulam Basit, Advocate for the petitioner and Syed Abdus Salam Sarwar, Advocate for the respondent and also going through the, evidence on record with their assistance, I proceed to first discuss the competency of the attorney to institute the suit for and on behalf of his principal. Order III, rule 2(a), C. P. C. provides that persons holding powers of attorney authorizing them to make and do such appearances, applications and acts on behalf of such persons are the recognized agents of the parties competent to perform the functions. Order 111, rule 4 relates to the com petency of pleader to be appointed by a document in writing signed by the person himself or his recognized agent or by some other person duly authorised by or under a power of attorney and that every such appointment (Wakalatnama) shall be filed in Court which shall be deemed to be in force until determined with the leave of the Court. In the instant case the plaintiff had appointed his father as his attorney, copy placed on file, duly authorised, to appear and act for and on behalf of his principal (plaintiff) as his recognized agent within the meaning of Order III, rule 2, C. P. C.. and the agent had onwards appointed a counsel by a Wakalatnama dul4 signed by him as general attorney of the plaintiff and the said Wakalatnama has also been filed in Court in apparent compliance of the provisions of Order III, rule 4, C. P. C.

5. The learned Appellate Court has referred to pages 459 and 76 of the P L D 1972 Central Statutes vide the Law Reforms Ordinance have allegedly effected amendments in C. P. C. Page 459 does not carry any such amendment. In fact the pertinent amendments are published on pages 504 and 761 but these amendments relate to the Legal Practitioners and Bar Councils Act, 1965 and not C. P. C. The learned Appellate Court unnecessarily consumed enough time in the subject discussion that Order 111, C. P. C. has been amended and that the said amendment is procedural to operate with retrospective effect. As far the amendments in the Legal Practitioners and Bar Councils Act, 1965 are concerned the same have been made effective on the 14th April, 1972 by the Statute itself B and as such cannot be made applicable to the suit in hand instituted in the year 1968. The amendment made in section 22 of the Legal Practitioners and Bar Councils Act, 1965 by addition of subsection (3) only obliges the Advocate to file in Court or Tribunal a document of his appoint ment (Wakatatnama) signed by the person himself or his recognized agent or some other person duly authorized by him to make such appointment. The Provisions as such ate existent in Order III, rule 4, C. P. C. and as stated earlier a Wakalatnama' duly signed by the recognized agent of the plaintiff has also been filed along with plaint on the date of the institu tion of the suit.

6. It was presented before the learned Appellate Court which he also acknowledged as correct that in the circumstances, when an objection had been taken in the written statement about the competency of the attorney to institute the suit the original copy of the general power of attorney should have been produced in the evidence and after the death of the General Attorney the original copy of the special power of attorney for the plaintiff should have again bean produced‑in evidence but having failed as above it cannot be said that the plaintiff‑pre‑emptor had appointed his father as his general attorney or the next man, his special attorney. Here the learned Court also did observe that, no doubt. this may have been a step curable in the best, interests of justice but since the original document was not produced in the Court till its disposal the case assumed special character and hence, he was obliged to hold that there was no plant whatsoever before the learned trial Court. It was presented to me during the arguments which was also not controverted by the opposite counsel that the original general power of attorney was' produced before the Appellate Court for its perusal. The same was also produced before me at the time of hearing and a photostat copy was placed on file. There has also not been adduced evidence if the general power of attorney, copy of which was placed on file, was fake. As far the special power of attorney is concerned the same has been placed on file and there has not been taken any objection to the said special power of attorney. It is also not necessary that powers of attorney must be exhibited into evidence as required by the Appellate Court in his judgment. In fact there is a provision contained in Order III, rule 6, sub‑rule (2), C. P. C. that the appoint ment of a person appointed as agent whether special or general to accept service of process shall be made by an instrument in writing signed by the principal and if the appointment is general a certified copy thereof shall be riled in Court. This provision cannot be made applicable to the facts of the case as here the general attorney was himself the recognized agent while rule 6 pertains to agents appointed to accept service of process besides the recognized agents. It, thus comes, to that the plaintiff had appointed a general attorney under a general power of attorney who had onward appointed a counsel and the latter filed a plaint accompanied by a copy of the general power of attorney and the Wakalatnama. Further the original power of attorney is not a non‑existent document and the same has been shown to this Court and also claimed to have been shown to the Appellate Court.

7. I shall next proceed to determine if the general power of attorney has been validly executed and it vests a power in the attorney to institute a pre‑emption suit. Section 32 of the Registration Act provides that documents requiring registration compulsory or optional shall be pre sented by some person executing or claming under the same or by the agent of such person duly authorised by power of attorney executed and authenticated in the manner herein‑after mentioned. Section 33(l) (c) recognizes a power of attorney as a valid instrument for the purpose of section 32, if the principal at the time of its execution does not reside in Pakistan and the power of attorney is executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Pakistan Counsel or Vice‑Consul or Representative of the Central Government. Herein, the general power of attorney was executed on 6th day of January, 1967 on a stamp paper and was authenticated by the Passport Officer at the office of High Commissioner for Pakistan in the United King on duly signed and sealed by the officer and also witnessed by A. 1. GHUBB, 25 Saloane Street. London, S. W. I Solicitor and Commissioner for oath under their seal. The general power of attorney will thus fulfil the requirements of section 33 read with section 32 of the Registration Act. This general power of attorney was later on presented for registration before the Sub‑Registrar, Sukkur on 14‑10‑1969 by Rafaqat Zaman Khan who admitted its execution and the sub‑Registrar accordingly certified it. It was contended that the general power of attorney executed on 6‑1‑1967 was to be presented for registration within four months for its execution within the meaning of section 23 of the Registration Act and that at the latest it could be presented for Registration within four months of its arrival in Pakistan as provided in section 26 and that in the instant case the arrival of the document shall be presumed, by the latest, on the date of the institution of the suit on 30‑7‑1958 when a copy thereof was riled along the plaint. It was further contended that the general power of attorney was being employed in connection with immovable property situate in sub‑District Haripur it was, therefore, to be presented for Registration before the sub‑Registrar, Haripur and not before the Sub‑Registrar, Sukhur. All these contentions shall hold good if the document needed a registration. In fact, it is section 32(c) of the Registration Act whereunder an agent of a person can present a document for registration if he is duly authorised by power of attorney executed and authenticated in the manner prescribed under section 33 of the Registration Act. Now, section 33(1)(6) recognizes a power of attorney executed before and authenticated by the Registrar or sub‑Registrar of the place of residence of the principal if he is residing in any part of Pakistan at the time of the execution of the power ot1 attorney, while subsection (1) (c) recognizes a power of attorney executed by the principal, residing outside Pakistan, before and authenticated by a Notary Public Pakistan Consul or Vice‑Consul or Representative of the Central Government.

8. To sum up the general power of attorney herein was not being employed by the agent to present a document of registration but to prosecute a suit by the recognized agent for and on behalf of the principal within the meaning of Order III, C. P. C. There was also not necessitated any compulsory or optional registration of the power of attorney for the purpose. Even otherwise the power of attorney has been found duly executed and authenticated by a representative of the Central Government within the meaning of section 33(1) (c) of the Registration Act.

9. It was contended that the general power of attorney was not authorizing the agent to institute a pre‑emption snit. In support of the view reference was made to P L D 1980 S C (A J & K) 60 in which a general power of attorney primarily meant to collect the rent and in case of default to seek the‑ ejectment to collect the rent or compensation of the forest and to pursue the proceedings in the civil Court, Revenue Court or criminal Court for the purpose and further to transfer the land and houses by mortgage, gift or sale and that all such acts of the recognized agent would be binding on the principals when the Court bad not recog nized the power of attorney as such to authorize the agent to institute a suit for pre‑emption. I shall better reproduce below the said power of attorney to facilitate comparison:‑

The disputed general power of attorney herein reads as follow :‑

Know all men by these Presents That 1, Rafaqat Zaman Khan of 24 Granley Gardens, S. W. 7 in the Country of London, England hereby appoint my father Muhammad Zaman Khan Tahirkheli of Salamkhand P. O. Ghazi, District Hazara, West Pakistan to act for me in every respect as fully and effectially as I could act in person concerning all my present and future affairs and all my present and future property rights and interests real and personal all of which i place in the unfettered control and discretion of my said Attorney with authority to bind me in relation thereto in any manner whatsoever including (‑but without prejudice to the generality of the foregoing authority) power to conduct civil suits in the‑Courts of Pakistan, to decide disputes, receive cash, given statement, make payments and transfer all manner of property both real and personal and for all or any of the above purposes to sign, seal, delivery and execute and do any deeds, transfers, documents acts and things as effectually as I myself could do if personally present, and to employ and remunerate bankers, brokers, lawyers and agents And I hereby declare that I purposely refrain from further particularizing the description of: my affairs and my property rights and interests and the powers conferred lest by so doing 1 should be deemed to limit the intended operation of this instrument as a full and general

power of attorney".,

10. Now placing the two general powers of attorney in juxtaposition, one would see that the former one was executed for a specified purpose but was styled as general power of attorney In order to vest full rights in the agent to perform the specified affairs. The latter instrument is ail out a full and general power of attorney to vest in the agent all the present and future property rights and interests real and personal of the principal. It contains a recital that further particularization of the description of the affairs was purposely avoided lest by as doing he should be deemed to limit the intended operation of the instrument as a full and general power of attorney. Further in the context a reference is also made to the statement of the vendee who claimed that be had approached the father of the plaintiff as attorney that let him first purchase the suit land but that he refused to purchase It. He claimed to have asked the Mukhtar and father of the plaintiff before the delivery of possession that if he was interested in the suit property, he can have it on payment of the sale consideration but that again he refused to purchase it. The evidentiary value of the aforesaid statement shall be determined regarding issue of waiver later on, non the less. it establishes implied admission on the part of the vendee t recognize the father of the plaintiff as latter's full agent. In view of the discussion as above, I will have to decide the issue in favour of the plaintiff:

11. On the issue of waiver vendee's statement runs that he had never contacted the plaintiff personally in respect of his consent as he was not in Pakistan and that his father was managing 'the property. He bad also not contacted the Mukhtar personally about his consent but that his reply was conveyed to him by the vendor, the sister‑in‑law of the plaintiff. Vendor has, however, not been produced at the trial to substantiate his assertion. How can a sanitary statement of a party in the circumstances prove the issue of waiver in the case . Much stress was also laid on the point of the delivery of possession by the Mukhtar of the plaintiff per Exxh. D. A. which does not at all mention the presence of the Mukhtar of the plaintiff at the time of the delivery of possession. Patwari Halqa had stated that when he contacted the Mukhtar the plaintiff for the delivery of possession according to the warrant of possession he agreed to the family arrangement that possession of certain Khasra numbers be given to the defendant in toto and that certain Khasra numbers be left in toto with the plaintiff. The witness had later on admitted that he had not given possession to the parties under the mutual agreement stated above. The warrant of possession Exh. D. A. also does not state if the possession was delivered on the spot under a mutual agreement and not according to the terms o the warrant of possession. In fact the sale of the suit land has since bee completed. Defendant had subsequently obtained a decree for the restitution of possession of a part of the suit land standing mortgaged with the plaintiff who under a warrant of possession issued in execution of the decree of the Court. of Collector had delivered the possession of a part of the suit land to the defendant, How then the delivery of possession through the execution of warrant of possession even with the consent o the Mukhtar of the plaintiff subsequent to the completion of sale can result in the forfeiture of the right of pre‑emption by the plaintiff as that he shall be deemed to have committed a positive act in the completion of the sale within the meaning of section 21 of Pre‑emotion Act.

12. Last I will discuss the inherent inconsistency in the pleas raised by the defendant as on one hand he contests the competency of the agent to institute the suit and on the other hand he binds down the said agent through estoppel and waiver from instituting the pre‑emotion suit for and on behalf of the principal, i.e. the plaintiff: In case the defendant was npt to acknowledge the father of the plainti.i as his recognized agent he was not supposed to approach him to purchase the suit land in preference to bim in recognition of the plaintiff's superior right of pre‑emption. The defendant could opt for either of the twu pleas i. e. he has either to contest thW competency of the agent and to abandon the plea of waiver and estoppel or he has to recognize the authority of the agent and to agitate the plea of waiver and estoppel on his pant. The two pleas are intrinsically in com_ patible and self‑contradictory and as such the defendant cannot succeed

to his case on the strength of the inconsistencies. W

;

13. In view of what has been stated above this revision merits acceptance. The judgment and decree of the Court of .Additional District Judge, dated 23‑1‑1980 are hereby set aside and the judgment and decree of the Court of Civil Judge, dated .16‑12‑1976 are hereby restored. Since complicated questions of law were involved, hence parties are left to bear their own costs throughout.

a. e. Revision accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.