Find a Lawyer

‑‑‑0. 111, R. 2‑‑Special power of attorney, execution of‑‑Suit filed on basis of power of attorney‑‑Maintainability of‑‑Objection to such power of attorney was neither taken by respondent before Trial Court nor taken in grounds of appeal‑‑Order of Appellate Court below reversing judgment and decree of Trial Court and dismissing plaint on ground that plaint before Trial Court was not property signed and presented by petitioner, held, was liable to be set aside as having been passed without applying mind and without taking into consideration facts on record in respect of execution of power of attorney on basis of which suit was instituted.

Aslam Riaz for Petitioner. Sarwar Hussain for Respondent No.2. Date of hearing: 17th September, 1986.

The facts relevant for the purpose of disposal of this revision petition impugning the validity of the appellate order of the learned Additional District Judge. Faisalabad, dated the 13th January, 1986, recording dismissal of the petitioners' suit touching ownership of the plot in dispute bearing No. 500 and covering an area of 5 Marlas situate in Jinnah Colony, Tandlianwala, Tehsil Samundari, District Faisalabad, after reversing the judgment and decree of the learned Civil Judge, Samundri. dated the 20th October, 1985, may be shortly stated. Nisar Ahmad, petitioner, instituted suit through his special attorney, Ali Hasan, PW 1, against the respondents seeking declaration of ownership to the plot in question. The suit was resisted by Mst. Zainab Bibi, respondent 2. Town Committee, Tandlianwala, respondent 1, did not take any interest in the litigation before the trial as well as the appellate Courts below. The learned Civil Judge, Samundri, decreed the suit.

2. In appeal, the learned Additional District Judge, without adverting to the merits of the case, on the objection raised by the learned counsel for respondent 2, which objection had neither been urged before the learned trial Court nor taken in the grounds of appeal, could not find the power of attorney executed by the petitioner in favour of Ali Hasan or its copy on the record of the suit and, therefore, formed the view that the plaint had not been properly signed and presented and consequently dismissed the suit.

3. Respondent 2 never objected to the status of Ali Hasan as special attorney of the petitioner throughout the trial of the suit. In the plaint as also in his statement Ali Hasan asserted himself as special attorney of the petitioner. In the grounds of appeal preferred by respondent 2 no challenge was thrown to Ali Hasan's position as attorney of the petitioner. According to the petitioner a copy of the power of attorney had been placed on the record of the learned trial Court but it had been removed by some one. The petitioner has also moved application under section 476 of the Code of Criminal Procedure against respondent 2 for taking action against him in matter of alleged removal of the copy of the power of attorney. The hard fact remains that All Hasan is duly constituted attorney of the petitioner. In the circumstances the petitioner could have been afforded an opportunity to produce another copy of the power of attorney, The petitioner could not have been non‑suited in the manner the learned appellate Court acted. The learned counsel for the contesting respondent 2 is not in a position legally to support the impugned order which is patently invalid. The petition is accepted, the order of the learned appellate Court is set aside and the appeal is remanded to the learned District Judge, Faisalabad (since the learned Additional District Judge, who passed the impugned order, has been transferred to some other place), who will do well to hear and decide the anneal within two weeks and report compliance to this Court. The petitioner and respondent 2 have been directed to appear before the Court of the learned District Judge, Faisalabad, on the 14th October, 1986. There will be no order as to costs.

Find a Lawyer Near You

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