' KHAWAJA SHAHAD AHMAD, J.--- This appeal is filed against the judgment and decree of the High Court dated 13-2-2006 in Civil Appeal No,156 of 2005, whereby the appeal filed by the appellant was dismissed.
2. Facts briefly stated are that Muhammad Azam Sati, respondent, filed a suit for specific performance against the appellant herein in the Court of District Judge, Mirpur, which was made over to the Additional District and Sessions Judge, Mirpur on 20-9-2004. The learned Additional District and Sessions Judge, Mirpur after hearing the parties decreed the suit of respondent vide judgment and decree dated 6-10-2005. An appeal was filed by the present appellant before the High Court through his counsel for setting side the judgment and decree passed by the Additional District and Sessions Judge, Mirpur on 19-11-2005. The appeal was disposed of by a learned Single Judge of the High Court on 13-2-2006. When the arguments were being heard in the High Court the learned Advocate for the appellant offered that if the respondent, Muhammad Azam Sati, takes oath on the Holy Qur'an that he has purchased the suit-land after paying the consideration amount of Rs,6,00,000 he will not press his appeal. When this offer, with the permission of the High Court, was put to respondent he accepted the same. The statements of the parties and their counsel were recorded by the learned Judge of the High Court, which were made part of the record of the case. The respondent accordingly stated the fact on the Holy Qur'an that he had purchased this piece of land as has been stated by him in the suit which he filed in the Court of the District and Sessions Judge, Mirpur. The learned Judge in the High Court dismissed the appeal of the appellant by his short order, dated 13-2-2006, which judgment and decree of the High Court have been assailed in the Supreme Court through direct appeal, as provided by the Constitution and the Supreme Court Rules. The appellant herein prays for setting aside the judgment and decree by the High Court, dated 13-2-2006 and the judgment and decree by the Additional District and Sessions Judge, Mirpur passed on 6-10-2005.
3. The claim of the appellant which has mainly been pressed before us is that in his estimation, his attorney/Advocate was not legally competent to offer the other party for decision of the appeal on the basis of oath on the Holy Qur'an. His case is that special power of attorney which he executed in favour of Maqsood Ahmed son of Shah Wali resident Peoples Colony, Mirpur was executed only for a case titled Karamat Hussain v. Khadam Hussain pending in the Court of Revenue Officer Mirpur and a case in the Court of Additional Commissioner (General) Mirpur, therefore, hi his estimation his counsel or for that matter his attorney could not agree for oath in the High Court. The legal proposition pressed into service before us by his counsel, Mr. Mushtaq Ahmad Janjua, is that so far as law and precedent law are concerned, power of attorney is to be construed strictly and it does not allow the attorney to act beyond the terms mentioned in the power of attorney. His other arguments relate to certain facts which have not been decided by the learned Judge in the High Court simply because the appeal before him was disposed of on the basis of oath as suggested by the learned counsel for the appellant. Even otherwise after going through the record of the case we find that the allegations and objections are of general nature which do not furnish required details.
4. We have heard the learned counsel for the parties and gone through the record of the case, with the help of the learned counsel for the parties. The admitted facts of the case are that the respondent herein filed a suit for specific performance against the appellant praying therein that a decree be passed in his favour about the land measuring 1 Kanal, 7 Marlas under Survey No,127 situate in village Islamgarh, Tehsil Mirpur, which he has purchased on payment of consideration money of Rs:6,00,000 through an affidavit, dated 24-9-1996. The respondent herein prayed for execution of sale-deed in his favour through intervention of the Court. The written statement on behalf of present appellant was filed by his Advocate which finds place at page 13 of the trial Court file. Mr. Aurangzaib Khan, Advocate appeared for the defendant/appellant under his signature who had been engaged, as mentioned in the power of attorney which is at page 25 of the file of Court of first instance, therefore, the objection of the appellant that he did not authorise his attorney or Advocate to enter into a compromise for settlement of the dispute on oath is not correct as per record of the trial Court. Similarly he executed power of attorney in those cases pending in the Revenue Court is found factually incorrect as the power of attorney (Wakalat Nama), attached at page 25, clearly establishes that it has been executed for conduct of the case titled Muhammad Azam Sati v. Khadam Hussain in the Court of Additional District and Sessions Judge, Mirpur. Not only that at page 14 of the High Court file while getting his statement recorded the attorney of the appellant Maqsood Ahmed son of Shah Wali categorically narrated that he is making a statement under the instruction and authority. In the High Court Khadam Hussain appellant was represented by Ch. Muhammad Mumtaz, Advocate, Mirpur, who has more clearly stated in his statement, at page 14 of the High Court file, that he is making the statement about oath on the instruction of his client. Even if the statement of the attorney namely, Maqsood Ahmed son of Shah Wali, is brushed aside still the statement of Ch. Muhammad Mumtaz, Advocate, remains there to prove that statement about settlement of the appeal on the basis of oath and the appellant before us cannot now take U-turn that his Advocate or the private attorney could not make a statement before the High Court and that it was without his consent.
5. Our attention was drawn to another fact by the learned counsel, Sardar Muhammad Azam Khan, while controverting to the arguments of the learned counsel for the appellant, that in the High Court the appeal on behalf of present appellant was filed by Ch. Muhammad Mumtaz, Advocate, Mirpur, who was engaged as a counsel by attorney Maqsood Ahmed son of Shah Wali, therefore, his appeal was incompetent in the High Court as the same had been filed by his attorney through Ch. Muhammad Mumtaz, Advocate. On this score the same deserved dismissal. Finding no way out of the counsel for the appellant offered for settlement of appeal on the basis of oath. The fact also finds mention in the concise statement filed by the respondent in this Court that the appeal filed before the Honourable High Court was without an authority as the appellant was not vested with the power to file the appeal. We are, therefore, of the considered view that even if the contention of the present appellant is accepted to be correct that power of attorney which he executed in favour of Maqsood Ahmed was only to prosecute the cases in the Revenue Courts the appeal before the High Court was incompetent as the same had been filed by a person who was not a recognized agent as provided by Order III, rule 1 of the Code of Civil Procedure and the same had to be dismissed.
6. Although, keeping in view the backdrop of the facts narrated above, the legal objection that power of attorney had to be construed strictly the same need not be discussed in detail. We agree with the legal proposition advanced by the learned counsel for the appellant that in civil cases if a suit is brought or defended by an attorney on behalf of plaintiff or defendant the recitals made in the power of attorney-are to be looked into or construed very strictly. Although not for the first time, in a case titled Gultaj Begum v: Lal Hussain PLD 1980 SC (AJ&K) 60, this Court reiterated time and again finding of the superior Courts of the Sub-Continent and by overruling some of the judgments adjudicated that an attorney can do and perform only the acts and the actions, which have specifically been provided in the document itself. Any jumping over or jumping out will be an illegality and the person for whom the attorney has acted will not be bound by that action. The same view has consistently been followed by the Supreme Court-of Azad Jammu and Kashmir.
The last case decided by this Court titled Sadiq Hussain v. Mir Jan and others on 28-1-2006 is in line with above-referred circumstances. If the attorney or the counsel appointed by attorney cannot make statement in the High Court, in the case before us, how could he file appeal in the High Court.
The contention of the appellant, therefore, before us, that he did not allow his counsel or the attorney to make application before the High Court for decision of the appeal on oath has no force at all.
7. We must also refer to another aspect, which in tune and spirit is a mixed question of law and fact that decision of a case on the basis of oath has more force as compared to any other form of decision. Once the offer has been accepted by the parties they cannot wriggle out from such accepted offer as the same would be an agreement of binding nature. The principle of approbate and reprobate would be applicable with full force. In an identical case reported as Muhammad Mazhar v. Arshad Mehmood PLD 2005 Lah. 304, after discussing the case-law in respect of power of attorney and the decision on the basis of statement on oath a learned Judge of the Lahore High Court at page 309 held that it is settled principle of law that once an offer is made and is accepted by the other side then the other side has no right whatsoever to wriggle out from that offer, which was accepted by the other party on the well-known principle of approbate and reprobate and also on the principle that the offer by a party to a suit as to being bound by a statement on oath of his opponent on being accepted by the opponent is in nature of a binding agreement.
8. We, therefore, dismiss the appeal of the appellant on the following ground:--
(i) his attorney could not file appeal in the High Court, the same having been incompetent was to be dismissed under law;
(ii) the version of the appellant that his counsel or attorney was not allowed by him to agree for decision of the case on the basis of oath, even if accepted correct do not extend any benefit to him as throughout the Courts below he was pleaded and defended by the same attorney; and ' once a statement has been made for settlement or for decision of a case on oath the same constitute a valid and binding agreement which cannot be deviated on flimsy ground as the same runs to well-known principle of approbate and reprobate.
' Our attention was drawn or at least an attempt was made by the learned counsel for the appellant that the case be remanded to the High Court for decision on merit. We are sorry, we cannot adhere to this prayer as it -has been proved from the record that the appeal before the High Court was incompetent which need not be decided on merits as a valuable right has come to reside in the respondent by filing incompetent appeal by the appellant or his attorney. Similarly remand order would only amount to wasting of time and extending false hope to the appellant.
On the basis of the above, findings no force in this appeal, it is IC hereby dismissed with no order as to costs.