' ABDUL SHAKURUL SALAM, J Facts leading to this Regular First Appeal are as follows :-
2. Faqir Hussain on or Tufail Muhammad acting for himself and as attorney of Mst. Hamidan widow of Tufail Muhammad and her sister Mst. Khurshid Bibi daughter of Ghulam Ghaus sold land measuring 184 kanals 5 marlas situated in Chak No, 59/15-L, Tehsil Khanewal, District Multan for Rs, 1,15,000 through a registered sale deed Exh. D. 1 on 26-12-1973 in favour of the respondents.
Mutations Nos, 156. 157, 158, 159, 160 Exh. P. 12, Exh. P. 13, Exh. 14, Exh. P. 15 and Exh. P. 16 were entered into but as one of the executants of the power of attorney in favour of Faqir Hussain, namely, Tufail Muhammad had died earlier than the registration of the sale, the mutations were rejected by the Revenue Officer on 26-1-1974. Then through oral sale, the land in question was sold for Rs, 1,45,000 on 6-5-1974. Mutations Nos, 172, 173, 174, 175 and 176 were sanctioned on 7-5-1977, as evidenced by the certified copies of Jamabandis Exhs. P. 7 to P.
9.
3. Mehdi Khan filed a suit for possession by way of pre-emption on 11-4-1975. Numerous issues were framed, including No, 1 "whether the suit is time barred" and -No, 4 "whether the plaintiff has not deposited Zarpanjum and deficiency in court-fee within time ? If so, its effect ?" Finding against the plaintiff on these issues, leaving the others undecided, the learned trial. Court dismissed the suit vide judgment and decree dated 24-7-1977. Plaintiff has come up in appeal.
4. Learned counsel for the appellant has submitted that on Issue No, 1, the learned trial Court found that the land was sold vide registered sale-deed dated 26-12-1973 and the suit filed on 11-4-1975 was barred by time. Learned counsel has contended that the sale deed Exh. D. 1 executed by Faqir Hussain as attorney of Mst. Hamidan and Khurshid Bibi was invalid and ineffective because he was appointed as an attorney by the aforesaid two ladies alongwith Tufail Muhammad and Tufail Muhammad having died prior to the sale-deed, the power of attorney had come to an end and Faqir Hussain could not act on the basis thereof. The learned counsel contended that that is why- when the Mutations Nos, 156 to 160 on the basis of the said registered sale deed were rejected by the Revenue Officer on 26-1-1974, that the vendees entered into a fresh transaction of oral sale for enhanced consideration of Rs, 1,45,000 on 6-5-1974 and got the mutations Nos, 172 to 176 sanctioned on 7-5-1974. It is from the sale sanctioned through these mutations on 7-5-1974, that the period of limitation shall start and the suit filed on 11-4-1975 was, therefore, within limitation of one year.
5. As regards the decision on Issue No, 4 that the Zarpanjum was deposited on 27-5-1975 and deficiency in court-fee made up on 17-6-1975 whereas these should have been done before these dates respectively and, therefore, there was a delay of one day and no application for extension having been filed, the plaintiff acted negligently and discretion for extension could not be exercised in his favour, the learned counsel has contended that for deposit of Zarpanjum the challan form was filed in the Court on 24-5-1975. 25-5-1975 was then a closed day being Sunday. It was returned on 26-5-1975 and the deposit was diligently made on 27-5-1975, the date fixed for the hearing of the case. Stamp papers for making up the deficiency in the court-fee were purchased on 16-6-1975 and filed in Court on 17-6-1975, the date fixed in the case for production of Fard Munafa, and not even for making up the deficiency, therefore, there was no question of delay. The learned counsel has contended that in the circumstances these was no negligence on the part of the plaintiff. The delay of one day even if the deposit and payment were to be made before the dates fixed in the case when those were made on the dates fixed should have been condoned by the Court even without application as held in Malik Hadayat Ullah and 2 others v. Murad Ali Khan (1), Abdul Rashid v. The State (2) and that an Appellate Court can do so as held in Muhammad Shabbir and others v.
Bashir Ahmad (3), therefore,
(1) PLD 1972 SC 69 (2) PLD 1972 SC 295
(3) 1974 SCM R 24 this Court may do so by granting extension of one day as prayed for vide C. M. No, 626/C-1978 since the plaintiff-appellant had already paid the Zarpanjum and made up the deficiency in the court-fee on the dates fixed for hearing instead of a day earlier, which had come about because of bona fide mistake that that could be done by the dates of hearing.
6. Learned counsel for the respondents has supported the judgment of the learned trial Court.
7. The first point to be taken into account is whether the registered sale deed dated 26-12-1973 is the starting point for limitation or the mutations sanctioned on 7-5-1975. If it is the former then the suit filed on 11-4-1975 was rightly dismissed for being barred by time. On the other hand, if it is the later date, the suit is clearly within limitation, being within one year. Now, the registered sale deed was executed besides on his own behalf by Faqir Hussain as attorney of Msr. Hamidan and Mst.
Khurshid Bibi. When the registered sale deed was presented for attestation of mutations, the Revenue Official, Kanoongo, submitted a note to the effect that Muhammad-Tufail (one of the executants) of the Power of Attorney had died. When mutations were taken up in Jalsai Aam, open assembly, the Revenue Officer recorded that the executant of the Power of Attorney Muhammad Tufail had been proved to have died earlier than the registration of the sale deed, therefore, the registration had become infructuous. He, thus, rejected the mutations on 26-1-1974. The question that calls for attention at this stage is that if one of the executant of Power of Attorney dies, does the power lapse on behalf of the surviving executant or executants ? Section 201 of the Contract Act, 1872 provides that "An agency is terminated by the principal invoking his authority or by the agent renouncing the business of the agency, or by the business of the agency being completed or by either of the principal or agent dying or becoming of unsound mind or by the principal being adjudicated an insolvent under the provisions of any Act for the, time being in force for the relief of the insolvent debtors."
8. From the above, it would be clear that "an agency is terminated by either the principal or agent dying . . . ." The question arises that if there are more than one principal and one of them dies, would the agency be terminated ? The answer is simple on the plain language of the law that the "agency is terminated" on the death of the principal-whether one or more as singular includes plural vide section 13(2) of the General Clauses Act, 1897. Moreover, the matter may be looked at on the basis of principles. The relationship of the principal or principals and the agent or agents is contractual and comes to an end with the death of either side. The death itself terminates the agreement. The relationship is not natural that like nature it sustains itself in spite of demise on either side as e.g. The relationship of a father and son which is not snapped on the death of the either. It survives the event. The father remains a father and a son even when either is dead.
Another principle may be adverted to and that is that a principal or principals appoint another to act on their behalf. It may be that if there are. More than one principal, they may appoint an agent and hope and believe that one of them would be able to look after the acts of the agent, as in the present case the two sisters Mst. Hamidan and Mst. Khurshid Bibi might as well have believed that when alongwith them the husband of the former Muhammad Tufail was also appointing the agent, Muhammad Tufail would look after the agent and their interests would be safe. On the demise of Muhammad Tufail that belief would be knocked out. The point would be clearer if we look at the matter from the angle that out of two or more agents, one of them dies. Should the agency company to an end ? When more than one agents are appointed jointly, it is obvious that it is intended that the agents shall act together in concert and each shall also act as check on the other. If this premise disappears on the death of one, the agency shall obviously come to an end.
Therefore, on the language of the Statute above quoted and principles governing the relationship of principal or principals on the one hand and agent or agents on the other, it is quite clear that on the death of any, on either side, the agency shall stand terminated. Ch. Muhammad Sarwar, Advocate, learned counsel for the appellant who argued the case with composure and diligence, if we may say so, referred to an old judgment of 1812 delivered by Lord Ellenborough, Chief Justice of the King's Bench in Gee Lane (I) wherein it was observed that "an authority by two to enter judgment in an action against two will not warrant a judgment against one (survivor) alone." Then, to Tasker v. Shepherd (2) wherein two persons working in co-partnership entered into a contract to employ another, the contract was deemed to have come to an end on the death of one of the two.
It was held "that the parties contracted with reference to the then existing partnership business, and that the contract was to employ the plaintiff for a period of four years and a half, subject to the condition that all parties so long lived." Again, to Garapati Venkanna v. Mullapudi Atchutaramanna and others (3) wherein it was held that on the death of one of the principals, who had a distinct right in property, the power of attorney in favour of the agent would stand revoked. From the above, it is clear that on the death of a principal or any one of them, the agency gets terminated.
Apparently death and termination would be simultaneous. However, law has intervened to postpone the effect of termination by providing in section 208 of the Contract Act, 1872 as follows :- "The termination of the authority of an agent does not so far as regards the agent, take effect before it becomes known to him, or so far as regards third parties, before it becomes known to them."
' In the present case, on the death of Muhammad Tufail one of the executant of the power of attorney, the agent Faqir Hussain would obviously come to know of the death straightaway, being the son of the deceased. The third parties, the respondents in this case, would apparently also come to know of the death as they were resident of a nearby village and would not remain ignorant of the death of a Zamindar in the neighbourhood. Whether it is so or not is not important in the present case for the reasons that follow.
9. On the basis of the Power of Attorney aforesaid, Faqir Hussain had executed the sale deed registered on 26-12-1973 Exh. D.
1. When it was presented for attestation of mutations, the Revenue Officer holding that the executant Muhammad Tufail having been proved to have died earlier the document was ineffectual, rejected the mutations. The vendees did not demur, nor, challenged the order. They accepted the same. They proceeded further and entered into fresh transaction of oral sale. The consideration was raised from Rs, 1,15,000 to Rs, 1,45,000. It is the latter amount which was mentioned in the written statement and wars deposed to by Muhammad Sadiq vendee-defendant on the Holy Qur'an
(1) 104 E R 967 (2) 158 E R .237
(3) 1938 M L J 610 to have been paid. This oral sale was attested through the mutations which find mention in the Jamabandis Exhs. P. 7 to 9. At this stage attention may be adverted to the observation of the learned trial Court that "the only evidence available for reference from the plaintiff's side on this issue are unexhibited copies of mutations Nos, 172 to 176 which have not been entered in evidence and have not been exhibited on record." Besides that a hyper-technical view of the matter has been taken, the mutations were incorporated in the Jamabandis and these were duly exhibited as Exhs. P. 7 to 9. It appears that on rejection of earlier mutations on the basis of the registered sale deed on account of lack of authority of the :executant on behalf of the vendors, the vendee- defendants did not want to take any risk of losing the land. Giving up the registered sale deed, they entered into fresh oral sale, paid more money, got the mutations sanctioned which were incorporated in the Jamabandis. The sale pre-empted in the suit was thus the oral sate and that is why in the written statement it was stated that the consideration amount paid was Rs, 1,45,000.
Muhammad Sadiq one of the vendee-defendants who appeared in Court stated on Holy Qur'an that 'the amount paid was Rs, 1,45,000. This was not the figure in the registered sale 'deed. The latter was clearly given up as seen above. From the oral sale, it is undisputed that the suit was within the period of limitation. Therefore, finding of the learned trial Court based on wrong premises is unsustainable and is set aside. It is found in favour of the plaintiff-appellant.
10. As regards the finding on issue -No, 4 that the Zarpanjum was paid and deficiency in court-fee made up on the dates fixed for hearing of the case though that should have been done before the said dates and therefore, the plaintiff-appellant was negligent and as there was no application for extension the time could not be extended by one day, to say the least, is making a fetish of technicalities losing sight of the purpose of law and administration of justice that controversies should be determined on merits and rules of procedure should not be used as tools for thwarting rights of citizens. A Judge of eminence and established reputation and we say so with utmost respect, Mr. Justice B. Z. Kaikaus of the Supreme Court of Pakistan in the case of Imtiaz Ahmad v.
Ghulam Ali (1) has observed on the point at pages 399-400 of the report as follows :- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. 1 think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of Public policy. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
' In the present case, Zarpanjum was deposited and accepted by the Court on the date fixed in the case and so also was made up the deficiency in the court-fee though there was no specific order for doing so by any particular date. Controversy has arisen that instead of before the deposits were made on the dates fixed in the case. Lot of many cases come up in appeal as the experience or research would show, because the learned trial Courts quite often direct payment or deposit to be made before ({{URDU TEXT}}) the next date of
(1) PLD 1963 SC 382 hearing. The parties taking the date of hearing as important also take the date of payment or deposit the same date. If the learned trial Courts were to direct that the payment or deposit may be made By the date of hearing {{URDU TEXT}} IS), which will include the date of hearing, much of litigation would be avoided saving the litigants from agony and expenses and allowing Courts to devote their time in rendering substanial justice. In the present case, the plaintiff appellant had submitted challan form for deposit of Zarranjum on 24-5-1975. 25-5-1975 happened to be Sunday, then a closed day. It is stated that the challan forms were returned by the Court on 26-5-1975. The deposit was made on 27-5-1975, date fixed in the case. As regards deficiency in court-fee, the stamp papers were purchased on 16-6-1975 per endorsement on the back and filed in Court on 17- 6-1975, the date fixed in the case. Of course, no specific date for the purpose had been given. From the above, there does not appear any negligence. Of course, no evidence was led by the respondents to show or prove any negligence. The jurisdiction of the trial Court and appellate Court for extension of time is well established as would appear from the cases cited by the learned counsel for the appellant and quoted above. In all the circumstances of the case on the basis of precedents and principles regulating procedure, the learned trial Court was in error in finding Issue No, 4 against the appellants and not allowing' even one day's extension when payments and deposits for ensurint bona fide "Pursuit of pre-eruption suit by deposit of Zarpanjurn and court-fees for meeting the expenses of administration of justice had already been made. We are not non- cognizant of the right of the respondents that by inaction within time, right had come to accrue in them but balance has to be kept between the two parties. One's rights cannot avoid another's nor, denude Courts of their jurisdiction and discretion. In the present case, we do not find any blemish on the part of the plaintiff-appellant and slight c delay of one day which may as well have come about by bona fide mistake that the payments and deposit could be made on the dates of hearing or as regards court-fee, the stamp papers may have been sold on 16-6-1975 at the face end of the day and could only be deposited the next day, i,e, 17-6-1975 the date fixed in the case besides that there was no specific order in this behalf. Therefore, in all the circumstances of the case and on the basis of precedents and principles we find that the learned trial Court should have allowed a day's extension in the deposit and payment already made and it having failed to do so we order accordingly. ,Consequently, finding on Issue No, 4 against the plaintiff-appellant is set aside and the issue found in favour of the plaintiff-appellant.
11. As the learned trial Court has not decided the other issues framed in the case, may be because of lack of time for making up the monthly units, the date of decision being 24th of the month, we have no option but to remand the case for decision on the remaining issues. Therefore, we allow this appeal and remit the case back to the learned trial Court, Civil Judge 1st Class, Khanewal. In the circumstances of the case, the parties shall bear their own costs in the appeal.