1. This revision petition has been filed against the order of learned Civil Judge Mirpur dated 17.06.2006, whereby the application filed by petitioner under Order VII, Rule 11 CPC was dismissed.
2. The facts giving rise to the instant revision petition are that the Respondent No, 1 filed a suit for possession on the basis of right of prior purchase in the court of Civil Judge Mirpur, stating therein that Defendant No, 1 has alienated the suit land 10 Marlas survey No, 786, Khewat No, 1/1, Khata No, 758/694, situated in Village Sonkia Tehsil Mirpur through a sale deed executed on 20.01.2006 in lieu of Rs, 3,00,000/- in favour of Defendant No,
2. It was further alleged that the land in suit was actually sold to Defendant No, 2 for sum of Rs, 3,00,000/- but the access amount was shown to have been paid to the vendor in order to ward off the plaintiff pre-emptive right. He based his superior right on contiguity, co-sharer and having common right of passage and flow of water.
3. The petitioner/defendant contested the suit and the alleged right of respondent plaintiff on all scores by filing written statement. The petitioner/defendant also took preliminary objections in the written statement that the suit was instituted without lawful authority. The petitioner/defendant has moved an separate application under Order VII Rule 11 of C.P.C. The learned trial Court, after hearing the parties, dismissed the same.
4. Mr. Abdul Majeed Malik, the learned counsel appearing on behalf of petitioner vehemently contended that the plaint was not entertainable as envisaged under Order VII, Rule 11 (a), (d) C.P.C., because it was instituted without lawful and competent authority. According to the learned counsel that when the power of attorney was not duly registered and authenticated within the statutory period then it conferred no power and authority on the agent of plaintiff to institute the present suit. The learned counsel further contended that the suit of the plaintiff/respondent was liable to be rejected as the power of attorney on the basis of which plaint was filed an invalid document. He submitted that subsequent power of attorney was produced before the Court after expiry of statutory period of "4 months, so the subsequent power of attorney does not confer any authority or rectifies the previous unauthorized acts. In support of his contentions, the learned counsel relied on 1999 SCR 234, PLD 1988 AJK 5, PLD 1987 Lah. 392 and NLR 1987 CLJ 593.
5. On the other hand, the learned counsel for the respondents, Mian Sultan Mehmood strenuously argued that suit was instituted on the basis of valid power of attorney which was duly authenticated by a competent authority. According to the learned counsel that supposing the power of attorney to be defective or invalid, the subsequent power of attorney executed on 26.05.2006 has ratified all the proceedings conducted before the execution of this power of attorney. He cited in support of his assertion PLD 1989 SC AJK 41, PLD 1988 SC AJK 42 and PLD 1989 Pesh. 185.
6. I have heard the points canvassed by the learned 'counsel for the parties and perused the record made available with care.
7. The point of vilal importance that needs resolution in this case is whether the power of attorney attached with the file does or does not authorize the attorney to institute the suit regarding the suit land and the plaint was liable to be rejected as visualized, under Order VII, Rule 11(a) and (d) C.P.C.
8. It is pertinent to mention here that a photo-stat copy of first power of attorney is attached with the file on page 25 admittedly does not authorize Abdul Karim Sethi to institute or prosecute the suit.
9. The learned trial Court has also observed in the impugned judgment that this power of attorney vests no power to agent to institute any legal proceedings with regard to suit property. It would be useful to reproduce the relevant clauses of the power of attorney, which reads as under:--
(1) To sell and transfer the plot situated at Bankhurma, Khasra No, 113 Min Janoob Sonkia, Intakal No, 1560 Bankhurma, District Mirpur Azad Kashmir (Pakistan).
(2) Generally to act in relation to the said plot sales transaction as fully and effectively in all respects as myself could do and I hereby under take to ratify everything which my attorney under power in that behalf herein before contained shall do or purport to do by virtue of this power of attorney.
10. After taking into consideration of the above power of attorney, I have come to the conclusion that above paras only authorize the attorney to sell and transfer the plot and to take any action or other legal proceedings necessary to preserve his rights in the property. Certainly no power gives to the attorney to institute any Court proceedings pertaining to the suit land. It is well settled principle of law that an act done by one person on behalf of the other, a specific power to do such an act, on his behalf should have been established.
11. In Muhammad Hussain Vrs. Bashir Ahmed (PLD 1987 Lah. 392), it was observed as follows:-- "0. III, R. 2, power of attorney. Provision of 0. III, R. 2 permit the performance of acts on behalf of the parties by their recognized agents and they are specified to be, among others "the person holding power of attorney, authorizing them to do such acts on behalf of the other, a specific power "to do such an act, on his behalf has to be established.
12. In case reported, Muhammad Mehrban Vrs. Sadrud Din and another (1995 SCR 274), it was observed by the Apex Court as under:-- Power of attorney. Construction of... The general rule of construction of power of attorney is that it must be construed strictly as giving only such authority as that confers expressly or by necessary implication. In view of dictum laid down in the above referred case law, the logical concluion is that the attorney was incompetent to institute the suit. The next question which urges consideration as to whether the suit instituted without proper power of attorney, can be ratified by filing subsequent power of attorney, especially after expiry of statutory period. No quarrel with the general principle of law that ratification can be made, where it could not affect rights of other parties.
13. It is to be noted that subsequent power of attorney admittedly executed in England by Mst. Nazir Begum in favour of her husband on 26.05.2006 and validated by District Registrar Mirpur on 03.08.2006. Whereas, sale-deed was executed on 20.01.2006, therefore it can safely be said that subsequent power of attorney was executed when period of limitation provided for filing pre- emption suit had already been expired and right has been accrued to the vendee/defendant. My this view finds support from Muhammad Ishaq's case (NLR 1987 CLJ 583).
14. Even otherwise in the light of dictum laid down by the Honourable Supreme Court in Muhammad Mehrban Case (1995 SCR 274), A power of attorney operates prospectively and not retrospectively.
15. Therefore, the contention of the learned counsel for the respondents has no substance and case law cited by the learned counsel for the respondents has no nexus with proposition involved in the case in hand.
16. In view of above discussion, this revision petition is accepted and set aside impugned judgment of learned trial Court. Resultantly, the suit , filed by attorney is hereby rejected under Order VII, Rule 11 C.P.C.