' ARSHAD NOOR KHAN, J.---The plaintiff filed suit against the defendant stating therein that he was the tenant of defendants Nos.2 and 3 in respect of property bearing Survey No,22, Survey Sheet No, SB-7, admeasuring 84 sq. Yards with construction thereon situated at Zaibun Nisa Street, Saddar Quarters, Karachi which originally belongs to Qurban Hussain son of Ibrahim and Mohsin Ali son of Tahir, both residents of Rajkot, India and after partition they both continued their residence at Rajkot and executed a Power of Attorney in favour of defendant No,2 on 2-12-1977 thereby authorising him to manage the aforesaid property including its sale. It is further stated in the plaint that in pursuance of the said Power of Attorney, defendant No,2 gifted the said property in favour of defendant No,3 who is his son and defendant No,3 subsequently sold out the property to defendant No,4. The defendant No 4 filed Rent Case No,1844/99 against him on the ground of default and personal bona fide use of the said property which was dismissed by the Rent Controller but in appeal the ejectment was allowed by the Additional District Judge, Karachi South against which the plaintiff preferred C.P. No,518/2003 which was dismissed on 29-3-2006 and the petition for Special Leave to Appeal filed by him also met with the same fate. In pursuance of the ejectment order, the possession of the said property was handed over to defendant No 4 through the process of the Court. It is further stated in the plaint that it subsequently revealed to the plaintiff that defendant No 2 fraudulently transferred the property in favour of his son by way of gift without possession and that the property could he treated as evacuee property and he being occupant of the said property was entitled for its transfer. He has, therefore, filed the suit for declaration and injunction coupled with other prayers. The prayer made by the plaintiff in the plaint are usefully quoted below:---
(A) Declaration that the property in question namely Survey No,22, Survey Sheet SB-7, measuring 84 sq. Yds. With construction thereon situated at Zaibun Nisa Saddar Quarters, Saddar, Karachi originally belongs to Qurban Hussain son of Ibrahim and Mohsin Ali, who are residents of Rajkot, India since before partition and the concealed evacuee property vested in defendant No, 1 for the purpose of transfer to the occupants.
(B) Declaration that the plaintiff was occupant of the abovesaid property and on the day of repealed Evacuee law since 1973 and therefore, entitled to its transfer.
(C) Mandatory injunction against the defendant No, 1 to take over possession of the aforesaid property namely Survey No,22, Survey Sheet No,SB-7, measuring 84 sq. Yds. With construction thereon situated at Zaibun Nisa Saddar Quarters, Saddar, Karachi and to transfer the same to the plaintiff as its occupant since 1973.
(D) Prohibit and restrain the defendants 2 to 4 from dealing with the above said property viz. Survey "o.22, Survey Sheet No, SB-7, measuring 84 sq. Ydr. With construction thereon situated at Zaibun Nisa Saddar Quarters, Saddar, Karachi in any manner whatsoever and creating any third party interest in the same or changing its possession in any manner whatsoever.
(E) Any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(F) Cost of the suit.
2. Office has raised an objection about the maintainability of the suit to the effect that the suit is barred under section 42 of the Specific Relief Act as well as under section 22 of the Sindh Rented Premises Ordinance, 1979 so also under the provisions of Order VII, Rule II (d) C.P.C. In view of the assertions contained in para. 6 of the plaint.
3. The notice was also served upon the defendants, defendant No,4 also filed application under Order VII Rule 11 C.P.C. For rejection of the plaint. The matter was fixed on 13-10-2008 for hearing of Office Objection.
4. I have heard Mr. Mansoor-ul-Haq Ansari, advocate for the plaintiff, Mr. Naim Sulleman, advocate for defendant No,4 and Mr. Khizr Askar Zaidi, Assistant Advocate-General, for defendant No,1 .
5. The learned counsel for the plaintiff contended that defendant No 2 fraudulently transferred the property by way of a gift to his son which was an illegal gift which lacks the delivery of possession of the gifted property, as such the ingredients of a valid gift were miserably lacking, still the defendant No,2 sold out the premises to defendant No,4 which was also not legal and valid transfer of the property and that the property was an evacuee property which could not be disposed off in the manner in which it has been disposed off, and that the plaintiff was in occupation of the property in question since, 1973 as such he was entitled for the transfer of the same being its lawful occupant. He has relied upon the following case-law reported as :
(i) Irshad Ahmed and others v. Allah Ditta and others 1998 SCMR 948;
(ii) Muhammad Aslam v. Abdul Majeed 1991 CLC 481;
(iii) Messrs Maratos & Co v. Rice Trader and 2 others PLD 1989 Kar. 94;
(iv) Nazar Ali v. Secretary, Ministry of Rehabilitation, Government of Pakistan and 4 others 1973 SCMR 441;
(v) Main Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499;
(vi) Chandrika Prasada v. Bombay Boroda & Central India Ry. AIR 1935 PC 59;
(vii) Kumar Krishna Prasad Lal Singha Deo v. Baraloni Coal Concern Ltd. And others AIR 1937 PC 251;
(viii) Lowndes and Sir Dinshah Mulla Currimbhoy & Co. Ltd. v. L.A. Creet and others AIR 1933 PC 29.
6. The learned counsel for defendant No, 4 has vehemently refuted the contentions advanced by the learned counsel for the plaintiff and has contended that the property was purchased by him in the year 1994, as such ejectment proceedings were held against the plaintiff and the plaintiff never raised the said plea, as such he by way of estoppal is not allowed to raise any other plea to get the possession of the said property. According to him, the property in question was validly transferred to defendant No,4 who lawfully obtained the possession of the same from the plaintiff through the process of the Court and since the plaintiff is not in possession of the property in question, as such he possess no legal character to file the present suit, as such the suit itself is not maintainable. In support of his contentions, he has relied upon the cases reported in 2003 SCMR 870 and PLD 1988 SC 734.
7. Mr. Khizr Askar Zaidi, A.A.-G. Appearing for defendant No, 1 has adopted the arguments advanced by the learned counsel for defendant No,4.
8. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
9. Admittedly, the plaintiff was in possession of the property in question and he was paying rent to defendant No, 2 and on transfer of the said property, he continued paying rent to defendant No, 3 and after sale of the property by defendant No,3 to defendant No, 4, he did not pay the rent to him which culminated in filing of Rent Application No, 1844/94 and subsequently ejectment was allowed by the learned Additional District Judge, Karachi South and the ejectment order was upheld upto the level of Honourable Supreme Court. It is an admitted position that throughout the long litigation the plaintiff did not raise plea regarding ownership of the property in question. The possession of the property has been handed over to the defendant No, 4 in pursuance of the ejectment order passed by the Additional District Judge, Karachi South duly upheld by the Honourable Supreme Court. The plaintiff had contested the rent proceedings through his special attorney by way of execution of special power of attorney dated 10-10-1998. The plaintiff had executed special power of attorney in favour of Muhammad Afzal for specific and limited purpose to contest the Rent Case No,1844/94 pending in the Court of VIIIth Senior. Civil Judge, Karachi South and also the appeal/revision etc. Arising out in pursuance of the aforesaid rent proceedings, besides, the power to compromise the said Rent Case No,1844/94. It is , therefore, admitted position that the plaintiff had executed special power of attorney in favour of Muhammad Afzal for specific and limited purpose of contesting the rent case and admittedly the said rent case had come to an end on the day when the possession of the property was handed over to defendant No, 4 through the process of the Court and the present suit has been filed by the same attorney Muhammad Afzal son of Fazal Karim on the basis of same power of attorney executed by the plaintiff Muhammad Aslam in his favour on 10-10-1998 whereas the purpose of the said special power of attorney had already come to an end by the final disposal of the matter, as such the said attorney could not lawfully sign, verify and present a fresh suit on fresh cause of action, if any, for which he has not been authorized by the executant. It is by now settled principle of law that the agent who has been allowed to do certain specific work in a specific manner, the said agent is not authorized to travel beyond the said authority or power conferred on him by the owner principal and , in case, he travels beyond the power assigned to him by the Principal, his acts, deeds, and things which are in excess of the power assigned to him, could be treated as nullity in the eye of law. The attorney of the plaintiff nowhere has stated that the special power of attorney executed by the plaintiff in his favour continued even after the end of specific purpose for which it was executed viz. The contest of the Rent Case No,1844/94.
10. The point regarding the power and authority of an agent or attorney came for consideration in a very famous case of Messrs Eagle Star Insurance Company Limited v. Messrs Usman Sons Limited and others reputed in PLD 1969 Karachi 123 wherein on analyzing of the said legal proposition, this Court was pleased to observe that the instrument of power of attorney executed by the principal in favour of his agent, confers certain specific powers to perform certain specific acts on behalf of the Executant. The observations made by this Court in the aforesaid case are usefully reproduced here-in-below:-- "Such an instrument is a written authorization by which the principal appoints another person as his agent and confers upon him the authority to perform specified act on behalf of the principal.
The primary purpose of an instrument of this nature is to evidence the authority of the agent to third parties with whom the agents deal. The rule is now well established that the power of attorney must be strictly construed and strictly pursued. A power-of-attorney is held to confer only those powers which are specified therein, and the agent may neither go beyond nor deviate from the terms of this instrument, that is, the act done should be legally identical with what is authorized to be done by the instrument".
'The same points also came for consideration before the Honourable Supreme Court in the case of Imam Din and 4 oth'ers v. Bashir Ahmed and 10 others (PLD 2005 SC 418) wherein in the similar circumstances the Honourable Supreme Court was also pleased to observed that in view of the nature of authority, the power or authority must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified therein. The relevant observations of the Honourable Supreme Court in the above case of Imam Din, supra, are usefully quoted herein below for the sake of convenience:--- "The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power of attorney must be strictly construed and provided and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being in excess of the power, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument."
11. The dictum laid down by this Court as well as by the Honourable Supreme Court in the aforesaid cases, therefore, shows that the power of attorney being an instrument in writing confers certain authority or power by the principal to his agent to do certain thing in a specific and limited manner and the agent is, therefore, required to do the said thing in the manner in which he has been assigned the power and he cannot travel beyond the authorization and the said power of attorney conferred on him must be strictly construed in letter and spirit. In the special power of attorney filed along with the suit I find that firstly the said attorney came to an end as it was executed by the plaintiff in favour of his agent for specific and limited purpose which finally comes to an end on the day when the possession of the property in question was delivered to defendant No, 4 through the process of the Court and secondly; the plaintiff did not assign any fresh power to his attorney to sign, verify and present the plaint before this Court on the fresh cause of action, as such the suit filed by the attorney of the plaintiff, in my B humble opinion, was not presented properly and is extremely without any power to the agent to file the present suit.
12. The plaintiff even possess no legal character against the defendants to maintain the present suit under section 42 of the Specific Relief Act as the plaintiff has not been able to show that he possess legal character recognized under the law to maintain the suit as admittedly the relationship of landlord and tenant already came to an end between the parties and after the eviction of the plaintiff he did not possess any legal status in the property in question. The case-law relied upon by the learned counsel for the plaintiff, in my humble opinion, are distinguishable from the circumstances of the present case and are inapplicable.
13. In view of the aforesaid circumstances, I am of the considered opinion that the suit filed by the plaintiff C has not been properly presented nor is maintainable under section 42 of the Specific Relief Act. The office objection is, therefore, maintained and the plant is hereby rejected under Order VII, Rule 11, C C.P.C. With no order as to costs.
Plaint rejected.