' MUHAMMAD AZAM KHAN, C.J.---The instant appeal with the leave of the Court arises out of the judgment and decree of the High Court dated 10th March, 2007, whereby Appeal No.200 of 2006 has been accepted. The judgments of two Courts below have been set aside and the suit filed by Muhammad Nazir Qureshi on behalf of Manzoor Begum, plaintiff, appellant herein, has been ordered to be dismissed having been filed incompetently.
2. Necessary facts for, the disposal of instant appeal are that the plaintiff-appellant filed a suit for perpetual and directory injunction in the Court of Senior Civil Judge Mirpur on 18th March, 2002 in respect of Plot No.134-A/i, situate in Sector F/3, Part-I, Mirpur, through attorney, Muhammad Nazir Qureshi. After necessary proceedings, the trial Court decreed the suit vide judgment dated 16-11- 2005. The respondent filed an appeal in the Court of District Judge Mirpur, which was dismissed vide judgment and decree dated 15th April, 2006. Dissatisfied from the judgment and decree of the District Judge Mirpur, the respondent filed an appeal in the High Court of Azad Jammu and Kashmir, which was accepted vide impugned judgment. On 10th March, 2007.
3. Ch. Jahandad Khan, the learned counsel for the appellant, argued that the judgment of the High Court is illegal. The power-of-attorney executed in favour of Muhammad Nazir Qureshi on 24th August, 2000 confers a power in the attorney to file a suit on behalf of plaintiff, appellant herein. He referred to the power-of-attorney and especially the words used in the sentence:- ' He argued that the word has been used in this sentence which includes the filing of suit. He referred to page 152 of "Popular Oxford Practical Dictionary" for explaining the word "JO.{{URDU TEXT}} " and 'pages 373 and 318 of "The Comprehensive Law Dictionary with Law Terms, Maxim and Case-Law". He also referred to page 1081 of "The Australian Oxford Dictionary" for explaining the aforesaid word. The learned counsel next contended that if for the sake of arguments it is assumed that the attorney was not authorized to file suit, then too her suit is competent because she has executed another power-of-attorney in favour of Muhanimad Nazir Qureshi on 5th April, 2007, whereby she has ratified all the acts done by the attorney on the strength of power-ofattorney registered on 28th August, 2000. He relied upon section 196 of the Contract Act. He referred to following authorities:--
(i) Khadim Hussain v. Muhammad Fazil and others 1999 YLR 1529,
(ii) Messrs Mohib Exports Ltd. And 4 others v. Trust Leading Corporation Ltd. Lahore through its Chief Executive and another 2005 CLD 581,
(iii) Muhammad Yasin alias Punoo and 2 others v. Muhammad Yunus and 2 others 2006 CLC 1257,
(iv) Mst. Surayya Kausar v. Muhammad Asmatullah (2000 M LD 507),
(v) Muhammad Yaqub v. The Settlement Authority and others (1973 SCM R 484) and
(vi) Abdul Rehman v. Mst. Khanunz Bibi and another (Civil Appeal No.66 of 2006 decided on 19-10- 2010).
' The learned counsel further argued that the defendant, respondent herein, in the written statement has not raised the point that the suit filed by the plaintiff is without authority. This point was not taken in the grounds of appeal in the High Court. The High Court has incorrectly dismissed the suit being incompetent. Lastly the learned counsel argued that the power-of-attorney was exhibited in evidence and the defendant did not raise any objection. If an objection is not raised while exhibiting a document, the same cannot be raised subsequently.
' In Khadim Hussain v. Muhammad Fazil and others 1999 YLR 1529 the question involved was of ratification of act of agent by the principal. The learned Chief Justice, who was associating the bench, while recording his findings in the judgment held that the ratification in all circumstances is permissible, but the other two members of the bench, Mr. Justice Basharat Ahmed Shaikh and Mr. Justice Muhammad Yunus Surakhvi, the learned Judges, recorded a majority view that an act done by one person on behalf of another cannot be ratified if it adversely affects any right or interest of a third person.
' In Messrs Mohib Exports Ltd. And 4 others v. Trust Leading Corporation Ltd. Lahore through its Chief Executive and another 2005 CLD 581 the proposition before the Court was in respect of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. It was held by the Court that under the provisions of the said law, a new plea could not be allowed to be raised before the appellate or revisional Court which was not raised or urged before the lower forums in the application for leave to defend the suit. The facts of the report are distinguishable.
' In Muhammad Yasin alias Punoo and 2 others v. Muhammad Yunus and 2 others 2006 CLC 1257 the proposition in the case was regarding limitation for filing the suit under Article 142 of the Limitation Act and section 100 of C.P.C. That no second appeal is competent on the question of fact.
This authority is irrelevant.
' In Mst. Surayya Kausar v. 'Muhammad Asmnatullah (2000 M LD 507), the proposition in the case was ratification. Of acts done by the attorney on behalf of principal. The attorney was fully authorized by the principal in the power-of-attorney to institute a suit on his behalf, but the powerof-attorney was not got registered in Pakistan. The principal subsequently executed another power-of-attorney, whereby he ratified all the acts of the agent. The facts of the referred case are distinguishable and the same is not helpful to the case of the appellant.
' In Muhammad Yaqub v. The Settlement Authority and others (1973 SCM R 484), the question involved was ratification of acts of attorney on behalf of principal. The attorney participated in the bids on behalf of principal while he was not authorized to participate in the bids and offer bid on his behalf. Later on the principal ratified his act of participating in the bids. From the act of participating in the bids on behalf of principal, no third person was affected by the ratification. The facts of the case are distinguishable and not applicable to the case of appellant herein.
' In an unreported judgment of this Court titled Abdul Rehman v. Mst. Khanum Bibi and another (Civil Appeal No.66 of 2006 decided on 19-10-2010), the powerof-attorney executed by the principal in favour of attorney was valid one and the Court reached the conclusion that from the reading of whole document it appears that the attorney was authorized to institute proceedings on behalf of principal. In para. 7 of the judgment . It was observed as under:-- "(7) The recital of instrument as .a whole expressly coveys the intention of the respondent principal that she has delegated her powers to the attorney in relation to the suit property. The subordinate Courts have unanimously resolved that the suit has been competently filed. The appreciation of the contents of the power-of-attorney executed by the respondent, in our view, reveals that the respondent-principal has very, much clearly delegated the powers to her attorney/agent to file the suit, hence, the findings of the Courts below on this issue are upheld."
4. While controverting the arguments Ch. Muhammad Taj, the learned counsel for the respondent, argued that the suit was filed by the plaintiff, appellant herein,. Through attorney Muhammad Nazir Qureshi. The power-of-attorney executed in favour of attorney confers no power on the attorney to institute a suit. He argued that the word " " used in the power-of- attorney means that if a suit is already pending, then he shall pursue the same but in no way it confers power to file a fresh suit.
The learned counsel argued that this was a pure legal question whether the suit was competently filed or it was filed without authority and a legal question can be raised at any time even in this Court. He referred to a case titled Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541.
The learned counsel further contended that if an act is done by an agent 'on behalf of principal without the authority, then under section 196 of the Contract Act ratification is permissible, but, under section 200 of the Contract Act, if a third party is affected by the ratification then the ratification is not permissible.
5. We have heard the learned counsel for the parties and perused the record. The question which needs determination in the instant case is whether Muhammad Nazir Qureshi, attorney of the plaintiff-appellant, was empowered to file a suit on behalf of plaintiff or not? For proper appreciation of the point we deem it proper to reproduce the power-of-attorney which is as- unden-- {{URDU TEXT}} ' Before proceeding further it may be stated that a power-of-attorney should be construed strictly.
A power-of-attorney gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond that what it really conveys. The most important rule for construction of power-of-attorney is that regard must be had to the recitals which, as showing the scope and object of power, will control all general terms in the operative part of the instrument.
Authority is given to do a particular act followed or preceded by general words. General words are restricted to what is necessary for proper performance of a particular act and general words in no way confer general powers, but are limited to the purpose for which the authority is given. Where special powers are followed by general words and vice versa, the general words are construed as limited to what is necessary for proper exercise of special power.
6. A power-of-attorney is not open to liberal interpretation. It is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way as would be necessary to carry into effect the authority that is expressly given. In a case reported as Gul Taj Begum v. Lal Hussain and another (PLD 1980 SC (AJ&K) 60] while interpreting the power-of- attorney it was observed as under:--"
' A power-of-attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication. The important rule for the construction of such a document is that regard must be had to the recital which is showing the object of the power. PLD 1978 SC (AJ&K) 143 is a _direct authority on the point. It has been observed in that case:- `A power-of-attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power-of-attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers. This view is also expressed in AIR 1947 Nag. 17 (Full Bench case) wherein at page 19 it is observed:- `The ordinary rule is that powers of-attorney must be strictly construed as giving only such authority as they confer expressly or by necessary implication; (Bowstead on Agency, Edn. 9, p.59, (1883) AC 170 and (1884) AC 561). The learned author stresses that general words do not confer general powers, but are limited to the purpose for which-the authority is given and are construed as enlarging the special powers when necessary, and only when necessary, for that purpose. A power-Of-attorney is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and, in such a way, as would be necessary to carry into effect the authority that is expressly given. The powerof-attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instructions in commercial transactions."
' In another case titled Ghazanfar Hussain v. Rehinat Bibi and 5 others (1989 CLC 310) while discussing the scope of power-of-attorney it was observed as under:--
7. Now we advert to the contents of the power-of-attorney. A perusal of the said document reveals that the appellant apptunted Muhammad Nazir Qureshi as her attorney with specific powers that if the plot is cancelled from her name, he shall get alternate allotment, may sell' the plot, mortgage it, gift it, transfer it, raise construction on the plot, receive the sale amount and if there be a case in relation to the plot, he shall pursue and appoint the counsel. He is authorized to contract and do all the necessary acts like the principal.
8. The learned counsel for the appellant relied upon the word " (.5-9%!:{{URDU TEXT}} ". The said word has been defined in different Urdu Dictionaries in the following manner:-- {{URDU TEXT}} ' The learned counsel for the appellant cited extracts from following three Dictionaries:-- ' New Edition of "Popular Oxford Practical Dictionary" page 152: "pairvi, P. n. f. Following up; imitation; prosecution."
"The Comprehensive Law Dictionary with Law Terms,' Maxim and Case-Law" page 373: suit. n. Request made to a tiller, superior, etc. Case in a Court of law suit of a civil nature "The Comprehensive Law Dictionary with Law Terms, Maxim and Case-Law" page 318: "prosecute. v. Initial legal proceedings prosecution "The Australian Oxford Dictionary" page 1081: ' prosecution.
1.a. The institution and carrying on of a criminal charge in a Court. b. The carrying on of legal proceedings against a person. c. The prosecuting party in a Court case (the 'prosecution denied this).
2. The act or an instance of prosecuting (met he in the prosecution of his hobby). [ORIGIN: Old French prosecution or Late Latin prosecution (as PROSECUTE).] ' In "Feroz-ul-Lughat Urdu Jamei, New Edition" the meaning of the word " {{URDU TEXT}}(59)." " been shown as " (cc_ 4" , while in "A Dictionary of Urdu (On Historical Principles)" the meaning is expressly provided as "taking care of anyone's own or any other's case in the Court". A survey of above referred dictionaries shows that nowhere the word {{URDU TEXT}}"l5,9,6". Has been defined as "institution of suit". In "The Comprehensive Law Dictionary with Law Terms, Maxim & Case-Law", the word referred by the learned counsel for the appellant is "suit" and not the word " (155 ". The word "prosecute" cited from the said dictionary means "initial legal proceedings. ( t.4311A-:{{URDU TEXT}} ) In "The Australian Oxford Dictionary" the word "prosecution has seen defined as "carrying on of legal proceedings against a person". In these dictionaries the word " " has dot been defined, rather the words "suit" and "prosecute" have been defined. The learned counsel tried to explain that to prosecute a suit means to institute a private suit which is too far interpretation and against the principles of interpretation of a document. In "Popular Oxford Practical Dictionary", the word "pairvi" "
Sir " has been defined as "imitation; prosecution", which conveys the same meaning as in "A Dictionary of Urdu (On Historical Principles)". In the present case a perusal of contents of the power-of-attorney in- cluding the sentence {{URDU TEXT}} leaves no doubt that the attorney has been empowered only to look after the case-if it is already instituted. No authority has been conferred upon the attorney to file suit on behalf of plaintiff, appellant herein, hence he was not empowered to file suit on her behalf.
10. It was forcefully argued by the learned counsel for the appellant that the appellant has executed another power-ofattorney in favour of attorney on 5th April, 2007, whereby she ratified all the acts done by the attorney on her behalf. Under sections 196 to 200 of the Contract Act, ratification is permissible, but the question is whether the ratification of those acts, which adversely affect a third person is permissible or not? The proposition came under consideration in Khadim Hussain's case, referred to above, wherein this Court has taken the view that an act done by one person on behalf of another cannot be ratified if it adversely affects any right or interest of a third person. It was observed by the Court as under:-- "Basharat Ahmad Shaikh, J.---I agree with the conclusion that the appeal before the District Judge was validly filed on behalf of Khadim Hussain on the basis of `vakalatnama' executed by Ashiq Hussain as attorney of Khadim Hussain.
' However my reading of law is that an act done by one person on behalf of another cannot be ratified if it adversely affects any right or interest of a third person. The relevant provision of law is section 200 of the Contract Act which reads as follows:-- '200. An act done by one person on behalf of another, without such other person's authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect.'
' Illustration
(a) A, not being authorized thereto by B, demands on behalf of B, the delivery of a chattel, the property of B, from C, who is in possession of it. This demand cannot be ratified by B, so as to make C liable for damages for his refusal to deliver.
(b) A holds a lease from B, terminable on three months' notice. C, an unauthorized person, gives notice of termination to A. The notice cannot be ratified by B, so as to be binding on A.
' The main provision as well as the illustrations show that where before ratification the right of a third person has accrued and has become complete, a principal cannot ratify the unauthorized act of the agent to the prejudice of the third person. Section 200 formulates an exception to the general rule set out in section 196, namely, a subsequent ratification is equivalent to prior authority.
In my view section 200 clearly overrides section 196. Thus these conclusions are different from paragraphs 13 and 14 of the main judgment.
' With these observations I agree with the order that the appeal be accepted in terms indicated by the learned Chief Justice."
'The aforesaid conclusion was also endorsed by another member of the bench, Mr. Justice Muhammad Yunus Surakhvi, by observing as under:-- "I also agree with the view of my learned brother Mr. Justice Basharat Ahmed Shaikh."
' In a case reported as T.S.P.L.S. Thinnappa Chettiar by agent A. S. Arunachalam Chettiar v. Putti Krishna Rao and others (AIR 1941 Mad. 6) it was observed that the provisions of the Contract Act relating to agency are not meant to be exhaustive. Section 200 or other provisions relating to ratification do not affect the general principle of law of agency that the general rule as to ratification would not apply when it would affect the rights of other parties.
' In another case reported as Muhammad Yousaf Khan v. Jehan Bahadur and another (1985 CLC 2214) it was observed as under:-- "The argument is that since the preferential right of pre-emption of the plaintiff was defeated by resorting to exchange of 4 kanals of land in favour of the vendee by the agent of the vendor who was not specifically authorized to do so, the act of ratification by the principal certainly had the effect of terminating the right, of preemption vested in the plaintiff. The argument is not without force. The right of pre-emption, no doubt, is not a right to or in immovable but is certainly a right to acquire the property on fulfilment of certain conditions and though it vests in the pre-emptor and not in the property sold is all the same a right and its infrirtgemerit by an unauthorized act of an agent would certainly invoke the principle embodied in section 200 of the Contract Act which uses only the words "right or interest of a third person" without containing any further qualification as to the right affected thereby. The rule contained in the section is an exception to the general rule of ratification. The ratification, therefore, would have no effect where the right or interest of a third person is to be affected. In AIR 1941 Mad. 6 it was held that the provisions of the Contract Act relating to agency are not meant to be exhaustive and section 200 or other provisions relating to ratification do not affect the general principle of law of agency that the general rule as to ratification would not apply when it would affect the rights of other parties. In this view of the matter even if the contention of the learned counsel for the respQndents prevailed that the exchange transaction in favour of respondent 1 stood validated by ratification on the part of respondent 2, no benefit of the exchange could be extended to the vendee (respondent 1) in view of the principle laid down in section 200 of the. Contract Act."
11. The argument of the learned counsel for the appellant that the aforesaid point was neither raised in the written statement nor taken in the memo. Of appeal in the High, Court, therefore, the High Court was not justified in resolving the same, carries no weight because it is a pure legal question whether the attorney was authorized to institute a suit on behalf of the plaintiff, appellant herein, or not. It is settled law that a legal question can be raised at any time.
12. The other argument of the learned counsel for the appellant that if a document is admitted in evidence without objection, then no objection can be raised about it subsequently is legally correct, but the question involved is not of admission of document in evidence. The question is of interpretation of document and the Court is empowered to look into the contents of a power-of- attorney and decide whether the attorney was empowered to institute a suit or not.
13. From the perusal of whole record and the case-law, we have reached the conclusion that the attorney was not empowered to institute suit on behalf of plaintiff-appellant. The suit was instituted on the basis of an invalid document and the attorney Muhammad Nazir Qureshi was not authorized to institute the suit on behalf of the plaintiff-appellant, Manzoor Begum.
14. The result of above discussion is that finding no force in this appeal it is hereby dismissed with no order as to costs.