' SHUJAAT ALI KHAN, J.---By means of this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the vires of order dated 10-10- 2000 and judgment dated 12-5-2006, passed by the learned Senior Civil Judge, Bhakkar (respondent No,10) and the learned Additional District Judge, Bhakkar (respondent No,11) respectively.
2. Succinctly, the facts, forming factual canvass of the instant petition, are that the petitioners filed an application under section 12(2) C.P.C. For setting aside of judgment and decree dated 15-3-1987, passed by the learned Civil Judge 1st Class Bhakkar. Out of the divergent pleadings of the parties, the learned trial court framed following Issues:-
(1) Whether the impugned decree dated 15-3-1987 is the result of fraud and misrepresentation and as such is liable to be set aside? OPA
(2) Whether the application is barred by time? OPR
(3) Whether the application has not been thumb marked by the applicant? If so, to what effect?
OPR
(A) Whether proper court-fee has not been paid? OPR
(5) Whether the respondents Nos.2 and 5 to 8 are entitled to special costs? OPR
(6) Relief.
' Both the parties adduced their respective evidence. After thrashing evidence of parties and hearing their arguments, the learned Senior Civil Judge (respondent No,10) vide order dated 10-10- 2000 dismissed the application of the petitioners against which they filed a revision petition before respondent No,11 which too met with the same fate vide judgment dated 12-5-2006; hence this petition.
3. Learned counsel for the petitioners contends that judgments of both the courts below are against law and facts; that the impugned judgments are result of misreading and non-reading of evidence; that Shahrah, AW-1, deposed in evidence that his brother Ahmad, who was one of the principals, died in the year 1981 whereas the impugned decree was passed on the statement of General Attorney made on 15-2-1987 which fact has not been considered by both the courts below; that the petitioners also produced, in evidence, Death Certificate of Ahmad showing his date of death as 3-4-1981 but Sohrab (RW-1) did not specifically rebut the said fact rather expressed his ignorance about death of said Ahmad; that no notice to the parties was issued by the arbitrator; that undue haste showed by the Attorney establishes mala fide and ulterior motive on his part as well as the respondents; that as the Attorney had no authority to make any statement for appointment of arbitrator, therefore, all the proceedings are nullity in the eye of law; that at the time of execution of Power of Attorney no land was allotted in favour of the petitioners, therefore, no power to the Attorney could be given for disposal of the property what to talk of appointment of an arbitrator and that the courts below have not taken into consideration the conduct of the Attorney.
In addition to his oral submissions, learned counsel has referred to the cases reported as Unair Khan and others v. Faiz Rasool and others (PLD 2013 SC 190), Sheikh Muhammad Sadiq v. Elahi Bakhsh and 2 others (2006 SCMR 12), Khalil Ahmad and another v. Mst. Muhammad Jan and others (2004 SCMR 1034), Malik Yar Muhammad and others v. Muhammad Farooq Ahmed Khan and others (2003 SCMR 767), Qamar-u-Din v. Muhammad Din and others (PLD 2001 SC 518), Mst. Farida Malik and others v. Dr. Khalida Malik and others (1998 SCMR 816), Rashida Begum v. Ch. Muhammad Anwar and others (PLD 2003 Lah. 522) Malik Yar Muhammad and 3 others v.
Muhammad Farooq Ahmad Khan and 3 others (2002 MLD 322), Wali Muhammad v. Muhammad Ibrahim and others (PLD 1989 Lah. 440).
4. Conversely, learned counsel appearing on behalf of the respondents, while defending the impugned verdicts of the courts below, has opened his arguments with the submission that initially the petitioners denied the execution of the Power of Attorney but subsequently they owned the contents of the same, this fact constitutes that act of the petitioners amounts to approbate and reprobate; that it has been mentioned in the Power of Attorney that Hassan Ali Shah Attorney, had the power to do any act in addition to those specifically mentioned in the Power of Attorney; that the case of Attorney falls within the ambit of section 187 of Contract Act, 1872 as the same deals with implied powers of the Attorney to do any act which has not been specifically mentioned in the Power of Attorney; that original Death Certificate of Ahmad was not produced by the petitioners, therefore, no importance can be given to Exh.A/2; that both the courts below have rightly passed verdict against the petitioners as the powers used by the Attorney were on the basis of irrevocable Power of Attorney; that other transactions entered into by the said Hassan Ali Shah have either not been challenged by the petitioners or they did not succeed in the eventuality of their challenge to any transaction. In support of his contentions learned counsel has relied upon the cases reported as M/s Islamabad Farming Cooperative Society and others v. Ghulam Abbas Khan and others (2011 SCMR 153), Maj.(R) Barkat Ali and others v. Qaim Din and others (2006 SCMR 562), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through- Divisional Forest Officer v.
Ghulam Nabi and 3 others (PLD 2001 SC 415), Muhammad Sharif and others v. Inayatullah and 24 others (1996 SCMR 145), Meraj Din and 3 others v. Haji Muhammad Siddique Khan and 2 others (1990 SCMR 1038), Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 1971 SC 516), Pir Muhammad Azam v. Pir Azizullah and 2 others (2011 CLC 355), Mehfooz ur Rehman and 4 others v.
Mst. Riffat Ahad and 2 others (2007 MLD 382), Lal Din v. Muhammad Ibrahim (PLD 1988 Lahore 398) and Malik Muhammad Asif v. Province of Sindh and 2 others (1990 MLD 2191).
5. I have heard the learned counsel for the parties at considerable length and have also gone through the voluminous record of this petition in addition to the case-law cited by the learned counsel for the parties at the bar.
6. The petitioners filed an application under section 12(2) of C.P.C. For setting aside of judgment and decree dated 15-3-1987 whereby the Arbitration award announced by the Arbitrator was made rule of the Court, on the ground that. Syed Hassan Ali Shah, though was appointed as general attorney, however, he was not given any power regarding appointment of an arbitrator and filing of consenting written statement before the Court. The said application was concurrently dismissed by the courts below. The logic weighed with both the courts below is that the petitioners failed to establish any fraud on the part of the respondents. In this regard, I am of the view that the learned trial Court did not frame a very important issue to the effect as to whether the said Syed Hassan Ali Shah had any authority to appoint arbitrator or to file the consenting written statement.
A perusal of power of attorney shows that the attorney was not given authority to appoint arbitrator or to file consenting written statement. This Court in the case Rashida Begum (supra) has inter alia laid law to the following effect: "****Applying this principle, I have gone through the power of attorney and find that though there are general powers conferred upon the attorney, to conduct the cases before the Courts and also to alienate the property, but there is no specific power giving to him to enter into any arbitration agreement on behalf of ladies, for the reference of the matter to the arbitrator. The general powers mentioned above, cannot in any manner be construed, the intention of the ladies to authorize their agent to seek the resolution of the dispute through arbitration. If the ladies intended to transfer such power, nothing prevented them to have specifically empowered the attorney, in their behalf. This conspicuous omission of authority in the power of attorney clearly indicates that Muhammad Nazir was never authorized to enter into the arbitration agreement, therefore, notwithstanding whether Muhammad Nazir factually executed the arbitration agreement on behalf of the daughters of Muhammad Bakhsh with the respondents and had agreed for the appointment of Muhammad Asghar; even on the principle of acquiescence on his part such an agreement, would not bind the appellant and the other ladies."
7 It is important to note over here that application under sections 14 and 17 of the Arbitration Act, 1940, was filed by the respondents on 15-2-1987. Syed Hassan Ali Shah, attorney of the petitioners appeared on the same date and not only filed consenting written statement but also made a statement to the effect that he has no objection if the award is made rule of the Court. In their application filed under sections 14 and 17 ibid the respondents have averred in clear cut words that they entered into agreement to sell with the respondents through Syed Hassan Ali Shah, the attorney, against a consideration of Rs,2,50,000/- which was paid to the said attorney. However, later on a dispute arose between the parties as a result Malik Ghulam Yaseen was appointed as sole arbitrator who announced his award but the respondents did not abide by the said award, therefore, they filed application to make the same as rule of the Court. It is astonishing to note that on the one hand the stance of the respondents is that the petitioners are denying their rights accrued pursuant to the agreement to sell and subsequent arbitration award but the filing of consenting written statement and the statement of Syed Hassan Ali Shah that he has no objecting to the acceptance of the application seems somewhat dubious. No reason for such haste has been given by either the attorney or the respondents. While dealing with such a situation the august Supreme Court of Pakistan in the case of Malik Yar Muhammad and others (Supra) has inter alia held as under: "6. There is no reason as to why the petitioners should have felt the necessity of filing suit on 2-5- 1969 and getting consent decree on the same day without even calling the allottees/respondents before the Court to make statement as to whether they had given power of attorney to Muhammad Ramzan. This very act of the petitioners speaks volumes of mala fides. As a person of ordinary prudence, they should have insisted that the allottees should come in the Court and make statement so that their title may be perfected beyond reasonable doubt. The proceedings were initiated and concluded summarily without their being any notice to the respondents allottees, therefore, they were rightly held to have suffered from fraud and collusion."
8. Now coming to the authority of Syed Hassan Ali Shah, I am of the view that by virtue of General Power of Attorney dated 25-3-1970 he was handed over the task to firstly get satisfied the certified units of the petitioners and secondly after obtaining the land in lieu thereof he was also given the authority to dispose of the same through sale, mortgage, gift or Tamleek but in the whole document he was nowhere authorized to appoint the arbitrator or to file consenting written statement. Thus, it is clear that the said Hassan Ali. Shah had no authority to consent for appointment of the arbitrator and to file consenting written statement on behalf of the petitioners.
It is well established by now that the power of attorney should be construed strictly according to recitals of the document on the basis whereof he is exercising his right and any act of the attorney done beyond the power vested with him cannot be let go unnoticed and the principal is not bound for that in any manner whatsoever. Reference in this regard is made to the case of Unair Khan and others (Supra) wherein the apex Court of the country has observed as follows:-- "Heard. It is a settled law that the power of attorney should be construed strictly and only such powers, which are expressly and specifically mentioned in the power of attorney, must be exercised by the agent as considered to have been delegated to him"
9. Another important aspect, which escaped notice of both the courts below, is that while filing application under section 12(2) of C.P.C. The petitioners took the stance, in clear cut words, that one of the principals, namely, Ahmad alias Ahmad Baldish died on 3-4-1981 and after his death the said Hassan Ali Shah was no more his attorney. The said stance of the petitioners was not rebutted in clear cut words rather when cross-examined on this point, Sohrab, one of the decree holders (RW- 1) showed his lack of knowledge about death of said Ahmad. According to section 201 of the Contract Act, 1872, the agency between the parties comes to an end inter alia on the death of either principal or the agent and in the event of death of the principal the power of attorney comes to an end. Insofar as the case in hand is concerned, according to death certificate Muhammad Ahmad alias Ahmad Baldish died on 3-4-1981 and said Hassan Ali Shah despite knowing this fact that after his death he was no more his attorney, proceeded to collude with the respondents and filed consenting written statement on behalf of a dead person while showing himself as his attorney. This is a classical example of fraud not only with the parties concerned but also with the Court.
10. According to claim of the respondents the decree in their favour was passed on the basis of an award announced by Malik Ghulam Yasin arbitrator. Being beneficiaries they were to prove that Malik Ghulam Yasin was duly appointed as an arbitrator with the consent of parties and the said fact could only be proved by producing the said arbitrator in the C witness box but the respondents did not bother to produce the arbitrator in the witness box. The inference, which can be drawn, in routine goes against the respondents in this respect as well. Moreover, non-registration of the Award also speaks about some foul play by the respondents. This fact has escaped notice of both the forums below.
11. It is also important to mention over here that RW-1 in the very first line of his cross-examination admitted that they did not enter into agreement with the petitioners directly. He further admitted that he did not read the power of attorney himself rather he got it read from the counsel/advocate.
The respondents were bound to prove that they obtained decree of the Court on the basis of award which was announced pursuant to agreement to sell against which they paid Rs,2,50,000/- but they produced nothing on the record to show that they paid anything towards the price of the land. It has been held in Firdous Shah v. Mst. Memoona Bibi (2007 CLC 500) that when the amount of sale was not paid by the attorney to the principal the transaction would suffer from inherent defect. Relevant portion of the judgment reads as under: - "If the property of the principal is transferred against petty amount and there is no proof that even the said amount was ever transferred by the attorney to the principal, the transaction shall suffer from inherent defect of being contrary to law and the authority of the attorney." t2. It is prime duty of the agent to safeguard interest of the principal as he is handed over the property as custodian and any act done the attorney repugnant to the rights of the principal cannot be given shelter rather the same stands open to attack by the principal. In the instant case, while filing application under section 12(2), C.P.C. The petitioners have admitted that they appointed Syed Hassan Ali Shah as attorney, however, they have pleaded in unequivocal words that he was not given any authority to appoint an arbitrator or to effect compromise with anybody.
Thus the act of said Syed Hassan Ali Shah in the case in hand, being collusive with the respondents, seems to be somewhat doubtful.
13. As far as contention of learned counsel for the respondents that the act of said Hassan Ali Shah to sell property to the respondents is covered under section 187 of the Contract Act, 1872, as the same deals with the implied power of the agent to do any act which has not specifically been mentioned in the document, is concerned, I am of the view that statement of said Hassan Ali Shah after the death of one of the principals, namely, Ahmad makes entire episode shady and it is not safe to rely upon the afore-referred section.
14. According to section 209 of the Contract Act, 1872, on the termination of agency due to death of a principal it is bounden duty of the agent to take all reasonable steps for the protection and preservation of interests entrusted to him by the principal on behalf of the representatives of the principal but in the case in hand the act of the agent is totally fraudulent as instead of caring for interest of legal heirs of Muhammad Ahmad alias Ahmad Bakhsh disposed of his share of property without bringing it into notice of legal heirs of the principal.
15. Insofar as the objection of the respondents that writ petition is not competent against revisional order is concerned, I am of the view that powers vested in this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, cannot be taken away on the basis of technicalities especially when the order passed by the revisional Court is patently illegal. Reliance in this regard is placed on the case of Qamarud-Din (Supra) wherein the apex Court of the country has inter alia held as under:-- "Revisional Court by setting aside the order of trial Court had committed serious illegality of the nature, which could have the effect of depriving the legitimate right of a party. Merely because revision was decided, it would not by itself be a bar for an aggrieved party to file writ for seeking complete justice in appropriate cases, which of course will depend upon the sole merits of each case."
16. Now coming to the case-law cited by learned counsel for the respondents. I am of the humble opinion that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of M/s. Islamabad Farming Cooperative Society and others (Supra) the preposition involved was the effect of execution of power of attorney ten months prior to death of the principal and consequences of failure of attorney to render account to the principal. Likewise, in the matter of Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer. v. Ghulam Nabi and 3 others (Supra) the apex Court of the country held that disputed question cannot be considered in constitutional jurisdiction but in the case in hand fraud on the part of Syed Hassan Ali Shah is apparent. While dealing with the case of Muhammad Sharif and others (Supra) I am of the considered opinion that right from the trial Court the case of petitioners is that though they appointed Syed Hassan Ali Shah as attorney but he was not given the power to appoint arbitrator and to file consenting written statement, therefore the case of the petitioners is not hit on account of approbate and reprobate. Insofar as the case of Meraj Din and 3 others (Supra) the apex Court of the country refused to consider the question regarding referring the matter to the arbitrator on the ground that the said point was not urged before the courts below. Now coming to the case of Ch. Muhammad Saleem (Supra) it is observed that in the said case it was held that a non-registered award can be made basis of court proceedings when the same was mutually acted upon which is not the position in the case in hand. In the case of Muhammad Azam (Supra) it has been held that fraud cannot be proved on the basis of pleadings but in the case in hand not only the petitioners proved fraud on the part of Syed Hassan Ali Shah in their oral evidence but also tendered in documentary evidence death certificate of Ahmad to establish that Syed Hassan Ali Shah was no more his attorney after his death. As far as the case of Mehfooz ur Rehman and 4 others (Supra) is concerned, the matter in pith and substance was connotation of word in a general power of attorney, thus, the same is not applicable to the present case.
17. For what has been discussed above, I have no doubt in my mind to hold that both the courts below failed to appreciate that Syed Hassan Ali Shah had no authority to make statement on behalf of Ahmad, one of the principals. Consequently, instant petition is accepted, impugned order and judgment of both the courts below are set aside and the application filed by the petitioner under section 12(2) of C.P.C. Is accepted and the impugned judgment and decree dated 15-3-1987 is set aside. As a result, the application of the respondents for making the award as rule of the Court would be deemed to be pending and the same would be decided by the trial Court after recording evidence of the parties. No order as to costs.