MUHAMMAD IJAZ KHAN, J. Through the instant petition filed under section 12(2), C.P.C., petitioner has challenged the order and judgment of this Court dated 24.04.2017 passed in Writ Petition No.214-M of 2015 whereby the writ petition filed by the respondents namely Sher Alam and others was disposed of in the light of terms and conditions of the compromise deed Ex: PHC-1.
2. Precisely the facts of the case are that initially three suits were filed by both the parties against each other with respect to the same khasra number i.e. 3104 measuring 02 kanals 02 marlas namely Bagh Pawana, therefore, all the three suits were consolidated and all of them were dismissed by the learned Civil Judge/Illaqa Qazi Matta Swat vide judgment and decree dated 14.03.2011. Against the aforesaid judgment and decree, three appeals were filed in the Court of learned Additional District Judge/Izafi Zila Qazi Matta Swat and all the three appeals were consolidated, however, he too dismissed all these appeals vide judgment and decree dated 12.12.2011. Despite the fact that no relief was given to any of the party, however, the respondents namely Sher Alam Khan and others succeeded to enter a Mutation No. 2716 attested on 26.01.2012 on the basis of the aforesaid judgment and decree of the Court of learned Additional District Judge/Izafi Zila Qazi Matta Swat whereby in the said Khasra No. 3104 land measuring 01 kanal and 01 marla was transferred in their name.
3. The petitioners Abdul Rehman and others when got knowledge of the aforesaid illegal mutation submitted an application to the Tehsildar Matta for the cancellation of the aforesaid Mutation No. 2716 attested on 26.01.2012, however, their application was dismissed on the ground of limitation.
Abdur Rehman and others being aggrieved of the aforesaid order of Tehsildar Matta Swat preferred an appeal to the Court of Additional Commissioner Malakand Division, however, the same was also dismissed vide order and judgment dated 31.03.2014. Thereafter, the petitioners Abdur Rehman and others filed revision petition before the Additional Commissioner Malakand Division, however, their revision was also dismissed vide order end judgment dated 10.06.2014 and as such as a last resort they approached to the worthy SMBR by filing a second revision which was allowed and Mutation No. 2716 attested on 26.01.2012 was cancelled vide order and judgment dated 30.03.2015.
4. The aforesaid order of the Worthy SMBR was challenged by me respondents namely Sher Alam and others through a Writ Petition No.214-M of 2015, which came up for hearing before this Court for regular hearing on 24.04.2017 whereby attorney of the present petitioners namely Ali Shah entered into compromise which was exhibited as Ex. PHC-1 and as such as per the terms and conditions of the compromise Ex.PHC-1 the writ petition was disposed of vide order and judgment dated 24.07.2017. The aforesaid order has now been impugned by the present petitioner namely Ghulam Bahadar through the instant 12(2) petition that the same has been obtained through fraud and misrepresentation.
5. Arguments of both the learned counsel for the parties were heard in considerable detail and the record perused with their able assistance. The main ground of attack of the learned counsel for the petitioner was that since mutation has illegally been entered, therefore, the same cannot sustain and as such it was the attorney of the petitioner namely Ali Shah who has committed fraud with him. Whereas the main arguments of the learned counsel for the respondents was that not only in the instant petition but in several other suits between the parties they have patched up the matter with each other and as such this compromise too was the continuation of those understanding and settlement between the parties therefore, the impugned order has not been obtained on the basis of fraud and misrepresentation.
6. It is a matter of record that the attorney namely Ali Shah is the real brother of the petitioner namely Ghulam Bahadar. It is also an admitted fact that the said Ghulam Bahadar is not being denying the execution of power of attorney in favour of his brother and even till date he has not put any efforts to cancel the said power of attorney, therefore, the relation between the petitioner namely Ghulam Bahadar and Ali Shah who were brothers inter-se are that of principal and agent and as such their relation is to be regulated by the contents of the power of attorney executed in favour of Ali Shah.
7. In view of the above, the power of attorney executed in favour of Ali Shah was gone through in the open Court and it was found that the authority to enter into compromise has specifically been delegated by the present petitioner in favour of Ali Shah. The objection of the learned counsel for the petitioner was that the said power of attorney was just for the case before the Worthy SMBR however, this stance too of the petitioner is misconceived as the power of attorney specifically stipulates that the same can be utilized up to the Supreme Court of Pakistan. The said power of attorney also speaks that the attorney can appoint a barrister or a legal practitioner, therefore, in view of the aforesaid delegated authority by the present petitioner in favour of his attorney who was nobody else but his real brother indicates that he has validly entered into a compromise and as such the same could not be challenged through the instant 12(2) petition.
8. The contents of the 12 (2) application would manifestly show that the present petitioner has not alleged any specific incident of fraud or misrepresentation, rather, in ground "a" of his petitioner he has tried to establish a new case with respect to the disputed property, therefore, the 12(2) application filed by the petitioner fall short of those grounds which are required for maintaining the same.
9. It may also be noted that the attorney of the petitioner has not only entered into a compromise with the respondents in the instant suit rather the record appended by the respondents with this petition through their reply would also show that earlier the present petitioner had filed a suit titled "Abdur Rahman and others v. Sher Alam others" on 02.07.2007 with respect to the same khasra Number No. 3104, another suit titled "Sher Alam v. Talemand" on 03.07.2007, another suit titled "Talemand v. Sher Alam" on 19.03.2010, another suit titled "Akbar Bacha v. Ali Shah" on 21.09.2014, another suit titled "Ali Shah v. Sher Alam" on 08.09.2015, another suit titled "Ali Shah v. Ayub Khan" on 25.08.2016 and another suit titled "Mian Ghulam Bahadar v. Akbar Bacha". In the earlier six suits, in majority of the suits the Ali Shah has acted as attorney of the present petitioner, whereas the last suit is still pending before the learned civil Judge which strongly show that the compromise entered in this case too was in the knowledge of the petitioner and was executed on the basis of a large scale settlement between the parties. It may be noted that all the aforesaid suits are pertaining to the same khasra number 3104 measuring 02 kanals 02 marlas, therefore, the petitioner if succeeded could establish his right in the last suit but subject to all legal objections stand against him.
10. It may be noted that for maintaining a 12 (2) petition, an objector/petitioner has required to prove three facts i.e.; i. That the order, judgment and decree was obtained on the basis of fraud; or ii. On the basis of misrepresentation; or iii. That the order, judgment and decree has been passed by a Court which was not having the jurisdiction. however, the contents of the petition filed by the petitioner under section 12(2), C.P.C, would manifestly show that these are not the grounds of his attack as against the impugned order and judgment dated 24.07.2017 rather all his grounds revolve to establish a new case, therefore, his present application fall short of the aforesaid legal requirements which are essential for maintaining a 12(2) petition. It is relevant to mention here that for maintaining a 12(2) petition and for setting aside an order/judgment/decree, an aggrieved person has to establish the elements of fraud misrepresentation or illegality committed in the impugned order/judgment/decree. For ready reference, Section 12(2), C.P.C. is reproduced below: - "12. Bar Or further suit.--(1)
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not be a separate suit."
The above provision is clear in its contents that the petitioner has to prima facie establish that any fraud has been committed upon the Court or to the party or that he has made misrepresentation or the Court which has passed the order/judgment/decree was not having jurisdiction. In absence of the aforesaid grounds, a petition under section 12(2), C.P.C. could not be maintained. Learned counsel representing the petitioner has not been able to establish that the order dated 24.04.2017 has been obtained on the basis of practicing any fraud or misrepresentation at the time of passing of the aforesaid order or is the result of any illegality committed by the learned trial Court. In the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others reported as 2003 SCMR 1050, the Hon'ble apex Court has held that the concealment of material facts by a person having knowledge or belief If such facts may constitute fraud but the same must be proved through clear and convincing evidence and the burden of proof of fraud would lie on the party which alleges fraud except in a case in which the fraud is floating on the face of record. The active concealment and suppression of facts in words and deeds is an essential ingredient of fraud which cannot be inferred by mere assertion rather it must be proved through strong, independent, clear and convincing evidence and the burden would be more heavier in the cases in which a long period has passed since passing of the decree or judgment under which valuable rights have accrued in favour of the opposite-party. There can be no exception to the rule of law that without bringing the essential facts on the record and the evidence in proof of the fraud the plea of ignorance and lack of knowledge simpliciter would not be sufficient to constitute fraud and dislodge the sanctity attached with the official acts and judicial proceedings. The fraud undoubtedly vitiates solemn proceedings and time would not sanctify, an action of fraud and misrepresentation but no inference of fraud can be drawn merely on the basis of an oral assertion in absence of any proof of the allegation of fraud. The appellants in the present case having taken plea of fraud were under heavy burden to substantiate the allegation of fraud through clear and convincing evidence but they have not been able to discharge their onus to the satisfaction of law. The evidence recorded in the civil suit and the evidence brought on record in the proceedings under section 12 (2), C.P.C. would not suggest any concealment or suppression of material facts by the respondents.
11. In view of the above, learned counsel for the petitioner could not establish the factum of fraud or misrepresentation or that the impugned order is illegal for want of jurisdiction, which are sine qua non for maintaining and allowing a 12 (2) petition.
12. Even otherwise, the petitioner has neither in his petition filed under section 12(2), C.P.C. nor it was alleged by his counsel during the course of arguments that he has not appointed Syed Ali Shah as his attorney nor he has challenged his authority to enter into a compromise nor he has alleged that his attorney has exceeded his delegated authority. The power of attorney executed by the petitioner in favour of Ali Shah is available on file. The contents of the said power of attorney were gone through in the open Court and it was noted that the present petitioner has specifically authorized his attorney to enter into a compromise therefore the attorney of petitioner has acted within his delegated authority. Had the present petitioner not been authorized his attorney for the compromise specifically, then off course the present petitioner would have a strong case for setting aside the impugned orders and judgments.
It is also admitted that till date, the said power of attorney has not been cancelled by the present petitioner and the same is still intact. In the case of Saifuddin v. Zainuddin and another reported as 1992 MLD 631, it was held that a compromise agreement executed by attorney, during subsistence of power of attorney in his favour, shall be valid and lawful and subsequent cancellation of the power of attorney will not affect the compromise.
13. Similarly, in the case of Swat Textile Mills Limited, Haripur through Managing Director and 4 others v. Mst. Nabeela and others reported as PLD 2021 Peshawar 146, it was held that in the 'wakalatnama'/power of attorney the authorization to enter into arbitration, settlement or compromise had expressly been conferred on the attorney/Advocate. It seems that the case comes out to be one where the attorney or Advocate and Secretary of Swat Textiles Mills have committed fraud with them. No case of fraud or misrepresentation comes out of the available record against the contesting respondents in the suit or anyone else. When an attorney/advocate defrauds a person, the only remedy available to him is to sue his attorney for damages or recovery of any such amount on his part. The other parties may not be dragged into litigation just because of the fact that an advocate/attorney has allegedly committed some fraud with any person.
14. It may also be noted that an agent/attorney can only perform those acts for which he has been specifically and expressly authorized and while considering the domain and delegated authority of an agent/attorney, strict and rigid interpretation and construction of instrument in the form of special or general power of attorney is to be made and in absence of express authority, the attorney cannot act on the basis of his self-generated inferences and thus if the aforesaid yardstick is applied to the present case, the petitioner herein has specifically and expressly authorized his attorney namely Ali Shah to enter into a compromise. It is settled law that contents of the power of attorney are to be construed strictly and an attorney being the agent of his principal could perform only those acts for which he has specifically been authorized. In the case of Imam Din and 4 others v. Bashir Ahmed and others reported as PLD 2005 Supreme Court 418, the Hon'ble apex Court has held that 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 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 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 lie power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument. Similarly, in the case of Unair Ali Khan and others v. Faiz Rasool and others reported as PLD 2013 Supreme Court 190, it was held 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. It is also held by the Hon'ble apex Court in the case of Moiz Abbas v. Mrs. Latifa and others reported as 2019 SCMR 74, that the language of a Power of Attorney must be strictly construed. It was also held in the case of Malik Tahir Ayub through Special Attorney v. Additional District Judge, Rawalpindi and 2 others reported as PLD 7015 Lahore 57 that under the Powers of Attorney Act, 1882, the person to whom the authority to act on behalf of executant is given has to perform only those functions in respect of which he is specifically empowered. The special power of attorney has to be construed very carefully and it extends to the affairs enumerated therein.
15. In view of the above exposition of law, when the present petitioner has specifically authorized his attorney to enter into a compromise, therefore his attorney has acted within his authority and as such the petitioner is bound to face all legal consequences of acts done by his attorney.
16. It was also noted that on the date fixed i.e. on 24.04.2017 it was nobody else but attorney of the petitioner himself, who had appeared before this Court and requested to decide it on the basis of a compromise, therefore, it is settled law that highest degree of correctness and sanctity is attached to the judicial proceedings as per Article 91 of The Qanun-e-Shahadat Order, 1984, which is reproduced below:- "91. Promotion as to documents produced as record of evidence. Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume: that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it are true and that such evidence, statement or confession was duly taken."
(Underline supplied for emphasize)
The legal worth attached to judicial proceedings has elaborately been discussed by the Hon'ble apex Court in the case of Abdul Aziz v. Abdul Hameed (Deceased) through L.Rs. reported as 2022 SCMR 842, where it has held that strung presumption of correctness and sanctity of high order is attached to judicial proceedings and records and to outweigh the same, strong and unimpeachable evidence is required. Similarly, in the case of Fayya z Hussain v. Akbar Hussain and others reported as 2004 SCMR 964, it was also declared that there is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and unimpeachable evidence is required to rebut the presumption which is badly lacking in the case in hand.
17. In view of the above, mere bald submission of learned counsel for the petitioner that the petitioner was not personally present on the date fixed could not be entertained as against the settled law that a principal is bound for the acts done by a validly appointed attorney, therefore, this ground of learned counsel for the petitioner too is not sufficient to set-aside the impugned order/ judgment dated 24.07.2017.
18. In view of the above discussion and exposition of law, the impugned order of this Court dated 24.04.2017 passed in Writ Petition No. 214-M of 2015 is found by us to be not the result of any fraud or misrepresentation committed by the petitioners Sher Alam and others as decree holders nor the same is the result of any jurisdictional defect or any other material irregularity which may warrant the interference of this Court in a petition filed under section 12(2), C.P.C. and accordingly this petition being bereft of any merits is hereby dismissed.