' This appeal is directed against the judgment and decree of the Additional District Judge, Poonch, Camp Bagh, dated 21-4-1981 whereby he setting aside the judgment and decree of the Sub-Judge, Bagh, dated 23-5-1979, decreed the suit of the plaintiff-appellant brought in the Court of ub-Judge, Bagh, for the cancellation of decree passed by it on 3-2-1971.
2. The facts of the case are that on 14-7-1973 AIst. Nazira Begum, plaintiff-appellant brought a suit for possession by pre-emption in respect of land measuring 10 Kanals and 5 Marlas, situate in village Sahlian Maldialan, Tehsil Bagh, through' her attorney. Muhammad Hussain, respondent No, 2, against Mir Hussain Khan, respondent No, 1, in the Court of Sub-Judge, Bagh, on the ground that she being the real sister of Mst. Begum Jan, vendor, had the prior right of purchase of the aforesaid land. During the pendency of the suit, the said attorney of the plaintiff-appellant put in an application for withdrawal of the suit on which the trial Court, after recording the statement of the Counsel For the appellant, dismissed the suit by its judgment and decree, dated 3-2-1971 on the ground of its having been withdrawn. The plaintiff-appellant went in appeal against the above judgment and decree of the Sub-Judge, before the Additional District Judge, Poonch, on the ground that her said attorney had no authority to withdraw the suit. The Additional District Judge vide his judgment and decree dated 29.6-1976 dismissed the above appeal on the sole ground that no appeal was competent against the judgment and decree of Sub-Judge passed on the basis of withdrawal of the suit by the attorney of the plaintiff-appellant, and that only a separate suit for the cancellation of said decree was maintainable. The appellant then on 14-4-1570 filed a suit before the Sub-Judge, Bagh, against respondent No, 1, for the cancellation of the judgment and decree passed by him dismissing her suit for pre-emption. In the above suit, it was alleged that the appellant bad given no authority to her attorney Muhammad Hussain, respondent No, 2, either to withdraw the suit or to engage counsel and, as such, neither the said attorney nor the counsel engaged by him was competent to withdraw her suit.' The trial Court decreed the suit vide its judgment and decree, dated 23-5-1979. Respondent No, 1 filed an appeal against the aforesaid judgment and decree of the trial Court before the Additional District Judge, Poonch who vide his judgment and decree, dated 21-4-1981, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff-appellant. It is against this judgment and decree of the Additional District Judge, Poonch that the present appeal has been lodged by the appellant.
3. I have heard the learned counsel for the parties and also gone through the record of the case. It has been argued by the learned counsel for the plaintiff-appellant that since the attorney for the appellant had no authority under the Power of Attorney executed in his favour by the appellant to withdraw the suit, the withdrawal of the same was not lawful with the result that the judgment and decree of the Sub-Judge, Bagh dismissing the suit of the appellant on the ground of its having been withdrawn was also illegal which was rightly set aside by the trial Court. On the other hand, it was contended by the learned counsel for respondent No, 1 that the suit in question was withdrawn by the counsel for the appellant who had full authority to do so in terms of Vakalatname executed in his favour, by the appellant. It was also argued that even the Power-of-Attorney given by the appellant authorised her attorney to withdraw her suit. On the above contentions the withdrawal of the suit and passing of the decree on its basis was defended. It was also argued that the suit of the plaintiff was filed beyond the period of limitation prescribed under Article 95 of the Limitation Act and that the benefit of section 14 of the said Act could not be given to .The appellant as the appeal against the decree of Sub-Judge was not filed in good faith and with due diligence before the District Judge.
4. After giving my due consideration to the arguments addressed at the bar and taking into consideration the facts and circumstances of the case, I am of the opinion that the decree under appeal is not sustainable. The points that require determination in this case, are
(i) As to whether or not the attorney for the appellant had the authority to withdraw the suit ; and
(ii) As to whether or not the suit of the appellant giving rise to the present appeal, was filed within the period of limitation prescribed for the purpose ?
5. As regards the first point formulated above, I am of the view that the appellant's attorney was not given' powers to withdraw the suit by the appellant in the Power-of-Attorney executed by her in his favour. The learned Additional District Judge has held the withdrawal of the suit lawful on the ground that the same has been made by the counsel for the appellant who enjoyed the powers to do so under the Vakalatnama given to him by her attorney, as the said Vakalatnama conferred upon the counsel to act, plead and appear on behalf of the appellant and in support of his above opinion, he has relied upon the judgment reported as PLD 1963 Lah.
95. The Court below was of the further opinion that even the Power of Attorney had conferred the powers upon the attorney to withdraw the suit inasmuch as it contained the following sentences :- ' But I am unable to subscribe to any of the above view of the learned Additional District Judge.
After going through the Power of Attorney, dated 26-3-1970, executed by the appellant in favour of Muhammad Hussain, respondent No, 2. 1 am of the view that the said attorney was never given powers to withdraw the suit. The acts which he was authorised to perform on behalf of the plaintiff- appellant, are specifically mentioned in it which do not include the powers to withdraw of compromise the suit on behalf of the plaintiff-appellant. The words appearing in the . Power of Attorney and reproduced above which have been relied upon by the Court below for coming to the conclusion that the attorney had the powers to withdraw the suit, by no stretch of imagination, bear the meanings which have been given to them by the learned Additional District Judge. The above words are in general terms which do not convey any specific intention of the executant of the Power of Attorney and to me they only mean that the power given to the attorney in the document in question, shall be exercised by him in the same manner as might be performed by the executant herself and nothing more. The above sentence in the Power of Attorney is immediately followed by writing that the Power of Attorney is being given for the purpose of instituting and pursuing the case and when these restricted powers are read with the specific acts which the attorney has been 'authorised to perform in the Power of-Attorney, it becomes quite clear that the attorney was not invested with the powers to withdraw or compromise the suit of the plaintiff-appellant for pre-emption. The Power of Attorney is to be construed strictly and the powers which are not specifically conferred on the attorney in it D cannot be implied to have been given to him. I am also not in agreement with the view of the learned Additional District Judge that the withdrawal of the suit in question was made by the Advocate, and as such the same was perfectly lawful as he had the powers under the Vakalatnama to appear, act and plead on behalf of the E appellant. Firstly, it is not wholly correct that it was the Advocate only who had withdrawn the suit. In fact, an application for withdrawal was made by the attorney for the appellant but the statement of the counsel for the appellant in respect of withdrawal of the suit was also recorded by the trial Court as a matter of further caution. The ruling cited by the Court below is not applicable to the present case for the simple reason that in the case wherein the said ruling was given, the Power of Attorney was executed by the plaintiff himself and not by his attorney. But in the case in hand, it was the attorney who had executed the Vakalat nama on behalf of the appellant in favour of the Advocate and thus, naturally, he could only delegate those powers to an Advocate which he himself possession under the Power-of-Attorney and not beyond that. As the attorney for the appellant did not possess the authority to withdraw the suit, the question of his giving such powers to an Advocate did not arise. It is settled law that an attorney can delegate only those to powers to anybody else in eluding the Advocate which are given to him under the Power-of-Attorney and has no authority to authorise any person to perform those acts on behalf of the executant of the Power of Attorney which he him": cannot do under it. In this view of the matter, even if it is assumed for the sake of arguments that the withdrawal in the present case was made by the Advocate of the plaintiff-appellant, it was still not lawful because the person G who had engaged him on behalf of the appellant, himself, did not possess the powers to withdraw and compromise the suit on behalf of the appellant. The learned Additional District Judge also held the view that the suit of the plaintiff-appellant for the cancellation of decree of the Sub-Judge was time-barred, on the grounds that neither an application for the condonation of delay was filed nor any affidavit stating the grounds for condonation of delay was attached with the suit and that no reason has been shown as to why the suit was not filed immediately after the dismissal of the appeal on 26-6-1976 and was lodged, on 14-7-1976. The Court below was also of the view that since the withdrawal of the suit has been challenged on the basis of fraud by the attorney, Article 95 of the Limitation Act was applicable under which it was incumbent upon the appellant to file her suit within a period of three years from the date of dismissal of the suit by the Sub-Judge. I find myself unable to subscribe to the above view of the learned Additional District Judge regarding the suit being time- barred. In the first place, it is doubtful that Article 95 of the Limitation Act is attracted in the present case. The reading of the plaint of the plaintiff-appellant in the Court of Sub-Judge for the cancellation of decree of the Sub-Judge dismissing the suit of the plaintiff-appellant vide its judgment, dated 3-2-1971 would show that the basic plea of the appellant was that the said decree of the Sub-Judge was unlawful because the same had been passed on the basis of withdrawal of the suit made by the attorney who did not enjoy the powers to do so and the plea of fraud was only raised as an ancillary ground. So, the decree of the Sub-Judge had been challenged mainly on the ground that the attorney of the plaintiff-appellant lacked the authority to withdraw the suit and, as such, the decree passed on the basis of withdrawal made by him was not lawful. In this view of the matter, it cannot be said that the decree was 'challenged on the basis of fraud thereby bringing the suit within the purview of Article 95 of the Limitation Act. In my view, the appropriate Article which was applicable in this case was Article 120 of the Limitation Act under which the period of 6 years from the date of passing of the decree of Sub-Judge was prescribed as a period of limitation for instituting the suit for setting aside decree. Even if for the sake of argument it is assumed that Article 95 of the Limitation Act was applicable in the case and the suit of the plaintiff ought to have been filed within a period of three years from the date of decree passed by the Sub-Judge, the suit was still within time as, under the circumstances of the case, the provisions of section 14 of the Limitation Act were fully attracted and the appellant was entitled to exclude the period spent in prosecuting her appeal against the judgment and decree of the Sub-Judge, in the Court of Additional. District Judge. The appellant in para. 2 of her plaint in the Court of Sub-Judge, has specifically made a request for the exclusion of the time spent by him in pursuing his appeal before the Additional District Judge against the decree of the Sub-Judge, while computing the period of limitation. The I case of the appellant was that on the legal advice of her counsel, she had preferred an appeal before the Additional District Judge against the judgment and decree of Sub- Judge whereby her suit for pre-emption was dismissed and as such, the period spent in pursuing her appeal from the date of its institution to the date of its dismissal, should be excluded while computing the period of limitation for filing the suit for cancellation of the said decree of Sub- Judge. In the circumstances of the case, I feel that the appellant was entitled to get the benefit of section 14 of the 'Limitation Act as she has been pursuing her appeal in good faith before the Additional District Judge on the advice of her counsel. It cannot be said that the counsel was careless and lacked the professional skill in giving her advice to file the appeal against the judgment and decree of the Sub Judge, as in my view, it was not free from difficulty to come to some definite conclusion as to whether or not the appeal against the judgment and decree of the Sub-Judge under discussion lay to the District Judge.. In appeal the Sub-Judge was challenged mainly on the ground that the attorney who had withdrawn the suit, had no powers to do so. If, in fact, the decree of the Sub-Judge had proceeded on the basis of withdrawal of the suit by the attorney for the appellant enjoying no such powers, then the appeal was also competent and the District Judge had not rightly held that no appeal was competent against the decree of the Sub- Judge based on the withdrawal of the suit. If the withdrawal had been made by the competent person, then, of course no appeal was provided for under law against the said decree but here since the authority of the attorney to withdraw the suit was disputed and challenged before the District Judge, in an appeal against the judgment and decree of the Sub-Judge, he had the powers to set aside the said decree in case the ground of attack on it had been found correct.
For the reasons stated above, it was a proper case where the provisions of section 14 of the Limitation Act ought to have been pressed into service and the period spent by the appellant in pursuing her appeal before the district Judge excluded while a reckoning the period of limitation for filing the suit even under Article 95 of the Limitation Act. I also do not agree with the view of the Court below that a separate application for the condonation of delay was necessary to be filed with the suit. When the appellant had specifically prayed for the exclusion of the time spent by him in pursuing her appeal in the District Court, then it was unnecessary for her to file any separate application for giving her the benefit of section 14 of the Limitation Act and the trial Court was quite competent to make use of the aforesaid section if it had deemed just and proper to do' so in view of the circumstance of the case.
The result of the aforesaid discussion is that the judgment and decree of the Additional District Judge is liable to be set aside which ate accordingly set aside. The decree of the Sob-Judge, dated 23-5-197) decreeing the suit of the plaintiff-appellant, shall stand restored. In view of the circumstances of the case, the parties are left to bear their own costs.