' Civil Revision No, 34 of 1980 is directed -against the judgment and decree of the Court of Additional District Judge, Haripur, dated 23-1-1980 vide he reversed the findings of the trial Court on issues of the competency of the attorney to institute the suit and also of estoppal on his part and on acceptance of the appeal he set aside the judgment and decree of the trial Court and resultantly dismissed the pre-emptor's suit.
2. Facts are that the suit land in half a share of some 15 Khasra numbers situate in Village `Salam Khand' was purchased by Fida Muhammad Khan for Rs, 6000 vide a registered-deed, dated 10-8- 1967. The sale was pre-empted by Rafaqat Ali Khan a co-sharer through his general attorney in the person of his father vide the suit No, 299/1 instituted on 30-7-1968. Since some portion of the suit land was mortgaged with possession with the pre-emptor, vendee had accordingly brought a suit for restitution in the Court of Collector, Haripur where from be obtained a ,decree for possession and was also delivered possession on the spot of a part of the suit land through a warrant of possession on 14-4-1968. Attorney of the pre-emptor was also earlier allegedly approached through the vendor to purchase the suit land but he refused to purchase it. Thus giving arise to the pleas of estoppel and waiver. The competency of the attorney to institute the pre-emption suit was also contested for want of validly constituted power of authority in the attorney.
3. Issues framed in the case on the points of superior right of preemption, actual payment of the sale price and the market value were determined by the trial Court and also upheld by the Appellate Court, that the pre-emptor possessed the superior right of pre-emption and that the sale price of Rs, 6,000 was actually paid. The issues of the competency of the attorney to institute the suit and the 'estoppel on the part of the plaintiff through his attorney were determined by the trial Court in favour of the pre-emptor while the Appellate Court reversed the findings under observations that since the original power of attorney was not placed on file in spite of the objection raised by the defendant in the written statement as such the suit shall be deemed to have not been instituted by a competent person as a duly recognized agent. As far the issue of estoppel the learned Appellate Court held that the possession of the suit land was delivered to the vendee on the spot with the consent of Muhammad Zaman Khan the attorney of the plaintiff in pursuance to the Warrant of possession through a family partition and that Muhammad Zaman Khan had acted in a representative capacity for and on behalf of his on Rafaqat Ali Khan the plaintiff and that as such the plaintiff shall be deemed to have forfeited his right of pre-emption within the meaning of section 21 of the N.-W. F. P. Pre-emption Act, 1950.
4. After hearing the learned counsel for the parties, Haji Ghulam Basit, Advocate for the petitioner and Syed Abdus Salam Samar, Advocate for the respondent and also going through the evidence on record with their assistance, I proceed to first discuss the competency of the attorney to institute the suit for and on behalf of his principal. Order III, rule 2(a), C. P. C. Provides that persons holding powers of attorney authorizing them to make and do such appearances, applications and acts on behalf of such persons are the recognized agents of the parties competent to perform the functions. Order III, rule 4 relates to the competency of pleader to be appointed by a document in writing signed by the person himself or his recognized agent or by some other person duly authorised by or under a power of attorney and that every such appoint ment (Wakalatnama) shall be filed in Court which shall be deemed to be in force until determined with the leave of the Court. In the instant case the plaintiff had appointed his father as his attorney, copy placed on file, duly authorised, to appear and act for and on behalf of his principal (plaintiff) as his recognized agent within the meaning of Order III, rule 2, C. P. C. And the agent had onwards appointed a counsel by a Wakalatnama dul signed by him as general attorney of the plaintiff and the said Wakalatnama has also been filed in Court in apparent compliance of th provisions of Order III, rule 4, C. P. C.
5. The learned Appellate Court has referred to pages 459 and 76 of the PLD 1972 Central Statutes vide the Law Reforms Ordinance have allegedly effected amendments in C. P. C. Page 459 does not carry any such amendment. In fact the pertinent amendments are published on pages 504 and 761 but these amendments relate to the Legal Practitioner and Bar Councils Act, 1965 and not C. P.
C. The learned Appellate Court unnecessarily consumed enough time in the subject discussion that Order III, C. P. C. Has been amended and that the said amendment is procedural to operate with retrospective effect. As far the amendments in the Legal Practitioners and Bar Councils Act, 1965 are concerned the same have been made effective on the 14th April, 1 '72 by the Statute itself and as such cannot be made applicable to the suit in hand instituted in the year 1968. The amendment made in section 22 of the Legal Practitioners and Bar Councils Act, 1965 by addition of subsection (3) oily obliges the Advocate to file in Court or Tribunal a document of his appointment (Wakalatnama) signed by the person himself or his recognized agent or some other person duly authorized by him to make such appointmnt. The provisions as such ate existent in Order III, rule 4, C. P. C. And as stated earlier a `Wakalat nama' duly signed by the recognized agent of the plaintiff has also been filed along with plaint on the date of the institution of the suit.
6. It was presented before the learned Appellate Court which he also acknowledged as correct that in the circumstances, when an objection had been taken in the written statement about the competency of the attorney to institute the suit the original copy of the general power of attorney should have been produced in the evidence and after the death of the General Attorney the original copy of the special power of attorney for the plaintiff should have again betn produced in evidence but baying failed as above it cannot be said that the plaintiff-pre-emptor had appointed his father as his general attorney or the next man, his special attorney. Here the learned Court also did observe that, no doubt, this may have been a step curable in the best- interests of justice but since the original document was not produced in the Court till its disposal the case assumed special character and hence, he was obliged to hold that there was no plaint whatsoever before the learned trial Court. It was presented to me during the arguments which was also not controverted by the opposite counsel that the original general power of attorney was produced before the Appellate Court for its perusal. The same was also produced before me at the time of hearing and a photostat copy was placed on file. There has also not been adduced evidence if the general power of attorney, copy of which was placed on file, was fake. As far the special power of attorney is concerned the same has been placed on file and there has not been taken any objection to the said special power of attorney. It is also not necessary that powers of attorney must be exhibited into evidence as required by the Appellate Court in his judgment. In fact there is a provision contained in Order III, rule 6, sub-rule (2), C. P. C. That the appointment of a person appointed as agent whether special or general to accept service of process shall be made by an instrument in writing signed by the principal and if the appointment is general a certified copy thereof shall be filed in Court. This provision cannot be made applicable to the facts of the case as here the general attorney was himself the recognized agent while rule 6 pertains to agents appointed to accept service of proses besides the recognized agents. It, thus comes, to that the plaintiff had appointed a general attarney under a general power of attonerney who had onward appointed a counsel and the latter filed a plaint accompanied by a copy of the general power of attorney and the Wakalatnama. Furthe the original power of attorney is not a non-existent document and th same has been shown to this Court and also claimed to have been shown to the Appellate Court.
7. I shall next proceed to determine if the general power of attorney has been validly executed and it vests a power in the attorney to institute a pre.Emjon suit. Section 32 of the Registration Act provides than document?' requiring registration compulsory or optional shall be presented by some person executing or claiming under the same or by the agen of such person duly authorised by power of attorney executed and authenticated in the manner herein-after mentioned. Section 33(1) (c) recognizes a power of attorney as a valid instrument for the purpose of section 32, if the principal at the time of its execution does not reside in Pakistan and the power of attorney is executed before and authenticated by a Notary Public or any Court, Judge. Magistrate, Pakistan Counsel or Vice-Consul or Representative of the Central Government. Herein, the general power of attorney was executed on 6th day of January. 1967 on a stamp paper and was authenticated by the Passport Officer at the office of High Commissioner for Pakistan in the United Kingon duly signed and scaled by the officer and also witnessed by A. I. GHUBB, 25 Saloane Street. London, S. W.
1 Solicitor and Commissioner for Oaths under their seal. The general power of attorney will tnus fulfil the requirments of section 33 read with section 32 of the Registration Act. This general power of attorney was later on presented for registration before the Sub-Registrar, Sukkur on 14-10-1969 by Rafaqat Zaman Khan who admitted its execution and the sub-Registrar accordingly certified it. It was conteaded that the general power of attorney executed on 6-1-1967 was to be presented for registration whithin four months for its execution within the meaning of section 23 of the Registration Act and that at the latest it could be presented for Registration within four months of its arrival in Pakistan as provided in section 26 and that in the instant case the arrival the document shall be presumed, by the latest, on the date of the institution of the suit on 30-7-1958 when a copy thereof was tiled along the plaint. It was further contended that the general power of attorney was being employed in connection with immovable property situate in sub-District Haripur it was, therefore, to be presented for Registration before the sub-Registrar, Haripur and not before the Sub-Registrar, Sukhur. All these contentions shall hold good if the document needed a registration. In fact, it is section 32(c) of the Registration Act whereunder an agent of a person can present a document for registration if he is duly authorised by power of attorney executed and authenticated in the manner presribed under section 33 of the Registration Act. Now, section 33(l)
(b) recognizes a power of attorney executed before and authenticated by the Registrar or sub- Registrar of the place of residence of the principal if he is residing in any part of Pakistan at the time of the execution of the power of attorney, while subsection (1) (c) recognizes a power of attorney executed by the principal, residing outside Pakistan, before and authenticated by a Notary Public Pakistan Consul or Vice-Consul or Representative of the Central Government.
8. To sum up the general power of attorney herein was not bein employed by the agent to present a document of registration but to prosecute a suit by the recognized agent for and on behalf of the principal within the meaning of Order III, C. P. C. There was also not necessitated any compulsory or optional registration of the power of attorney for the purpose. Even otherwise the power of attorney has been found duly executed and authenticated by a representative of the Central Government within the meaning of section 33(1) (c) of the Registration Act.
9. It was contended that the general power of attorney was not authorizing the agent to institute -a pre-emption suit. In support of the view reference was made to PLD 1980 SC (A J & K) 60 in which a general power of attorney primarily meant to collect the rent and in case of default to seek the ejectment ; to collect the rent or compensation of the forest and to pursue the proceedings in the civil Court, Revenue Court or criminal Court for the purpose and further to transfer the land and houses by mortgage, gift or sale and that all such acts of the recognized agent would be binding on the principals when the. Court had not recognized the power of attorney as such to authorize the agent to institute a suit for pre-emption. I shall better reproduce below the said power of attorney to facilitate comparison :- {{URDU TEXT}} ' The disputed general power of attorney herein reads as follow :- Know all men by these Presents That I, Rafaqat Zaman Khan of 24 Granley Gardens, S. W. 7 in the Country of London, England hereby appoint my father Muhammad Zaman Khan Tahirkheli of Salanikhand P. O. Ghazi, District Hazara, West Pakistan to act for me in every respect as fully and effectually as I could act in person. Concerning all my present and future affairs and all my present and future property rights and interests real and personal all of which place in the unfettered control and discretion of my said Attorney with authority to bind me in relation thereto in any manner whatsoever including (but without prejudice to the generality of the foregoing authority) power to conduct civil suits in the-Courts of Pakistan, to decide disputes, receive cash, given statement, make payments and transfer all manner of property both real and personal and for all or any of the above purposes to sign, seal, delivery and execute and do any deeds, transfers, documents acts and things as effectually as I myself could do if personally present, and to employ and remunerate bankers, brokers, lawyers and agents And I hereby declare that I purposely refrain from further particularizing the description of my affairs and my property rights and interests and the powers conferred lest by so doing 1 should be deemed to limit the intended operation of this instrument as a full and general power of attorney".
10. Now placing the two general powers of attorney in juxtaposition one would see that the former one was executed for a specified purpose butt was styled as general power of attoreyy In order to vest full rights in th agent to perform the specified affairs. The latter instrument is all out a full and general power of attorney to vest in the agent all the present and future property rights and interests real and personal of the principal. It contains a recital that further particularization of the description of the affairs was purposely evaded lest by so doing he should be deemed to limit the intended operation of the instrument as a full and general power of attorney. Further in the context a reference is also made to the statement of the vendee who claimed that he had approached the father of the plaintiff as attorney that let him first purchase the suit land but that he refused to purchase it. He claimed to have asked the Mukhtar and father of the plaintiff before the delivery of possession that if he was Interested in the suit property, he can have it on payment of the sale consideration but that again he refused to purchase it. The evidentiary value of the aforesaid statement shall be determined regarding issue of waiver later on, nontheless, it establishes implied admission on the part of the vendee tot recognize the father of the plaintiff as latter's full agent. In view of the discussion as above, I will have to decide the. Issue in favour of the plaintiff.
11. On the issue of waiver vendee's statement runs that he had never contacted the plaintiff personally in respect of his consent as he was not in Pakistan and that his father was managing the property. He bad also not contacted the Mukhtar personally about his consent but that his reply was conveyed to him by the vendor, the sister-in-law of the plaintiff. Vendor has, however, not been produced at the trial to substantiate his assertion. How can a solitary statement of a party in the circumstances prove the issue of waiver in the case?. Much stress was also laid on the point of the delivery of possession by the Mukhtar of the plaintiff per Exh. D. A. 'which does not at all mention the presence of the Mukhtar of the plaintiff at the time of the delivery of possession. Patwari Helga had stated that when he contacted the Mukhtar the plaintiff for the delivery of possession according to the warrant of possession he agreed to the family arrangement that possession of certain Khasra numbers be given to the defendant in toto and that certain Khasra numbers be left in toto with the plaintiff. The witness had later on admitted that he had not given possession to the parties under the mutual agreement stated above. The warrant of possession Exh. D. A. Also does not state if the possession was delivered on the spot under a mutual agreement and not according to the terms of the warrant of possession. In fact the sale of the suit land has since been completed. Defendant had subsequently obtained a decree for the restitution of possession of a part of the suit land standing mortgaged with the plaintiff who under a warrant of possession issued in execution of the/ decree of the Court of Collector had delivered the possession of a part of the suit land to the defendant. How then the delivery of possession through the execution of warrant of possession even with the consent of the Mukhtar of the plaintiff subsequent to the completion of sale can result in the forfeiture of the right of pre-emption by the plaintiff as that he shall be deemed to have committed a positive act in the completion of the sale within the meaning of section 21 of Pre-emption Act.
12. Last I will discuss the inherent inconsistency in the pleas raised by the defendant as on one hand be contests the competency of the agent to institute the suit and on the other band he binds down the said agent through estoppel and waiver from instituting the pre-emption suit for and on behalf of the principal, i,e, the plaintiff. In case the defendant was not to acknowledge the father of the plaintiff as his recognized agent he was not supposed to approach him to purchase the suit land in preference to him in recognition of the plaintiff's superior right of pre-emption. The defendant could opt for either of the two pleas t, e. He has either to contest the competency of the agent and to abandon the plea of waiver and estoppel or he has to recognize the authority of the agent and to agitate the plea of waiver and estoppel on his part. The two pleas are intrinsically incompatible and self-contradictory and as such the defendant cannot succeed in his case on the strength of the inconsistencies.
13. In view of what has been stated above this revision merits acceptance. The judgment and decree of the Court of Additional District Judge, dated 23-1-1980 are hereby set aside and the judgment and decree of the Court of Civil Judge, dated 16.12-1976 are hereby restored. Since complicated questions of law were involved, hence parties are left to bear their own costs throughout.
011101.11111111INI