' NAIMUDDIN, J.--This is an appeal under Article 185 of the Constitution. Relevant facts giving rise to this appeal are:
1. On 14th June, 1975, respondent instituted a suit in the Court of Senior Civil Judge, Toba Tek Singh, through her attorney Sajawal Khan to pre-empt the sale of land measuring 102 Kanais 17 Marlas situated at Chak No. 396/G,B., Tehsil and District Toba Tek Singh made by one Sorab Khan son of Jahandad Khan by means of a registered saledeed dated 22nd June, 1974, ostensibly for Rs.1,50,000. In the plaint the respondent averred that she being a pardahnashin lady in accordance with the family custom was not directly instituting the suit but doing so through her general attorney Sajawal Khan who would pursue the same. The appellant in his written statement in reply to the averment stated that it did not require any reply. However, after more than 4 years on 29th July, 1979, appellant filed an application under Order VI, rule 17, C.P.C. For amendment of the written statement so as to raise the plea that Sajawal Khan who filed the suit on behalf of the respondent lacked authority to institute the suit under the general power of attorney executed in his favour. The respondent opposed the application. However, on 24th February, 1980, before the amendment application could be disposed of respondent submitted an application under section 151, C.P.C.
Seeking permission to place on record special power of attorney dated 31st January, 1980, executed by her in favour of Sajawal Khan ratifying the institution of suit by him on her behalf and also authorising him to pursue the suit as her special attorney. The Trial Court on 27th March, 1980, allowed the application for amending the written statement and thereafter on 28th June, 1980, framed the following additional issue as issue No. 5-A with which now we are concerned in this appeal: "Whether Sajawal Khan is a lawful constituted general attorney of the plaintiff (respondent) to file the present suit?"
' After recording the evidence of the parties the Trial Court decided all the material issues in favour of the respondent, except issue No. 5-A, under which it held that Sajawal Khan was not authorised by the general power of attorney (Ex. P/6) to institute the suit in respect of the land in dispute. The Trial Court also found that the special power of attorney (Ex. P/7) executed by the appellant in favour of Sajawal Khan on 31st January, 1980, whereby she ratified the act of attorney of filing the suit on her behalf and authorised him to pursue the suit as her attorney was of no avail to her as it was executed after the expiry of the perid of limitation prescribed for filing of the pre-emption suit.
Accordingly the Trial Court rejected the plaint under Order VII, rule 11 C.P.C. On 21st June, 1983.
2. Aggrieved by the judgment and decree the respondent preferred regular first appeal, being Appeal No. 123/1983 in the Lahore High Court at Lahore which was allowed by reversing the finding of the Trial Court on issue No. 5-A and setting aside the judgment and decree. The High Court concurred with the finding of the Trial Court that the general power of attorney on the basis of which suit was filed did not relate to the land in dispute. It, however, found that the suit instituted by Sajawal Khan on behalf of the respondent is deemed to have been properly instituted by him as the defect in the presentation of the plaint and the respondent's omission to sign and verify the suit stood cured by the execution of special power of attorney Ex. P/7 by the respondent in favour of Sajawal Khan on 31st January, 1980, and accordingly decreed the suit.
3. Aggrieved by the judgment and decree passed by the Lahore High Court in regular first appeal, the appellant has filed this appeal.
4. The only contention raised by the learned counsel for the appellant is that the special power of attorney Ex. P/7 brought on record was not proved to have been executed by the respondent in favour of Sajawal Khan. When it was pointed out to the learned counsel that the power of attorney was brought on record without any objection from the appellant and therefore, it was not open to the appellant to object to its admissibility for the first time in the regular first appeal, the learned counsel agreed that objection as to the mode of proof of document could not be raised for the first time in later proceedings, but his objection was to its legality.
5. In support of his submission the learned counsel referred to the provisions of section 33(1)(c) of the Registration Act and sections 57(6), 67, 85 and 167 of the Evidence Act.
6. It is, therefore, necessary to examine these provisions: ' Section 33(1)(c) of the Registration Act, provides that for the purpose of section 32 if the principal at the time of executing of the power of attorney does not reside in Pakistan a power of attorney executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Pakistan Consul and Vice-Consul or representative of the Federal Government shall alone be recognized.
Learned Counsel, therefore, argued that by admitting the power of attorney (Ex. P/7) the Court committed an illegality when it admitted the same as it was not executed before and authenticated by any of the functionaries or Court mentioned in the subsection (1) clause (c) of section 33 of the Registration Act but was executed before a Solicitor and Oath Commissioner.
However, what the learned Counsel omitted to notice is that the requirement of execution before and authentication by any of the aforesaid functionaries or Court is necessary only where an agent is authorised to present a document for registration under the Registration Act irrespective :whether its registration may be compulsory or optional except in cases under section 89 of the Registration Act which relates to the filing of the order in Book No. 1 maintained by the Registrar in respect of a loan granted under the Land Improvement Loans Act, 1883. Thus, it will be seen that the Court admitting the power of attorney did not commit any illegality so far as the' provisions of Registration Act are concerned.
7. Now, we would consider the various sections of the Evidence Act to which reference was made by the learned counsel for the appellant. He referred, as mentioned before, to the provisions of section 57(6). Section 57 relates to facts of which Court must take judicial notice. According to subsection (6) the Court is bound to take judicial notice of the seals of the Courts mentioned therein and of Notaries Public and all seals which any person is authorised to use by any Act of Parliament of the United Kindgom or other Act or Regulation having the force of law in Pakistan. He submitted that since the power of attorney (Ex. P/7) was not executed before a Notary Public or Court, therefore, no judicial notice could be taken thereof. It is correct that the Court could not take judicial notice of the power of attorney as it did not bear the seal of Notary Public or Court. It is also correct that under the provisions of section 67 of the Evidence Act, the power of attorney was required to be proved to be signed by the respondent without which it was inadmissible in evidence but the mode of proof of a document is a question of procedure and is capable of being waived. (See Principles and Digest of the Law of Evidence, by M. Munir, Pakistan Edition, page 740).
Further, where the objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is freely referred to by the parties before the lower Court, it cannot be raised subsequently (Ibid). He, therefore, could not raise objection to the admissibility of Ex. P/7 for want of proof subsequently in the appeal. There is ample authority in support of this proposition. Reference may be had to Gopal Das and another v. Sri Thakurji and others (AIR 1943 P C 83), Abdullah and others v. Abdul Karim and others (PLD 1968 SC 140), Malik Din and another v. Muhammad Aslam (PLD 1969 SC 136) and Ghulam Muhammad and others v. Mehtab Beg and others (1983 SCM R 849).
' It will be worthwile to quote here a passage from the judgment of this Court in Abdullah and others v. Abdul Karim and others (supra) which appears at page 145 of the report: "The question is whether the Trial Court was right in so holding, particularly, since this document had been admitted without objection. The Code of Civil Procedure provides for the admission of documents and it is now well settled that if objection to the formal proof of a document had not been taken at the earliest point of time it cannot be taken subsequently and certainly not in appeal. As observed by the Judicial Committee of the Privy Council in the case of Gopal Das v. Shri Thakurji (AIR 1943 P C 83), 'where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.' The record in the present case does not also disclose that any objection was taken by the pre-emptors to the proof of this document when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and, as such, the Trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court."
' We may also quote a passage from the judgment of Ghulam Muhammad and others v. Mehtab Beg and others (supra) which appears at page 853 of the report.
"Learned counsel has, however, contended that compromise deed Exh. P/1 cannot be looked into as evidence as the contents thereof have not been proved according to law The submission is that the presumption of genuineness and proof of execution of a document under section 90 of the Evidence Act, does not arise in this case, as the original document was not produced before the Court but only a certified copy was tendered in evidence However, in our opinion it is not necessary to go into the question of law raised by the learned counsel, as the appellants are not entitled to raise this objection at this stage. We have not found in the record nor has the learned counsel pointed out to us, any objection taken at the trial to the admission in evidence of this document."
8. Section 85 on which also reliance was placed by the learned counsel relates to presumption as to execution and authentication of power of attorney if it is executed before or authenticated by the functionary or Court mentioned therein. If the power of attorney Ex. P/7 was executed before or authenticated by the functionaries or Court mentioned in the section, the Court was bound to presume that Ex. P/7 was executed by the appellant. It may, however, be remembered that the provision contained in section 85 is not of exhaustive character as other modes of proving the execution of power of attorney are not excluded. (See In the goods of Salden (1898) 21 M. 492); Performing Right Society Ltd. v. Indian Morning Post Restaurant (AIR 1939 Bombay 347).
Accordingly the execution of a power of attorney could be proved in any other manner in accordance with the provisions of the Evidence Act or it may not be required to be proved if admitted in accordance with the law of pleadings, otherwise.
9. Then reference was made to provision of section 167 of the Evidence Act which provides that a new trial shall not be granted or a decision shall not be reversed on the ground of the improper admission or rejection of evidence unless in the opinion of the Court some substantial wrong or miscarriage has been thereby occasioned in the trial of the action. It has not been explained how the provisions help the appellant. Further, the special power of attorney (Ex. P/7) was admitted into evidence without any objection from the appellant. If the appellant had raised the objection at proper time the respondent might have proved the same in accordance with the provisions of the Evidence Act.
10. Learned counsel for the respondent has not questioned before us the finding of the High Court that the suit instituted by Sajawal Khan on behalf of the appellant shall be deemed to have been properly instituted by him as the defect in presentation of the plaint and the respondent's omission to sign and verify it stood cured by the execution of Ex. P/7 and we may say rightly so in the circumstances of this case.
11. We, therefore, hold that there was no illegality about the document and the objection to its admissibility in evidence being capable of waiver was waived when it was allowed to be exhibited without proof.
12. For the reasons given above we dismiss this appeal with costs.