' SARDAR SAID MUHAMMAD KHAN, J.--This appeal, by leave, has been directed against the judgment and decree of the High Court dated 13-12-1987, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts giving rise to the present appeal are that: one Nawab Khan, the father of the appellant, sold a piece of land to one Noor Zaman Khan, who is now dead and his legal representatives have been arrayed as respondents. The transaction took place on 19th May, 1974, for a consideration of Rs,5000. The appellant and respondents filed two separate pre-emption suits on the basis of right of prior purchase. The trial Court consolidated both the suits and found that the appellant-Muhammad Riaz Khan, being the son of the vendor had the superior right as compared with Sardar Rahim Dad Khan, respondent. The suit of the appellant was dismissed on the ground that the same was not properly instituted; the `vakalatnama' was not signed by the appellant; rather the same was forged. The appellant filed appeals before the District Judge and subsequently to the High Court but the same were dismissed.
3. We have heard the learned counsel for the parties. It has been contended by Mr. Abdul Rashid Abbasi, Advocate, appearing on behalf of the appellant, that even if it is assumed for the sake of argument that the power of attorney was not signed by the appellant, the institution of the suit would stand validated after ratification by the appellant within the meaning of section 196 of the Contract Act. He has cited the following authorities in support of his contention: ' In Ghulam Mohi-ud-Din v. Noor Dad and others (PLD 1988 SC (AJ&K) 42), it was held that provisions contained in rule 4 of Order III C.P.0 are directory in nature. The absence of signatures of the plaintiff on the `vakalatnama' is not an illegality but an irregularity. It was held that as the `vakalatnama' appears to have not been signed by the party concerned out of inadvertence and the defect being formal, it can be ratified by signing the same.
' In Muhammad Khaliq v. Abdullah Khan and others (PLD 1987 AJ&K 76), the facts of the case were that the attorney was given general power of attorney to look after the property; but it was not recorded in the power of attorney that the attorney was competent to institute the suit. The attorney instituted the suit which was subsequently owned and ratified by the principal. It was held that the defect, if any, in instituting the suit stood cured. It was also held that an incidental action to property by the attorney or agent is binding on the principal only when he accepts, acknowledges or undertakes by ratifying the same. It was further opined that an unauthorised act of attorney in a suit or proceeding if ratified by the principal would be upheld.
' In The Hyderabad Import Export Co., Secunderabad v. The United Trading Co. Bhagathikot, Jodhpur (AIR 1958 Andhra Pradesh 652), it has been held that in case of application under Order 9, Rule 9, for the restoration of the suit, technically, speaking, a fresh `vakalatnama' should be filed. But if the vakalatnama is not filed alongwith the application and is filed subsequently, the defect in presenting the petition would stand cured.
' In Muhammad Sarwar alias Feroze Ali v. Abdul Ghani & others (1980 CLC 946), the `vakalatnama' was not signed by the appellant; it was held that the purpose of provision contained in Order III, rule 1 and Order XLI, rule 1, is to avoid the possibility of confusion, fraud or exploitation and making sure that no harm is caused to genuine party. Thus, if a lawyer acting on the instruction of his client files an appeal, the absence of authority in writing would not render the institution of the appeal as invalid.
' In Khyam Films and another v. Bank of Bahawalpur Ltd. (1982 CLC 1275), it was opined that the question as to whether the suit was validly instituted can be effectively challenged only by the principal. The principal in spite of objection taken continued to recognise authority of agent to institute the suit; the act of principal amounted to ratification and the suit would be deemed validly instituted.
' In Messrs Nabi Bakhsh & Sons v. Pakistan, through the Secretary, Ministry of Industries and Natural Resources (PLD 1969 Kar.210), it has been held that presentation of application by the pleader to whom authority under Order III, rule 4, was not given, was merely irregularity and is curable at a subsequent stage. The counsel was on the panel of counsel for the government of Pakistan and he had acted on the letters written by the Government instead of a power of attorney, properly executed.
' In Raghunath Devi v. Administrator, Srinagar Municipality (AIR 1962 J&K 83), it was held that the provisions contained in rule 4, Order III, are directory in nature and if a pleader makes an application with the consent of the party and subsequently files a formal `vakalatnama' that will not invalidate the presentation of the application under Order 9, rule 3.
' In Dahyabhai Girdhardas v. Bobaji Dhyaji Kotwal and others (AIR 1953 Bombay 28), the plaint was signed by the son of the plaintiff who had no power of attorney. Subsequently, on the request of the plaintiff he was allowed to sign the plaint. It was held that irrespective of the bar of limitation, the defect stood ratified after signing of the plaint by the plaintiff. The reported facts are not comprehensive enough to show as to whether the son acted on the direction of his father or not.
' In Nargis Begum & others v. Muhammad Ibrahim and others (1983 CLC 2923), it has been opined that although the petition for leave to appeal was signed by the Advocate but `vakalatnama' was not signed by him. It was held that non-signing, and non-mentioning the name of the Advocate in the body of `vakalatnama' would not invalidate the institution of the petition for leave to appeal.
' In Muhammad Bibi & others v. Nawaz and others (1986 MLD 771), it was held that non-signing of the plaint stood on the same footings as thumb marking on the plaint or signing the `vakalatnama' by a person other than the party concerned.
4. The learned counsel for the respondents has controverted the arguments advanced by the learned counsel for the appellant and has contended that the doctrine of ratification envisaged under section 196 of the Contract Act is not applicable in case of an unlawful contract or in case of a forged document. The learned counsel for the respondents has cited the following authorities in support of his contention: ' In Muhammad Hussain v. Bashir Ahmad and others (PLD 1987 Lahore 392), it has been held that Order III, rule 2, permits the performance of acts on behalf of the parties by their recognised agents.
The facts of the case were that Nazir Hussain son of the plaintiff had general power of attorney in his favour. He instituted a suit. It was found that he had no authority to bring a suit for preemption.
After the expiry of the limitation a prayer was made for signing the plaint by the plaintiff, which was allowed. It was opined that as the act of ratification through an amendment by signing the plaint would injure the interest of 3rd party, the defect could not be ratified and thus the institution of the suit was held invalid.
' In Babu Muhammad Aslam v. Mst. Reitana Parveen (PLD 1989 Pesh. 185), it was held that as the power of attorney was executed three months after filing of the ejectment application, the act of institution of the application could not be said to have been ratified under section 196 of the Contract Act because the `vakalatnama' pertained to do acts in future and not to ratify the acts of past.
5. It is evident from the case law cited by the learned counsel for the parties that there is almost consensus amongst the judicial authorities on the point that if a power of attorney, vakalatnama or plaint is not signed by the party, his attorney or his counsel due to oversight or inadvertence, the defect is an irregularity which is curable by doing the needful, irrespective of the provisions contained in section 196 of the Contract Act. In all such cases the attorney or counsel acts in pursuance of the instructions of the party concerned, but a formal defect may occur due to mistake or negligence. The authority to do an act by a counsel or an attorney is there but same is not strictly in conformity with requirement of law in view of contents of the document or due to an omission, such as non-signing of the document by the party or any other formal defect of like nature; these defects are regarded only as irregularities and not illegalities.
5-A. In a case reported as Dahyabhai Girdhardas v. Bobaji Dhyaji Kotwal and others (AIR 1953 Bombay 28) referred to above, the son did not forge the name of his father on the power of attorney, rather he signed the same in the representative capacity which was not evidenced by a written document. The facts reported are insufficient and do not show as to whether the son acted on the verbal instruction of his father or he had instituted the suit without any such directions by his father. Anyhow, that was not a case of forging the signature of the plaintiff, i.e,, his father. The only authority cited by the learned counsel for the appellant, which could be said to have any relevancy to the case is Muhammad Bibi & others v. Nawaz and others (1988 MLD 771), wherein the learned Judge while accepting the appeal observed that practically the act of thumb-marking on the plaint or signing of the `vakalatnama' by someone else without an authority is same as non- signing of `vakalatnama'. In other words, according to the learned Judge, the non-signing of the power of attorney or `vakalatnama' due to oversight or negligence by a party stands on the same footings as forging the signature or thumb-impression on the said documents. We are afraid we cannot subscribe to the view taken by the learned Judge. It hardly needs any argument that forging signature or thumb-impression on power of attorney or `vakalatnama' is an act of forgery within the meaning of section 463 of the A.P.C. And is a penal offence. Therefore, it cannot be said that omission to sign a power of attorney or `vakalatnama' practically stands on the same footings, as forging the said documents. The Courts of law have always been reluctant to show indulgence in case of an illegal act; specially so if such an act constitutes a criminal liability. It is not only a legal obligation but also a moral duty of the Courts to discourage the acts of fraud, forgery and personification even if the same do not constitute a criminal liability. If we accept the proposition that the institution of a suit on the basis of a forged power of attorney or a vakalatnama stands on the same footings as omission to sign such documents due to inadvertence, it would amount to showing indulgence in favour of an illegal and immoral act. In our view, a defect in power of attorney or a Vakalatnama due to a bona fide mistake and the act of forging any such document stand on quite different footings and should be distinguished as such while judging the legality of the acts flowing from the said eventualities. Law may condone a bonafide mistake but certainly it does not and should not show indulgence in case of an illegal act; such as forgery, fraud or personification etc.
6. It has never been the case of the appellant in the trial Court or in the first appellate Court that he had instructed Muhammad Sayyad, his brother, to act as his attorney for the purpose of instituting the suit or engaging a counsel on his behalf; his case was that he had himself signed the `vakalatnama' on the basis of which the suit was instituted. However, it has been concurrently found by the Courts below that signature on the `vakalatnama' was probably forged by Muhammad Sayyad, the brother of the appellant, who engaged Malik Muhammad Iqbal, Advocate as the counsel for the appellant. It was only at the stage of second appeal that the appellant tried to build up an alternative case that even if his signature on the power of attorney is found to be fictitious, the institution of the suit stands validated in view of the provisions contained in section 196 of the Contract Act. In other words, even in the High Court the appellant did not abandon his plea that it was he who had signed the `vakalatnama' himself and the same was not forged by Muhammad Sayyad Khan or any other person. After going through the findings given by the Courts below, we have no doubt that the signature on the aforesaid `vakalatnama' was forged and the same was not in the hand of the appellant.
7. Now the question which needs to be resolved is as to whether the institution of the suit on the basis of a forged `vakalatnama' can be regarded as valid on the ground that the said act stands ratified by the appellant within the meanings of section 196 of the Contract Act, as has been contended on behalf ofthe appellant. There is no quarrel with the proposition that under Section 196 of the Contract Act, a contract which has been entered into by a person on behalf of other without his knowledge or authority can be ratified by the principal. However, the doctrine of ratification envisaged in section 196 is subject to many exceptions. Thus, a contract which is void as being unlawful cannot be ratified because a void act would be deemed to be non-existent for all practical purposes and thus it is paradoxical to say that a non-existent act can be ratified under the provisions of section 196 of the Contract Act. We find support in our view by the cases reported as Madura Municipality through Commissioner v. K. Alagirisami Naidu (AIR 1939 Madras 657), East and West Insurance Co. Ltd. v. Mrs. Kamala Jayantilal Mehta (AIR 1956 Bom.537), Kalyani Achi v.
K.N.S.P.R.M. Ramanatham Chettiar and others (AIR 1953 Mad. 860), Mahendra Nath Srimani v.
Kailash Nath Das and others (AIR 1929 Cal. 50), Monohar Das Mohanta v. Tarini Charan Nandi (AIR 1929 Cal. 612) and Janardhan Kashinath Kasar v. Janardhan Vishwanath Shastri and others (AIR 1929 Nag. 214), wherein it has been held that the act which is unlawful cannot be ratified under the provisions of section 196.
8. Similarly, a forged document or acts flowing therefrom cannot be ratified under section 1% of the Contract Act. A reference may be made to a case reported as Brook v. Hill (1871) L R 6 Ex.89, wherein it was held that a forgery is incapable of ratification, not because it is a legal nullity, as indeed it is, but 'a forger does not profess to act as an agent'.
9. The fact that the act of forging the signature of the appellant on the `vakalatnarna' being an act of forgery, brings the agreement in question within the ambit of section 23 of the Contract Act and thus the same being unlawful is ab initio void. For the sake of convenience the provisions contained in section 23 of the Contract Act are reproduced as under:- "23. The consideration or object of an agreement is lawful, unless--it is forbidden by law; or ' is of such a nature that, if permitted, it would defeat the provisions of any law; or ' is fraudulent or ' involves or implies injury to the person or property of another; ' or the Court regards it as immoral, or opposed to public policy.
' In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
10. It is evident that under order III, rule 4 C.P.C., a `vakalatnama' is to be in writing and should be signed by the party concerned. Thus, if any person forges the signature on `vakalatnama', it would defeat the provisions contained in Order III, Rule 4, C.P.C. The act is also unlawful as being immoral and against the public policy. Therefore, the contention of the learned counsel for the appellant that as the appellant ratifies the factum of institution of the suit, the defect, if any, stands ratified, has no substance in it and is hereby repelled.
11. As the appeal can be conveniently disposed of in view of the findings reflected above, we need not to go into the question as to whether in view of the provisions contained under section 200 of the Contract Act, the plaintiff is also otherwise debarred from ratifying the contract because it would injure the interests of defendant, the rival pre-emptor.
' In the light of what has been stated above finding no force in this appeal, it is hereby dismissed with costs.
' BASHARAT AHMAD SHAIKH, J.--An argument has been raised on behalf of the learned counsel for the appellant that even if it may be considered as concluded that the vakalatnama in the case was not signed by the plaintiff himself, as has been held by the High Court and the Courts below, it would not entail dismissal of the suit. The contention is that non-signing of a vakalatnama by a party is a mere irregularity which cannot prove fatal to the suit. It is true that Courts have been taking a liberal view when defects were found in a vakalatnama but my view is that, such liberal view cannot be extended to condone non-signing of a vakalatnama by the party which engages a counsel.
' Rule 4 of Order III of Civil Procedure Code contains a prohibition that no pleader shall act for a person unless he has been appointed as such by a document in writing signed by such person or his recognised agent. The rule does not require that the document in writing referred to in it should contain names of the parties, name of the Court, name of the person on whose behalf the pleader is being authorised to appear or that the Advocate who has been engaged should also sign the Vakalatnama as a token of its acceptance. However, the prevalent form of vakalatnama which has attained a sort of sanctity also carries entries of this nature which are filled up before being tiled in the Court and it is also customary for an Advocate to sign the Vakalatnama as a token of its acceptance. These entries serve a useful purpose because a document becomes self-speaking when these entries are carried on it. It is possible to argue that when the relevant rule requires that a document in writing be filed in a Court it implicitly requires to give the particulars which are contained in the entries referred to above. However, the fact remains that the only requirement which is specifically incorporated in rule 4, referred to above, is that the vakalatnama should he signed by the person who engages the counsel. As mentioned above the Courts have been taking a liberal view of omissions in vakalatnama but have not held that rule 4 may be altogether ignored.
The Supreme Court of Pakistan in case reported as Toor Gul v. Mst. Mumtaz Begum (PLD 1972 SC 9) inspite of taking liberal view of this rule held the view that substantial compliance of the provisions of rule 4 is required. This Court also has taken the same view in Nargis Begum v. Muhammad Ibrahim (1983 CLC 2923). The omissions which were treated as not fatal in these cases were non- signing of the vakalatnama by the Advocate and omission of the name of the Advocate from the body of the vakalatnama. These two omissions are omissions of entries which are not required to be made by the phraseology of rule 4. As already noted the only requirement specifically stated in rule 4 is the signing of the vakalatnama by the party. When it is held that substantial compliance with a provision is enough it does not follow that the provision may be ignored altogether without any adverse consequences. In my view therefore non-signing of the vakalatnama by the party cannot be equated with the non-signing of a vakalatnama by the counsel. The former is a requirement of law while the latter is not. I say so with great respect that I am unable to subscribe to the view that if a vakalatnama is not signed by the party such omission can be ignored.
' In this view of the matter I am of the view that the short answer to the argument raised in the case is that non-signing by the party shows that provisions of rule 4 have not been even substantially complied with and such omission cannot be condoned.
' With these observations I agree that the appeal may be dismissed.