1. ' That he had delivered the Award, which may be made rule of the Court after notice to the parties.
2. The parties to the award were Mrs. Azra Malik, Plaintiff and Abdul Qadeer Malik, defendant and the dispute related to plot measuring 2,000 Sq. Yds. Bearing No.F-42, Block-V, Scheme No.5, Clifton Karachi, claimed by the former on the basis of agreement of sale dated 6-8-1986 whereunder she made payment of Rs.12 Lacs leaving a balance amount of Rs.50,000 and counter-claim in the sum of Rs.10,00,000 made by the latter on the basis of partnership business with the former. On 26-6- 1989 an application bearing C.MA. No.4480/89 under Rule 110 of Sindh Chief Court Rules (O.S.) was moved by the defendant Abdul Qadeer Malik through his Advocate Mr. Abdul Hameed Lakhani to treat the matter as urgent and to entertain during Court vacations the accompanying application under section 17 of the Arbitration Act bearing C.M.A. No. 4481/89 alongwith two other applications under section 151, C.P.C. Bearing C.MA. Nos. 4482/89 and 4483/89. In support of his urgent application, he filed an affidavit stating that he had to wait upon his ailing father in Lahore. Counsel for plaintiff Mr. Qamar Muhammad Khan, Advocate also had no objection to treat this application, as urgent.
2. ' Here it may be stated that on 30-5-1989, one day before the presentation of the application under section 14(2) of the Arbitration Act, the sole Arbitrator MrAftab Ahmed Khan sent notices to both the parties, stating that the Award was ready and was being filed in this Court for making it a rule of the Court. This notice was received by the said parties to the award the same day i.e. 30-5-1989.
3. However, on 28h June, 1989 all the said applications came up for hearing during vacations and were placed in Chamber before me in the presence of the learned counsel for the parties. C.M.A.
4. No. 4480 of 1989 for urgent hearing of three applications was granted, whereafter, learned counsel for the parties withdrew C.MA. No. 82 of 1989 and C.MA.No 4483/89. In the former application it was prayed that direction be given to Mr. Afzali Rahi, Commissioner to execute the decree and in the latter application it was prayed that the decree be ordered to be prepared with 4/5 days from the date of the order making the Award. However, hearing of C.M.A. No. 4481/89 which was an application for making the Award, the Rule of the Court, was jointly pressed by the parties as the Award was acceptable to both of them. Accordingly the following order was passed.
5. "28-6-1989.--This is an application under section 17 of the Arbitration Act jointly moved by the parties praying that the Award may be made the rule of the Court as both parties have accepted the same. Parties are present in Court and they admit their signatures on the application. Their signatures have also been identified by their learned respective counsel. 1 accordingly grant the application and order that the Award be made rule of the Court.
6. ' It will be pertinent to mention here that the alleged 'agreement of-sale dated 6-8-1986 was not executed by the defendant Adbul Qadeer Malik in favour of the plaintiff, it was executed by. One Mrs. Masooda Bhurgari wife of Zafarul Islam Minhas, owner of the said bungalow who on the same date is also stated to have executed a General Power of Attorney in favour of the defendant, Abdul Qadeer Malik, the plaintiffs brother-in-law (husband's brother). Subsequently the plaintiff and the said attorney vide agreement dated 30-11-1988 referred the disputes to the sole Arbitrator Mr.Aftab Ahmed Khan, Advocate, in which the plaintiff claimed the transfer of the said bungalow to her on the basis of the said agreement of sale and the said attorney claimed Rs. 10,00,000 from her on the basis of alleged partnership with her. Alternatively he claimed half of the plot from the plaintiff valued at Rs.6,25,000 plus Rs.3,75,000 in cash. With this background in mind the operative part of the award which became rule of the Court may be read as follows: "That the plaintiff is the lawful purchaser of Plot No. F-42, Block V.K.DA. Scheme No. V, Clifton 2,000 Square Yards, Karachi and the defendant was made Attorney at the instance of the plaintiff by the Seller Mst. Masooda Bhurgari, holder of K.DA. Allotment vide order dated 26-1-1976 for the said plot and the defendant who has failed to prove his claim against the plaintiff as to payment of Rs.
7. 10,00,000 as alleged, is bound to act in accordance with the terms of General Power of Attorney on behalf of the Seller mid move the K.DA. By way of proper application, proceedings etc. For transfer of the allotment of the said-plot in favour of plaintiff. The defendant is also not entitled to interfere in plaintiff's peaceful possession of the plot and the defendant cannot act in his personal interest and adverse to that of the plaintiff, as Attorney in regard to the transfer of the said plot. The alleged claim of Rs.10,00,000 as raised by the defendant and further in the alternative of getting half of the said plot from plaintiff for Rs.6,25,000 and Rs.3,75,000 balance in cash from her is, as such, hereby rejected.
8. ' The defendant is ordered, as such to move the K.DA. Accordingly for transfer of the said plot in favour of the plaintiff as per General Power of Attorney on payment of necessary charges/dues etc. By the plaintiff to K.DA. Through the defendant out of the balance sale price of Rs.50,000 within one month and in default Mr.Afzali Rahi son of Syed Hayee Rahi, resident of 5/342, Liaquatabad, Karachi is appointed as Commissioner who will, as such, in place of defendant/attorney act on behalf of the Seller/Allottee Mst. Masooda Bhurgari and move K.D.A. Accordingly for transfer of the said plot in favour of the plaintiff and pay necessary charges of K.DA. Out of the balance of Rs.50,000 to be paid to him by the plaintiff and, if still any balance is left after getting the plot transferred in favour of the plaintiff from K.DA. The same shall be paid by him to the Seller and receipt obtained from her/Seller and he would deliver the same to the plaintiff."
9. ' It was on 20-10-1989, when one Zafarul Islam Minhas, husband and heir of late Mst: Masooda Bhurgari filed J.M.No.63 of 1989 under section 12(2) read with Order 1, Rule 10 and Section 151, C.P.C.
10. And section 33 of Arbitration Act for setting aside the award dated 31-3-1989 and decree dated 28- 6-1989 on the grounds of fraud, misrepresentation and want of jurisdiction. In March, 1989, when the applicant visited the office of K.D.A. He came to know, that the plaintiff, namely Mrs. Azra Malik, had applied for the transfer of the said plot in her favour on the basis of oral gift made on 20-11- 1986 by his said wife. Subsequently he came to know from the office of K.DA. That Mr. Abdul Qadeer, Defendant in the Suit No.722/89 had applied for the transfer of the plot in favour of the plaintiff on the basis of decree passed by the Court in the said suit. It transpired from the decree that his deceased wife had allegedly executed an agreement of sale dated 6-8-1986 with the plaintiff Mrs. Azra Malik in which reference was made to an earlier agreement dated 20-2-1986 executed in Bahrain whereunder she received by way of loan Rs.10,00,000 from the plaintiff against mortgage of her suit property on the condition that in case of her failure to repay the loan she will be bound to transfer the said property to the plaintiff. However, in view of her inability to repay the loan, she agreed to transfer the property for a consideration of Rs.12,50,000 out of which amount, further sum of Rs.2,00,000 is alleged to have been paid by the plaintiff to her, leaving a balance of Rs.50,000 only payable by the plaintiff. In terms of clause (7), she was required to complete the deed in all respects, within three months, including delivery of possession of the plot to the plaintiff, otherwise she was liable to pay damages at the rate of 25% per annum Rs.12,00,000 with effect from 20-2- 1986. Further, in terms of clause (8) any dispute between the parties under the two agreements was to be referred to the sole Arbitrator Mr. Aftab Ahmed Khan, Advocate whose decision would be final and binding on both the parties. The said applicant Zafarul Islam out and out denounced that the said deceased sold the property in question to the said Mrs. Azra Malik or made any oral gift to her or any agreement of sale or power of attorney was executed by her or she received any consideration of sale in respect thereof stating further that all the alleged documents were forged and do not bear the signatures of the deceased Mst. Masooda Bhurgari.
11. ' On 11-11-1990 another J.M.No.73 of 1989 under section 12(2), C.P.C. Read with sections 41 and 30 of the Arbitration was filed by one Zahid Akhtar stating that after the demise of Mst. Masooda Bhurgari, the said plot devolved on her legal heirs among whom, are her brothers, namely Ghulam Muhammad and Ghulam Hussain, each of whom sold away their respective shares vide agreements dated 28-5-1988 and 29-5-1988 to him for a consideration of Rs.50,000. He also prayed for setting aside the decree as it was obtained by way of fraud and misrepresentation.
12. ' On 26-1-1990, one Shaikh Tanveer Hassan filed Suit No. 88 of 1990 against the plaintiff and others stating, that on 13-12-1989, he had entered into an agreement of sale with her for purchase of the disputed plot for a total consideration of Rs.44O0,000 and made part payment of Rs.5,00,000 to her.
13. On 27-12-1989, he gave a n iblic notice in the Daily "DAWN" for purchase of the said property from her, whereupon he received an objection from Mr. Zafarul Islam Minhas (applicant in J.M. No.63 of 1989) informing him that the plot belonged to one Mst. Masooda Bhurgari who expired on 23-12- 1986 and the said Mrs. Azra Malik, the plaintiff in Suit No.722 of 1989 by fraud and misrepresentation had obtained a decree for transfer of the plot in her favour. He, therefore, has prayed inter alia, for specific performance of the contract with the said Mrs. Azra Malik with an alternate to prayer for damages in the sum of Rs.11,00,000 against her.
14. ' Both the plaintiff and the defendant in this Suit No. 722 of 1989 vehemently opposed J.M. No. 63 of 1989 and J.M. No. 73 of 1989 repudiating the claim of deceased's husband in the former and of Zahid Hussain in the latter. Both reiterated that in pursuance of agreement of sale dated 6-8-1986, the plot stood transferred to the plaintiff Mrs. Azra Malik who is also in possession thereof.
15. Accordingly there was no question of the plot devolving on the legal representatives of the deceased. Besides both the applications are barred under Articles 3 and 158 of the Limitation Act and liable to be dismissed. It is however, pertinent to note that neither the plaintiff nor the defendant have denied having submitted documents for transfer of Plot to K.D.A. On the basis of alleged oral gift made by the deceased to the plaintiff on 20-12-1986.
16. ' On 7-5-1990, when J.M. No. 63 of 1989 came up for hearing, it was ordered that this matter may be taken up alongwith J.M. No.73 of 1989 and Suit No. 88 of 1989 after service on the defendants/respondents. On the said date, Mr. Abdul Qadeer Malik attorney of the said Masooda Bhurgari was also present. He was examined by the Court and it was ordered that if necessary he will be recalled for further examination/cross-examination.
17. ' Learned counsel appearing in J.M. No.63 of 1989 and J.M. No.73 of 1989 have assailed the judgment and decree in Suit No. 722 of 1989 on the grounds of fraud, misrepresentation and want of jurisdiction. On the basis of affidavits filed by the parties, applicants and others as well as documents on record and admittted facts, both these applications can be conveniently disposed of by me without recording evidence. It may however be made clear that other questions having no bearing with them are left open to be decided between the disputed parties.
18. ' According to Mr. Dewan Bashir Alam, learned counsel for the plaintiff, the alleged power of attorney was irrevocable in nature and the very fact that it was executed by the deceased in favour of her brother-in-law goes on to show its irrevocability. It was, however, candidly conceded by him that there was neither any disclosure of consideration of sale in the power of attorney nor was it registered under section 17(b) of the Registration Act. The factum of the demise of Mrs. Masooda Bhurgari has not been denied by any one. It is also a matter of record that instead of the deceased her alleged attorney, the defendant herein was made a party, before the Arbitrator and the Court.
19. Before dilating upon the contentions raised by the parties, I am conscious of the fact that when an award becomes rule of the Court under section 17 of the Arbitration Act, pleas of fraud, misrepresentation and want of jurisdiction under section 12(2), C.P.C. Revolve round a much narrower ambit as against a decree passed in a regular suit an award becoming rule of Court, passes through two stages, one before the Arbitrator and the other before the Court. An award can be challenged under sections 30 and 33 of the Arbitration Act among others on the grounds of fraud, misrepresentation and want of jurisdiction, which A grounds cannot be allowed to be reagitated after the passing of the decree. A situation may, however, be visualised when events stemming in between the dates of award and its becoming rule of Court would furnish fresh grounds of fraud, misrepresentation and want of jurisdiction and in that case an application under section 12(2), C.P.C. Would be competent. Apart from this, there may also arise a situation where a defendant may be prevented from participating in the ' proceeedings before the Arbitrator or the Court and he is taken by surprise when confronted with a decree of Court. Mr. Dewan Bahsir Alam, learned counsel for the plaintiff has heavily relied upon a recent judgment of the Supreme Court of Pakistan in Government of Sindh v. Fazal Muhammad reported in PLD 1991 SC 197 in which the appellant was duly served with a notice under section 14 of the Arbirtration Act and after hearing the appellant, the award was made rule of the Court and a decree in terms thereof was passed.
20. The appellant failed to take up the plea of fraud and misrepresentation in the original proceeding.
21. In appeal also no such plea was taken. The Honouable Court, therefore, held that it was not open to them to raise these grounds in an application under section 12(2), C.P.C. The facts of the reported case are clearly distinguishable from the facts of the instant case. Here the case of the applicants is that the deceased Masooda Bhurgari died much defore the alleged reference to arbitration and neither she nor her legal representatives were made a party before the Arbitrator or the Court.
22. ' I will first advert to the question relating to irrevocability of Power of Attorney vis-a-vis the demise of the Principal (Donor). It would be useful to reproduce the definition of "Power of Attorney" as found in section 2(21) of the Stamp Act.
23. " 'Power of Attorney' includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being inforce) empowering a specified person to act for and in the name of the person executing it."
24. ' Reference here may also be made to three English cases referred to in "Powers of Attorney Act" by Dhirajlal P. Shah 1961 Edition at page.35: "Under the common law, a power, if coupled with an interest, cannot be recalled until that interest has been satisfied or abandoned. 'Where a power of attorney is part of a security for money, then it is not revocable (Per Lord Kanyon). In Walsh v. Whitconb (1797) 2 Wsp. 564 at p.
25. 565.
26. ' The principle is applicable to every case where a power of attorney is necessary to effectuate any security.' In the leading case of Smart v. Sandars it was said by Wilde, C.J. (1948) 5 C.B. 895 at page 917 "...Where an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of security some benefit to the attorney of the authority such authority is irrevocable.' "The power must be given for the purpose of protecting some interest of the attorney.
27. The interest must be in the subject-matter of the power itself and not merely arise incidently".
28. Barclays Bank Ltd. v. Bird (1954) ICH 274."
29. ' In Frith v. Frith (1906) A.C. 254 the view of the Court was that "A power of attorney is revocable except when made for due consideration and forms part of security".
30. ' In the present case there is nothing to show that the power of attorney was for consideration or that it was coupled with interest. If a power of attorney purports to create right, title, or interest, whether vested or contingent, of the value of one hundred rupees or upward, to or in immovable property, it requires compulsory registration under section 17(b) of the Registration Act besides payment of duty under Stamp Act. A power of attorney does not become irrevocable by merely saying so. In Shafiq Hussain v. Abdul Qasim PLD 1979 Karachi 22, the agent had beneficial interest in the disputed land forming subject of power of attorney and, therefore, it was held that power of attorney cannot be revoked under section 202 of Contract Act. The question as to irrevocability of power of attorney, however, fades into insignificance as none of the parties or applicants/objectors have disputed the demise of Mrs. Masooda Bhurgari on 23-12-1986. Under section 201 of Contract Act, an agency inter alia is terminated by the death of the Principal. In Watson v. King (1815) 4 Camp. 272 at page 274 the Court held: "This rule of the common law does not apply to prevent revocation by the death of the principal. 'A power coupled with an interest cannot be revoked by the person granting it but it is necessarily revoked by his death. How can a valid act be done in the name of a dead man?"
31. ' The Supreme Court of Pakistan in Mehar Muhammad v. Deputy Settlement Commissioner and another 1979 SCMR 182 observed in a writ petition as to the effect of death.
32. "....It is well-established that any order passed against a dead person would be a nullity in law especially when long before the institution of the proceedings against him he had already died. In this view of the matter, the conclusions recorded by the learned Judge in the High Court, in so far as the merits of the case are concerned, would have no significance as they were recorded against a dead person."
33. ' Before I dwell upon the question as to whether impleading the attorney (defendant) instead of his Principal as party before the Arbitrator and the Court, will hold good, there is no controversy that the plaintiff's claim was against the principal only, whereas the attorney had made his personal claim against the plaintiff. It would be worthwhile here to first refer to section :6 of the Arbitration Act which runs as follows:-- "6. Arbitration agreement not to be discharged by death of party thereto.---(1) An arbitration agreement shall not be discharged by the death of any party thereto, either as respects the deceased or any other party, but shall in such even be enforceable by or against the legal representative of the deceased.
(2) The authority of an arbitrator shall not be revoked by the death of any party by whom he was appointed.
(3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person."
34. ' Reference here may also be made to section 230 of Contract Act, which states: "230. Agent cannot personally enforce nor be bound, by contracts on behalf of principal: ' In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal nor is he personally bound by them.
35. Presumption of contract to contrary: ' Such a contract shall be presumed to exist in the following cases:
(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad.
(2) where the agent does not disclose the name of his principal.
(3) where the principal, though disclosed, cannot be sued."
36. The cumulative effect in the context would be that whereas an agent's authority comes to an end on the demise of his Principal, an arbitration agreement entered into by the latter, like any other person, shall not be discharged by reason of his death but will be enforceable by or against his legal representative. Even otherwise, where the Principal is alive, in terms of section 230 of Contract Act an agent cannot personally enforce contracts entered into by him on behalf of his principal nor is he personally bound by them unless there is a contract to the contrary falling within the three exceptions to the rule contained in section 23. In Mookan Servai v. Muthayya Servai and others, AIR 1938 Madras 146, it was held: "Where a person signs a contract in his own name without any qualification, he is prima facie to be deemed to be contracting personally.... "
37. ' In Raghunath Tha v Kesori Lal and others, AIR 1934 Patna 269, a Division Bench held that where the plaint merely discloses a contract between the plaintiff and the agent of disclosed principal, the agent cannot be sued. In M/s. A.J. Beg Corporation v. Pakistan 1973 SCMR 1989, the petitioner had a dispute with a State of Pakistan which was neither made a party before the Arbitrator nor before the Court. The Supreme Court of Pakistan accordingly upheld the decision of the High Court terminating the authority of the arbitrator under section 5 of the Arbitration Act.
38. The contention of the plaintiff and defendant that the applications under section 12(2) are time- barred under Article 158 of Limitation is not correct. Article 158 prescribes 30 days time for setting aside an award from the date of service of notice of filing of award. In the first place the applications are for setting aside the judgment and decree under section 12(2), C.P.C. And, secondly, there was no service of notice of filing of the award on the applicants. Mr. Muhammad Arif and Suleman Habibullah learned counsel for the applicants while repelling this contention placed reliance on Allah Bux and others v. Mst. Irshad Begum and others, 1986 SCM R 1496, in which it was held that when a decree is obtained by fraud or misrepresentation, limitation under section 18 of Limitation Act shall be computed from the time when the fraud or misrepresentation first became known to the persons injuriously affected thereby. In such a case Article 95 of Limitation Act will be applicable which prescribes a period of 3 years commencing from the date when fraud had become known to the party wronged. The same view was taken in a recent judgment of the Supreme Court of Pakistan in Government of Sindh v. Fazal Muhammad PLD 1991 SC 197.
39. For the reasons stated above, I set aside the judgment and decree in Suit No. 722 of 1989 and allow J.M. No.63 of 1989 and J.M. 73 of 1989 with costs to be borne equally by the plaintiff and defendant in Suit No. 722 of 1989.