' Anwar Hussain Shah respondent No,1 was allotted Plot No,156-D, measuring about 4-1/2 marlas, situated in Satellite Town, Sargodha, by the Housing Department. He executed the agreement to sell, dated 18-3-1977, in favour of Mumtaz Hussain, the husband of Mst. Anees Fatima petitioner, wherein he admitted the receipt of Rs,600 from him and authorised him to raise construction on the said plot by expending from his own pocket, after getting the construction plan sanctioned. It was agreed that whenever he obtained the proprietary rights of the plot from the Housing Department, he would transfer the same to him by means of a registered deed. He also empowered him to use the construction so raised by him in any way he liked and authorised him even to transfer the house alongwith the disputed plot if he so wished, after the payment of dues, if any to the Housing Department. It was also indicated therein that he (respondent) was also executing an irrevocable general power of attorney in favour of petitioner's husband with a view to enable him to manage the plot and to deal 'with the official agencies in that connection. He also executed general power of attorney in favour of Mumtaz Hussain aforesaid on the same day besides a receipt acknowledging the receipt of Rs,600. These are admitted facts.
2. It appears that Mumtaz Hussain aforesaid, after constructing a house on the disputed plot, thought proper to transfer it to his wife, the petitioner herein, and they entered into an agreement for referring the matter to the arbitration of Abdullah Khan. He gave his award on 24-1-1979 and the petitioner through an application made under sections 14 and 17 of the Arbitration Act, applied to the Court of Civil Judge for making it the rule of the Court. Her husband Mumtaz Hussain appeared on behalf of Anwar Hussain respondent as his general attorney and on his consenting statement the learned Judge on 4-2-1979 made the arbitration award, dated 24-1-1979, as rule of the Court.
Anwar Hussain respondent, feeling aggrieved by this decision, made an application on 25-5-1980 to the same Court under section 12
(2) of the. C.P.C., challenging the judgment and decree, dated 4-2-1989, on ground of fraud and misrepresentation. It was contested by the petitioner and on the pleadings of the parties, the Court framed the following issues:-
(1) Whether section 12 (2), C.P.C. Is not attracted in the instant case in view of the facts of the case?
OPR
(2) Whether the application is bad for non-joinder of necessary parties? OPR
(3) Whether the application is liable to be dismissed as precondition for its institution has not been complied with? OPR
(4) Whether the application is liable to be dismissed in view of section 11 and Order 2, rule 2 of C.P.C.? OPR.
(5) Whether the application is time-barred? OPR
(6) Whether the Court lacks jurisdiction to try the application? PR
(7) Whether the order and decree dated 4-2-1979 is based on fraud, misrepresentation, without jurisdiction, is void and without any legal effect? OPA
(8) Relief.
3. After recording the evidence of the parties, the learned trial Judge, vide his judgment, dated 19- 5-1982, accepted the application, set aside the order and decree, dated 4-2-1979, and directed the parties to participate in the proceedings arising out of the petitioner's application under sections 14 and 17 of the Arbitration Act. Dissatisfied with this decision, the petitioner went up in appeal before the learned District Judge, Sargodha, but there too she remained unsuccessful as her appeal was dismissed by him on 1-6-1983. Aggrieved by this judgment, she invoked the revisional jurisdiction of this Court.
4. It is argued on behalf of the petitioner that power of attorney, dated 18-3-1977, was irrevocable and in view of the provisions of section 202 of the Contract Act, the principal had no authority to revoke it because the agent in this case had acquired his own interest in the property in respect of which the general power of attorney was given. It is contended that in the agreement, dated 18-3- 1977, which was executed on the same day on which the general power of attorney was executed, Anwar Hussain respondent had also stated that the general power of attorney, which he was giving to Mumtaz Hussain, would be irrevocable. It is urged that Anwar Hussain respondent could not revoke his irrevocable general power of attorney and even the fact of revocation was not brought to the knowledge of Mumtaz Hussain by means of any notice or otherwise. According to the learned counsel, Mumtaz Hussain made a consenting statement in the Court on 4-2-1979 and at that time he was fully empowered to do so. In this connection he refers to PLD 1989 Karachi 22.
5. On the contrary, it is argued on behalf of Anwar Hussain respondent that if the general power of attorney and the agreement, both dated 18-3-1977, (Exh.R.1) and (Exh. R.2), respectively, be read together, the only conclusion that one can draw from the joint reading of these documents is that Mumtaz-Hussain had ceased to be the general attorney of Anwar Hussain respondent on the day he transferred the property to his wife and he had no authority to make consenting, statement on 4-2-1979 for making the award rule of the Court.
6. It is further urged that respondent No,1 had, by a deed dated 30-1-1970 revoked the authority of Mumtaz Hussain as general attorney and when the made a consenting statement in favour of his wife on 4-2-1979, he had no authority to do so as he has ceased to be his agent.
7. It is an admitted position that Anwar Hussain, the respondent had been allotted the disputed plot by the Housing Department on certain terms and conditions and he had executed the agreement to sell, dated 18-3-1977 (Exh.R-1) in favour of Mumtaz. Hussain, husband of the petitioner, besides general power of attorney (Exh.R-2) in his favour as also the receipt (Exh.R-3) of Rs,600. According to the terms of agreement, he had permitted Mumtaz Hussain to raise the construction over the disputed plot and then to deal with it in any manner he liked. He undertook to get registered sale- deed to be ultimatelyF executed in his favour on the acquisition of proprietary rights of the plot from the Housing Department, but all dues relating thereto were to be paid by the agent. Pursuant to the agreement to sell coupled with the power of attorney, Mumtaz Hussain constructed a house on the disputed plot and subsequently transferred it in favour of his wife, the petitioner herein, by means of a decree of the Civil Court based on the arbitration proceedings, a device generally resorted to by the members of public for avoiding the expenses involved in the registration of the document. Anwar Hussain, the respondent, having come to know about this transfer and allured by the expectation to get substantial amount as price of the plot, proceeded to challenge the validity of the decree of the Civil Court, dated 4-2-1979, by filing an application under section 12 (2), C.P.C.
On 25-5-1980. He remained successful before the Court of first instance as also before the appellate Court. His main contention was that he had cancelled the general power of attorney, dated 18-3-1977 (Exh. R-2) given by him in favour of Mumtaz Hussain and the latter had no authority to make consenting statement on his behalf in favour of his wife during the arbitration proceedings initiated by her because he had revoked his general power of attorney through the cancellation deed dated 30-1-1979.
8. The entire controversy between the parties boils down to the determination of the question: whether Anwar Hussain Shah respondent No,1 had lawfully revoked the authority of Mumtaz Hussain as his general attorney, vide revocation deed dated 30-1-1979, and the latter had no authority to act on behalf of the former for making consenting statement in favour of his wife on 4- 2-1979 pursuant to which the consent decree making the arbitration award as rule of the Court, was passed. It is apparent from the contents of general power of attorney dated 18-3-1977 (Exh.R- 2) as also from the agreement to sell dated 18-3-1977 (Exh. R1) that Anwar Hussain Shah respondent No,1 had irrevocably appointed Mumtaz Hussain, the husband of the petitioner, as his general attorney to deal with the disputed plot in any manner he liked. Subsequent events indicated that Mumtaz Hussain, may be with the assistance of his wife and in-laws, constructed a house thereon. Therefore, the latter as an agent of the former, acquired an interest in the property forming part of the agency within the meaning of section 202 of the Contract Act as further interpreted in PLD 1979 Karachi 22 and as such. Anwar Hussain Shah respondent No,1 was not competent to revoke the authority given to Mumtaz Hussain, as general attorney. He entailed his legal_ disability by his own act by inserting the fact of the irrevocability of the general powere of attorney in the deed itself as also in the collateral agreement and he also incurred this liability by the operation of law as contained in section 202 ibid. Therefore, his cancellation deed, dated 30-1- 1979 had no legal effect and could not operate against the authority of Mumtaz Hussain, as general attorney; given to him by the general 'power " of attorney itself. Both the Courts below unfortunately did not advert to this aspect of the matter and taking an erroneous view, wrongly decided issue No,7, the findings whereof are reversed and the same is decided against respondent No,1. As a result, it is held that the order and decree, dated 4-2-1979, based on arbitration proceedings, did not suffer from any legal infirmity and the disputed plot alongwith the structure built thereon by Mumtaz Hussain stood duly transferred in favour of his wife Anis Fatima, the petitioner herein. In view of the above, the revision petition is accepted, the impugned judgments and decrees are set aside, and the application made by respondent No,1 under Order 12 (2), C.P.C. Is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.