' This appeal is directed against the order of learned District Judge, Mirpur, passed on January 31, 1994, whereby an appeal filed against the order of Additional Sub-Judge, Mirpur dated July 28, 1993, was accepted.
2. The facts giving rise to this appeal are that a suit filed for possession by pre-emption by Mst.
Inayat Bibi, plaintiff-respondent, with regard to land measuring 1 Kanal 10 Marlas out of 1 Kanal 14 Marlas comprising. Survey No,62 (old), 32 (new) Khatooni No,183, Khewat No,28, situate in village Lahor Bay-chiragh, Tehsil Mirpur, was pending in the Court of Additional Sub-Judge, Mirpur, when on October 26, 1992, Talib Hussain son of Karam Hussain, attorney of the plaintiff respondent, moved an application to withdraw the above suit. The learned Additional Sub-Judge, after recording the statement of the above attorney, proceeded to dismiss the suit as withdrawn. An application for setting aside the above order and restoration of the suit was moved by the plaintiff- respondent through Muhammad Munshi, the attorney subsequently appointed by her. It was mentioned in the application that the attorney appointed earlier, namely, Talib Hussain has connived with the opposite party, as such, subsequent power of attorney was executed in favour of Muhammad Munshi. It was also claimed in the application that the power of attorney executed earlier in favour of Talib Hussain, was cancelled. The proceedings with regard to withdrawal of the suit were claimed to be ineffective and inoperative against her rights. The application, after filing the objections by the opposite side, was dismissed by the trial Court, vide its order dated July 28, 1993. An appeal filed against the aforesaid order refusing to restore the suit,was accepted by the District Judge, Mirpur, on January 31, 1994. Hence this second appeal.
3. Mr. Muhammad Ashraf, the learned counsel for the appellants maintained that the District Judge had no jurisdiction to entertain an appeal against the order passed by the Additional Sub-Judge, on the application moved for restoration of the suit. The learned counsel argued that Talib Hussain was admittedly the attorney for the plaintiff-respondent. The power of attorney filed on the record fully empowered the attorney to withdraw the suit which was done under law. Therefore, the application to set aside the proceedings for withdrawal and restoration of the suit, was rightly dismissed by the learned Additional Sub-Judge. The learned District Judge, it was argued, failed to appreciate the relevant power of attorney. On the other hand, Mr. M. Riaz Tubassam, the learned counsel for the respondents argued that the power of attorney executed earlier in favour of Talib Hussain, was cancelled and a new power of attorney was executed in favour of Muhammad Munshi as the earlier attorney had connived with the opposite party. After the appointment of new attorney, Talib Hussain filed an application to withdraw the suit on the basis of power of attorney executed in his favour, secretly against the interest of the plaintiff and withdrew the suit. It was also argued that the power of attorney, even otherwise did not confer any power on the attorney to withdraw the suit. The learned counsel referred to the case of `Ghazanfar Hussain v. Rehmat Bibi'
(1989 CLC 310) decided by the Azad Jammu and Kashmir Supreme Court and case of 'Malik Riaz Ahmed v. Mian Inayatullah etc.' 1992 SCM R .1488) decided by the Supreme Court of Pakistan, in support of his assertion.
4. I have heard the learned counsel for the parties and also gone through the record. It may be stated that the power of attorney in favour of Talib Hussain was executed, before the institution of the suit, on July 11, 1991. The suit was instituted on July 14, 1991. A perusal of the record shows that the abovementioned attorney never appeared in the Court on behalf of the plaintiff except on the day when the suit was withdrawn. The subsequent power of attorney in favour of Muhammad Munshi on behalf of the plaintiff-respondent, was executed on April 23, 1992. The latter power of attorney also mentions that Muhammad Munshi has been appointed attorney in place of Taib Hussain. After the appointment of new attorney, Talib Hussain appeared in the Court on the day when the suit was not fixed for hearing and withdrew the suit as described above.
5. A perusal of the power of attorney on the basis of which the suit was withdrawn, revealed that Talib Hussain was not vested with the specific power to withdraw the suit, apart from the fact that due to some reason, plaintiff proceeded to execute another power of attorney in favour of Muhammad Munshi.
6. A power of attorney is to be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general powers and vice versa, the general powers are to be construed as limited to what is necessary for the proper exercise of special powers. A power of attorney is not open to that liberal interpretation which is given to less formal instruments, such as ordinary letters or instruments in commercial transactions. The proposition came under consideration before the Supreme Court of Azad Jammu and Kashmir in the case titled `Ghazanfar Hussain v. Rehmat Bibi (1989 CLC 310) wherein it was observed:-- "Order XXIII, rule 1---Withdrawal of suit on the basis of compromise--Attorney for plaintiff who in his power of attorney has not specifically empowered attorney to withdraw suit---Cannot seek withdrawal of suit---Dismissal of suit as having been withdrawn on basis of application by attorney on behalf of plaintiff---Set aside by Supreme Court on plaintiff's appeal with direction to trial Court to decide suit on merits."
6. In another case titled `Chunchun Ma v. Ebadat Ali' (AIR 1954 SC 345), it was held:-- "Where a document has to be construed, the intention must be gathered, in the first place from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used.
If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended."
7. The proposition also came under consideration before the Supreme Court of Pakistan in a case titled 'Malik Riaz Ahmed v. Main Inayatullah' (1992 SCM R 1488) wherein it was laid down:- "S.
214. Agent is obliged to communicate with his principal and obtain his instructions in cases of difficulty. Determination whether a particular case would be covered by expression "cases of difficulty" depends upon facts and circumstances of each case. Held: In present case, agent ought to have sought instructions and communicated with his principals.
' A power of attorney has to be construed strictly. In cases of doubt and ambiguity, it should be construed for benefit of executant."
9. In another case titled 'Fida Muhammad v. Pir Muhammad & others' (PLD 1985 SC 341), it was observed: ' It is wrong to assume that every, 'general' Power of Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object, it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power of Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation."
10. Keeping in view the law discussed above, it can safely be concluded that Talib Hussain, attorney had no competence to withdraw the suit. My reasons are:--
(i) that the power of attorney executed in favour of Talib Hussain did not contain a specific clause to withdraw the suit;
(ii) that a critical survey of the whole document reveals that the executant never intended to give any power to his attorney with regard to the withdrawal of the suit;
(iii) that the executant of the document mistrusted the attorney (Talib Hussain) and thus executed a new power of attorney in favour of one Muhammad Munshi;
(iv) That the power of attorney executed in favour of Muhammad Munshi, also contains a clause that Muhammad Munshi has been appointed as attorney in place of Talib Hussain, attorney which further supports the fact of mistrust on Talib Hussain;
(v) that Talib Hussain never appeared in the Court on behalf of the plaintiff respondent on any date of hearing except the day when the suit was withdrawn;
(vi) that the suit was withdrawn on a date when it was not fixed for hearing;
(vii) that the plaintiff respondent has been constantly pursuing her cause of making allegation of connivance with the opposite party, against her attorney;
(viii) that the attorney in the circumstances, keeping in view the recitals of the power of attorney, was obliged to communicate with the principal. Failure to do so, creates serious doubts; and
(ix) that the word `Razinama` used in the power of attorney does not give meaning of withdrawal in the context.
11. Next, the question arises as to whether the application to set aside the proceedings of withdrawal taken by the trial Judge, lies with the trial Court for the restoration of the suit or the order is appealable. It may be mentioned that it depends upon the grievance which decides the question. The case like the one in hand attracts the inherent powers, of the Court which proceeded to record withdrawal order. Reliance is placed on Agha Abdul Qayum's case (1982 CLC 547) wherein it was held:- "--O.XLVII, R. 1 read with S. 151---Judgment based on compromise where all parties not consenting- --A case of fraud played upon Court---Held, can be recalled by Court in same proceedings in exercise of inherent jurisdiction by appellate or revisional Court."
' In another case titled 'Evacuee Trust Property Board v. Sh. Hameed Elahi` (PLD 1981 SC 108), the following observations were made:-- "---O. XVI, R.6 read with 0.X, R. 2---Interpretation of statutes--- Appeal--Ex party hearing--- Mistake of Court--Power to rehear---Bar to rehearing of case---Attracted only in- event of case having been validly adjudicated--Appeal heard ex parte on account of a mistake of Court---Not validly adjudicated---Power to rehear such appeal, held, not barred and Court inherently empowered to make necessary, order for ends of justice or to prevent abuse of process of Court--."
' In the case titled 'Pakistan through General Manager v. Agro Marketing Corporation' (1981 CLC 443) the proposition involved in the case also came under consideration of the Lahore High Court, wherein it was observed:-- "---(vii) Civil Procedure Code (V of 1908) S. 115--Code not enacted to embody express provisions to deal with every conceivable isssu e--Code not exhaustive---Inherent powers fairly wide to serve ends of justice---Court in absence of prohibitions deemed to possess inherent powers to do complete justice between parties according to situation arising in course of administration of justice."
12. On the basis of above discussion, the application moved under the inherent powers before the same Court exercising the above powers for setting aside their proceedings, was correctly made before the trial Court and in the circumstances and keeping in view the nature of the order passed by the trial Court, refusing to allow the application, it was correctly preferred before the District Judge through an appeal filed by the plaintiff-respondent is provided. It may further be observed that this Court has ample powers to correct any patent illegality committed by any Court subordinate to it. The order passed by the trial Court being an illegality also attracts the above powers.
13. Keeping in view the facts and law discussed above, the appeal merits no consideration which is hereby dismissed with costs.