MUHAMMAD ISLAM BHATTI, J. - The facts which led to filing of this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, briefly stated, are that the petitioner filed a suit for possession by preemption of certain land, said to have been sold by one Mst. Jamila Bibi in favour of respondents Nos. 1 and 2. Respondents contested this suit by filing a written statement whereafter issues in the case were framed and the plaintiff/petitioner led her affirmative evidence.
On 17.6.1997, however, she moved an application seeking permission to lead additional evidence alleging that the notices of talb which were sent to the defendants, could not be exhibited on record due to inadvertence of the learned counsel. The defendants/respondents, however, hotly contested this application and consequently the learned Trial Judge dismissed the same on 23.6.1997. The petitioner filed a revision petition but the learned counsel appearing for the petitioner made a statement before the learned Additional District Judge on 26.2.1998 that he did not want to press this revision petition and that the same be dismissed as withdrawn. The learned Additional District Judge dismissed the revision petition as withdrawn and directed that the record be sent to the learned lower Court forthwith.
2. This order dated 26.2.1998 has been assailed in this writ petition and it is canvassed that the petitioner was prosecuting the suit and the revision petition through her special attorney who was not given the power of withdrawing the revision petition and, as such, the Advocate, so appointed by the special attorney also could not do the same and that the learned Additional District Judge has passed the order mechanically without application of mind particularly to the fact that the petitioner is an illiterate villager and in the circumstances the Additional District Judge ought to have watched her interest in exercise of the revisional jurisdiction. It has, therefore, been prayed that the impugned order be declared to be without lawful authority.
3. While addressing his preliminary arguments the learned counsel for the petitioner has placed reliance on Mst. Feroz Bano and another Vs. Mst. Bilqis Jehan and others (PLJ 1987 SC 302) and Muhammad Hussain Vs. Bashir Mimed and others (PLD 1987 Lahore 392) and has asserted that the special attorney was not at all competent to get the revision petition withdrawn, through a counsel engaged by him.
4. I have had the privilege of going through both the cited judgments. In the first mentioned case a suit had been filed by a person holding an irrevocable power-of-attorney executed by plaintiff for consideration of services rendered and money paid to her. Subsequently an application for withdrawal of the suit was filed by I person allegedly holding another power-of-attorney on behalf of the plaintiff. Civil Judge allowed such application without caring to see the plaint and notes thereon and even without issuing notice to the plaintiff or person holding irrevocable power-of- attorney. It was held that the Court acted with material irregularity. It was also added that attorney under second power-of-attorney was though (indirectly but) vitally interested in dismissal of suit and no independent instructions of principal had been sought by him before filing application for withdrawal of the suit and it was in these circumstances that the Hon'ble Supreme Court held that the Trial Court should have necessarily issued notice to principal (plaintiff) as well as person holding irrevocable power-of-attorney on her behalf. This judgment has obviously no bearing on the facts of the case in had.
5. Similarly in PLD 1987 Lahore 392 one Muhammad Hussain brought a pre-emption suit through his son Nazir Hussain who also happened to be his general attorney. The defendant contested the suit and one of the objections raised by him was that Nazir Hussain had not been conferred the authority by the deed constituting him general attorney to institute this suit on behalf of Muhammad Hussain. The question whether the suit was instituted by a duly authorised agent was set down in issue No. 1 which was treated as preliminary by the Trial Court and evidence for and against was led. Muhammad Hussain also appeared in the said case to ratify the institution of the suit by stating with reference to the registered power-of-attorney that he had constituted his son Nazir Hussain to be his general attorney for the purposes of the suits instituted against him and also for the suits to be instituted on his behalf and claimed that thereunder four suits had been instituted by Nazir Hussain against Bashir Ahmad etc., whereof the suit in had was one brought under his instructions.
After considering this evidence and perusing the contents of the deed of power-of-attorney the learned Trial Judge held that the statement of Muhammad Hussain was contradicted by the contents of the deed wherein power was restricted to pursuing only to described suits pending in the Court of Senior Civil Judge, Rahimyar Khan and no authority had been conferred therein for even instituting a pre-emption suit. Consequently the suit was dismissed on 9.7.1985. An appeal against the judgment also failed. The matter was then taken to the High Court and it was held inter alia that a power-of-attorney was not as instrument of title and construction of such document did not involve any issue of law, as laid down in The Midnapur Zimindari Company Limited Vs. Uma Charan Mandal and others (AIR 1923 PC 187). It was added that the conclusions reached concurrently by the to Courts below on the terminology of the deed of general power-of-attorney that the authority to institute the suit had not been conferred on Nazir Hussain, was the one of pure fact which had not been shown to have resulted from any misreading or non-reading and it was also manifestly justified.
6. I have no hesitation in agreeing to the view taken in this judgment, but I am of the considered opinion that it does not help the present writ petitioner. A copy of the power-of-attorney in question is available at page 22 (Annexure 'H') and a bare reading of the contents thereof reveals that the petitioner had empowered the special attorney to act on her behalf and exercise all the rights which she could in connection with the suit. The following excerpt may be re-produced with advantage to arrive at this conclusion:- [(URDU TEXT)]
7. With respect to what has been laid down in PLD 1987 Lahore 391 I venture to observe that the question about the conferment of authority on the special attorney Muhammad Afzal son of Rehmat Ali, who happens to be a real son of Mst. Hussain Bibi petitioner is a question of fact which abundantly stands established from a bare reading of the contents of the power-of-attorney. I have no doubt in my mind that the facts of the case in had are distinguishable from the facts of the to cases cited at the Bar. I am also convinced that the learned counsel appearing before the learned Additional District Judge, even if he had been engaged by the said attorney, could not think of withdrawing the revision petition without the express instructions of the petitioner and her son who was to benefit in the long run also could not go against her interest and get the revision as withdrawn. All this appears to be an after-thought and cannot be made the basis for asserting that special attorney was not specifically empowered to withdraw the revision petition. The learned counsel for the petitioner has thus not been able to convince me that in the circumstances of the case the writ is maintainable.
8. The result is that I find this writ petition without merit and it is accordingly dismissed in limine.