' SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment and decree of the High Court, dated 28-2-1998, whereby the appeal filed by the respondents, herein, was accepted and the order of the District Judge, whereby he remanded the case to the trial Court, was set aside.
2. The brief facts of the case are that the land measuring 16 Kanals comprising "Khewat" No,1 situate in Village Barjah, Tehsil Samani, District Bhimber, was purchased by Khadim Hussain, appellant herein, for a consideration of Rs,2,50,000 through a sale-deed executed on 14-9-1986. Allah Ditta, the predecessor-in-interest of the respondents, herein, filed a pre-emption suit on the basis of being co-sharer in the suit land. During the pendency of pre-emption suit, land measuring 10 Marlas was obtained by Khadim Hussain, appellant herein, through a gift-deed. After obtaining the gift-deed; Khadim Hussain, appellant herein, applied for the amendment of written statement.
Consequently, he was allowed to amend the written statement in terms that as a result of the gift- deed, he also became a co-sharer in the suit land and, thus, Allah Ditta had no right of prior purchase. The trial Court, after taking necessary proceedings in the case, decreed the suit of pre- emption. An appeal was filed by Khadim Hussain appellant herein, in the Court of District Judge, inter alia, on the ground that the suit of preemption .Pertaining to the gift-deed was pending and the trial Court should not have decided the present suit before the disposal of pre-emption suit pertaining to 10 Marlas of land. An objection was also raised in the Court of District Judge that the appeal filed by the attorney for the appellant, Khadim Hussain, was incompetent because he had no such power. The learned District Judge repelled the contention holding that the power to file an appeal by the attorney can easily inferred from the contents of the deed of power of attorney and, thus, the appeal was held validly filed. On merits, the learned District Judge set aside the judgment and decree of the trial Court and directed that the decision in the suit should be kept in abeyance till the suit of pre-emption pertaining to 10 Marlas of land was disposed of. An appeal was filed by Allah Ditta, the predecessor-in-interest of the respondents, in the High Court. The High Court accepted the appeal and set aside the judgment and decree of the District Judge on the ground that the attorney for Khadim Hussain, appellant herein, was not empowered to file an appeal before the District Judge. It is against the aforesaid judgment and decree of the High Court that the present appeal has been filed.
3. After hearing the learned counsel for the parties, we felt advised to hear the senior members of the Bar on the points as to whether in view of the contents of he power of attorney, the appeal filed on behalf of Khadim Hussain, appellant herein, in the Court of District Judge was validly filed or the same was incompetent because the attorney was not empowered to file the appeal; if it is found that the attorney was not competent to file the appeal, whether subsequent ratification of the act of filing the appeal before the District Judge by Khadim Hussain, appellant, would cure the defect in view of the provisions contained in sections 196 to 200 of the Contract Act. Consequently, exhaustive arguments were addressed by the counsel for the parties as well as by Mr. Sher Zaman Chaudhry, Raja Muhammad Siddique Khan, Ch. Muhammad Sharif Tariq and Raja Hassan Akhtar, the Senior Advocates, in the matter.
4. A preliminary objection was raised by Mr. Nazir Ahmad Ghauri, Advocate, the learned counsel for the respondents, that legal representatives of Muhammad Manzoor, respondent, have not been impleaded in the appeal, the same should be dismissed on this sole ground. Ch. Muhammad Azam Khan, Advocate, the learned counsel for the appellant, has controverted the argument and has maintained that Muhammad Manzoor died when the appeal was pending in the High Court and it was for the respondents, herein, to bring his legal representatives on the record. He also filed an application in this Court on 16-10-1998 stating that Muhammad Manz,00r, one of the appellants in the High Court died on 28-2-1998 when the appeal was pending in the High Court but his legal representatives were not brought on record. He has prayed that as the copies issued to him contained the name of Muhammad Manzoor instead of his legal representatives, the name of Muhammad Manzoor was mentioned in the petition for leave to appeal due to the said omission.
The Assistant Registrar, after hearing the parties, dismissed the application vide his order, dated 19- 8-1998 observing that the application for substituting the names of the legal representatives in the appeal should have been made in the High Court rather in this Court after the period of limitation.
Ch. Muhammad Azam, the learned counsel for the appellant, has submitted that as the legal representatives of Muhammad Manzoor were not brought on the record in the High Court by the respondents, herein, their appeal should have been dismissed by the High Court on this sole ground.
5. The perusal of the record reveals that arguments in the appeal were heard on 13-10-1997 whereas according to the application of the appellant, Muhammad Manzoor died on 20-2-1998, after hearing of the arguments in the appeal. Thus, the non implement of the legal representatives of Muhammad Manzoor by the respondents in the High Court was not fittal to the appeal because he died after the hearing of the appeal had already been completed. It appears that the impleadment of Muhammad Manzoor in the line of the respondents was due to the bona fide mistake which resulted due to the copy of the judgment of the High Court. Therefore, it is directed that the names of the legal representatives of Muhammad Manzoor, deceased, shall be substituted in the memo. Of appeal as was prayed in the application filed by the counsel for the appellant and necessary correction shall be made therein. The delay in filing the application is hereby condoned in the circumstances indicated above.
6. Ch. Muhammad Alam Khan, Advocate, the learned counsel for the appellant, has argued that the view taken by the High Court that appeal before the District Judge was filed without any legal authority and remained so even after ratification by the appellant runs counter to, the view taken by this Court in case reported as Bashir Ahmad v. Muhammad Qasim, 1992 SCR 165 and some other cases. He has further argued that even if it is assumed for the sake of argument that the attorney was not legally empowered to file the appeal in the Court of District Judge, his act having been ratified subsequently by Khadim Hussain, appellant, would cure the defect in view of the principle envisaged in section 196 of the Contract Act which was approved by this Court in a number of cases. The learned counsel has argued that in addition to the earlier power of attorney filed in the trial Court on the basis of which the appeal was filed in the Court of District Judge, another power of attorney which was executed in favour of Ashiq Hussain on 11-3-1997 was placed on the record of appeal before the District Judge. Thus, the learned counsel has contended that the defect, if any, stood cured in view of the subsequent filing of power of attorney. The learned counsel has further submitted that the principle of subsequent ratification, in law, is equivalent to previous authority whether the ratification of the act of the agent is effected impliedly by conduct or in writing. The learned counsel has strenuously argued that the principle of ratification in litigation stands approved not only by the superior Courts of the sub-continent, but also by this Court. He has cited following authorities in support of his contentions:-- ' In case reported as Muhammad Khaliq v. Abdullah Khan 1987 CLC 1366, it was held that although the suit was filed by the attorney without power to institute such suit, the defect would stand rectified after the subsequent ratification by the principal as has been envisaged in sections_196 to 200 of the Contract Act. A number of cases including one reported as T.R. Bhavani Shankar Joshi v.
Gardhandas Jamnadas AIR 1943 PC 66, was relied upon in support of the view. It was observed that subsequent ratification, in law, is equivalent to previous authority and it may be express or may be effected impliedly by conduct.
' In the case reported as Allah Bakhsh v. Municipal Committee of Rohtak AIR 1926 Lah. 223, it was held that when a person on whose behalf an appeal was filed accepted and ratified the action of the person who filed the appeal on his behalf, the person filing the appeal would be deemed to have authority to file the appeal on behalf of the principal.
' In case reported as Fozia Hussain Abbasi v. The Nomination Board through Chairman, Nomination Board, (AJ&K) 1995CLC 1761, the Full Court held the view that if the power of attorney is not signed by the party, his attorney or, his counsel due to oversight or inadvertence, the defect is an irregularity which is curable under section 196 of the Contract Act, especially when the counsel is owned by the party for whom he acted.
' In case reported as Muhammad Yaqoob v. The Settlement Authority 1973 SCMR 484, it was held that the condition requiring the presence of duly empowered attorney for the participating in auction on behalf of another is at best directory in nature and is intended to ensure check against the fictitious bids of unauthorised person. Thus, if the principal accepts the agent's action even if such an action was not covered by executed power of attorney, the defect stands removed after ratification by the principal.
7. Mr. Nazir Ahmad Ghauri, Advocate, the learned counsel for the legal heirs of Allah Ditta, pre- emptor, has controverted the arguments advanced on behalf of the learned counsel for the appellant that initially the appeal filed in the Court of District Judge on the basis of attorney would be deemed to have been validly filed because the power to file such an appeal is deducible from the contents of the power of attorney. He has further submitted that the subsequent power of attorney filed in the Court of District Judge on 30-7-1988 is of no legal consequence because the said power of attorney was filed after the expiry of period of limitation and was not in existence at the time of filing of appeal in the Court of District Judge. The learned counsel has argued that the principle of ratification cannot be pressed into service in the instant case because the attorney concerned had no power to file the appeal before the District Judge against the judgment and decree of the trial Court. The learned counsel has also submitted that the authorities cited by the learned counsel for the appellant are distinguishable and are not applicable to the facts of the case in hand.
8. Ch. Muhammad Sharif Tariq, Advocate, assisting the Court, has submitted that the principle envisaged under sections 196 to 200 of the Contract Act governing the , powers and obligations of principal and the agent is fully attracted in case of client and his counsel in the civil litigation. He has argued that the said principle is well entrenched in the judicial system of the sub-continent or for that matter that of the State. He has argued that in the instant case, the power of attorney on the basis of which the appeal was filed before the District Judge fully empowers Ashiq Hussain to file the appeal before the District Judge. He has further argued that even otherwise, the principle of ratification is also available in case of an ambiguity. The learned counsel has argued that the provisions contained in Order III, Rule 4, C.P.C., being directory in nature, any defect in the power of attorney is curable by the subsequent act of ratification by conduct of the principal. He has argued that for curing such an irregularity, it is not necessary to apply to the Court in writing. He has submitted that absence of signatures or thumb-impression of a party is not only rectifiable subsequently by conduct of the party concerned but such a defect can be cured by getting the signatures or thumb-impression of the concerned party to the litigation on the relevant document.
He has further submitted that such a course can be adopted irrespective of the period of limitation; the ratification or correction of any irregularity would operate from the date of the original institution of the suit or appeal etc., as the case may be. However, the learned counsel has submitted that the relation of 'principal' and 'agent' must be shown to exist before a ratification is held valid. He has submitted that if such a relation is not established or is spelled out from the relevant document, there is no question of protecting an act by pressing into service the principle of ratification. The learned counsel has further contended that it is also necessary for valid ratification that the principal intended the act to be performed by his agent. The learned counsel has cited following authorities in support of his contentions:-- ' In case reported as Muhammad Qasim v. Bashir Ahmad PLD 1991 Azad J&K 1, it has been held that although the language of power of attorney is brief, yet it can be safely inferred from the contents of the relevant document that it empowered the attorney to defend and prosecute the matter in the Courts of the State, which implied that the attorney was empowered to prosecute the appeal not only before the District Judge but also in all the Courts of Azad Kashmir.
' In case reported as Messrs Nabi Bakhsh & Sons v. Pakistan through the Secretary, Ministry of Industries and Natural Resources PLD 1969 Kar. 210, it was held that in case of a pleader on behalf of the Government, no 'Vakalatnama' was necessary under the relevant rules and it was sufficient to intimate the Court that he was appearing on behalf of the Government. A reference was made to the provisions contained in Order II, Rule 4 of the C.P.C., Order XXVII, Rules 2 and 8-B and Rule 15 of Sindh Chief Court Rules. It was further observed that as the application was signed and presented by the pleader whom the power of attorney had not been given in the manner prescribed under Rule 4 of. Order III of C.P.L. It was merely an irregularity which stood cured at a subsequent stage.
' In case reported as Muhammad Sarwar alias Feroze Ali v. Abdul Ghani 1980 CLC 946, it was held that the fact that memo. Of appeal did not contain the signatures of the appellant or of the attorney, was merely an irregularity and could be ratified subsequently provided the person presenting the appeal or suit was otherwise empowered to file such an appeal or a suit. It was further observed that even if the defect is subsequently removed after the expiry of the period of limitation, that would not invalidate the removal of original defect when the appeal was initially filed in pursuance of an oral instruction by the appellant.
' In case reported as Muhammad Riaz Khan v. Sardar Rahim Dad PLD 1990 SC (AJ&K) 13, the Full Court consisting of four Judges held that the principle enunciated in suction 196 of the Contract Act is applicable to the power of attorney executed under Order III, Rule 4 of the C.P.C. It was further observed that under section 196 of the Contract Act, a contract which was entered into by a person on behalf of other without his knowledge or authority could be ratified by the principal. However, it was observed that the doctrine of ratification envisaged in section 196 of the Contract Act is subject to many exceptions including that the principle of ratification would not be applicable in case of a void contract or where the document has been forged. The appeal was dismissed holding that as the signatures of the principal were forged on 'Valcalatnama', it was a void document in view of the provisions contained in section 23 of the Contract Act, the ratification would not validate the institution of the appeal. Consequently, the appeal was dismissed as being incompetent. However, one of the members of the Bench (Mr. Justice Basharat Ahmad Shaikh) dissented only to the extent that under Rule 4 of Order III of C.P.C., signing of 'Vakalatnama' by the party concerned is mandatory and, thus, the defect of omission to sign cannot be equated with the omission to sign the 'Vakalatnama' by the counsel. Thus, it was observed by the learned member of the Bench that in case where the power of attorney is not signed by the concerned party, that being violative of rule 4 of Order III of C.P.C., is not rectifiable.
' In case reported as T.R. Bhavani Shankar Joshi v. Gardhandas Jamnadas AIR 1943 PC 66, it was held that in view of the provisions contained in sections 196 to 200 of the Contract Act the ratification can be made expressly or impliedly and can be inferred from the conduct of a party. It was further observed that the question whether the ratification would, in law, validate and assignment executed by an agent who was not authorised at the time of execution of an assignment of a decree depends on the exact language of sections 196 to 200. Under these sections, it is open to a decree-holder to ratify the act of the unauthorised agent who had purported to act on decree-holder's behalf in assigning a decree. It was held that ratification, in law, is equivalent to the previous authority, it may be express or it may be effected impliedly by conduct.
' In case reported as Muhammad Afsar Khan v. Khadim Hussain PLD 1978 SC (AJ&K) 143, it was held that in view of the contents of power of attorney, the attorney was permitted to conduct the suit only up to the High Court and, thus, he had no power to file petition for leave to appeal in the Supreme Conn.
' In case reported as Khyam Films v. Bank of Bahawalpur Ltd. 1982 CLC 1275, it was held that the question whether under Order III, Rule 2 of the C.P.C. a recognized agent was empowered to do an act or not could effectively be challenged only by the principal. However, the principal, despite objection from the opposite-party, continued to prosecute his case alongwith his recognized agent and by his conduct, recognized the authority of the agent to institute the suit. Thus, it was held that the conduct of the principal amounted to ratification of the act of the agent and the suit was held to have been validly instituted.
' In case reported as Muhammad Hussain v. Bashir Ahmed PLD 1987 Lah. 392, it was held that since it is presumed in section 196 of the Contract Act that the act intended to be ratified may have been done by the agent without the knowledge or the authority. Therefore, it was held that as the principal relied upon the rule of ratification, he would be deemed to have admitted that the institution of the suit by the agent was without his legal authority. It was further held that as from the statement of the appellant and the contents of the power of attorney; it was evident that the attorney was not empowered to file the pre-emption suit but he was only engaged to file two other suits. Therefore, it was observed that the institution of the pre-emption suit by the attorney being without any authority, no Question of ratification of the act of institution of the suit arose. It was further observed that as the signing of the plaint by Muhammad Hussain, appellant, would be deemed to be his own act as principal which was not referable to his attorney, the suit would become time-barred as the plaint was signed after the expiry of limitation.
' In case reported as Muhammad Bibi v. Nawaz 1986 MLD 771, the facts were that a pre-emption suit was dismissed on the ground that the plaint, 'Vakalatnama' and the deed of power of attorney did not bear the plaintiff's thumb-impression. On appeal, it was held that the omission to put thumb- impression on the aforesaid documents was merely an irregularity which is curable and no distinction could be made between the suit of pre-emption and any other civil suit. The order of the District Judge was set aside and the case was remanded for trial with the direction to allow the pre-emptor to put his signatures on the plaint and 'Valcalatnama' and then proceed with the trial according to law.
' In case reported as Babu Muhammad Aslam v. Mst. Rehana Parveen PLD 1989 Pesh. 185, while discussing the scope of section 196 of the Contract Act, it was observed that as the power of attorney was executed three months after the ejectment application, the doctrine of ratification qua the power of attorney would not be applicable because the same was executed with regard to the acts to be done in future and not with regard to the earlier acts which purported to have been performed on behalf of the principal. Consequently, it was held that the ejectment application was filed without any legal authority.
' In case reported as Ghulam Mohi-udDin v. Noor Dad PLD 1988 SC (AJ&K) 42, it was held that provisions contained in Rules 1 and 4 of Order III of the C.P.C., are directory in nature and are inter- related. Thus, it was held that the absence of the signatures of plaintiff on 'Vakalatnama' is not an illegality but is an irregularity which is curable at any stage of the proceedings. It was observed that the object of the rules is to ensure that the facts stated in the pleadings are duly owned by the party presenting the same and that the pleadings are presented by the party personally or through authorised agent. Thus, it was observed that this check is laid down to avoid fraudulent and fictitious litigation. Therefore, it was observed that the omission to sign the 'Vakalatnama' would constitute a formal defect rectifiable at any stage of the proceedings and such a ratification would date back from the date of the institution of the suit.
' In case reported as Nargis Begum v. Muhammad Ibrahim 1983 CLC 2923, the facts were that the petition for leave to appeal filed in this Court was signed by the Advocate but the 'Vakalatnama' was neither signed by him nor his name was entered in the body of the same. It was held that the omission was a technical irregularity and same can be remedied by entering the name of the counsel in the body of the 'Valcalatnama'.
9. Mr. Sher Zaman Chaudhry, Advocate, assisting the Court, more or less reiterated the submissions made by Mr. Sharif Tariq, Advocate, and has further submitted that if a counsel is empowered by his client to institute a suit or defend the same, he can prefer an appeal, irrespective of the fact that such power was not specially mentioned in the 'Vakalatnama' because, according to the learned counsel, the word 'suit' includes an 'appeal'. He has submitted that appeal is the continuation of suit and, thus, even if the relevant power of attorney or 'Valcalatnama' empowers the counsel only to institute or defend a suit, he can file an appeal on the basis of same. The learned counsel has further elaborated the arguments submitted by Mr. Sharif Tariq and has submitted that the phraseology employed in power of attorney, dated 30-7-1988 clearly manifests that Khadim Hussain appellant, had empowered Ashiq Hussain not only to defend or institute a suit but also to file appeal against the order passed by any of the Courts. Even otherwise, the learned counsel has submitted that on the principle . Of ratification, the appeal filed before the District Judge having been ratified by Khadim Hussain, appellant, subsequently would rectify the irregularity, if any. The learned counsel has also submitted that in case of ratification, it is necessary that an act which was performed by an agent and was subsequently ratified by the principal was not performed by the agent for his own benefit; it must be shown that the act was performed by the agent for the benefit of the principal. The learned counsel has submitted following authorities in support of his contentions:-- ' In case reported as Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193, it has been held that the first essential of doctrine of ratification, with its necessary consequence of relating back, is that the agent must not be acting for himself but must be intending the. Benefit of a named or ascertainable principal to bind him. Hence, it was held that where the act of an agent is for putting the principal's amount in his pocket, there, cannot ' be any question of ratification by the principal, as the agent cannot take. The money for himself.
' In case' reported as Mian Abdul Haq Anjuman Islamia, Kamoke Mandi PLD 1962 Lab.' 462, it has been held that power to file a suit includes the power to file an appeal because the 'suit' includes an 'appeal'. It was further observed that intention of a person giving authority to institute a suit has to be seen in every case. Thus, it was held that as Anjuman undoubtedly wanted to prevent the defendants from interfering in the management of the mosque and also front,, interfering in the construction of the building it would imply that Anjuman had authotised , the Secretary to take legal proceedings attain the object.
' In case reported as Rout Shah N..: Diwan Chand AIR 1936 Lah. 583, it was held that as the special power of attorney provides that 'whatever shall be done by the agent shall be acceptable to the executant thereof the appeal- being a continuation of the suitor a stage in the progress of the same, special attorney was competent to engage pleader for prosecuting an appeal in the lower Appellate Court.
' In case reported as Jiwibai wife of Karsondas Bhatia v. Bainkuwar Shriniwas Murarka Agarwala AIR 1947 Nag. 17, it was held that though the power of attorney is to be construed strictly and where the special powers are followed by general words, the general words are to be Construed as limited to what is necessary for the proper exercise of the special powers but, nevertheless, it is to be construed as including all the incidental powers necessary for carrying out its object. Thus, it was held that where the 'Mukhtarnama' conferred power on an agent to settle a dispute between the parties by 'give and take' and it further empowered the attorney that whatever would be required to be done in the conduct of a suit, Would be done by the agent and same would be binding on him as 'if I have done the same', the attorney would be deemed to possess the power to refer the suit to arbitration.
' In case reported as Mt. Balqis Begum v. Shahzada Muhammad Hamdam AIR 1934 Lah. 973(1)), it was held that an appeal is proceeding which is in continuation of a suit and, thus, an agent authorised to prosecute the same would be, deemed to have the authority to file ad Peal till the final decree is passed in the case.
' In case reported has Court of. Wards, Shelkhupura v. Gopal Singh AIR 1932- Lah. 430, it has been held that where the Power of attorney, authorises an agent to conduct the litigation and to engage the pleader without, specifically), empowering him to 'file an appeal, the agent would be deemed to have authority to conduct the litigation in Appellate Courts.
' In case reported as Muhammad Mehrban v. Sadrud Din 1995 SCR.274, it has been held that general rule for the construction of power of attorney is that it must be construed strictly as giving only such authority that 'it confers expressly or by necessary implication. It was held that where the power of attorney is not authenticated by any authority as prescribed under section 95 of the Qanun-e-Shahadat, i,e,, Notary Public, any Court, Judge, Magistrate, and the same also did not fulfil the requirements laid down in sections 32 and 33 of the Registration Act, that cannot be deemed to be a valid power of attorney. It was further observed that as the subsequent power of attorney purported to have been executed on April 2, 1988, which was produced in the Court of District Judge, no explicit reliance could be placed on the same. It was observed that the said power of attorney only gives such power which is specifically mentioned in it and would operate prospectively and not retrospectively. Thus, it was observed that as Muhammad Yunus, the attorney, had no authority to institute the suit on behalf of Muhammad Mehrban as a recognized agent under law, the subsequent power of attorney < would not ratify the previous unauthorised act.
' In case reported as Bashir Ahmad v. Muhammad Qasim 1992 SCR 165, it was held that scope and connotation of power of attorney are to be understood in view of the contents of the same in each particular case. It was held that as Khadim Hussain, Mukhtar, was appointed by the respondent to take all steps necessary for the prosecution or defence of his case, the owner to file appeals in higher forums, as is evident from the word 'Courts' used ,in the power of attorney. Thus, it was held that the appeal filed to the High Court on the basis of 'Valcalatnama' executed by the attorney was competently filed and did not suffer from any legal infirmity.
10. Raja Hassan Akhtar, Advocate, while assisting the Court,. Has also supported the contentions made by Mr. Sharif Tariq and Sher Zaman Chaudhry, Advocates. However, he has submitted that such an act can be ratified within the period of limitation prescribed for filing an appeal or suit etc. And not afterwards. He has also submitted that strict construction should be placed on the contents of the relevant document while ascertaining the power of attorney or 'Mukhtarnama'.
However, he agreed that if an act was incidental and was necessary to be performed by the attorney or 'Mulchtar' for performing the acts which he was specifically empowered to perform. He can perform such an act despite the fact that he was not specifically so empowered. He has cited following authorities in support of his contentions:-- ' In case reported as Muhammad Saghir Ahmad v. Qurban Ali 1983 CLC 2127, it was held that the power of attorney is to be construed strictly. Thus, it was held that the attorney being himself a delegatee cannot delegate his powers further, unless he is specifically so authorised. It was observed that such power can only be inferred, if there is any usage or custom showing that it is necessary to employ a sub-agent or other agency in the trade or business.
' In case reported as Kodi Lal v. Ch. Ahmad Hasan AIR 1946 Oudh 200, it was held that where the appeal was filed without 'Vakalatnama' by the Advocate with bona tide belief that the same was filed in the trial Court, the mistake stood corrected despite the fact that the power of attorney was not filed within the period of limitation prescribed for filing an appeal.
' In case reported as Wali Muhammad Khan v. Ishak Ali Khan AIR 1931 A11.`507, it was held that omission to comply with the provisions contained in Order 'IV, rule 1 of the C.P.C. Is an irregularity whieh is curable. Thus, it was held that absence of signatures or verification or for that matter the absence of some of the plaintiffs out of several, would not affect the jurisdiction of the Court and the suit would be deemed to have-been duly instituted.
' In case reported as Mt. Barkata v. Feroze Khan AIR 1944 Lahr 131, the facts were that the appellant had engaged the pleader and also signed the power of attorney but the Advoeate could not present the appeal himself due to some other engagements and asked another counsel for presenting the same. It was held that the presentation by the second pleader on verbal instructions did not render the presentation as illegal.
' In case reported as Sakhi Muhammad v. Mst. Taj Begum 1985 CLC 734, it was observed that the provision;' contained in Order III, Rule 4 read with Order XLI, Rule 1 of the C.P.C., are mandatory; it was held that as the appeal was not signed by the appellant or his counsel and the 'Vakalatnama' accompanying the memo. Of appeal also did not contain the name of counsel, the appeal was not duly filed and, 'thus, was held incompetent.
11. Raja Muhammad Siddique Khan,, Advocate, while assisting the Court, also dilated in detail upon the scope of sections 196 to 200 of the Contract Act. He has submitted that the principle of ratification. Well-recognised in our judicial system and if it is found that an agent was not empowered to perform an act but the same was intended by the principal to be performed by the agent, such an act by the agent would be valid and binding on the principal. He has also submitted that the ratification of an act performed by an agent can be made, irrespective of the expiry of period of limitation.
12. We have considered the points which need resolution in present case in light of the arguments advanced at the Bar. The first point which needs consideration is as to whether the principle of ratification envisaged under sections 196 to 200 of the Contract Act is applicable between the client and the counsel in the civil litigation. The submissions made by the learned Advocates, discussed, above, leave no doubt that the aforesaid principle of ratification is fully applicable to the civil proceedings. The matter has been discussed by the Full Bench of this Court in some details in cases reported as Muhammad Riaz Khan v. Sardar Rahim Dad PLD 1990 SC (AJ&K) 13 and Fozia Hussain Abbasi v. The Nomination Board through Chairman, Nomination Board (AJ&K) 1995 CLC 1761. It has been held in the said cases that the principle of ratification is applicable subject to certain conditions discussed therein. It may also be observed that there is no conflict between the aforesaid cases and the case reported as Muhammad Mehrban v. Sadrud Din 1995 SCR 274. In the latter case it was observed by this Court that as the power of attorney which was executed in Dubai was not authenticated under section 95 of Qanun-e-Shahadat and the same was also violative of sections 32 and 33 of the Registration Act. Thus, it was held that it was not proved that the attorney was in fact appointed to institute the suit. Therefore, the facts of the said case being distinguishable, was rightly decided and the view taken in the said case is not in conflict with the view taken by this Court in the aforesaid two cases decided by this Court. Therefore, it is not correct to suggest that the view taken in Mehrban's case was contrary to the earlier view taken by this Court. It may also be observed here that the ratification by the principal need not be necessarily in writing; the same can be inferred from his conduct; similarly, such a ratification can be made even after the expiry of period' of limitation for filing a suit or appeal etc. But would operate retrospectively, i,e, from the date when, the relevant act was performed.
13. The argument of Mr. Shard Tariq, Advocate, on the basis of a case reported as Muhammad Hussain v. Bashir Ahmed PLD 1987 Lah. 392 that ratification after the expiry of period of limitation could not be made is not tenable because the perusal of the authority reveals that the Court came to the conclusion that the attorney had no authority to institute the pre-emption suit and, thus, it was held that no question of ratification of the act of the attorney arose. It was further held that the signature of the principal on the plaint would be operative from the date when the same was signed by him because he signed the plaint in his personal capacity without any reference to an act of his agent. Therefore, according to the said authority, when a plaint is signed by a plaintiff after the period of limitation not as an act of ratification of his 'Mukhtar' or Advocate but in his personal capacity that would not operate retrospectively. Thus, it is not correct to suggest that ratification by the principal could not be made after the expiry of period of limitation especially in view of the authorities to the contrary, referred to above.
14.
Similarly, it is not correct to suggest that if the ratification' by the principal adversely affects the interests of a third person, i,e, a person other than the principal and the agent, it cannot be made. It may be observed that in every case of ratification, third person may be adversely affected. As is evident from some of the authorities, referred to above, the act of agent, after ratification, would be deemed as an act of principal. Therefore, if I accept the argument that the act of an agent could not be ratified, if it is likely to adversely affect a third person, it would tantamount to say that a principal cannot sue on the basis of a contract if it injures the interest of any other person. However, it may be observed that in view of the provisions contained in Rule 4 of Order III, C.P.C., the ratification by the principal would be effective only if it is established that the agent who performed the disputed act was in fact the agent of the principal at the time of performing such act. Thus, if it is found that the person who performed an act as an agent was not appointed as an agent, it cannot be said that the act performed by him was on behalf of the principal and, thus, would stand validated after the ratification by the principal.
15. Similarly, an act which is against law, such as in caseiof forged 'Vakalatnama', cannot be ratified in view of the principles envisaged in sections 196 to 200 of the Contract Act.
16. The next question which needs resolution in the present case is as to whether the power of attorney executed by Khadim Hussain, appellant herein, in favour of his son, Ashiq Hussain, on 30- 7-1988 on the basis of which the appeal was filed before the District Judge empowered Ashiq Hussain. The perusal of the relevant document reveals that it empowers Ashiq Hussain, attorney, to - perform various acts even after the disposal of the suit by the trial Court. It would be expedient to reproduce below the relevant contents of the .Power of attorney which was executed by the appellant, herein, in favour of his son Ashiq Hussain:-- ....Do hereby solemnly appoint Mr. Ashiq Hussain (son) son of Khadim Hussain resident of village Burjah, Tehsil Bhimber, District Mirpur (AK) my attorney in my name and on my behalf to do or execute all or any of the following acts or things to deal my case of land situated in Village Burjah, District Mirpur (AK):--
(1) To engage or appoint any legal practitioner to conduct said case.
(2) To sign; verify and file a written statement.
(3) To make and. Present to the Court an application 'In connection with any proceeding in the suit.
(4)To produce or summon or receive back documentary evidence.
(5)To make and file compromise or a "confession of judgment and to refer the case to arbitration.
(6) To deposit and withdraw any money for the purpose of any proceedings.
(7) To file an application for 'execution of a decree or order passed in the said suit and to refer the case to arbitration.
(8) To receive any money due to me under such decree or order passed in the said suit and to sign and verify such application.
(9)To apply for inspection and inspect documents and records.
(10) To obtain copies of the documents and papers and generally to do all other lawful acts necessary for the conduct of said case.
' And I hereby agree that all acts, deeds and things lawfully done by my said attorney shall be construed as acts, deeds and things done by me and I undertake to ratify and confirm all and whatsoever that my said attorney shall lawfully do or cause to be done for me by virtue of this power hereby given.
' In witness hereof I have signed this deed on this day of 30-7-1988."
' It is evident from the above contents that Ashiq Hussain, attorney, was given powers under clauses (7) and (8) of the document to act on behalf of Khadim Hussain even after the disposal of the suit by the trial Court; similarly, clause. (10) invests the attorney with all powers which the appellant enjoyed. Thus, the High Court was not correct in holding that the appeal filed by Ghazanfar Ali Chaudhry, Advocate, who was engaged by Ashiq Hussain, 'Mukhtar' of Khadim Hussain before- the District Judge was filed without authority. It may he observed here that even if it is held for the sake of argument that the word, 'suit' would not include the expression 'appeal' as has been held in some of the authorities, referred to above, the fact remains that while ascertaining the powers of an agent, the intention of the principal must be gathered from overall contents of the relevant document in each case and no set formula can be laid down in this regard. In the instant case, as is evident from the contents of the relevant document, 'reproduced above, there remains hardly any doubt that Ashiq Hussain enjoyed power to appeal against the judgment and decree of the trial Court, irrespective of the fact that such a power was not specifically given by using the word 'appeal'. Therefore, I have no hesitation in holding that the appeal before the District Judge filed on the basis of 'Vakalatnama' executed by Ashiq Hussain as 'Mukhtar' of Khadim Hussain, appellant herein, was validly instituted. Therefore, irrespective of the principle of ratification, the appeal before the District. Judge was validly filed.
17. Before parting with the case, we express our deep appreciation to the valuable assistance rendered by Mr. Sher Zaman Chaduary, Raja Muhammad Siddique Khan, Mr. Muhammad Sharif Tariq and Raja Hassan Akhtar, senior members of the Bar, who appeared as amicus curie in the case.
' In the light of what has been stated above, I accept the appeal, set aside the impugned judgment and decree of the High Court and restore that of. District Judge. The trial Court shall proceed with the trial of the suit according to the directions incorporated in the judgment of the District Judge.
' BASHARAT AHMAD SHAIKH, J.--I agree with the conclusion that the appeal before the District Judge was validly filed on behalf of Khadim Hussain on the basis of 'Vakalatnama' executed by Ashiq Hussain as attorney of Khadim Hussain.
However; my reading of law is that an act done by one person on behalf of another cannot be ratified if it adversely affects any right or interest of a third person. The relevant provision of law is section 200 of the Contract Act which reads as follows:-- "200. An act done by one person on behalf of another, without such other person's authority, which, if done with authority, would have the effect of subjecting a third person to damages, or of terminating any right or interest of a third person, cannot, by ratification, be made to have such effect.
' Illustration
(a) A, not being authorised thereto by B. Demands on behalf of B, the delivery of a chattel, the property of B, from C, who is in possession of it. This demand cannot be ratified by B, so as to make C liable for damages for his refusal to deliver.
(b) A holds a lease from B, terminable on three months' notice. C, an unauthorised person, gives notice of termination to A. The notice cannot be ratified by B, so as to be binding on A."
The, main provision as well as the Ilustrations show that where before satification the right of a third person has accrued and has become complete, a principal cannot ratify the unauthorised act of the agent o the prejudice of the third person. Section 200 formulates an exception to the general rule set out in section 196, namely, a subsequent ratification is equivalent to prior authority. my view section:, 200 clearly overrides section 196. 'Thus, these elusions are different from paragraphs 13 and 14 of the main judgment. '
' With these observations I agree with the order that the appeal be accepted in terms candidate by the learned Chief Justice: ' I also agree with the view of my learned brother Mr. Justice Basharat Ahmad Shaikh.