' The judgment and decree, dated 19-24989, of the learned Additional District Judge Lahore, dismissing the appeal of petitioner and affirming the judgment and decrees dated 4-10-1988, of the learned trial Court, has been challenged in the present revision petition.
2. The respondent filed a suit for declaration with consequential relief for declaring that he was still general attorney , of, the petitioner, by virtue of irrevocable general power of 'attorney dated 17-1- 1975 and that he had right to the property which was obtained by exercise of the powers through the general. Power of attorney. It was claimed, that in the year 1971, the Government of . Punjab acquired some land in Gujranwala District for defence purposes, the owners were required to either claim compensation or an area equivalent to their eligibility in the old Colony District, under Resettlement Scheme. After taking over possession, the Land Acquisition Collector, issued entitlement certificate for compensation or equivalent area in the Rehabilitation Scheme. The petitioner was issued certificate dated 18-12-1972. The Resettlement Officer Gujranwala Cantt., issued a certificate of eligibility (Permit No,1242) dated 21-124972, showing the petitioner is eligible for an area of 12-1/2 acres in Sargodha District. It was further claimed, that the petitioner failed to locate available agricultural land for allotment in terms of the certificate of. Eligibility, therefore, she executed agreement dated 16-1-1975, for the sale and ,.Transfer of her rights, against a sale certificate for the allotment of 12-1/2 acres, of land, in favour of the respondent and received consideration of Rs,4,500. For procurement of land and onward transfer, she executed an irrevocable power of attorney dated 16-14975. The respondent claimed that this power of attorney was for consideration and the petitioner had an interest in the property to be secured, 'therefore, the attorney was irrevocable. It was further stated, that the respondent, made efforts located, agricultural available land and - secured allotment of 12-1/2 acres in Chak No,219 in Jhang District vide order, dated 8414979,, of the Collector Jhang and also obtained physical possession of the land from the revenue officials for which necessary entries were recorded in Roznamcha Waqiati, dated 18-11-1979. He further claimed to have spent huge amount in improving the condition of land by hiring Buldozer and taking' other steps. The grievance mooted in plaint was that the respondent learnt that the petitioner had informed Collector Jhang about revocation of the power of attorney for which no notice was ever served to the respondent. In the suit, therefore, he challenged the action of the petitioner and on the basis of his claim that the irrevocable power of attorney was executed for consideration and that he had an interest in the property, he claimed a decree for declaration. The petitioner did not deny execution of the power of attorney but contested the suit on other premises.
3. After issues and evidence, the learned trial Court decreed the suit on 4-10-1988. The judgment of the learned trial Court was challenged in appeal which was dismissed by the learned Additional District Judge vide his judgment and decree, dated 19-2-1989. The two judgments of the learned Courts below have been assailed in this revision petition.
4. Learned counsel for the petitioner argued, that even if the power of attorney was irrevocable, the respondent could only claim damages and he could not claim declaration. He further submitted that the suit was not maintainable in its present form and that the evidence has not been properly appreciated. Conversely, learned counsel for the respondent supported the judgment of the two Courts below and submitted that execution of the power of attorney was not denied, the contents of the power of attorney and agreement, if read together, would clearly prove that the power of attorney was for consideration, the respondent had interest in the property subject-matter of agency and, therefore, no revocation could be made by the petitoner.
5. The submissions made by the learned counsel for the parties have been carefully considered and record perused.
6. From the written statement, filed by Mst. Zaqia Begum, it is evident, that she did not deny the execution of general power of attorney. The evidence on record also proved that irrevocable power of attorney was executed by the petitioner and that she executed agreement, dated 16-1-1975, The contents of power of attorney, clearly revealed, that full authority was given for seeking allotment, confirmation of land and transfer of rights. The attorney was fully equipped with the authority to take possession as owner, to receive Hissa Batai' to get Nishan Dehi', to make sale, alienation of the property and to defend all sort of litigation in regard to the subject matter of the agency. The petitioner conceded, that he will have no right of revocation of power of attorney. Agreement Exh.
P-2, proved that she received consideration for the transfer of her interest and execution of power of attorney. The agreement also empowers the obtainment of allotment of land by tracing available property and taking of other steps in regard thereto as owner. The two documents, Exh. P- 1 and Exh, P-2, if considered together,' clearly explain the reason of making the power of attorney as irrevocable. Section 202 of the Contract Act provided that where the agent has himself an interest in the property which forms subject-matter of the agency, the same cannot be terminated to the prejudice of such interest, in the absence of any express contract. There is no express contract or covenant in the documents authorising the principal to revoke the power of attorney. The power of revocation of agency under section 203 is subject to the provisions of section 202 of the Contract Act. The argument that under section 205 of the Contract Act, damages should be claimed, is without any merits. The case is covered by section 202 of the Contract Act. In Syed Shafique Hussain v. Syed Abdul Qasim (PLD 1979 Karachi 22), it is held that the interest of the agent in the property, forming subject-matter of agency may be inferred either from document or from course of dealings between the parties and from the surrounding circumstances. It is further held that where the agent had beneficial interest in the land forming subject-matter of attorney such power of attorney cannot be revoked. From the evidence on record it is proved beyond doubt, that pursuant to the powers derived through Exh. P-1 and Exh. P-2, the attorney made efforts and succeeded in securing allotment of land of which possession was taken by him in his own rights.
The circumstances and, surrounding events in this case clearly proved existence of beneficial interest in favour of the agent. In view thereof, the power of attorney could not be revoked by the principle, till such time the interest had exhausted and the benefits have been duly derived.
7. The learned Courts below also, after examining the entire evidence on record, concluded that the irrevocable power of attorney was executed for consideration and that the agency creating beneficial interest in favour of the agent, could not be revoked. No misreading or non-reading of the evidence could be pointed out nor the findings of the learned Courts below suffer from any infirmity.
8. The argument; that the suit' in its present form was not maintainable is also not having merits.
The respondent could lawfully seek a declaration of subsistence of power of attorney and since by virtue thereof he was competent to do the needful for the transfer of property, there was no need to seek any further relief at the time when the suit was filed., Even otherwise, no suit could be dismissed on an objection in regard to its form. In Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762), it was held, that no suit could be dismissed, on the objection of defect in the form or absence of claim for further relief which would be available. At best, the parties can be directed to amend the plaint and pay appropriate court-fee accordingly. In any case, as observed supra, the petitioner could lawfully seek a' declaration of subsistence of his power of attorney and there was no defect in the form of the suit. However, a difficulty might arise because of the death of the petitioner but the same can be resolved, as the Court can Mould the relief according to the changed circumstances. In Mst Amina Begum and others v. Mehar Ghulam Dasitigir (PLD 1978 SC 220), it is held, that the Court has the discretion and power to mould relief according to the changed circumstances and can grant relief, to avoid multiplicity of proceedings, to shorten litigation. In Samar Gui v. Central Government and others (PLD 1986 SC 35), it is held that the subsistence in the plaint has to be seen and the relief to which a party is entitled can be granted, no matter the same was not specifically claimed in the plaint. In view of the development, which has taken place during the pendency of this revision petition the respondent is also granted relief of specific performance for the enforcement of right under the agreement with the predecessor of petitioner, who shall be liable to take all necessary steps for transfer of property, subject matter of suit, to the respondent or his nominee which shall be in addition to the relief already granted in suit.
However, this will be subject to payment of court-fee of Rs,15,000 by the respondent. The decree of trial Court shall stand modified accordingly.
9. For the reasons above, there is no merit in the revision petition which is hereby dismissed, subject to the observations and modifications in decree, indicated above. No order as to cost.