KHAWAJA MUHAMMAD SAEED, C.J. Briefly stated the facts of the case are that the land measuring I6 kansls out of Survey No. 689/388, Khata No. 11/12, Khewat No. 1, situated in village Berjah, Tehsil Samahni, District Bhimber was purchased by the vendee-respondent, Khadim Hussain for an ostensible consideration of Rs. 2,50,000/- through a sale-deed executed on September 14, 1986.
Allah Ditta, the predecessor-in-interest of the present appellants, pre-empted this sale by filing a suit in the Court of Sub-Judge Bhimber on September 13, 1987 claiming himself to the co-sharer with the vendor in the Khata and Khewat while the vendee was a stranger. It was further averred by him that in fact only Rs. 1,60,000/- was paid to the vendor by the vendee as price of the land but a fictitious amount of Rs. 2,50,5000/- was got entered by him in the sale-deed.
2. The suit was contested by the vendee-respondent by filing written statement on January 1, 1989.
It was pleaded by him in the written statement that plaintiff has got to cause of action to file suit against him and further that the plaintiff had participated in the sale as consenting party as such had waived his right of pre-emption. In para 3 of his written statement it was pleaded by him that the suit land was purchased by him for a consideration of Rs. 2,50,000/-
3. The trial Court on July 23, 1989 initially framed seven issues. Later on, during the pendency of this suit on October 31, 1993, after about seven years and 1 V2 months vendor Hassan Muhammad transferred the land measuring 10 Marlas out of the same survey number to the vendee through a gift-deed. On December 29, 1993, the vendee moved an application for the amendment of the written statement on the ground that he on account of this gift-deed, has also become co-shares in the land as such the suit filed against him was liable to be dismissed. On this application objections were invited by the trial Court which were accordingly filed by the appellants on January 17, 1994. Thereafter the prayer was allowed and amended written statement was filed by the vendee on November 29,- 1994. In the meantime the appellants on account of the death of plaintiff, Allah Ditta, which the permission of the Court were allowed to continue the suit as plaintiffs as being legal heirs of the deceased-plaintiff. They pre-empted this gift- deed by asserting that the same was in fact a sale-deed but in order to defeat their right of pre-emption, it was given the shape of gift-deed.
4. The vendee-respondent on March 20, 1995, moved an application for the consolidation of the suits filed against him but his prayer was denied by the trial Court vide order dated June 14, 1995.
This order was not assailed in appeal or revision.
5. After the trial of the first suit, the appellants were held entitled to a decree for pre-emption by the trial Court vide judgment and decree dated September 21, 1995. This judgment and decree was assailed in appeal before the District Judge Bhimber on October 19, 1995 by Shiq Hussain, as attorney of the vendee- respondent.
6. As objection was raised on behalf of the plaintiffs-appellants about the competency of the attorney to file appeal before the District Judge Bhimber, as according to them, this right was not conferred upon him by the vendee-respondent.
However, this objection was turned down and the learned first Appellate Court vacated the judgment and decree passed by the trial Court on September 21, 1995 and remanded the case to the trial Court with the direction that this suit be kept pending till the decision of the second suit filed by the appellant Muhammad Fazal in respect of the gift-deed executed in favour of the vendee on October 31, 1993. This judgment and decree; has been assailed before this Court by the appellants through the instant appeal.
7. Muhammad Rafique Dar, learned Counsel for the appellants argued that the vendee had not conferred powers upon his attorney-to file appeal as such the appeal filed by Ashiq Hussain, attorney on behalf of the vendee-respondent, was not maintainable before the first Appellate Court. According to the learned Counsel, the attorney was only competent to context the suit before the trial Court on behalf of the vendee-respondent. The learned Counsel in support his contention relied on PLD 1984 Azad J&K 1 and 1995 SCR 274.
8. While opposing the arguments, it was argued by Mr. Shahadat Ali Khan Kiani, learned counsel for the respondent that the power-of-attorney is to be taken into consideration as a whole. According to him, it is clear from the language of the power-of-attorney that the vendee had given the powers to his attorney to protect his interest in all the Courts of law established in Azad Kashmir.
However, he conceded that the interest of the vendee is to be protected by this attorney in respect of the case pertaining to the land in village Berjah. He in this regard, relied on the powers given to the attorney by the vendee, in the concluding part of the power-of-attorney.
9. I have heard the learned Counsel for the parties-and gone through the record of the case.
10. In the light of the point canvassed on behalf of the parties, a question while needs determination is as to whether the attorney was legally competent to tile an appeal. For the proper perception of the point involved, it appears imperative to have a reference to the relevant power-of-attorney which reads as follows:- SPECIAL POWER-OF-ATTORNEY.
Know all men by these presents that I, the undersigned Mr. Khadim Hussain S/O Muhammad Qasim holding passport/Identity Card No. D-244289, dated 18.2.1988 issued at Dubai and presently residing at P.L. Box No. 564 Dubai UAE United Arab Emirates, do hereby solemnly appoint Mr. Ashiq Hussain (son) S/O Khadim Hussain Resident of Vill Barjah, Teh. Bhimber, Distt, Mirpur AK my attorney in my name and on my behalf to do or execute all or any of the following acts or things in connection with the, To deal my case of land located in Vill Burjah, Distt. Mirpur A.K.
1. To engage or appoint any legal practitioner to conduct the said case.
2. To sign, verify and file a written statement.
3. To make and present fo the Court an application in connection with any proceedings in the suit.
4. To produce or summon or receive back documentary evidence.
5. To make and file compromise ora confession of judgment and to refer the case to arbitration.
6. To deposit and withdraw any money for the purpose of any proceeding.
7. To file an application for execution of a decree or order passed in the said suit and to sign and verify such application.
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 ai\d 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 herely by agree that all acts, deeds and things lawfully done by me said attorney shall be construed as acts, deeds and things done by me and I undertake to rectify 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 8.12,1993.
Signature of Sd/- Khadim Hussain Khadim Hussain Dated, 8th December, 1993. " P.O. Box 564 Dubai UAE National Card No. 706-40-011382 Tele: 218547 DB Before commenting on the powers which have been given to the attorney, let it be seen how power-of-attorney must be construed. In a reported case titled "Muhammad Afsdr Khan v. Khadim Hussain "1978 SC (AJ&K) 145, Raja Muhammad Khurshid Khan, and then Judge expressed the view of the Court in the following words:- "A power-of-attorney under Order III rule 2, CPC should 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 in that regard must be had to the retails 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 power 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 words and vice verse, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers.
In 1980, once again the dispute arose in respect of the powers of attorney in a case titled Gul Taj Begum v. Lai Hussain and another (PLD 1980 SC (AJ&K) 60). It was laid down that power-of- attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication, upon the attorney.
Again in 1992 M LD 2407 in case titled Bashir Ahmad and 4 others v. Muhammad Qasim and 7 others the view was taken and in the light of the language implied in the power-of-attorney was empowered to take all the steps including filing of the appeal to higher forum (on account of words 'Court') used in it.
Again, the apex Court of Azad Jammu and Kashmir in a case titled "Muhammad Behrman v. Sardar Din and another (1995 SCR 274, laid down that the general rule of construction is that power-of- attorney must be construed strictly as given only such authority as those confer expressly or by necessary implication.
In the present case, the reading of the power-of-attorney as a whole shows that the attorney was appointed, to protect the interest of the. Vendee-respondent in respect of the land situated in village Berjah against whom some suit was filed. The powers were specifically mentioned from paras Nos. 1 to 10 of the power-of- attorney in connection with the case of the land located in village Berjah. These powers were given to Ashiq Hussain in respect of the suit filed against him.
Aashiq Hussain was not legally competent to travel beyond the powers specifically given to him by Khadim Hussain, respondent. He was competent to persue the cause on behalf of Khadim Hussain respondent in the trial Court only. The appeal filed by him on behalf of Khadim Hussain, as his attorney, was beyond his legal competence. Therefore, the appeal filed before the first Appellate Court was liable to be dismissed on this short ground.
Now a general power-of-attorney has been executed in favour of Ashiq Hussain by respondent, Khadim Hussain which was attested on March 11, 1997. In this power-of-attorney, he has been given authority to file an appeal, revision and review petition and conduct the same either personally or through a Counsel. But this power-of-attorney shall be useful in future.
For the above-stated reasons, while allowing this appeal with costs, the judgment and decree dated February 20, 1997, is set aside.