' Both the matters cited above relate to the same subject-matter and contain the common questions of law and facts; hence those are proposed to be decided together through this single judgment.
2. The brief facts are that Muhammad Asmat Ullah respondent/plaintiff instituted a suit for declaration through his attorney Muhammad Iqbal against Mst. Surayya Kausar, petitioner/defendant in respect of the land in question. During the pendency of the suit a petition under Order VII, Rule 11, C.P.C. For rejection of the plaint was filed on the ground that the suit was not instituted through duly constituted attorney and as such the plaint was liable to be rejected. The petition was resisted by the respondent/plaintiff that the plaint was validly instituted through an attorney who was duly constituted in accordance with law.
3. Another application was moved by the respondent/plaintiff for amendment of the plaint which also came up for hearing before the learned trial Judge along-with application under Order VII, Rule 11, C.P.C. The learned trial Judge through a perfunctory order dated 3-3-1998 accepted the application under Order VII, Rule 11, C.P.C. And rejected the plaint against which the respondent/plaintiff filed an appeal, which was accepted by the learned Additional District Judge, Sargodha vide his order dated 26-6-1998. The order rejecting the plaint passed by the learned trial Court was set aside and the case was remitted to the learned trial Court. That order is challenged in this Civil Revision Petition by the petitioner/defendant.
4. The application for amendment of the plaint moved by the respondent/plaintiff was also dismissed by the learned trial Court against which a revision petition was filed, which too was accepted and the order rejecting the amendment was set aside and the case was remitted back for decision afresh on the application for amendment after getting reply from the other side and hearing the parties vide order of the learned Revisional Court dated 26-6-1998. Against that order in revision petition, writ petition referred to above has been filed.
5. I have heard the learned counsel for the parties in both .The matters in detail. The learned counsel for the revision petitioner has submitted that the order passed by the learned lower Appellate Court was illegal as the suit was instituted by an unauthorised person and being initially incompetent was not liable to proceed further; that the attorney Muhammad Iqbal was not an authorised person to file the suit on behalf of the plaintiff as his power of attorney was fictitious and was never registered in Pakistan and as such legally not valid. Likewise no suit, appeal or revision could be filed on the basis of aforesaid power of attorney. It was therefore, submitted that the learned trial Court was justified to reject the plaint vide its order passed on 3-3-1998 and that the learned lower Appellate Court was not competent to set aside the same. It was further contended that since the plaint was not competent, therefore, the petition for its amendment was also groundless and the same was rightly rejected by the learned trial Court, but was wrongly set aside by the learned revisional Court and as such writ petition against such arbitrary decision was competent.
6. On the points raised above, the learned counsel for the petitioner relied upon the provisions contained in section 32 read with section 33 of the Registration Act, 1908 to show that since the alleged power of attorney was not executed, authenticated or registered in accordance with the provisions contained in section 33 supra, therefore, that could not be acted upon nor would it give any legal status to such attorney to act on behalf of his principal. As such it was contended that the power of attorney being defective and the suit instituted on its basis being misconceived, the plaint was rightly rejected by the learned trial Court. Reliance was placed on:
(i) Muhammad Mehrban v. Sadrud Din and another reported as 1995 CLC 1541 (SC (AJ&K)).
(ii) Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din Khan and 4 others reported as 1997 SCMR 1267 (Supreme Court of Pakistan).
(iii) Ziauddin Siddiqui v. Mrs. Rana Sultana and another reported as 1990 CLC 645 (Karachi) and
(iv) Hawaldar Sawar Khan through General Attorney v. Province of Sindh, Revenue Department through Deputy Commissioner, Shikarpur and 5 others reported as 1998 CLC 382 (Karachi).
7. While relying upon the aforesaid authorities the learned counsel for the petitioner submitted that the purpose and scope of the power of attorney allegedly executed in favour of Muhammad Iqbal by his principal namely Muhammad Asmatualllah was not indicated and as such it was in chaos and illegal document having not been authenticated or registered as aforesaid and the suit filed on its basis was bad in the eyes of law, and the plaint was rightly rejected. Likewise the revision petition against amendment was not maintainable because the main suit by itself was not maintainable as having not been properly instituted by a competent person.
8. The learned counsel for the respondent/plaintiff has submitted that the suit was properly instituted in the Court below on the basis of power of attorney which was initially executed by the principal Muhammad Asmatullah respondent/plaintiff in favour of Muhammad Iqbal. However, the petitioner/defendant moved an application for rejection of the plaint in the year 1997 whereas objection regarding the power of attorney was taken in the written statement filed in 1996. The long silence of the present petitioner/defendant would show that the petition for rejection of plaint was filed with mala fide intention although the power of attorney initially executed was substituted with a power of attorney executed properly and duly authenticated by the Embassy of Pakistan in London and attested by the competent authority of U.K. And was later on registered in Pakistan. As such after receiving the aforesaid duly executed power of attorney, the petitioner/defendant could not raise an objection in respect of improper power of attorney particularly when the matter was yet pending and a plea to that effect had already been taken in the written statement, which called for framing of issues on controversial points and determination after conducting a proper trial. However, a surreptitious method was adopted by the petitioner/defendant in order to non-suit the respondent/plaintiff to which the learned trial Court fell prey and committed gross and material irregularity in accepting the application under Order VII, Rule 11, C.P.C. To reject the plaint.
In this context, it was contended that power of attorney duly authenticated, attested and registered even subsequently was valid in view of the provisions contained in Article 95 of the Qanun-e- Shahadat Order, 1984, which raised a presumption that such document was executed and authenticated in accordance with law and as shown on its face. Similarly reference was made to section 196 of the Contract Act, 1872, whereby it was open for a principal to ratify the acts done or omissions made by any person on his behalf. It was, therefore, urged that even if there was any lacuna in the execution of the initial power of.Attorney, but stood removed after the execution of subsequent power of attorney duly authenticated and registered in Pakistan, which amounted to an express ratification by the principal of the institution of suit filed by his agent. As such there was no ground for the rejection of the plaint on that plea.
9. In support of the above points the learned counsel for the respondent/plaintiff relied on 1998 MLD 1977 (Lahore) (Muhammad Asmatullah v. D.G., Sargodha and others) in which power of attorney in favour of Muhammad Iqbal was relied upon whereby he had filed suit on behalf of his principal mamely Muhammad Asmatullah. In this regard, it was further contended that even in the aforesaid matter, it was observed that the general power of attorney was got attested in United Kingdom by the writ petitioner i.e present respondent/plaintiff in favour of Muhammad Iqbal which formed part of the aforesaid writ petition. As such it would be clear that even according to the observation made therein, power of attorney was got authenticated and attested in U.K. Besides that reliance was placed on Lt.-Col. (Recd.) P.G. Braganza v. The Border Area Allotment Committee and another reported as 1984 CLC 1479 (Lahore), Shabbir Hussain v. Mst. Ansar Fatima and 3 others reported as PLD 1985 Lahore 491, Muhammad Khaliq v. Abdullah Khan and 4 others reported as 1987 CLC 1366 (Azad J&K), and Khyam Films and another v. Bank of Bahawalpur Ltd. Reported as 1982 CLC 1275 (Lahore) in order to show that even if an action was instituted without any power of attorney, but the act of the agent was ratified by the principal at a later stage, it would lend legal authority to the aforesaid act of the agent on the principle of ratification. Even otherwise the power of attorney can effectively be challenged only by the principal and no one else. The learned counsel also tried to distinguish 1997 SCMR 1267 (Supreme Court of Pakistan) on the ground that in the aforesaid authority relied upon by the learned counsel for the petitioner/defendant, the property for which the agency was created was totally other than the property in respect of which the proceedings had started between the parties and as such the principle laid down in that authority was not applicable to the facts of the present case. In this regard, it was urged that the power of attorney executed in favour of Muhammad Iqbal specifically mentioned the property of his principal namely Muhammad Asmatuallh situated in Sargodha and as such there was no ambiguity in respect of the subject-matter of the deed of attorney.
10. I have considered the submissions raised from both sides, and have also gone through the case-law produced before me. It is to be seen whether there was any power of attorney in favour of Muhammad Iqbal from his principal Asmatullah respondent/plaintiff. In this regard, initial power of attorney mentioned that the aforesaid principal had authorised Muhammad Iqbal to make a representation in the Court in his absence and regain his land situated in Chak No,3-Shamali Tehsil and District Sargodha, Pakistan which was allegedly sold under false pretences. That power of attorney was attested by Alfred Liveingstone Webley, Justice of the Peace for the County of Buckinghamshire. Although this power of attorney was not registered in Pakistan, but sufficiently conveyed the appointment of attorney duly authenticated by the Justice of Peace in U.K.
Muhammad Iqbal son of Allah Rakha, was duly appointed attorney of his principal Muhammad Asmutullah. Subsequently another power of attorney was executed which was in detail and a photo copy of which was placed on record at P/60. It clearly empowered the aforesaid Muhammad Iqbal by his principal to manage his property in the manner stated therein. It was executed on 1-3-1995 and was sworn and attested by its deponent at Buckinghamshire in U.K and was attested by Sajad R. Khan, LL.B., Solicitor of Buckinghamshire. It was also attested by Khalid Mahmud (Third Secretary) of High Commission for Pakistan in London with the seal of office and further attested by S. Zafar Ali, Section Officer, Ministry of Foreign Affairs, Islamabad. Later on it was registered on 28-3-1995 before the Sub-Registrar, Sargodha. As such this power of attorney was complete in all respects. Still further another more exhaustive and comprehensive power of attorney dated 28-4-1999 was executed in which the execution of the previous deeds of attorney was admitted with the contention that those were never recalled or cancelled. In that power of attorney again all the rights were given to Muhammad Iabal by his principal Muhammad Asmat alias Muhammad Asmatullah and that power of attorney was not only attested by the marginal witnesses, but was also got registered before the Sub-Registrar Rural, Sargodha on 3-5-1999. This was a complete ratification of the previous deeds of attorney in favour of Muhammad Iqbal and as such all his acts including the institution of the present suit were ratified expressly. It may also be noted that principal Muhammad Asmatuallh along-with his agent Muhammad Iqbal were present personally in Court at the time of hearing of this petition and the principal had accepted orally that he had executed all those deeds of attorney in favour of Muhammad Iqbal i,e, his agent. He was prepared to give any statement to that effect in the Court but the recording of that statement was not considered necessary because all the documents have already been placed on record.
11. In view of the foregoing facts, it is clear that the suit in question was instituted by a duly authorised agent on duly executed, authenticated and registered deeds of attorney and institution of the suit would stand ratified in view of the provisions contained in section 196 of the Contract Act and as such there would be no illegality so as to non-suit the respondent/plaintiff. The learned trial Court by making a sketchy order had non-suited the respondent/plaitniff by accepting the application under Order VII, Rule 11, C.P.C. Moved by the petitioner/defendant and that being illegal in the eyes of law was rightly set aside by the learned Additional District Judge, Sargodha vide the impugned order, which calls for no interference in the revisional jurisdiction of this Court. Likewise petition for amendment moved before the learned trial Court by the respondent/plaintiff was arbitrarily dismissed by the learned Civil Judge without calling for reply to that application, and only for allowing lines in the order, dated 3-3-1998, whereby he had rejected the plaint under Order VII, rule 11, C.P.C.:-- "Accordingly, the application for amendment of plaint also stands rejected."
' This perfunctory order rejecting the amendment petition by the learned Civil Judge can hardly be considered a judicial adjudication as it does not contain facts relevant to the aforesaid petition nor the arguments raised before him by the parties and consequently no reasons having been advanced for the disposal of that petition. As such the order of the learned trial Court dismissing the amendment petition was totally misconceived and illegal and was rightly set aside by the learned revisional Court and as such the writ petition filed by the petitioner/defendant has no force so as to call for interference. The writ petition is also dismissed.
12. Nutshell of the above discussion is that Civil Revision No,1587/98 and the connected Writ Petition No,20119/98 are dismissed with costs.
13. The original file of the learned trial Court be sent back immediately and its receipt be acknowledged by the office from the Court concerned,