MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been preferred to challenge the correctness and legality of the judgment of the High Court dated 13-5-1999, whereby the writ petition filed by the appellant, herein, was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the appellant is an allottee of Plot No,122 and also owner of Plot No,123. In Sector E-3 Mirpur, over which land he has constructed a house and is living there. In front of appellant's house there is an open space which is 96 feet wide.
It is the case of the appellant that the open space was meant for the inhabitants of the locality but the allottees of Plots Nos.134, 140, 141, 142 and 142-A, got the open space allotted in their names. The appellant filed a writ petition to challenge the aforesaid allotments. The petition was filed through an attorney. A learned Judge in the High Court has dismissed the writ petition on the sole ground that the appellant's attorney did not have the authority to file the writ petition. It was held that the attorney was authorised "to do all acts in relation to the allotment made in favour of the appellant, with regard to the plots allotted in his favour" and not beyond it.
3. It was contended by Ch. Muhammad Azam Khan, the learned counsel for the appellant, that the view taken by the High Court is not correct and that in the power of attorney executed by the appellant it was duly stated that the attorney was authorised to look after the plot in every way and also authorised him to perform every act which may become necessary. According to the learned counsel the land allotted to the respondents was open space which was not available for allotment as held by this Court in Ajaib Hussain v. Muhammad Fazil 1980 CLC 198. He submitted that since this land had to be kept as an open space it was a facility which was available to the appellant which has been taken away by the illegal allotment. Ch. Muhammad Azam Khan contended that it amounted to interference in the use of the plot allotted to the appellant.
According to the learned counsel for the appellant the powers given to the attorney were wide enough to watch the interests of the executant if the same are adversely affected for any of the reasons.
4. On the other hand M/s. Masood Khalid and Ch. Muhammad Riaz Alam, the learned counsel for the respondents, vehemently defended the judgment recorded by the High Court and submitted that a power of attorney is. Always to be construed strictly and only those powers are considered to be given to the attorney which have been duly recited in the power of attorney.The learned counsel for respondents also contended that the intention of the executant is to be determined by the recitals of the power of attorney. In support of their contention the learned counsel for respondents relied on reported cases titled Muhammad Afsar Khan and another v. Khadim Hussain and 3 others PLD 1978 SC(AJ&K) 143 and Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that in a case reported as Muhammad Afsar Khan and another v. Khadim Hussain and 3 others PLD 1978 SC(AJ&K) 143, it was observed as follows:-- "A power of attorney under Order III, rule 2, Civil Procedure Code 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 is that regard must be had to the recitals 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 powers 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 versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers."
In a case reported as Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541, it was observed as under:-- "The general rule of construction is that powers of attorney must be construed strictly as giving only such authority as those confer expressly or by necessary implication."
6. We have carefully examined the recitals of power of attorney executed by Qamar Zaman in favour of his attorney Daswa ndi Khan, which distinctly relate to Plots Nos.122 and 123, situate in Sector E-3, Mirpur. The power of attorney further recites that the attorney shall look after the aforementioned plots and file the applications etc. Or pursue the legal remedy on behalf of executant or shall defend any proceedings instituted against the executant before any authority or any Court of law. In our view the phraseology used in the power of attorney is not so wide as to include the power to challenge the allotment of open space which, according to the learned counsel, was a facility available to the allottee.
7. It has rightly been observed by the High Court that the aforesaid power of attorney relates to the existing allotments made in favour of Qamar Zaman, executant, and has nothing to do with the disputed allotments which have been made in favour of respondents.
8. For the aforesaid reasons, finding no force in this appeal, the same stands dismissed without any order as to costs.