The petitioner and respondent No. 14, namely, Mst. Umatul Hafeez are the children of Haji Aziz Kapur.
The petitioner filed a suit against the private respondents for partition of property stated to be jointly owned by the said parties. In the plaint it was pleaded that the parties have effected a private partition as a result whereof the property in list 'A' had fallen to the share of the petitioner; that in list 'B' the property has fallen to the share of respondent No.4, that in the list 'C' the property has fallen to the share of respondents Nos.5 to 12. It was specifically alleged in the plaint that respondents Nos. 14 to 17 have surrendered their share in the property in favour of the petition and respondents Nos. 5 to 12. A prayer was made that a decree be passed in terms of the said lists. A written statement purporting to be on behalf of respondents Nos.5, 13 to 17 was filed admitting the contents of the plaint. This statement was field by respondent No.5 acting as attorney of respondents Nos. 13 to 17. A decree was accordingly passed on 5-9-1982. On 15-7-1984 respondent No.14 filed an application under section 12(2), C.P.C. For setting aside of the said decree. This application was resisted by the petitioner and was dismissed by the learned trial Court on 9-5- 1985. A revision petition filed by respondent No.14, however, was allowed vide order, dated 5-7-1986 by the learned Additional District Judge, Sialkot who remanded back the case to the learned trial Court for decision on merits.
2. Learned counsel for the petitioner contends that there was no need for any issues or inquiry and relies upon. Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another (1999 SCM R 1696) and Ghulam Muhammad v. M. Ahmad Khan and 6 others (1993 SCM R 662). Further contends that the provisions of sections 214 and 215 of the Contract Act are not attracted in the facts and circumstances of the present case. Finally argues that the several observations made by the learned Additional District Judge in the impugned order are bound to adversely affect the trial ordered by the learned Additional District Judge. Learned counsel for the respondents, on the other hand, argues that there is no such sweeping proposition that an attorney otherwise duly constituted, can deal with the matters involving title and interest of his Principal without any reference to him. They have cited the case of Islah High School, Chiniot (Registered) through Province of Punjab v. Jawad Hussain (1996 SCM R 193) for the proposition that the application under section 12(2), P.P.C. Being a substitute remedy for a regular suit should be treated as such.
3. I have gone through the copies of the record appended with this petition. I find that as per copy of the power of attorney available on record as reproduced in the order of learned Senior Civil Judge, Sialkot, dated 9-5-1985 does tend to show that the attorney had power to enter into a compromise and to make statements in the course of suits.
4. However, this document has to be read in the light of the averments made in the application under section 12(2), C.P.C. Filed by respondent No.14. She has alleged categorically-that she was not aware of the suit; that she did not receive any notice or summons in the suit; that the attorney himself was a beneficiary under the terms alleged in the plaint regarding the surrender of her property in favour of inter alia, the petitioner and the attorney; that she had not authorised the attorney to do away with her property; that the petitioner and the other respondents have connived with each other and she has been deprived of 7/90 share in her father's property; that the act of filing a consenting written statement was beyond the authority confined upon the said attorney; that there was never any compromise/agreement to surrender.
5. To my mind the said allegations could not have been disposed of in a summary manner. The very interpretation of power of attorney relied upon by the learned trial Court depends upon proof of the said allegations. Since the matter is yet to be decided by the learned trial Court I would not be delving deep in the matter but suffice it to say that the provisions of sections 214 and 215 of the Contract Act as interpreted by the superior judiciary of the country did not leave any manner of doubt that a controversy as raised in the application filed by respondent No. 14 cannot be resolved by a bare reference to the contents of the power of attorney and it has to be determined after the trial as to whether the attorney had the requisite instructions and as to whether he had consulted and sought information from respondent No.14 before literally surrendering her property in favour of amongst other himself. It will also have to be seen as to whether the attorney was an agent within the meaning of C.P.C. To accept service on behalf of respondent No.14. I do, however, agree, with the learned counsel for the petitioner that the learned Additional District Judge while allowing revision petition has proceeded to make observation which may tend to affect the trial of the case ordered by him. I do not find any force in the writ petition and accordingly the same is dismissed, however, with the observation that the learned trial Court shall not be influenced by any observation made in the order of the learned Additional District Judge or for that matter in present order while trying the application filed by respondent No.14 under section 12(2), C.P.C.
6. The parties shall appear before the learned Senior Civil Judge, Sialkot on 5-11-2000 who shall then commence the trial as directed by the learned Additional District Judge. No orders as to costs.