1. The supra titled appeals directed against the consolidated judgment of the learned District Judge, Kotli, recorded on 28-2-1997, raise the common questions of law and facts, hence, are heard together and decided as such through the proposed judgment. The facts necessary for disposal of the controversy , as listed in the appeals, are that Munir Hussain, appellant/plaintif f brought a suit for declaration and perpetual injunction in the Court of Sub-Judge, Kotli on -10-1- 1987 to the effect that the parties are no more partners in the business set up by them on the basis of partnership deed executed on 4-2-1985. It was further prayed that the respondents be ordered to execute a sale deed in favour of the plaintif f/appellant in view of agreement to sell, executed on 28-6-1986. A decree for perpetual injunction was also prayed in the terms that the respondents be prohibited from interfering in the business of the plaintif f which has earlier been set up in shape of petrol pump. It was averred that the plaintif f and respondents jointly purchased a piece of land comprising Khasra No, 1456 min measuring 1 Kanal, 6 Marlas situated in village Jamalpur Aghar , Tehsil and District Kotli on 7-9-1983, for setting up a petrol pump. Respondent No, 2, real brother of respondent No,1 was appointed as attorney for the purpose and for performance of all the matters incorporated in the partnership deed executed on 4-2-1985. It was further claimed that respondents decided to retire from the partnership and as a result of arbitration, an agreement for dissolution of the partnership was executed on 28-6- 1986. As per conditions of the agreement, the partnership stood dissolved forthwith and the plaintif f/appellant undertook, to pay Rs,5,46,500 to respondent No,
2. It was further agreed that the total land under the petrol pump which was jointly purchased would be transferred to Munir Hussain, appellant. It was averred that Munir Hussain had paid Rs,3,46,500 to respondents Nos. 1 and 2 whereas the rest of the amount was to be paid up to 28-8-1986.
2. The plaintif f/appellant after arranging the money , requested respondents Nos.1 and 2 to perform their part of agreement and for the purpose a letter written by Muhammad Akram, Advocate, was sent to respondents but they took no steps necessary for doing the needful and hesitated in the performance of the contract. It was stated that the plaintif f/appellant fulfilled the agreed obligation within the stipulated period but the respondents ignored the same. Thus, a decree for specific performance of the contract was prayed. The respondents resisted the suit by filing written statement on 25-7-1987. The learned trial Court in view of the pleadings of the parties, framed issues and after providing an opportunity for leading the evidence came to the conclusion that the respondents are not bound by the agreement executed on 28-6-1986, and resultantly dismissed the suit of the plaintif f/appellant. It was further observed that the amount received by the respondents pursuance to agreement dated 28-6-1986 stood forfeited. Feeling aggrieved by the judgment and decree of the Sub-Judge Kotli, both the parties went in appeals before the learned District Judge, Kotli on 14-2-199 4. Munir Hussain, plaintif f/appellant challenged the decree as a whole whereas the cross-appeal was preferred to the extent of Issue No,1. The learned District Judge after necessary proceedings accepted the appeal of Munir Hussain and decreed his suit subject to the payment of Rs,2,90,000 within one month. The learned Judge directed Munir Hussain, appellant, to pay some additional amount. This part of the judgment is now under challenge in the cross-appeal. In Civil Appeal No,6 of 1997, the judgment and decree of the learned Distric t Judge, Kotli, has been partly challenged and decision of the controver sy raised therein finally depends on the result of counter appeal filed by Muhammad Aslam and others, therefore, firstly I would like to take up Civil Appeal No,9 of 1997. Ch. Muhammad Yousuf, the learned Advocate appearing for the appellant strenuously argued that the plain reading of the power of attorney executed on April 3, 1984, leaves no room for doubt that no specific authority was conferred on Muhammad Afsar for negotiating the matter before the arbitrato r or thereafter to execute any agreement whatsoever to sell the property in favour of Munir Hussain, appellant/respondent. The learned Advocate vehemently contended that the power of attorney was executed in favour of Muhammad Afsar Khan and Munir Hussain jointly , therefore, none of them was competent to act individually . Moreover , the learned Advocate is of the view that the authority , at the most, was delegated to both the agents to look after the business and all the ancillary matters thereto, and the execution of the contract by any of them was a departure from the delegated authority . The learned Advocate further submitted that even otherwise the failure of Munir Hussain to perform his part of the contract is an uncrossable barrier in his way and he was not entitled to any relief. The learned Advocate also contended that the case now set up, by the other side, is a complete departure from the pleading and under rules, such a departure cannot be allowed. The arguments advanced on behalf of the appellant have been controverted by Mr. Abdul Majeed Mallick, the learned Advocate appearing on behalf of the respondents. The learned Advocate argued that power of attorney , when read as a whole, leads to an irresistible conclusion that Muhammad Afsar has been delegated the authority to perform all the acts on behalf of Muhammad Aslam including sale of property . The learned Advocate vehemently submitted that presence of Muhammad Aslam at the time of arbitration, was enough rectification of the vacuum, if any, and the appellants cannot blow hot and cold in the same breath. The learned Advocate also contended that as the time was not the essence of the contract, therefore, Munir Hussain, plaintif f, cannot be blamed for non- performance of his part of contract within stipulated period. Despite that he took every reasonable care and made hectic efforts to convince the respondents for execution of the sale deed. The learned Advocate in this regard referred to the statement of Muhammad Akram P.W. And contended that this evidence remained unshaken and has rightly been relied upon by the learned District Judge. No misreading or non-reading has been pointed out in the conclusion arrived at by the learned District Judge which according to the learned Advocate is a proper appreciation of the facts and law except the award of interest. I have heard the learned Advocates for the parties and perused the record. For proper perception of the controversy it is necessary to reproduce the power of attorney which is as under:-- POWER OF ATTORNEY I, hereby the undersigned Mr. Muhammad Aslam son of Mr. Faqroo Khan Malik, Pakistani National, holding Passport No, AE-520719, issued from Mirpur on 18-5-1976, National Identity Card No,707-57-030899, Permanent Address Village Qamruti, Tehsil and District Kotli, Azad Kashmir , Pakistan, presently residing in Dubai, P.O. Box 11260, Te1.236812 United Arab Emirates, for employment do execute write and sign by virtue of this power of attorney to Mr. Munir Hussain son of Mr. Noor Din Malik, who is my land partner (under mentioned land) residing village Gohi, Tehsil and District Kotli, Azad Kashmir , Pakistan, and Mr. Muhammad Afser son of Faqroo Khan Malik who is my real brother residing in V illage Qamruti, Tehsil and District Kotli, Azad Kashmir , Pakistan.
3. I hereby delegate to both of them to full authority to act on behalf of me in every single matter concerning my property located at Aghar Village, Tehsil and District Kotli, Azad Kashmir , Pakistan, Land Khavet No,141, Khata No, 546, Khasra No,1456, measured 1 Kanal, 6 Marlas. The above-referred property is due to be given to M/s. Pakistan Burma Shell Ltd., Pakistan on Rental Basis. So I hereby declare that they have full authority and power to represent me and act on behalf of me regarding the land which will give to the Company on Renta l Basis, but none of them have to sign any of the document relating the Rental Agreement with Company in the absence of the second authorized person. They have to be present on the time of the deal and both of them got the right to sell the said property in the absence of me. Also both of the authorized persons have to receive the rent amount from the Company and sign all Company papers relating the rental claim to execute in the Court or on behalf of any authorized person or Company or Government. They have full power of Attorney to control direct and care to sign all papers/documents relating to company owned by me in the presence of each of the authorized persons. Signature Muha mmad Aslam s/o Faqroo Khan, P.O. Box. No: 1 1260, Dubai Passport No, AE 520719 ID. C.No,707-57-030899)."
4. (Underlining is mine). A plain reading of the above reveals that this document was executed in favour of Muhammad Aslam and Munir Hussain, parties to the present controversy , jointly . Where a power is delegated by a principal jointly for performance of the acts on his behalf, then single agent cannot do any act without joining the other . A reference may be made to Dr. A. Wahab's case 1986 MLD 2049 . At page 2063 of the report the learned Judge opined that where a power is given to the joint agents, it is to be presumed that such power has been granted on the consideration of the personal nature and their act can bind the principal only if the agents act jointly . Another crucial aspect of the matter is as to whether an attorney can sell the property by exec uting an agreement in his own favour . The object of appointing agents or attorneys is that a specified person is authorized by the executant to act for and in the name of the person executing it. When the attorneys, so appointed intend to deviate from the authority given in power of attorney then they have to comply with sections 214 and 215 of the Contract Act.
5. Assuming it for the sake of arguments that the parties decided to dissolve the partnership and in that eventuality a difficulty would have arisen as to whether Munir Hussain, co-attorney , was entitled to get executed an agreement to sell in his own favour in such circumstances, it is the duty of the agents to communicate to the principal, the proposal and obtain his instructions in black and white. Section 215 of the Contract Act, 1872 has protected the right of the principal where agent deals on his own account in absence of the principal's consent. It will be useful to reproduce this section, which is as under:-- "215. Right of Principal when agent deals, on his own account business of agency without principal's consent. --If an agent deals on his own account in the business of the agency , without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.
6. The aforesaid provision of law postulates the manner in which an agent can travel beyond his authority . The illustrations attached to section also denotes that where an agent executes an agreement in his own favour or in favour of any of his associates without consent of the principal then the principal has a right to repudiate the transaction. A similar matter came up for consideration before Lahore High Court in Wali Muhammad's case PLD 1989 Lah. 440, wherein the learned Judge opined that it is elementary principle of agency_ that relationship between the agent and the principal is very delicate and of a high trust. In this relationship, the agent occupies the position of dominant influence. He is not permitted to make a transfer of the property of the principal in his own favour or in favour of his associates without the consent of his principal.
7. This principle was again approved by the apex Court of Pakistan subsequently in two judgments reported as PLD 1985 SC 341 and 1987 SCMR 1009 . In the former judgment, the scope of the authority of the donee was discussed at some length whereas in the later judgment the power of attorney was executed in favour of 3 persons jointly and on the basis of the aforesaid power of attorney , the suit was filed in the Court. It appears that the subsequent power of attorney was executed in favour of single agent who applied for the withdrawal of the suit.
8. The request was accordingly allowed but the apex Court remanded the matter back with the observation that in such eventuality , the principal was entitle d to a notice. In my view, a power of attorney holder acquires double capacity or double personality . One is as his person and the other as attorne y, therefore, both the aforesaid positions cannot be intermingled by executing any document in his own favour . Salmond while discussing and differentiating double capacity and double personality in his book (Jurisprudence) on page 64 elucidates as under:- - "65. Double capacity and double personality .--English law recognizes many different capacities in which a man may act. Often he has power to do an act in an official or representative capacity when he would have no power to-do the act in his private capacity or on his own account. All sorts of difficult questions arise out of these distinctions: for instance, whether a person on a particular occasion was acting as trustee for fund A or as trustee for fund B; whether a director has the powers and duties of a trustee; whether an executor has turned into a trustee, and so on. These troubles need not concern us here; the only point to be noticed is that the mere fact that a man has two or more capacities does not give him the power to enter into a legal transaction with himself: Double capacity does not connote double personality . For instan ce, at common law a man could not sue himself, or contract with himself, or convey property to himself; and it made no difference that he was acting on each side in a different capacity . So rigorous was the rule that, if the same party appeared on both sides of a contract, even though accompanied by different parties in each case, the whole contract was void. In many cases the rule worked hardship, and its consequences had to be mitigated. For instance, where a creditor became his debtor's executor , the rule that he could not sue himself for the debt was mitigated by giving him a right of retainer . By statute, where a person purports to contract with himself and others, the contract is enforceable as if it had been entered into with the other persons alone. Also, by a historical accident, namely , the effect given to the Statute of Uses, it became possible for a man to convey to himself; and this power , which was found to be useful howe ver theoretically anomalous, is preserved in the modern legislation that repeals the Statute of Uses. With these and other small exceptions, the ruler that a person cannot enter into a legal transaction with himself remains unimpaired." (Underlining is mine).
9. In view of above and the provisions of the Contract Act, reproduced in the earlier part of the judgment, I am of the view that Munir Hussain was not competent to obtain contract in his own favour being an attorney of Muhammad Aslam nor Muhammad Afsar was individually competent to alienate the property . Ch. Muhammad Yousuf, the learned Advocate for the appellant also relied upon PLD 1980 SC (AJ&K) 60, 1995 CLC 1541 . In Gul Taj Begum's case, PLD 1980 SC (AJ&K) 60, the apex Court of AJ&K highlighted the rules for construction of power of attorney and observed that a power of attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication. The case of Fida Muhammad already referred to also enunciates the same principle of law. The relevant observation of the apex Court would be useful to reproduce herein, which is to the following ef fect:- "It is wrong to assume that every 'general' Power-of-Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the Power-of-Attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property , would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation." After aforesaid discussion, the position which emerges is that Munir Hussain, appellant, has obtained the agreement in his favour from Muhammad Afsar Khan, attorney , he has to prove through cogent evidence that this act was consented to by Muhammad Aslam but such evidence is missing in the case. Even then the agreement to sell executed on 28-8-1986 was beyond the scope and authority of the power of attorney . As observed earlier Muhammad Afsar acting as single agent was not competent to alienate the property even to a third person. In the light of the findings on this issue; deliberation on the other issues becomes of academic interest, however , it is in the interest of justice to observe that the trial Court on one hand declared that the agreement to sell executed on 28-8-1986 was without lawful authority and in the same breath the learned Judge has forfeited the amount paid by Munir Hussain in pursuance to the agreement to sell referred to hereinabove. I am of the considered view that this finding of the learned Judge was contrary to law and contradictory which could not be sustained. Resultantly Munir Hussain would be entitled to receive amount which he has already paid. The declaration to the effect that partnership does exist is also beyond the scope of pleading. Munir Hussain may retire at any time and he cannot be forced to join the venture by the decree or order of the Court, however , the parties would be entitled to settle their accounts up, to 28-8-1986. The upshot of the above discussion is that the Appeal No, 9/1997, filed by Muhammad Aslam and others is accepted and the judgment and decree of the learned District Judge, Kotli, passed on 28-2-1997 is hereby vacated.
10. Resultantly , Appeal No,6 of 1997, filed By Munir Hussain is also dismissed. No order as to the costs.