2023 PLP 854 (CLC)

AHMAD NADEEM ARSHAD, J.

Through this civil revision, petitioners called in question legality and validity of judgment and decree dated 23.11.2018 passed by learned Additional District Judge, whereby, while accepting the appeal, set aside the judgment and decree dated 29.09.2016 passed by the learned trial court and dismissed the suit for possession filed by the petitioners.

2. Facts in brevity are that petitioners/plaintiffs instituted a suit for possession and perpetual injunction with regard to suit property measuring one kanal situated at Tibba Maqsood-Pura, Sher Shah Road, Tehsil and District Multan through their special attorney namely Muhammad Tariq. The respondent filed its contesting written statement. Learned trial court keeping in view the divergent pleadings of the parties framed issues on 13.01.2010 and invited the parties to produce their respective evidence. Petitioners/plaintiffs produced three witnesses as PW-1 to PW-3 and tendered 16 documents as Exh.P-1 to Exh.P-16 in their documentary evidence. In rebuttal, respondents produced three witnesses as DW-1 to DW-3, however, their right to produce the documentary evidence was closed by the learned trial court and after providing an opportunity of hearing decreed the suit of the petitioners/plaintiffs vide judgment and decree dated 29.09.2016. Feeling aggrieved, the respondents/defendants preferred an appeal which was allowed, mainly on the ground that Muhammad Tariq Special Attorney has no authority on behalf of Nadeem Ahmad plaintiff No.2 to institute the suit, vide judgment and decree dated 23.11.2018 and set aside the judgment and decree of the learned trial court and resultantly dismissed the suit of the petitioners/plaintiffs, hence, this civil revision.

3. No one appeared on behalf of respondents Nos.2, 3, 4-b to 4-d, therefore, they are proceeded against exparte. The name of respondent No.4-a was deleted vide order dated 07.02.2020.

4. I have heard the learned counsel for the parties at full length and perused the record with their able assistance.

5. The learned appellate court while dealing with issue No.5 declared that judgment and decree of learned trial court suffer from material irregularity and illegality, hence, not sustainable in the eyes of law. Issue No.5 was framed in the following terms: - Issue No.5: Whether the plaintiffs have owner in possession of the property vide sale deeds Nos.7711, 7710 and 7727 dated 19.09.1994 and 20.09.1994 and defendants had no concern with it?OPP. The learned appellate court rendered its findings on the ground that the suit was instituted through Muhammad Tariq special attorney on behalf of the petitioner/plaintiff namely Nadeem Ahmad. Said Special Attorney has no legal authority to file the suit on behalf of plaintiff No.2 namely Nadeem Ahmad and he was not recognized agent of the said plaintiff. With regard to plaintiff No.1, the learned appellate court observed that after framing of issues he never attend the court nor produce any person having authority on his behalf to prove pleadings and contents of the plaint and he also failed to appear in the witness box in order to prove the averments of the plaint. Learned counsel appearing on behalf of the respondents also stressed that the suit was defective as plaintiff No.2 has not given any authority to Muhammad Tariq to institute the suit on his behalf and plaintiff No.1 failed to attend the court in order to prove his contention, therefore, the learned appellate court has rightly dismissed the suit of the petitioners/plaintiffs.

6. The petitioner instituted the suit on 27.06.2007, respondents filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on 03.06.2008 by contending that the plaint does not disclose any cause of action. The learned trial court, after taking its reply dismissed it vide order dated 04.12.2008 which was not further assailed. Thereafter, the learned trial court framed necessary issues on 13.01.2010 and recorded evidence of the petitioners. The respondents after recording their oral evidence absented from the proceedings, therefore, their right to produce documentary evidence had been closed and they proceeded exparte. The learned trial court decreed the suit vide judgment and decree dated 07.06.2012. Respondents moved an application for setting aside the exparte decree and exparte proceedings which was dismissed. Thus they challenged that judgment and decree and also order of dismissal of their application by preferring an appeal which was allowed and right of hearing was granted to them vide order dated 31.03.2016. The respondents instead of arguing the case started to move applications of different nature. They also moved an application for amendment of written statement and sought to introduce a new plea in their written statement to the effect that plaintiff No.2 did not give any authority to the special attorney to institute the suit, as the said attorney was given authority only to the extent of pending suits and he was not given any authority to institute a fresh suit. The learned trial court dismissed all the applications including the application for amendment in the written statement vide order dated 25.06.2016. From the perusal of said proposed amendments, it is made clear that the respondents did not raise any such objection with regard to special attorney in their written statement but the learned appellate court while rejecting the suit of the petitioner mainly based its findings upon said objection.

7. The suit for possession and perpetual injunction was instituted by Naeem Hussain in person and Nadeem Ahmad through his special attorney namely Muhammad Tariq. The defendants, through their written statement, as discussed supra, did not raise any objection with regard to the institution of the suit through a special attorney. They have not agitated that the suit was improperly instituted or Muhammad Tariq was not the special attorney of the plaintiff No.2 Nadeem Ahmad. Therefore, no specific issue was framed in this regard. Muhammad Tariq special attorney of plaintiff No.2 appeared as PW-2 and while recording his statement he produced special power of attorney dated 22.03.2007 as Exh.P-1. That document was brought on record without any objection from the respondents/defendants.

8. From the perusal of said Special Power of Attorney (Exh.P-1) it appears that plaintiff No.2 while appointing Muhammad Tariq as his special attorney gave authority to him with regard to suits pending in different courts. Although he did not give any authority for institution of a fresh suit, however, it is evident from special power of attorney (Exh.P-1) that by giving authority to his agent he also empowered him to initiate any legal proceedings, the exact wording is as under: - There is no cavil with the proposition that power of attorney should be construed strictly as given only such authority as is conferred expressly or by necessary implication. It only gives that power which is specifically mentioned therein, and it would operate prospectively and not retrospectively. But the provisions of sections 196, 197, and 199 of the Contract Act, are an exception to general rule wherein the principal has been given an option to ratify an act not expressly conferred on the agent and such ratification may be either express or implied.

9. The Honourable Supreme Court of Pakistan while interpreting the role of attorney has classified its two-aspect viz. the power to do something on behalf of the principal which is generally beneficial to him and the power to exercise the discretion depriving the principal of his right to his assets, properties, etc. Part of the power of attorney which tends to the accretion of the right to the properties and assets to the principal may not be interpreted in stringent terms. Where the attorney has given the power to do all the things on behalf of the principal, such attorney cannot be deprived of the power to file suit or appeal on behalf of his principal. The Honourable Supreme Court of Pakistan in Qadir Bakhsh and 10 others v. Kh.Nazam-ud-Din Khan and 4 others (2001 SCMR 1091) held as under: - Generally, in interpreting the power of attorney, it is ignored that it has two aspects: (i) the power to do something on behalf of the principal which is generally beneficial to him and (ii) the power to exercise the discretion depriving the principal of his right to his assets, properties etc. The part of the power of attorney which tends to accretion of the rights to the proprieties and assets to the principal may not be interpreted in stringent terms for instance to file a suit or appeal as has been clearly laid down in the power of attorney in the instant case authorizing the attorney to file suit/action either civil or criminal or to defend them if filed against the principal and to peruse it from the lower Court to the High Court. In the instant case the attorney has been authorized even to sell, bequeath the immovable property of the pre-emptors. Such a right tends to deprive the principal of his valuable rights in the immovable property. If the attorney has been given that much power there is no earthly reason as to why he should be deemed to be deprived of the power to file suit or appeal on behalf of his principal.

10. The obvious question is as to whether in absence of specific authority to institute the suit, the notification of the actions of attorney can validate the institution of the suit or not. When a person is authorized by the principal to act as his attorney or agent in respect of suits with regard to his property and the scope of such authority is described in an instrument, any incidental action of such attorney or agent is binding on the principal only when he accepts, acknowledges or undertakes by ratifying the same. Section 196 of the Contract Act, 1872 deals with ratification which is as under: -

196. Right of person as to acts done for him without his authority. Effect of ratification. Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority. Section 197 states that ratification may be expressed or implied, which reads as under: -

197. Ratification may be expressed or implied. Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done . Ratification can either be expressed or implied and once such acts of the agent are rectified by the principal same would be validated for all legal purposes and would bind the principal and would have the same effect as done or performed by the principal himself. In Messrs First Dawood Investment Bank s1 case it was observed that under section 196 and 197 of the Act ibid, where acts are done by one person on behalf of another, but without his knowledge or authority , he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as it, all those acts had been performed by his authority. Such ratification may be expressed or implied in the conduct of the person on whose behalf the acts have been done. For and in view of this legal position, even a suit if, filed by a person having no authority then too, the principal can, later on, ratify the defect, if any. In Sahibzada2 Anwar Hamid s case, this court held that unless the principal gives notice of his dissent to the unauthorized act of the agent within a reasonable time it raises the presumption of ratifications. In Khyam Film s3 case, it was observed by this court that whether a person did or did not have authority can effectively be challenged only by the principal, and when despite objections relating to the authority of an attorney, the principal continues to recognize the authority of the agent to institute the suit, it was held, this would amount to ratification and the suit would still be a validly instituted suit. This Court while dealing with a similar type of situation held that a defect in the authority of an agent is a mere irregularity which can be cured. In Sana Ullah s case,4 this Court while relying upon Ramasay s5 case whereby section 197 of Act ibid was interpreted held that in the case of an agent exceeding his authority ratification may be implied from the mere silence or acquiescence of principal . In Muhammad Munshi s6 case, it was observed that when an agent acts on behalf of the principal, even though he is not authorized in the prescribed manner for acting as such at the relevant time, the principal is vested with the authority to ratify the act of his agent with retrospectively. This Court in ABDUL MOMIN s7 case it was held as under: - No opportunity was provided to the petitioner to get rectified the defect if any. Defect in authority of an agent is a mere irregularity which can be cured, thus, lapse does not entail such drastic penalty as dismissal of appeal.

11. Plaintiff No.2 namely Nadeem Ahmad never objected to the action taken by his special attorney. His long silence for such a considerable time also amounts to ratification of the acts which has been taken by his agent. Anyway, the agent has taken all the steps such as the institution of the suit which were for beneficent to the principal as he instituted the suit for possession of a plot which was allegedly illegally occupied by the respondents/defendants. Plaintiff No.2 Nadeem Ahmad has the right to rectify the acts of his special attorney Muhammad Tariq by giving an affidavit or fresh special power of attorney.

12. For the foregoing reasons, the impugned judgment and decree are not in consonance with the law on this account. Consequently, this revision petition is allowed. The impugned judgment and decree dated 23.11.2018 passed by lower appellate court is, hereby, is set-aside. Resultantly the appeal of the respondents shall be deemed to be pending before the learned lower appellate court which shall proceed to decide the matter in accordance with the law. No order as to costs. ZH/N-3/L Order accordingly. 1 Messrs First Dawood Investment Bank Limited through Authorized Officer/Attonrey v. Mst. Anjum Saleem and 3 others (2016 CLD 920 [Sindh] 2 Sahibzada Anwar Hamid v. Messrs Topworth Investments (MACAU) Ltd., through Chairman and 5 others (2003 YLR 2843) 3 Khyam Films and another v. Bank of Bahawalpur Ltd. (1982 CLC 1275) 4 Sana Ullah and 17 others v. Muhammad Rafique and 10 others (2003 CLC 138) 5 Ramasay Chatty v. Karuppan Chetty and others (AIR 1916 Mad 1133) 6 Muhammad Munshi and another v. Mst. Rakiya Bi (1990 CLC 301)[Azad J&K High Court] 7 Abdul Momin through General Attorney v. Mst. Haleema Saadia and 2 others (2007 CLC 760)