P L D 2000 Lahore 168 (PLP)

R.F.A. 95 of 1992 in respect of which these applications have been filed arose out of a suit filed by Ghulam Shah against Syed Nizarn Ali, Syed Muhammad Abbas, Syed All‑i‑Muhammad (appellants in R.F.A. NO‑95 of 1992) and Mst. Shah Zamani. The suit was decreed in favour of Ghulam Shah on 11‑2‑1992 by the Civil Judge Ist Class, Wazirabad, whereupon the aforesaid appellants filed R.F.A. 95 of 1992. During the pendency of the. appeal, C.M. No.2‑C of 1997 was filed wherein it was stated that Ghulam Shah (respondent No. I in R.F. A. 95 of 1992) had died during the pendency of the appeal. A prayer was made to bring on record the legal representatives of Ghuh ' un Shah namely, Syed Haider Abbas, Syed Safdar Abbas, Syed Ali Abbas and Syed Akhtar Abbas, 7bIs application was allowed vide order dated 22‑9‑1997. Thereafter, an application being C.M. 3‑C of 1997 was filed In Court under Order 23, rule 3, C.P.C. 7be application was signed by the three appellants and by Syed Muhammad Ali Abidi a purported general attorney of the above‑named legal representatives of Ghulam Shah respondent No.

1. The application prayed for the acceptance of R.F.A. 95 of 1992 in terms of the compromise recorded therein. The salient feature of the compromise was that Syed Nizain Ali, appellant No. I was to be declared the lawful owner of the properties listed in paragraph No.2 of C.M. N0.3‑C of 1997 which were subject‑matter of R.F.A. No.95 of 1992. The respondent as well as appellants Nos.2 and 3 surrendered their, entire claim and right in the aforesaid properties in favour of Syed Nizarn Ali appellant No. 1.

2. R.F.A. No.95 of 1992 was disposed of on the basis of the compromise and prayer contained in C.M. No.3‑C of 1997 vide order dated 28‑10‑1997 passed by a Division Bench of this Court comprised of Mr. Justice Munir A. Sheikh and Mr. Justice Dr. Munir Ahmad Mughal. Before passing the aforesaid order the Court recorded the statement of Syed Nizain Ali appellant No.1, Syed Muhammad Ali Abidi as general attorney of the four legal representatives of Ghulam Shah and the statement of Mian Rafaqa Ali, counsel for the appellants Nos. 1, 2 and

3. By means of the order, dated 28‑10‑1997 the R.F.A. 95 of 1992 was accepted and the judgment and decree dated 11‑2‑1992 passed by' the trial Court was modified. As a result a decree was passed in favour of Syed Nizam Ali appellant No. I to the effect that he was declared owner in possession of the entire suit property and one house in Gujrat (mentioned in paragraph No.2 of the order dated 28‑10 1997) to the exclusion of the other parties to the appeal

3. Ejaz Ahmad son of Muhammad Shafi has now filed an application being C.M. No.10‑C of 1998 under section 12(2), C.P.C. praying that the compromise recorded on 28‑10‑1997 be set aside and the appeal (R.F.A.. No.95 of 1992) be decided on merits. A similar application being C.M. No.2‑C of 1999 has been filed by Sh. Muhammad Amin with a prayer to the same effect as in C.M. No. 10‑C of 1998.

4. Both Ijaz Ahmad and Sh. Muhammad Amin claim to have an interest in different portions of the property described in paragraph No.2 of this Court's order dated 28‑10‑1997. Ijaz Ahmed claims to have acquired title to a portion of the aforesaid property from Ghulam Shah through his general attorney Sh. Muhammad Iqbal. The applicant in C.M.No.2‑C of 1999 namely, Sh. Muhammad Amin claims that Ghulam Shah's attorney has executed an agreement to sell in his favour in respect of other properties decreed in favour of Ghulam Shah which are mentioned in paragraph No.2 of the order dated 28‑10‑1997.

5. Both the applicants have alleged that the purported compromise between the parties to the appeal was collusive, fraudulent and unauthorised. Various grounds have been set out in their applications to support their respective contentions. A joint reply has been filed to C.M. No. 10‑C of 1998 by Syed Nizam Ali , Syed Muhammad Abbas and Syed All‑i‑Muhammad who were the appellants in R.F.A. No.95 of 1992. No reply, however, appears to have been filed to C.M. No.2‑C of 1999 but learned counsel for the parties have been heard.

6. Out of the various grounds mentioned in the two applications filed respectively by Ijaz Ahmed and Sh. Muhammad Amin only two grounds relating to the authorities of Syed Muharrunad Ali Abidi will suffice for the purpose of disposing of C.M. No. 10‑C of 1998 and C.M. No.2‑C of 1999.‑

7. Syed Muhammad Ali Abidi, who claimed to be the general attorney of Syed Haider Abbas, Syed Safda‑ Abbas, Syed Ali Abbas and Syed Akhtar Abbas, made a statement on their on behalf whereby their entire rights and interest in the appeal as also the propel0i subject‑matter of the appeal were surrendered hi favour of Syed Nizam Ali appellant No.l. The basis of the authority of Syed Muhammad Ali Abidi is a power of attorney dated 19‑10‑1995 executed at Amroba, District Muradabad, U.P., India. It bears the attestation of a Consular functionary of the High Commission of Pakistan in New Delhi.

8. The contents of the power of attorney are relevant. It is significant that the powers delegated to Syed Muhammad Ali Abidi, inter alia, authorize him to take care of and preserve the property specified in the power of attorney, the Urdu word used being The attorney is further authorised to file suit etc., before any Civil or Criminal Court and to enter into a compromise " " with any person. The applicants Ijaz Ahmad and Sh. Muhammad Amin have contended that the wording of the power of attorney did not authorise the attorney to surrender and relinquish the entire right, title and interest of his principals in the appeal and in the properties which were subject‑matter of the litigation between Syed Nizam Ali etc., appellants and Ghulam Shah respondent No.l.

9. The generally accepted and well‑recongized principle for interpreting powers of attorney is that the contents thereof should be strictly I construed. No power or authorisation should be read into a power of attorney which is not expressly set out therein. If any authority is required for this well‑settled proposition of law, the cases of Muhammad Hussain v. Bashir Ahmed PLD 1987 Lah. 392; Haji Mitha Khan v. Mst. Nafees Begum and others 1995 CLC 896 and Muhammad Mehrban v. Sadruddin and another 1995 CLC 1541 may be referred to additionally, it may be noted, a power of attorney crates a fiduciary relationship between attorney and principal which requires the attorney to act in the best interest of the principal. A party dealing with an attorney would, therefore, be imputed notice of this fiduciary overlay on an attorney's authority.

10. It is evident from the power of attorney available on record that Syed Muhammad Ali Abidi was required to take care of the property. His right to enter into a compromise with any person was only incidental to the aforesaid power. Even otherwise, the power to compromise does not by any stretch of reasoning, include the power to surrender or relinquish rights without any quid pro quo. A power to surrender or relinquish could only have been expressly delegated by use of the word "DASTBARDAR" or some other term synonymous therewith which would unambiguously define the extent of the attorney's authority. The so‑called compromise, which was contained in C.M. No.3‑C of 1997 and which was then incorporated in the order dated 28‑10‑1997 was not a compromise, but a complete surrender and relinquishment of the rights of Syed Haider Abbas etc. The purported compromise was also violative of the main objective of the power of attorney whereby Syed Muhammad Ali Abidi was authorised to take care of and protect the property on behalf of his principals. Even otherwise, Syed Nizam Ali could not be the beneficiary of an agreement, which on its face, was unconscionably disadvantageous to Haider Abbas etc. knowing fully well the fiduciary capacity in which Syed Muhammad Ali Abidi was purporting to act and the limitations inhering in the said attorney as a result of such capacity.

11. In view of the aforesaid discussion, it is clear that Syed Muhammad Ali Abidi had no authority to accept the terms recorded in C.M. No.3‑C of 1997 or to make the statement which he made in Court on 28‑10‑1997.

12. We have also noted from the above‑referred power of attorney that Syed Akhtar Abbas has not executed the same. The power of attorney recites that Syed Haider Abbas, Syed Safdar Abbas and Syed Ali Abbas (who are the only executants of the same) are also general attorneys of Syed Akhtar Abbas. However, there is no document on record to establish the purported agency created by Syed Akhtar Abbas in favour of Syed Haider Abbas etc., on the extent, of such authority or to show that the delegatee had any power to further sub‑delegate any of the powers granted to them. ' It is, therefore, clear from the record that Syed Muhammad Ali Abidi had no authority, whatsoever, on behalf of Syed Akhtar Abbas, either to submit an application or to record a compromise on his behalf.

13. In view of the foregoing discussion, it is evident that the learned Bench, which passed' the order dated 28‑10‑1997, was misled by misrepresentations made by the parties before the Court. Ijaz Ahmed, as successor‑in‑interest of Ghulam Shah, claims a vested right in the suit property even though such interest may be hit by the rule of lis pendens if C the appeal is decided against Ghulam Shah his predecessor‑in‑interest. On this basis he would be entitled to maintain the present application under section 12(2), C.P.C. to prevent him being deprived of his rights in the suit property otherwise than on the basis of a decision of R.F.A. No.95 of 1992 on merits. Sh. Muhammad Amin would have a similar right although his title has not crystallised.

14. Syed Nizarn Ali etc_ who have filed a reply to C. M. No. 10‑C of 1998, have contended that Ijaz Ahmed has obtained a collusive decree dated 26‑2‑1992 in his own favour from the Civil Court at Wazirabad in a suit filed by him against Sh. Muhammad lqbal, the general attorney of Ghularn Shah. It is contended in the said reply that Ghulam Shah had died in 1990 and with his death the agency in favour of Sh. Muhammad lqbal stood terminated. These facts may be relevant and could also provide a cause of action to Syed Nizam Ali etc., to have the said decree dated 26‑2‑1992 set aside. However, that has no bearing on the decision of the applications C.M. No. 10‑C of 1998 and C.M. No.2‑C of 1999 filed respectively by Ijaz Ahmed and Sh. Muhammad Amin.

15. In view of what has been discussed above, the aforesaid applications .are allowed, the order dated 28‑10‑1997 is set aside and the appeal is restored to its original number. However, in order to preserve the lis the parties to the appeal as well as the applicants, Ijaz Ahmed and Sh. Muhammad Amin are directed to maintain status quo in respect of the suit properties in all respects. Q.M.H./M.A.K../N‑163/L Applications allowed