2006 PLP 1827 (CLC)

SYED HAMID ALI SHAH, J.

Petitioner filed a suit for specific performance of agreement dated 6-4-1964, on 8-12-1975. Respondents contested the suit through filing the written statement, controverted therein the assertions of the plaint. Learned trial Court framed eight issues, out of divergent pleadings of the parties. The evidence was led and case was argued thereafter learned trial Court vide judgment and decree, dated 2-5-1987, dismissed the suit on the grounds that plaint was not verified in accordance with law; suit was barred by limitation and also barred by principles of estoppel. The appeal of the petitioner, met the fate of dismissal on 10-4-1996, whereby it was held that the petitioner has not performed his part of contract qua the expenses incurred on litigation. The findings of two Courts below have been assailed through the instant revision petition.

2. Learned counsel for the petitioner has contended that respondent No.1 has denied the execution of the agreement and no plea was raised in written statement that the petitioner has failed to fulfill his promise under the agreement. He added that learned Appellate Court has proceeded to decide the matters on the premises, which were alien and not agitated before the Courts below. Impugned judgment of the learned Appellate Court is self-contradictory. It was contended that issues Nos.4, 5 and 6 were decided in favour of the petitioner. Neither any appeal, nor cross-objections were preferred in this respect. The findings of the trial Court to the extent of these issues have attained finality. The impugned judgment of learned Appellate Court is on the issues which are beyond the pleadings of the party. He has submitted that Courts have failed to treat the question of limitation in accordance with the law. Learned trial Court has held that suit is barred by limitation but the learned Appellate Court reversed the finding on this particular issue. Learned Appellate Court when reached the conclusion that suit was within time, then question of estoppel does not arise. The judgment of learned Appellate Court is self-contradictory.

3. Learned counsel for the respondents, on the other hand, has supported the impugned judgments and decrees. He has submitted that Exh.P.3 is registered document, wherein the principal/respondent No.1, has appointed Muhammad Siddique as her attorney in respect of land situated in Raiwind. The attorney was not authorized to sell the land at village Pipply Wala District Gujranwala. The agreement to sell i.e. Exh.P.3 relates to land situate? at Pipply Wala for which the attorney had no authority. It was further contended by the learned counsel that suit of the plaintiff was barred by limitation and issue of estoppel was rightly decided in favour of the appellant.

4. I have heard the learned counsel for the parties and perused the material available on the record.

5. Admittedly, the agreement to sell (Exh.P.1) dated 6-4-1964 was executed by attorney/husband Muhammad Siddique being attorney of respondent No.1. The authority statedly conferred on the attorney was through general power of attorney dated 3-8-1961 registered as document No.822 (Exh.P.3). Respondent No.1, in her written statement had denied that Muhammad Siddique was ever constituted as attorney with regard to the suit-land. Respondent No.1 has asserted this fact in preliminary objection No.1 and also in reply to para. No.2, on merit. Issue No.4 was framed to this effect, which is reproduced as under:-- "Whether Muhammad Siddique is duly constituted attorney of Batool Begum, defendant No.1?" Learned trial Court decided this issue in favour of the plaintiff/petitioner on the score that general power of attorney, duly registered at Serial No.822 dated 7-8-1961, has been produced in evidence as Exh.P.3 and there is no rebuttal to the same. Learned Court has decided this issue without examining the contents of the document. Recital of Exh.P.3 reveals that Mst. Batool Begum has appointed Muhammad Siddiquc as her attorney in respect of land situated in Raiwind. Relevant portion is reproduced as under:-- The above recital of the document i.e. general power of attorney, restricts the authority of attorney regarding her land in village Raiwind only. It is settled law that authority conferred by principle on his agent, must be construed strictly and nothing is to be imported to give a different meaning to phraseology, than the word used. Reference in this respect can be made to the case of Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC

341. Additionally, the Honourable Supreme Court of Pakistan in the case of Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 has held that power of attorney must be strictly construed and proved and further the object and scope of power of attorney must be seen in the light of its' recital to ascertain manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. Viewing the power of attorney Exh.P.3 in the light of above judgments of the apex Court, no power has been conferred on the attorney to sell the property of respondent No.1, situated in village Pipply Wala, District Gujranwala. The sale in question, through Muhammad Siddique on the basis of Exh.P.3 is without any authority and is void, as such. The finding of learned trial Court on Issue No.4 are erroneous and legally not sustainable.

6. Learned trial Court has decided Issue No.4 in favour of the petitioner and against respondent No.1. Respondents have not assailed, the finding on Issue No.4, in appeal. Nor an exception to this finding has been taken, through filing the cross-objections. The question now arises that can such finding of the Court, be reversed at this stage. The scope of revision under section 115 is not limited and entire proceedings from C the stage of institution of suit, up to the impugned order, are open to revision. The law is settled and in this regard cases of Muhammad Aslam and another v. Munshi Muhammad Behram and another 1991 SCMR 1971 and Riyasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 can be referred. Further while deciding a revision petition under section 115 of Civil Procedure Code, once the Court assumes D jurisdiction, it may make any order that circumstances of the case may warrant. This enunciation of law finds support from the cases of Zakirullh Khan and others v. Faizullah Khan and others 1999 SCMR 971; Mst. Gumbad and others v. Member, Board of Revenue and others 1996 SCMR 1755; Muhammad Mian v. Syed Shamimullah and 2 others 1995 SCMR 69 and Atta Muhammad v. Muhammad Bakhsh and another PLD 2004 Lab. 300.

7. Coming to the judgment of learned Appellate Court, the Court has dealt with the question of non-performance of agreement and applicability of principle of estoppel, in accordance with law. No illegality or infirmity is seen. The defect of improper verification of the plaint was not cured. Despite an objection to this effect, no effort was made to amend the plaint. The impugned judgments do not call for interference. The agreement arrived at through invalid authority and by an unauthorized person is a void agreement, which cannot be enforced.

8. In view of the aforesaid conclusion, the petition in hand, has no merit and the same is dismissed accordingly. F.B./A-152/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.