1995 PLP 1572 (CLC)

8. The proposition also came under consideration before the Supreme Court of Pakistan in a case titled 'Malik Riaz Ahmed v. Main Inayatullah' (1992 SCMR 1488) wherein it was laid down:‑‑ "S.

214. Agent is obliged to communicate with his principal and obtain his instructions in cases of difficulty. Determination whether a particular case would be covered by expression "cases of difficulty" depends upon facts and circumstances of each case. Held: In present case, agent ought to have sought instructions and communicated with his principals. A power of attorney has to be construed strictly. In cases of doubt and ambiguity, it should be construed for benefit of executant."

9. In another case titled `Fida Muhammad v. Pir Muhammad & others (PLD 1985‑SC 341), it was observed: "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."

10. Keeping in view the law discussed above, it can safely be concluded that Talib Hussain, attorney had no competence to withdraw the suit. My reasons are:‑‑ (i) that the power of attorney executed in favour of Talib Hussain did not contain a specific. clause to withdraw the suit; (ii) that a critical survey of the whole document reveals that the executant never intended to give any power to his attorney with regard to the withdrawal of the suit; (iii) that the executant of the document mistrusted the attorney (Talib Hussain) and thus executed a new power of attorney in favour of one Muhammad Munshi; (iv) that the power of attorney executed in favour of Muhammad Munshi, also contains a clause that Muhammad Munshi has been appointed as attorney in place of Talib Hussain, attorney which further supports the fact of mistrust on Talib Hussain; (v) that Talib Hussain never appeared in the Court on behalf of the plaintiff respondent on any date of hearing except the day when the suit was withdrawn; (vi) that the suit was withdrawn on a date when it was not fixed for hearing; (vii) that the plaintiff respondent has been constantly pursuing her cause of making allegation of connivance with the opposite party, against her attorney; (viii) that the attorney in the circumstances, keeping in view the recitals of the power of attorney, was obliged to communicate with the principal. Failure to do so, creates serious doubts; and (ix) that the word `Razinama` used in the power of attorney does not give meaning of withdrawal in the context. 11 Next, the question arises as to whether the application to set aside the proceedings of withdrawal taken by the trial Judge, lies with the trial Court for the restoration of the suit or the order is appealable. It may be mentioned that it depends upon the grievance which decides the question. The case like the one in :hand attracts the inherent powers of the Court which proceeded to record withdrawal order. Reliance is placed on Agha Abdul Qayum's case (1982 C'LC 547) wherein it was Held:‑‑ "‑‑O.XLVII, R. 1 read with S. 151‑‑‑Judgment based on compromise where all parties not consenting‑‑‑A case of fraud played upon Court‑‑‑Held, can be. recalled by Court in same proceedings in exercise of inherent jurisdiction by appellate or revisional Court." In another case titled `Evacuee Trust Property Board v. Sh. Hameed Elahi` (PLD 1 981 SC 108), the following observations were made:‑‑ "‑‑‑

0. XVI, R.6 read with OX, R. 2‑‑‑Interpretation of statutes‑‑ Appeal‑‑Ex party hearing‑‑‑Mistake of Court‑‑Power to rehear‑‑‑Bar to rehearing of case‑‑‑Attracted only in‑ event of case having been validly adjudicated‑‑Appeal heard ex parte on account of a mistake of Court‑‑‑Not validly adjudicated‑‑‑Power to rehear such appeal, held, not barred and Court inherently empowered to make necessary, order for ends of justice or to prevent abuse of process of Court‑‑." In the case titled `Pakistan through General Manager v. Agro Marketing Corporzation` (1981 CLC 443) the proposition involved in the case also came nd'~'r cconsideration of the Lahore High Court, wherein it was observed:‑‑ ‑‑‑(vii) Civil Procedure Code (V of 1908) S. 115‑‑Code not enacted to embody express provisions to deal with every conceivable issue‑‑Code not exhaustive‑‑‑Inherent powers fairly wide to serve ends of justice‑‑ Court in absence of prohibitions deemed to possess inherent powers to do complete justice between parties according to situation arising in course of administration of justice:'

12. On the basis of above discussion, the application moved under the inherent powers before the same Court exercising the above powers for setting aside their proceedings, was correctly made before the trial Court and in the circumstances and keeping in view the nature of the order passed by the trial Court, refusing to allow the application, it was correctly preferred before the District Judge through an appeal filed by the plaintiff‑respondent is provided. It may further, be observed that this Court has ample powers to correct any patent illegality committed by any Court subordinate to it. The order passed by the trial Court being an illegality also attracts the above powers.

13. Keeping in view the facts and law discussed above, the appeal merits no consideration which is hereby dismissed with costs. A.A./65/AJ&K Appeal dismissed.