1987 PLP 1009 (SCMR)

(2) As the plaintiff is to return to her home in India she has appointed: (1) Farooq Hassan Khan, (2) Ahmad Hassan, (31 Syed Afzal Ali and (4) Syed Asif Ali, as her attorney through a registered general power of attorney dated 27‑2‑1979 who, or any one of whom, would look after her interests after her departure from Peshawar. (3) ............................................................. " During the pendency of the suit, however, Tasnimuddin Khattak, respondent No.6, moved an application for the withdrawal of the suit before the trial Court asserting that he held another power of attorney dated 21‑3‑1983 from Mst. Feroze Bano, which empowered him to withdraw the suit. The learned trial Court without issuing any notice to the plaintiff or to the attorneys under the first mentioned power of attorney, passed the following short order: "Plaintiff's General Attorney with her counsel present. The plaintiff do not want to persue the case. Statement of Attorney for the plaintiff on identification for learned counsel recorded. Hence as per statement I dismiss the suit of the plaintiff as withdrawn. Parties are left to bear their own costs. File be consigned after completion." The appellants challenged this order in the High Court through a Civil Revision which having been dismissed, leave to appeal was granted to examine the following questions: (1) that the power of attorney dated 2i‑3‑1983 executed by the petitioner No. l in favour of the sixth respondent was not valid as the same was executed in India and was not attested in the Pakistan Embassy and the sixth respondent, therefore, was not competent to withdraw the suit; (2) that the registered power of attorney, dated 27‑2‑1979 having been executed by the first petitioner for consideration in favour of the second respondent and three others was irrevocable, and, therefore, the second power of attorney was otherwise of no legal effect; (3) that the suit was allowed to be withdrawn and dismissed by the learned trial Court without applying his mind to the facts and circumstances of the case; (4) that no notice of withdrawal application was given to the petitioner No.2 and other co‑attorneys of the first petitioner although such endorsement appeared on the back of the plaint itself; (5) the finding of the High Court that the petitioner No.2 was not competent to file the revision application on behalf of the first petitioner or himself was not legally correct." After hearing the learned counsel for both the sides it has been decided to remand the case to the trial Court on a short question, therefore, it would not be necessary nor advisable to examine the other questions on which leave to appeal was granted or the controversies involved in the litigation except the point: whether the suit could be dismissed on the application of the attorney acting under the alleged second power of attorney without issuing notice to the principal, namely, Mst. Feroze Bano, and the attorneys under the first power of attorney. In so far as the first power of attorney is concerned the stand of the learned counsel for the respondents is that it stood cancelled by the second power of attorney. Be that as it may, its existence is not much in dispute. It also, as noted earlier, finds mention in the plaint itself. The plea of the learned counsel that it was not placed on the file of the trial Court along with the plaint is not of much force because at that time the occasion for its use had not arisen‑‑the suit was being filed by the plaintiff herself. She in the NOTE reproduced above, had indicated that the power of attorney would be made use of by the attorneys for the prosecution of the suit. It is an admitted position that the suit was dismissed as withdrawn by the learned trial Court without issuing notice to the plaintiff or the attorneys under the first power of attorney. The question arises whether such an order is permissible under the law? It appears that the order of the trial Court was passed on the back of the appellants without their knowledge. Had they or their representative would have been present they would have brought the existence and the contents of the power of attorney to the notice of the Court; and if the Court would have noticed the first power of attorney, it would have certainly examined the various questions with regard thereto, including, the question whether it was irrevocable and whether it conferred any rights on any of the parties which could not be taken away by a subsequent power of attorney. It is not in dispute that the suit was fixed for hearing on 19‑6‑1983 on which date the appellant‑side would have appeared but the application for withdrawal was moved on 23‑5‑1983. The statement of the applicant was recorded thereon on the same day and it was dismissed as withdrawn on the same day. This haste undoubtedly was unfortunate. The learned Judge should have paid more attention to the circumstances of the case. If he would have cared to see the plaint and the NOTES thereon he, as already noted, would have certainly seen the first power of attorney and that being so, he might not have dismissed the suit as withdrawn without at least issuing notice to the plaintiff. The same not having been done, the learned Court obviously, acted with material irregularity. Hence the revision petition before the High Court merited acceptance on this ground alone. However, there is another aspect of the matter. If Tasnimuddin when seeking the withdrawal dismissal of the suit filed by his principal or otherwise acting under the second power of attorney was doing so "on his own account" then he was required by law to seek the consent of the principal (Mst. Feroze Rano) so as to save the repudiation of his action by the principal. Otherwise too, in a "difficult" situation the agent is under a duty to consult the principal. Sections 214 and 215 of the Contract Act read as follows:‑ "

214. Agent's duty to communicate with principal.‑‑ It is the duty of an agent, in cases of difficulty, to use all reasonable diligence in communicating with his principal, and in seeking to obtain his instructions. "

215. Right of principal when agent deals on his own account in 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." This Court has, recently in Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others P L D 1985 SC 341, dealt with these provisions. Even if not directly, Tasnimuddin respondent No.6, the attorney under the second power of attorney, was indirectly but vitally interested in the dismissal of the suit because his mother. It is stated, had allegedly purchased the whole or part of the suit property. His conduct in seeking the dismissal of his principal's suit which would have benefited his mother, seen in this light, might have been held as "dealing on his own account". At least it was a case of "difficulty" visualised by section

214. Therefore, he should have sought instructions of the principal obtained independently of controvertial power of attorney. The appellants herein thus were necessary parties in the application for withdrawal of the suit made by Tasnimuddin. Acting therefore on the principle underlying section 214 and section 215 of the Contract Act, it was necessary for the learned trial Court to have issued notice to the principal, namely, Mst. Feroze Bano, the plaintiff. Had it been done, a notice to the attorneys under the first power of attorney would also have become essential. In the light of the foregoing discussion, this appeal is allowed, the impugned judgment of the High Court as also the order of the trial Court are set aside and the case is remanded to the trial Court for further proceedings on the application of withdrawal of the suit in accordance with the foregoing discussion and the law. There shall be no order as to costs. It is clarified that nothing observed in this judgment and impugned judgment of the High Court shall influence the mind of the learned trial Court in so far as the merits of the case vis‑a‑vis the controversies involved therein are concerned. It is further observed that both the learned counsel appearing for the parties in this case agree that the best course to resolve one set of controversies (those relating to the contents and effect of the two power of attorneys) can best be resolved by examining the plaintiff /principal. M.B.A./F‑8/S. Appeal allowed.