1998 PLP 1658 (MLD)

(4) To produce or summon or receive back documentary evidence. (5) To make and file compromise or a confession of judgment and to refer the case to arbitration. (6) To deposit and withdraw any money for the purpose of any proceeding. (7) To file an application for execution of a decree or order passed in the said suit and to refer the case to arbitration. (8) To receive any money due to me under such decree or order passed in the said suit and to sign and verify such application. (9) To apply for inspection and inspect documents and records. (10) To obtain copies of the documents and papers and generally to do all other lawful acts necessary for the conduct of said case. And I hereby agree that all acts, deeds and things lawfully done by my said attorney shall be construed as acts, deeds and things done by me and I undertake to rectify and confirm all and whatsoever that my said attorney shall lawfully do or cause to be done for me by virtue of this power hereby given. In witness hereof I have signed this deed on this day of 8-12-1993: (Sd.) (Khadim Hussain), P.O. Box 564 Dubai U.A.E. National Card No.706-40-011382. Tele 218547 DB Signature of Khadim Hussain dated 8th December; 1993. " Before commenting on the powers which have been given to the attorney; let it be seen how power of attorney must be construed. In a reported case titled "Muhammad Afsar Khan v. Khadim Hussain "PLD 1978, SC (AJ&K) 145, Raja Muhammad Khurshid Khan, the then Judge expressed the view of the Court in the following words:-- "A power of attorney under Order III, rule 2, C.P.C. should be construed strictly. It gives only such authority as it confers expressly or be necessary implication and it cannot, empower beyond what it really conveys. One of the most important rules for the construction of power of attorney in that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general power but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers. " In 1980, once again the dispute arose in respect of the powers of attorney in a case titled "Gul Taj Begum v. Lal Hussain and another" PLD 1980 SC (AJ&K)

60. It was laid down that power of attorney should be construed strictly and should be interpreted to give only such authority as it confers expressly or by necessary implication, upon the attorney. Again in 1992 MLD 2407 in a case titled "Bashir Ahmad and 4 others v. Muhammad Qasim and 7 others" the same view was taken and in the light of the language implied in the power of attorney was empowered to take all the steps including filing of the appeal to higher forum (on account of words 'Courts') used in it. . Again, the Apex Court of Azad Jammua and Kashmir in a case titled Muhammad Mehrban v. Sadrud Din and another 1995 CLC 1541, laid down that the general rule of construction is that power of attorney must be construed strictly as giving only such authority as those confer expressly or be necessary implication. In the present case, the reading of the power of attorney as a whole shows that the attorney was appointed to protect the interest of the vendee respondent in respect of the land situated in village Berjah against whom same suit was filed. The powers were specifically mentioned from paras. Nos. l to 10 of the power of attorney in connection with the case of the land located in village Berjah. These powers were given to Ashiq Hussain in respect of the suit filed against him. Ashiq Hussain was not legally competent to travel beyond the powers specifically given to him by Khadim Hussain, respondent. He was competent to pursue the cause on behalf of Khadim Hussain, respondent in the Trial Court only. The appeal filed by him on behalf of Khadim Hussain, as his attorney, was beyond his legal competence. Therefore, the appeal filed before the first Appellate Court was liable to be dismissed on this short ground. Now a general power of attorney has been executed in favour of Aashiq Hussain by respondent, Khadim Hussain which was attested on March 11, 1997. In this power of attorney, he has been given authority to file an appeal, revision and review petition and conduct the same either personally or through a Counsel. But this power of attorney shall be useful in future. For the above stated reasons, while allowing this appeal with costs, the judgment and decree, dated February 20, 1997, is set aside. H.B.T./151/AJ&K Appeal Allowed.