1975 PLP 64 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑This petition for special leave to appeal filed by Ahmad Khan petitioner has arisen out of the judgment of the Lahore High Court, dated 28‑1‑1974, whereby Writ Petition No. 148‑R‑1974 filed by the petitioner was dismissed to limine.

2. The admitted facts of the case briefly are that the petitioner was an allottee of an evacuee Flour Mill which was transferred to him by the Additional Settlement Commissioner as an unregistered concern, vide order dated 28‑5‑1960. It was priced at Rs.. 11,742. 1 he first notice for payment of the transfer price was issued to the petitioner on 6‑5‑1965 which was repeated about four years later on 18‑4‑1969. On 29‑7‑1971, the petitioner submitted a challan for the deposit of Rs. 3,000 as the first instalment towards the payment of the transfer price. He also appears to have moved the Additional Settlement Commissioner seeking redaction of the price whereupon, vide orders dated 27‑12‑1972, he was directed to pay 50 per cent. of the transfer price as a condition precedent for the consideration of his application for reduction of price. On 19‑3‑1973, he deposited an other sum of Rs. 2,871 which inclusive of the amount already paid by him brought it to 50 per cent. of the transfer price.

3. Earlier, on 27‑8‑1969, the petitioner appointed Hafiz Abdul Aziz respondent No. 2 as his Attorney, vide power of attorney, Annexure `A', authorizing him inter alia to enter into an agreement of sale or partnership d sign, execute and complete any deed of agreement and receive the aunt under an agreement of transfer duly entered and verified by him. On 27‑2 1973 on the basis of the power of attorney respondent No. 2 exe cuted a deed of relinquishment on behalf of the petitioner in regard to the Flour Mill in question in favour of Zahoor Ahmad respondent No. 3, which is Annexure'A/1' on the record. About ten days later on 8‑3‑1973, when the bird had already flown, the petitioner cancelled the power of attorney earlier executed by him in favour of respondent No. 2 on 27‑8‑1969. This deed whereby Zahoor Ahmad respondent No. 3 stood substantiated in place of the petitioner as an associate with Abdul Aziz respondent No. 2, was approved by the Deputy Settlement Commissioner, vide order date 22‑6‑1973 in the absence of the petitioner, presumably on the basis of the original power of attorney. On 6‑11‑1973, after bearing the parties and perusing the report of the Deputy Settlement Commissioner, submitted on a reference by him, the Settlement Commissioner upheld the validity of the deed of relinquishment/association.

4. Feeling aggrieved, the petitioner invoked the writ jurisdiction of the High Court and having failed, has now moved this petition for Leave to Appeal.

5. Learned counsel contends before us, Firstly, that the order of the Deputy Settlement Commissioner, dated 22‑6‑1973, which formed the basis of the subsequent order was passed ex parte in the absence of the peti tioner and without giving him an opportunity of being heard. Secondly, that the fact of the cancellation of power of attorney earlier executed by the petitioner in favour of respondent No. 2 stood already communicated to the Deputy Settlement Commissioner on 12'‑3‑1973 and therefore, he acted illegally in allowing the deed of association behind the back of the petitioner. Lastly, that the Settlement Commissioner who earlier in his capacity as Additional Settlement Commissioner had called for the report of the Deputy Settlement Commissioner on the petitioner's application had also erred in law in upholding the validity of the deed of association.

6. Having considered the contentions raised by the learned counsel, we find that they are rather irrelevant and devoid of substance. The crux of the matter is that on 27‑2‑1973, when respondent No. 2 in his capacity as attorney of the petitioner had executed the deed of relinquishment in favour of respondent No. 3, he had the requisite authority to do so on the basis of the power of attorney executed by the petitioner in his favour on 27‑8‑1969 which was quite valid till its cancellation on 8‑3‑1973: Having unsuccessfully challenged before the Settlement Commissioner the correctness of 27th February 1973 as the date of execution of the deed of relinquish ment learned counsel in vain tried to reagitate before us this question of fact which stood concluded. Even, otherwise, he could not show that the finding was based on misreading of evidence.

7. The points raised by him before the learned Judge‑in‑Chamber were duly considered and tightly overruled for good reasons. The power of attorney executed by the petitioner in favour of respondent No. 2 remained valid from 27‑8‑1969, the date of execution, to 8‑3‑1973, the date of its cancellation. The validity of anything done by respondent No. 2 during this period on the basis of the power of attorney remains unquestionable. It is not the petitioner's case that the power of attorney was a forgery and as such was void ab initio. No fault can, therefore, be found with the view taken by the learned Judge‑in‑Chamber. The authority relied upon by the petitioner P L D 1973 S C page 34 does not lay down an absolute and inflexible rule regardless of the circumstances of each case and proceeds on distinguishable facts.

8. The petition, therefore, fair and is hereby dismissed. Petition dismissed.