1995 PLP 1541 (CLC)

8. The learned counsel for the appellant on the basis of words used and underlined by us in the later part of para. 7 "and to give such notices and institute any action or other legal proceedings necessary to preserve my rights and property and to defend all actions or other legal proceedings that may be brought against me in connection with such property", vehemently contended that the attorney was possessed with the power of instituting the proceedings and to defend any action that may be brought against the executant.

9. But in our considered view these words are not to be read in isolation with other words; rather they are to be read with the First part of para. No. 7 and underlined by us "for me in my name to purchase take on lease or otherwise acquire any land or property or for that purpose".

10. Reading para No. 7 as a whole, we have come to the conclusion that this para. authorises the attorney to purchase take on lease or otherwise acquire land or property in the name of principal and to institute any action of other legal proceedings necessary to preserve his rights in the property and to defend all actions that may be brought against the executant in connection with such property. Obviously no power vests in the attorney to institute any legal proceedings with regard to the suit land on the. strength of the power contained in recital No. 7 of the attorney.

11. The general rule of construction is that powers of attorney must be constructed strictly as giving only such authority as those confer expressly or by necessary implication.

12. In `Jiwibai v. Ramkuwar Shriniwas Murarka Agarwala' (AIR 1947 lag. 17), it was observed as follows:‑‑ "A power of attorney is subjected to strict interpretation because it delegates powers which are to be interpreted m strict terms and in such a way, as would be necessary to carry into effect the authority that is expressly given. The power of attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instructions in commercial transaction."

13. In case reported as 'Muhammad Afsar Khan and another v. Khadim Hussain and others' (PLD 1978 SC (AJ&K) 143) it was opined that:‑‑ "A power of attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is 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 powers 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."

14. In case reported as `Gul Taj Begum v. Lai Hussain and another' (PLD 1980 SC (AJ&K) 60, it was observed as under:‑‑ "Order III, rule 2‑‑Power of attorney‑‑To be construed strictly and be so interpreted as to give only such authority as it confers expressly or by necessary implication‑‑‑Important rule for construction of such a document: regard must be had to recitals which as showing object of power would control all general terms in operative part of instrument."

15. Respectfully following the principle laid down in the aforesaid judicial pronouncements we hold that the power of attorney Exh. PA relied by the learned counsel for the appellant does not empower or authorise the attorney to institute the suit with regard to the suit land. The power of attorney is couched in such clear terms that the appellant cannot get out of its mischief. So, the logical and legitimate conclusion is that the attorney was not competent to institute the suit.

16. The next question that comes for consideration is as to whether any presumption can be drawn with regard to the execution of the power of attorney. It was held by the learned Judge in the High Court that the document does not conform to the requirements laid down is section 95 of Qanoon‑e -Shahadat.

17. We have carefully gone through the power of attorney. It has not been authenticated by any of the authorities mentioned in the section i.e. Notary Public, any Court, Judge, Magistrate, (Pakistan) Cousul or Vice‑Consul. Moreover, the power of attorney does not fulfil the requirements as provided under sections 32 and 33 of the Registration Act.

18. Section 32 of the Registration Act reads as under:‑‑ "Except in the cases mentioned in section 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented‑‑ (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assignee of such person, or (c) by the agent of such person, representative or assignee, duly authorized by power of attorney executed and authenticated in manner hereinafter mentioned. The next relevant section is section 33 which is also reproduced:‑‑ "33.‑‑(1) For the purposes of section 32, the following power of attorney shall alone be recognized, namely:‑‑_ (a) ..... ...... ..... (b) ..... ...... ..... (c) if the principal at the time aforesaid does not reside in (Pakistan), power of attorney executed before and authenticated by a Notary Public,, or any Court, Judge, Magistrate (Pakistan) Consul or Vice‑Consul or representative of the Federal Government: Provided (ii) .......... ..... ...... ..... (iii) .......... ..... ...... ..... (2) . ........................................................ (3) .................................. (4) ........................... In view of the abovementioned provisions it becomes absolutely clear that in the absence of such authentication by any of the authorities referred in section 95 of Qaunoon‑e‑Shahadat and sections 32 and 33 of the Registration Act the power of attorney cannot be relied upon, as 'no presumption can be drawn with respect to the due execution of the document. Our aforesaid view is fortified by the authority `Qurban Hussain and 2 others v. Hukam Dad' (PLD 1984 SC (AJ&K) 157), wherein it was observed:‑‑ "Power of attorney‑‑Validity‑‑Power of attorney for purposes of its validity, must not only be authenticated by any of persons mentioned in cls. (a), (b) & (c) of S: 33 (1), of the Registration Act, but must also be `executed before' such person or authority." The learned counsel for the appellant, as said earlier took strong objection that the point with regard to the validity or the very competence to file the suit on the basis of power of attorney was not taken specifically in the written statement so it cannot be allowed to be raised for the first time in the High Court. We regret that this assertion of the learned counsel cannot be accepted. In our view the point being. purely legal can be agitated for the first time even in the Supreme Court. It has been held by this Court in numerous cases that a legal point which does not need detailed inquiry can be raised for the first time even in the Supreme Court. So, we hereby repeal this objection.

19. The last and final point of controversy which requires resolution is whether the subsequent power‑of attorney purported to have been executed on April 20, 1988 ratifies the initial proceedings conducted by the attorney. The learned Judge in the High Court opined that since the subsequent power of attorney was produced for the first time in the Court of District Judge so no explicit reliance can be' placed on the subsequent power of attorney. In our view this itself is no ground for discarding the subsequent power of attorney but at the same time it may be emphasised that a power of attorney only gives that power which is specifically mentioned in it and it operates prospectively and not retrospectively.

20. Order 111, rule 1, C.P.C. postulates that a party to a suit or proceedings may either appear or act himself or through recognized agent or pleader in the Court. Again rule 2 provides that recognized agent is a person who holds power of attorney to appear and act in the Court. 20‑A. In the instant case, there is no doubt in our mind, that at the time of institution of the suit, Muhammad Yunus, the attorney had no authority to institute the suit on behalf of Muhammad Meharban as he was not as recognized agent under law. So the subsequent power of attorney in no way ratifies the previous unauthorised acts.

21. The High Court in our view rightly reached the conclusion that in case the suit was held to be not maintainable by the Sub‑Judge, he should not have decided the other issues. However, we do not see any wisdom to remand the case to the trial Court. , 22.' We have carefully gone through the authorities cited by the learned counsel for the appellants. 1n our view they have no bearing on the facts of the present case and the principles enunciated therein are totally different and not applicable to the facts of the present case.

23. Thus, we have come to a definite conclusion that the suit for possession filed by Muhammad Yunus as attorney for Muhammad Maharban was non‑existent in the eye of law. It shall be deemed not to have been instituted at all. The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed, leaving the parties to bear their own costs. Since we have decided the appeal purely on technical grounds the appellant‑plaintiff may file a fresh suit if so advised. AA./68/SC (AJ&K) Appeal dismissed.