P L D 1954 Peshawar 61 (PLP)

MUHAMMAD SHAFI, J.‑‑Fazal Rahman, son of Ghulam Hussain, instituted a suit for a declaration against Mst. Mohammdi Jan, her father Amir Khan, and her mother Mst. Pari, that Mst. Mohammdi Jan was his legally wedded wife, and that he could compel her to live with him as a wife, and also for a permanent injunction against her parents that they should not prevent her from living with him as his wife. On 27th August, 1952, Mst. Mohammdi Jan defendant No. 1 executed a special power of attorney in favour of her father to the following effect:‑‑ "I am a woman and the distance is long, and, therefore, it is not possible for me to appear in person, and prosecute the case. I, therefore, appoint my father Amir Khan, resident of Doga, as my special attorney, and authorise Amir Khan to appear on my behalf and prosecute and give reply in the case (noted in the heading), make a statement on my behalf, produce the evidence compromise the case, appoint a lawyer or any other special attorney, make all sorts of application, and in case of necessity to file an appeal on my behalf and conduct it, or if an appeal is filed against me to conduct it on my behlaf. In short, the above men tioned gentleman has authority to conduct all proceedings in the case on my behalf, and I shall be bound by all what he does." On 4th December, 1952, Fazal Rahman plaintiff and Amir Khan acting on his own behalf and on behalf of his daughter Mst Mohammdi Jan referred all the matters in difference between then: in the suit to the arbitration of Sahibzada Maulvi Muhammad Ishaq. It was written in this reference to arbitration that the parties shall be bound by the award of Maulvi Muhammad Ishaq and nobody would object to it. The arbitrator gave his award, which was against Mst. Mohammdi Jan. Objections were raised against this award on behalf of the defendants, and were thumb- marked by Amir Khan on his own behalf and on behalf of the other defendants. On the 19th of March 1953, MO. Mohammdi Jan made an application directly without the intervention of bet recognized agent, saying that she was no party to the contract of reference to arbitration, and was, therefore, not bound by the award. The learned Senior Sub‑Judge Hazara, held that since Mst. Mohammdi Jan had not specifically authorized her father to refer the matter in difference to arbitration, the latter was not competent to do so, and therefore, an award made on a reference made by him was not binding on Mst. Mohammdi Jan. He consequently set aside the award. There was an appeal against this order, which was accepted by the learned District Judge Hazara on 26th August, 1953, who accepted the award and passed a decree in accordance therewith. Mst. Mohammdi Jan has come up in revision to this Court. The learned counsel for the plaintiff‑respondent took a preliminary objection that the revision was not competent, because a further appeal lay against the order of the learned lower appellate Court, the value of the suit being Rs. 1,000, and the two, its having disagreed with each other. Under section 17 of the Arbitration Act, when a judgment is pronounced according to the award, and a decree on such judgment follows, then no appeal is competent against such decree, except on the ground that it is in excess of or riot otherwise in accordance with the award. The decree in the present case being in accordance with the award no appeal, much less a further appeal would be competent. The only remedy open to the aggrieved party is, therefore, by way of revision. The preliminary objection is consequently overruled. It is conceded and in fact it is clear from the power of attorney which has been reproduced above verbatim, that the father of Mst. Mohammdi Jan was not authorized by her specifically to refer the matter in difference to the arbitration of Maulvi Muhammad Ishaq. It is contended by the learned counsel for the plaintiff respondent that the power of attorney generally conferred all powers to act on behalf of Mst. Mohammdi Jan in the case on Amir Khan, and this included tire power to refer the matter to arbitration. So far as the proceedings in the case are concerned, they have been dealt with in very minute details in the Code of Civil Procedure. A reference to arbitration is not included, therein. It is a right which is conferred upon the parties by a separate enactment, and can under no circumstance be considered as part of the proceedings of a case pending in a Court of law. Mst. Mohammdi Jan was very particular to go into more details than it was necessary for her to do with regard to the power which she was conferring on her father. She authorized him to do certain specific acts, including the power to compromise the case. If she could empower her father to do all that, she could have also stated in this power of attorney that her father was authorized to refer the matter in difference to arbitration. She chose not to do that. Under O. 3, R. 1, C. P. C., any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent. Under O. 3, R. 2, C. P. C. the recognized agents of parties by whom such appearances, applications and acts may be made or done are the persons holding powers of attorney, authorizing them to take and do such appearances, applications and acts on behalf of such parties. Under section 21 of the Arbitration Act (X of 1940), a matter in difference between the parties can be referred to arbitration only when they agree to do so. The matter in difference can be referred to arbitration under this provision of law, read with O. 3,. Rr. 1 and 2, C. P. C. by a recognized agent, who is authorized to do this act viz., refer the Matter in difference to arbitration. A person who is authorised to act on behalf of a certain person in proceedings in a suit cannot be said by reason of that fact to be authorized to do all acts which are not in any way connected with the prosecution of the suit, but are independent of it. The position would have been somewhat different before the Arbitration Act (X of 1940) came into force, because these matters relating to arbitration were included in a schedule attached to the Civil Procedure Code. It could be said at that time with some justification that an agreement to refer the matter in difference to arbitration was a proceeding. in the case, and, therefore it could be done by a person who was authorized to do acts generally in connection with a particular suit. This position, however, in my opinion, does not hold good any longer. I consequently hold that a person generally authorized to do all acts in the proceedings of a suit is not entitled by reason of that fact to refer the matter in difference to arbitration which power if he has to exercise it must be specifically conferred upon him. It follows that Mst. Mohammdi Jan was not bound by the award at all, and the award qua her, and for the matter of that qua all the defendants is invalid, and the decree passed in accordance therewith is illegal. The result is that I accept the revision petition, set aside the order of the learned lower appellate Court, and restore that of the learned trial Court. The petitioner shall have her costs of these proceedings throughout. Pleader's fee. Re.

30. Order announced. A. H. Petition accepted.