P L D 1989 Peshawar 185 (PLP)

5. The learned counsel for the appellant inter alia contended that the very applications of the respondents were not competent inasmuch as these are not signed by respondents and bear the signature of their so‑called attorney Iftikhar Awan who was not‑then holding any power of attorney in this behalf for obvious reasons that while the applications were filed on 12‑8‑1986, the so‑called power of attorney was purportedly executed in his favour on 4‑11‑1986. He further contended that since the applicants‑respondents did not personally appear in the witness‑box in support of their applications, it cannot be said with least amount of certainty that they have ratified the past acts of their so‑called attorney for filing the applications before the Controller of Rents and to sign and verify the same. He thus maintained that once the attorney of the applicants respondents is held to be ill‑equipped to file the applications, all acts of his, prior to the execution of the so‑called power of attorney, shall stand invalidated and the applications would .not be maintainable.

6. He, therefore, urged that consequently the impugned judgments and decrees of the learned Controller of Rents in both the cases shall be held as without jurisdiction.

7. On merits the learned counsel for the appellant contended that the appellant in peculiar circumstances of the case did not commit what is called wilful default and that the requirement of the suit shops in good faith for the personal use of the respondents has not been conclusively proved from the evidence particularly when both the applicants failed to appear personally in the witness‑box to support their respective applications.

8. On the other hand the learned counsel for the applicants respondents submitted that notwithstanding the factual position qua the power of attorney, the applications cannot be allowed to fail on this score alone. On the question of default and personal requirement of shops in question by both the respondents herein, he supported the judgment of the learned Controller of Rents and reasons advanced by him in support thereof.

9. Adverting first of all to the question of maintainability of applications in the light of the fact that power of attorney purportedly executed by both the applicants (respondents herein) in both the cases in favour of Iftikhar Awan was undisputedly later in date than the filing of both the applications under the signatures of the said attorney the question that falls for determination is as to whether, in the absence of any power of attorney on the relevant date i.e. 12th of August, 1986, when, under his signatures, the two applications were filed against the appellant, the same were maintainable and further as to whether the execution of power of attorney in favour of Iftikhar Awan during the pendency of the proceedings would tantamount to ratifying the previous acts of his, the questioned authenticity of the power of attorney in both the cases notwithstanding.

10. Power of attorney is defined in subsection (21) of section 2 of the Stamp Act, 1899 as follows:‑ "2(21) Power of attorney includes any instrument (not chargeable with a fee under the law relating to court‑fees for the time being in force) empowering a specified person to act for and in the name of the person executing it." Strouds defines it as "an authority whereby one is set in turn, stead or place of another to act for him". Similarly Wharton in Law Lexicon, defines the expression as "a writing, usually but not always necessarily under seal authorising another person, who is called the attorney of the person appointing him, to do any lawful act in the stead of another, as to give seisin of lands, receive debts or sue a third person". A power of attorney authorising the agent to act generally or in more than one transactions is known as a General Power of Attorney and the one authorising the agent to act in or for specific purpose is known as Special Power of Attorney.

11. The Code of Civil Procedure also while defining the recognized agents of the parties as per Order 3 Rule 2 (ibid) refers to person, holding power of attorney as authorised to make and do appearances, applications and acts on behalf of such parties.

12. Having dealt with the instrument of power of attorney definitively, we can pertinently proceed to make a useful reference to the doctrine of ratification qua the power of attorney as embodied in section 196 of the Contract Act, 1872 and it t reads as under: "

196. Where acts are done by one person on behalf of another, but, without his knowledge or authority, he may elect. to ratify or to disown such acts, If he ratify them, the same effects will follow as if they had been performed by his authority." A bare reading of the afore‑cited provision would show that ratification in law is equivalent to previous authority and it relates back to the time of inception of the transaction and has complete retroactive A efficacy. Therefore a subsequent ratification is tantamount to a prior command .of an act done in the name of the party who ratifies.

13. I now intend to examine the situation in these, appeals which we are confronted with. Admittedly Iftikhar Awan, on the day both the applications were filed, was not authorised to do so, his signatures therefore appearing on the two applications as attorney of the respective applicants was without any legal basis. This fact also assumes importance in view of the fact that even the "Vakalatnama" given to Qazi Muhammad Shehryar, Advocate the learned counsel for the appellant in the trial Court, bears the signatures of Iftikhar. Awan as attorney of the appellant and as such the very 'Vakalatnama' also suffers from an infirmity of being not in accord with law.

14. This leads us to the next point of objection as to whether the so‑called power of attorney executed' later on after about 3 months of the filing of the applications, their questioned authenticity notwithstanding, tantamounts to compliance with the principle of ratification and thereby clothing the unauthorised act of Iftikhar Awan with a prior command of an act in the name of the applicants. 15 A close scrutiny of the powers of attorney placed on the files of both the cases would disclose that these were executed by Mst. Rehana Parveen and Mst. Zahida Parveen for the acts of their attorney in futuro and there is no reference whatsoever with regard to, the rectification of the earlier acts performed by him purportedly on their behalf of engaging a counsel, signing the 'Vakalatnama' in his favour, giving instructions to the learned counsel or putting his signatures on the applications as also under the verification thereof.

16. It is also interesting to note that, throughout these proceedings, e the two applicants did never appear at any, stage, more particularly at the time of recording evidence in support of their respective applications. This total eclipse on the part of the applicants, cast serious doubts on the very authenticity of the power of attorney purportedly executed by them. A naked‑eye examination of both the documents reveals as if the signatures of the two applicants borne on their respective powers of attorney, appear to be in one and the' same hand.

17. Without, however, giving any specific finding as to the authenticity of the power of attorney, I would proceed to dilate upon the legal aspect pertaining thereto. It is an established principle of law that a power of attorney should be construed strictly and nothing can be read in it what is not mentioned or referred to therein specifically and the attorney is to act strictly within the scope of such authority as described in the instrument. There is a school of thought, and founded on not any weak ground, in this field which goes to .the extent of scrutinizing the minutest details of the authority specified in a ‑power of attorney, and even such acts as per se are relative to, arising out or connected with the so specified authority, are deemed as transgression of the limits of the power of attorney' and ineffective in its consequences. It will, therefore, follow that a power of attorney is held to confer only those powers which are specifically described and enumerated therein and the agent can neither go beyond, nor deviate from, the terms of the instrument and his acts ought to be legally identical with what is authorised to be done by .it. Hence 'the power of attorney must be construed strictly and perused strictly. In this context of the matter when we find in the instant cases the powers of attorney deficient about the previous acts of Iftikhar Awan, we do not find him equipped with any lawful authority 'to initiate the proceedings against the appellant.

18. True, it is always deemed expedient to uphold even an unauthorised action'‑of an authority in suit or proceedings when it is so ratified by the principal. But it is subject to two conditions; one, that there existed already a lawfully executed power of attorney in favour of the agent, and two that any act of transgression from the authorised acts specified in the power of attorney are ratified by the principal subsequently in unequivocal terms or. In other words the ratification must be such as to warrant a clear inference that the principal has adopted the unauthorised acts of the agent; then and then alone can such acts without authority be deemed as lawful acts of attorney instead of the principal.

19. I may also add that although Code of Civil Procedure does not apply' to the proceedings of the learned Controller of Rents, yet provision contained in Order 3 of Code of Civil Procedure 1908 can nonetheless be pressed into service in cases arising under Rent Restriction Laws and a person can always allege that the proceedings initiated against him by a person for a relief under the Act are not valid by `reason of the application having been instituted by an unauthorised person and without such approval and authority of the applicant as is required under the law.

20. Viewed in the light of the foregoing discussion, on factual as well as legal premises, the inescapable conclusion that I have arrived at is that there being no power of attorney, in the field at the relevant "time and there being 'no subsequent ratification of the acts of Iftikhar Awan, the so‑called attorney of the applicants, prior‑to and at the time of the institution of the two applications; the" same were not valid by reason of his not having been initially authorised in this behalf; and as such both the application having not been proved to have been instituted with the approval and authority, of the .applicants‑respondents herein; as also suffering from the subsequent lack of due and specific ratification on 'their part, the applications were not competent and accordingly not maintainable.

21. Consequently, I have no hesitation in holding that the ejectment applications in question were not validly instituted for and on behalf of the original applicants Mst. Rehana Parveen and Mst. Zahida Parveen respectively and all the proceedings emanating therefrom, including D judgment/decree impugned in these appeals, are null and void in the eye of law. I, therefore, on this score alone, allow both the appeals, with no order as to costs and set aside the impugned judgments/ decrees/in both the cases.

22. Before parting with the appeals, I would like to state that both the respondents will be at liberty to file fresh ejectment applications against the appellant, if so advised, on any of the grounds that may be available to them under the provisions of the Cantonments Rent Restriction Act, 1969, inasmuch as the impugned judgments have been set aside by me not on consideration of merits but solely on technical ground. A . A . /735/P Appeals allowed.