2006 PLP 999 (CLC)

FAZAL-E-MIRAN CHAUHAN, J.

By filing the instant writ petition, the petitioner had called in question the order, dated 21-12-2005 passed by the learned District Judge, Sahiwal vide which order of the trial Court dated 6-6-2001 dismissing application under section 12(2), C.P.C. was set aside and case was remanded to the Court for its decision on merits.

2. Brief facts of the case are; that the petitioner had instituted a civil suit for specific performance of the contract against Sher Bahadur Khan defendant-respondent pleading therein that the latter owned land measuring 9 Kanals, 9 Marlas in the Revenue Estate of Chak No.136/9-L and had installed an oil mill there and agreed to sell the same to the petitioner-plaintiff for Rs.9,50,000 and executed an agreement to sell dated 10-12-1998 after receiving part payment of Rs.8,00,000 from him. The respondent had earlier mortgaged the oil mill to United Bank Limited against 'a loan of Rs.1,18,000 and vide said agreement had undertaken to clear the said loan himself. The petitioner took possession of the oil mill and having found the building in a neglected condition spent Rs.7,00,000 on renovation. Having come to know that respondent had cleared the bank loan, the petitioner approached the respondent with the request to receive Rs.57,000 from the plaintiff and execute the sale-deed in his favour and to get the same registered, but he refused to accede to his request, hence, the suit for specific performance of the contract was filed. Written statement was filed by respondent No.l. Thereafter, respondent No.2 was appointed as special attorney to act on behalf of respondent No.1. Respondent No.2 entered into a compromise with the petitioner and the suit was decreed on 15-6-2000. Respondent No.1 on 24-7-2000-filed an application under section 12(2), C.P.C. seeking setting aside the judgment and decree, dated 15-6-2000 having been obtained by fraud and misrepresentation. Application was dismissed by the trial Court vide order, dated 6-6-2001. Respondent filed a revision before this Court, which later on due to amendment was sent to District Judge, Sahiwal for disposal. The learned District Judge, Sahiwal after hearing both the parties vide impugned order, dated 21-12-2005 accepted the revision and allowed application under section 12(2), C.P.C. set aside the judgment and decree, dated 15-6-2000 and remanded the case to the trial Court to decide the same afresh.

3. It is contended that learned District Judge, was only required to look into the jurisdictional defect or any illegality committed by the learned trial Court. Neither any jurisdictional defect was raised, nor any illegality was pointed out in the order of the learned Civil Judge, the learned District Judge committed grave illegality by accepting the application. Further submitted that, before remanding the case, the learned District Judge himself compared the signature on the agreement to sell with the signature on the Wakalat Nama and observed that they differed with each other and after giving finding about the signature of Sher Bahadur Khan respondent No.1, accepted application under section 12(2), C.P.C. remanded the case to the trial Court to decide suit on merits. The learned Civil Judge had virtually decided the case by making comparison of signature and by giving his opinion, the learned Judge is bound to influence by the same.

4. Further submits that on the day when statement of the attorney Sher Muhammad was recorded by the trial Court, he was competent/authorize to make statement in the Court being Special Attorney of Sher Bahadur Khan. No action was taken by respondent No.l against Sher Muhammad for acting against his interest without lawful authority. This non-action speak volume about the conduct of respondent No.1.

5. Under Order XXIII, rule 3, C.P.C. compromise was duly recorded and presented in the Court. The same was exhibited as C.W./1 and thereafter statement of the special attorney was recorded. He was identified by the counsel (Mr. Abdul Razzaq, Advocate) duly appointed by respondent No.1. Exercising the authority given in the special power of attorney was sufficient to authorize Sher Muhammad to enter into compromise and authority given was rightly exercised. Reference is made to Saif-ud-Din v. Zainuddin and another 1992 MLD

631. Further submits that respondent also gave power of attorney (Wakalat Nama) to Mr. Abdul Razzaq, Advocate authorizing him to act on his behalf and Mr. Abdul Razzaq, Advocate while exercising the authority, made statement in the Court, identified the special attorney and submitted the document Exh.C.1. in the Court. Reference in this respect is made to Munir Ahmad Khan v. Sameeullah Khan and 7 others 1986 CLC 2655. No fraud was played with the Court nor any misrepresentation was made. Section 12(2), C.P.C. came into play only when, fraud is played with the Court or any misrepresentation was made in the Court. Finally argued that when the right of appeal is not provided in the C.P.C., it is only a revisable order. Reference is made to Malik Muhammad Nazir v. National Bank NLR 1993 AC 717.

6. On the other hand, learned counsel for the respondent argues that it is very important to see the conduct of the parties. In the written statement filed by respondent No.1 with his signature, execution of the agreement to sell was denied. Receipt of any consideration amount was also denied. Since respondent No.1 most of the times lived abroad appointed Sher Muhammad deceased as special attorney authorizing to act on his behalf in the suit and authorized him in the following terms:-- By the above recited portion of special power of attorney no authority to compromise the suit was given to the attorney by respondent No.1, thus, when such authority or power was not given to the attorney, then in such eventuality it was necessary for attorney to seek prior permission from the principal to enter into compromise. In the absence of such prior permission the attorney was not competent to compromise the suit, by executing a compromise, filing the same in the Court and also to record his statement in the Court. The compromise was unconditionable agreement, because in the said compromise, it does not find mention of house and oil mill when as a result of the compromise one oil mill and house of the respondent was also given to the petitioner, which was not part of the alleged agreement to sell. Written statement was filed by duly appointed counsel by respondent No.1 and execution of agreement to sell was denied. The same was signed by respondent No.1 himself. Subsequent to the tiling of the written statement, Sher Muhammad was appointed special attorney to contest the suit on behalf of respondent No.1 who lived abroad and was not in a position to pursue the suit according to the stand taken in the written statement. No power to compromise the suit was given to Sher Muhammad, thus, he acted without lawful authority by compromising the suit. The words "" used, does not amount to give power to attorney to compromise the suit. Reference is made to Imam Din and 4 others v. Bashir Ahmad and 10 others PLJ 2005 SC 1106. Argued that rule of construction of a document contained by general clause are limited by the words of particular act. As the attorney was not authorized to compromise the suit, he cannot act at variance of the authority given in the special attorney; further submits that to enter into a compromise and making statement on behalf of respondent No.1, posing to be fully authorized to compromise the suit amounting to misrepresentation, attracting subsection (2) of section 12, C.P.C. Decree was obtained by making misrepresentation in the proceedings of the Court. Further submits that; counsel Abdul Razzaq did not make any statement in the Court about compromise, he just identified the attorney in the Court. The authority contained in the printed power of attorney of counsel (Wakalat Nama) given to the counsel did not authorize the counsel to make any statement in the Court to compromise the suit on behalf of his client without his consent. Since it was exhibited that compromise decree was obtained by practicing fraud and misrepresentation, the application was rightly accepted, setting aside the judgment and decree, dated 6-6-2001 and remanding the suit to the trial Court to decide the same afresh on merits. Reference is made to Sh. Muhammad Sadiq v. Elahi Bakhsh and 2 others 2006 SCMR

12. Further submits that by remanding the case not material irregularity or illegality was committed by the learned District Judge.

7. I have heard learned counsel for the parties, perused the impugned judgment and law on the subject. The main stress of learned counsel for the petitioner was that the learned District Judge, while exercising his power under section 115, C.P.C. exceeded the same, whereas, he was only required to look into the jurisdictional defect or any illegality committed by the learned trial Court. The conditions attracting section 12(2), C.P.C. were not in existence. No case of fraud or misrepresentation-was made out enabling the learned District Judge to set aside the judgment and decree of the trial Court dated 6-6-2001. The case of the petitioner was that respondent No.1 entered into an agreement to sell with the petitioner and agreed to sell the land in question to the petitioner for a consideration of Rs.9,50,

000. On the refusal of respondent No.1 to execute the sale-deed in furtherance of the agreement to sell suit for specific performance was filed in which written statement was filed by the respondent himself by with his signatures. Thereafter, during the pendency of suit, he appointed respondent No.2 as his special attorney authorizing him to act on his behalf and conduct the proceedings of the suit and to make statement, to file affidavit or other ancillary act in furtherance of the suit. Respondent No.2, being special attorney of respondent No.l, executed compromise Exh.C.1 and also endorsed the same by appearing in the Court and making statement on behalf of respondent No.l. Ch. Abdul Razzaq, Advocate appointed by the respondent No.1 himself appeared in Court and identify signatures on the Exh.C.l and also respondent No.2 being attorney, authorized to compromise on behalf of respondent No.1. Keeping in view the statement of respondent No.2 and learned counsel for respondent No.l, the trial Court proceeded to pass a compromise decree in favour of the petitioner on 6-6-2001. It is contended that no fraud or misrepresentation was played with the proceedings of the trial Court. Respondent No.2, who was duly authorized to act on behalf of respondent No.l compromised the suit and the same was decreed. No conditions attracting section 12(2), C.P.C. were spelled out by respondent No.1 and learned revisional Court committed grave material illegality and irregularity by accepting the application under section 12(2), C.P.C. and remanding the suit to the trial Court to hear and decide the same afresh after affording proper opportunity to the parties.

8. I have gone through the judgment of the learned trial Court who after framing issues and recording evidence of the parties came to the conclusion that respondent No.2 was duly appointed attorney of respondent No.1 and he was authorized to make a statement on behalf of respondent No.l. This authority given to respondent No.2 by respondent No.l was spelled out from the power of attorney executed in favour of respondent No.2 and shows that he was fully authorized to compromise the suit. It was further observed that Ch. Abdul Razzaq, Advocate who was appointed by respondent No.l himself filed his, Wakalat Nama and as per the wording of Wakalat Nama, Ch. Abdul Razzaq, Advocate was authorized to make statement on behalf of his client, as well as, to refer the matter to the arbitration or compromise the suit and to file admitting written statement on behalf of respondent No.l. Since the said counsel was authorized to act on behalf ',of respondent No.1 he also appeared before the Court and was competent to make statement. Relying on the evidence discussed above, the learned trial Court observed that the power of attorney given to respondent No.2 contained an authority to compromise the suit and also counsel was also authorized to compromise the suit on his behalf.

9. I have gone through the application as well as document and evidence led by the parties. In the written statement filed by respondent No.2 execution of agreement to sell was specifically denied and thereafter he appointed respondent No.2 as his special attorney to appear and defend the suit on his behalf. No power to compromise the suit was specifically given in the special power of attorney. Respondent No.2 having no lawful authority entered into compromise with the petitioner and conceded the suit. Resultantly, a compromise decree was passed by the learned trial Court taking the words:-- No special power or authority was given to respondent No.2 to compromise the suit on his behalf or make any statement to that effect. The learned trial merely relying upon the wording. came to the conclusion that he was given power to compromise on behalf of respondent No.1.

10. The rule of construction of a document is that special attorney given therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special power, and where, the authority is given to do a particular act followed by general words, the authority is deemed to be restricted what is necessary for the purpose of doing that particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging special power necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the powers, it is necessary to show that the authority exercised was within the four corners of the instrument. The special power of attorney, admitted to have been executed by respondent No.1 does not contain authority to compromise the suit. The general words used in the power of attorney does not confer general power to compromise the suit. The attorney was specifically authorized to appear in the Court to file a written statement, appeal, review, revision, record his statement, file an affidavit etc. on behalf of respondent No.1. Since it was a special power of attorney and attorney was not given power to compromise, the act of respondent No.2 compromising the suit on behalf of respondent No.1 and making statement, in the Court to that effect was without lawful authority. Reliance in this respect is placed on Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341.

11. Learned District Judge had passed a lawful order. He has reopened the matter and all the concerned parties would be able to put forward their case and led evidence in support of the same. I do, however, agree with learned counsel for the petitioner that the learned District Judge while allowing the civil revision had proceeded to make certain observations which may tend to effect the proceedings of the suit. Learned counsel for the petitioner has failed to point out any jurisdictional defect or illegality committed by the learned lower appellate Court. Since no case for interference in the order of the learned lower appellate Court is made out I find no merit in this writ petition and the same is hereby dismissed. However, the learned trial Court is directed not to be influenced by the observations or findings given by the learned revisional Court and shall decide the suit in accordance with law on the basis of the evidence produced by the parties. F.B./N-29/L???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.