2015 PLP 1675 (CLC)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this civil revision the petitioners have assailed the judgment and decree dated 31-3-2004 and judgment and decree dated 10-7-2004 passed by learned civil court and learned first appellate court respectively.

2. Briefly stated the facts of this case are that the petitioners are the oustees of Mangla Dam Scheme; they are the allottees of land measuring 44 Kanals bearing Khewat No.8, Khatoni No.225, Sq. No.72 situated in Chak No.9/NB Tehsil Bhalwal, District Sargodha according to Jamabandi for the year 1970-71. The respondents claim that the petitioners agreed to sell the land referred to above in their favour and received Rs.100,000 the sale consideration and handed over the possession of the suit land to them. Subsequently the petitioners became hostile and refused to execute the sale-deed in their favour and also refused to accept the receipt of Rs.100,

000. A dispute arose between the parties; the parties allegedly entered into an arbitration agreement dated 30-7-1975 and appointed Noor Muhammad son of Fateh Muhammad their sole arbitrator. It was agreed that in case of disagreement by either of the parties, the award will be made the rule through court. The arbitrator allegedly announced award on 30-8-1975. The petitioners did not accept the said award and the respondents submitted the award in court. The petitioners filed objections before the learned court; the learned trial court on 20-9-1975 accepted the application and made the award the rule of court on the statement of petitioners' alleged attorney Mr.Wallayat Khan son of Ch. Raj Muhammad. The petitioners filed objection petition under sections 30 to 33 of the Arbitration Act for cancellation of the arbitration agreement and arbitration award dated 30-8-1975 and further prayed that the petitioners be declared the owners of the said land as their attorney Wallayat Khan played fraud with them. The respondents filed reply to the application and opposed setting aside the rule of court. The learned trial court thus rejected the petitioners' objections vide order dated 31-3-2004. The petitioners filed appeal against the order of learned civil court dated 31-3-2004. The learned first appellate court also dismissed the petitioners' appeal on 10-7-2004, hence, the present petition.

3. The issue required for consideration in the petition is whether the power of attorney Exh.P-3 empowers Wallayat Khan son of Raj Khan to appoint arbitrator and enter into agreement of arbitration.

4. Learned counsel for the respondents has referred document of general power of attorney (Exh.P-3) dated 15-6-1975 and argued with vehemence that power of attorney authorizes the Wallayat Khan son of Ch. Raj Muhammad being the agent of the petitioners to enter into compromise and submit the compromise deed and such authority to compromise shall include ancillary and incidental powers/authority to enter into arbitration agreement.

5. For better appreciating the argument of learned counsel for respondents, the exact words of the document of attorney are reproduced as under:

6. It is a settled law that the power of attorney should be construed strictly, the agent can exercise only those powers, which are expressly, unambiguously and specifically delegated to the agent and are specifically mentioned in the document of power of attorney. The perusal of Exh.P-3 shows that not a single word is mentioned in the document empowering the agent to enter into an arbitration agreement or even refer to arbitration, the words referred by the learned Counsel are only empower Wallayat Khan to enter in to compromise and submit the compromise deed to court. To enter in to agreement of arbitration is not a compromise, the agreement for appointment of arbitrator is the substitution of the court with one person or panel of persons and empowering the nominated person or panel of persons to resolve the dispute between the applicants or the parties who appointed her/them. Reliance can be made on Imam Din and 4 others v. Bashir Ahmed and 10 others (P L D 2005 Supreme Court 418) and Muhammad Yasin and another v. Dost Muhammad through legal heirs and another (PLD 2002 SC 71).

7. Power of attorney is a written delegation of powers on the basis of which the principal appoints a person or persons singly or jointly as his/their agent and confers upon his/them the authority to perform specified acts on his/their behalf and thus primary purpose of instrument of such nature is to delegate the authority of the principal to another person or persons as his/their agent. The purpose of agency is that agent has to act in the name of principal/s and principal/s also undertake to rectify all the acts and deeds of his/their agent done by him/them under the authority conferred through the instrument. In view of nature of authority, power of attorney must be strictly construed and proved and further the object and scope of power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of authority in relation to the terms and conditions specified in the instrument. Rule of construction of such document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act, general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution, settled rule is that before an act purported to be done under power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not available to the attorney.

8. In Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and (PLD 1985 SC 341) Hon'ble Supreme Court of Pakistan opined as follows:

"It is wrong to assume that every 'general' power-of-attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay particular attention to such a clause if intended to be included in the power-of-attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and/or misrepresentation. The second aspect which needs caution on question of validity of acts under a power of attorney is that notwithstanding an authority to alienate principal's property, the attorney is not absolved from his two essential obligations, amongst others

firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his own account with the property under agency, e.g., if he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction."

9. The agreement Exh.P-2 allegedly is agreement of appointment of the arbitrator, the perusal of the document shows that it was allegedly executed by petitioners on 30-7-1975 and in the entire document it is not mentioned that they are appointing arbitrator through their attorney and only at the end of document it is mentioned through general attorney Wallayat Khan son of Raj Khan but surprisingly the arbitrator has not signed the document in token of his acceptance. The petitioners have denied the appointment of the arbitrator hence the respondents were under their legal duty to prove that Wallayat Khan son of Raj Khan was having the powers on behalf of their principals to enter in to arbitration agreement for the resolution of dispute, the case of the petitioners is that It is Wallayat Khan who committed fraud with the respondents, hence the wording of the attorney is very important for ascertaining the intention of the principal. It is settled principle of law that the agent must be specifically authorized to appoint arbitrator and implied authority of agent to appoint Arbitrator could not be presumed. From the above said discussion and the perusal of documents the logical conclusion is that Wallayat Khan was not having authority to enter in to arbitration agreement on the basis of Exh.P-3. Reliance can be made on Unair Ali Khan and others v. Faiz Rasool and others (PLD 2013 SC 190) and Muhammad Yasin and another v. Dust Muhammad through legal heirs and another (PLD 2002 SC 71).

10. The second argument of learned counsel for respondent is that this court cannot disturb the concurrent findings of the facts of two courts below.

11. It is settled principle of law that revisional jurisdiction of High Court' under section 115, C.P.C. can be invoked only in the cases of exercise of jurisdiction by the lower Courts not vested in them by law or the Courts had failed to exercise the jurisdiction so, vested or jurisdiction was exercised in an illegal manner or that some material, irregularity was committed if it was found that the findings of subordinate Courts were suffering from misreading, non-reading of evidence or that the inference drawn was in utter disregard of the law and facts of the case, High Court must interfere in the matter in its revisional jurisdiction and correct the illegality committed by the subordinate Courts. Reliance is placed on Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818).

12. In Samar Gul and others v. Mohabat Khan and others (2000 SCMR 974 at 986) the Hon'ble Supreme Court of Pakistan observed as follows:

"It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C."

13. In the light of what has been stated, the petition is allowed and the judgments of two courts below are set aside and respondents' application for making the award rule of court is dismissed. SL/N-26/L Petition accepted.