PLJ 2006 SC (AJK) 87
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Kh. Muhammad Saeed, C.J & Syed Manzoor Hussain
Gilani, J.
MUHAMMAD HUSSAIN--Appellant
versus
SHAHZAD KHAN and 13 others--Respondents
C.A. No. 103 of 2005, decided on 13.3.2006.
(On appeal from the judgment of High Court dated 19.6.2004
in
W.P. No. 9/2001)
W.P. No. 9/2001)
(i)
Azad Jammu and Kashymir Interim Constitution Act, 1974 (VIII of 1974)--
----S. 42--Dismissal of writ petition
filed by appellant in High Court assailed--Petitioner's writ petition was
dismissed on sole ground that power of attorney on basis of which petition was
filed did not authorise attorney to file the same--Words used in power of
attorney in question, endures to cater pending as well as future litigation and
the same is not restricted to pending litigation only--Language of power of
attorney is so vast, exhaustive and self speaking that the same comprises in
its ambit all sorts of acts which purport to defend rights of appellant--Remedy
of filing writ petition is one of the remedies which is sought from the High
Court alone under the Constitution and power of resorting for remedy to High
Court is specifically incorporated in power of attorney--As to whether words,
"Writ petition" or "application" is used for seeking
redressal from High Court having matters--Whatever appropriate remedy in any
form can be sought from Courts, including High Court is authorized by power of
attorney in question. [Pp. 89
& 90] A
(ii)
Azad Jammu and Kashmir Interim Constitution Act, 1973 (VIII of 1974)--
----S. 42--Power of
attorney--Interpretation--Power of attorney has to be construed
strictly--Attorney can be allowed to seek only that remedy and undergo that
process which is specifically allowed to him by the Principal--Purpose of such
interpretation is that agent/attorney should not act to the prejudice or
against interest of attorney by misusing his authority--Where interest of the
Principal is strengthened, enlarged, defended and protected which is the
purpose of power of attorney, such action would be deemed to be valid, whether
that purposes specifically mentioned or not--Where, however actions of attorney
were to the detriment or disadvantage of the Principal, those have to be
strictly construed, and in some cases not allowed at all, even if words of
power of attorney can be stretched to include the same--Order of dismissal of
petitioner's writ petition by the High Court was vacated and case was remanded
to High Court to be decided on merits. [P.
90] B
2003 SCR 467, PLD 1978 SC (AJ&K) 143; PLD 1980 SC (AJK)
60 and
1995 SCR 274, ref.
1995 SCR 274, ref.
Ch. Ali Muhammad, Advocate for Appellant.
Raja M. Siddique Khan, Advocate for
Respondents Nos. 6 to 8.
Respondents Nos. 5, 9 to 12 Ex-parte.
Nemo for Respondents Nos. 13 & 14.
Date of hearing : 10.3.2006.
Judgment
Syed Manzoor Hussain Gilani, J.--This
appeal, with leave of the Court, is filed against the judgment passed by a
learned Single Judge of the High Court on 19.6.2004 at Mirpur in Writ Petition
No. 9/2001. The petition was dismissed by the High Court on the sole ground
that the power of attorney on the basis of which the petition was filed did not
authorise the attorney to file a writ petition. The facts on the basis of which
the petition in the High Court was filed need not be discussed as the Court has
not given any finding on any of the facts narrated in the writ petition. We
have heard the learned counsel for the parties on this sole point which is
hereby decided.
2.
The learned Advocate appearing for the appellant contended that the
power of attorney unequivocally authorised the attorney to prosecute and
conduct different cases to be subjudice before various Courts about whole of
the property. The attorney was vested with the power to do and perform all acts
and deeds legally required upto the High Court. According to him, the attorney
is his son and was to act in furtherance of his interest and one of interests
was to defend and protect his rights in all the Courts. The learned Advocate
placed reliance upon Qadir Baksh and 10 others v. Kh. Nazim-ud-Din Khan and 4
others [PLJ 2001 SC 1246].
3.
The learned Advocate appearing for the respondents defended the order
passed by the learned Judge of the High Court contending that no case was
pending with respect to the land in dispute when the power of attorney was
executed in favour of attorney, hence this power of attorney could not be used
for filing the writ petition. He further contended that writ is a special
remedy not provided by ordinary laws, hence it had to be specifically
incorporated in the power of attorney otherwise it would be without lawful authority
to file a writ petition. The learned counsel contended tha power of attorney
has to be strictly construed. He relied upon Mardan Ali and another v. Abdul
Aziz and 6 others [2003 SC 467], Muhammad Afsar Khan and another v. Khadim
Hussain and 3 others [PLD 1978 SC (AJ&K) 143], Gul Taj Begum v. Lal Hussain
and another [PLD 1980 SC (AJ&K) 60] and Muhammad Mehrban v. Sadrud Din
& another [1995 SCR 274] and an unreported judgment of this Court captioned
Sadiq Hussain v. Mir Jan decided on 28.1.2006.
4.
It is not disputed that the power of attorney was executed by the
appellant in favour of his son, Muhammad Latif. The reasons for execution of
power of attorney, which is at page 25/26 of Court's file, states in the first
para as written in Urdu that:
5. The contention of the learned Advocate for the
respondents that as no case was pending with respect to the land in dispute,
hence power of attorney cannot be used for filing the writ petition for the
land in dispute cannot be accepted for the reason that the power of attorney is
executed for the litigation which remains current against him and on his behalf
in different Courts. The words signify that there is an unending process of
litigation between the appellant and others, at present and in future. It endures
to cater the pending as well as the future litigation, it
is not restricted
to the pending
litigation only. Hence,
the contention of the learned Advocate that it does not pertain to the
future litigation is not borne out from the language of power of attorney.
6.
In para ( ) of the power of
attorney, the appellant authorised the attorney to defend his rights....."
In para ( ), the attorney is
atuhorised to file suit, appeal, revision, review, application on his behalf
and engage Advocate or Barrister from the Court of first instance upto the High
Court for the defence of his rights and to undergo all legal remedies etc.
7.
The language of the power of attorney is so vast, exhaustive and
self-speaking that it comprises in its ambit all sorts are sorts of acts which
purport to defend the rights of the appellant. The remedy of filing the writ
petition is one of the remedies which is sought from the High Court alone under
the Constitution and the power of resorting for remedy to the High Court is
specifically incorporated in the power of attorney. It hardly matters as to
whether the words "writ petition" or application is used for seeking
a redressal from the High Court. Whatever appropriate remedy in any form can be
sought from the Courts, including High Court, is authorized by the power of
attorney.
8.
There can be no dispute with the proposition that the power of attorney
has to be strictly construed and the attorney can be allowed to seek only that
remedy and undergo that process which is specifically allowed to him by the
principal. The purpose is that the agent/attorney should not act to the
prejudice or against the interest of the attorney by misusing his authority. If
the attorney acts in furtherance and in the interest of the attorney that
cannot be construed to be acting beyond the power of attorney, moreso, when the
principal owns the actions of the attorney subsequently as in the present case.
9.
Distinction has to be drawn in the acts which are in the interest of the
principle and those which are against his interest. If the interest of the
principal is strengthened, enlarged, defended and protected which is the
purpose of the attorney, the action shall be deemed to be valid, whether that
power is specifically mentioned or not, but if the actions of the attorney are
to the detriment or disadvantage of the principal, those have to be strictly
construed, and in some cases not allowed at all, even if the words of the power
of attorney can be stretched to include it. We are fortified in holding this
view by the authority cited by the learned Advocate for the appellant i.e.
Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din Khan and others [PLJ 2001 SC
1246].
9.
As far the authorities of law relied upon by the learned Advocate for
the respondents are concerned, there can be no cavil with the proposition of
law laid down therein. However, the facts of the present case are altogether
different from the facts on the basis of which the principal of law is laid
down in the authorities referred by the learned Advocate for the
respondents. In the case in hand, it is the son of the
principal not a stranger who is his attorney, and acts in furtherance of his
interest. The power of representing the principal in Courts including High
Court stems from the power of attorney.
In view of above, the finding recorded by
the learned Judge of the High Court is hereby vacated. Order is set aside and
case is remanded to the High Court to be decided on merits.
(Aziz Ahmad Tarar) Case
remanded.
