PLJ
2011 Lahore 376
Present:
Mansoor Akbar Kokab, J.
KHALID
MAZHAR and 5 others--Petitioners
versus
ZAFAR
HUSSAIN--Respondent
C.R.
No. 208-D of 1996, heard on 27.4.2010.
Civil
Procedure Code, 1908 (V of 1908)--
----O.
III R. 4--Qanun-e-Shahadat Order, (10 of 1984), S. 95--Wakalatnama and special
power of attorney executed in foreign country--Effectiveness--Held: The only
question which renders the effectiveness of both of these documents to no
effect at all, is a question of fact that at the time of attestation by notary
public, the lady who put her signatures was never identified by any third
witness nor from the stamp or the signature of the notary public, it is evident
that the said notary public was to identify the executant as the
plaintiff--Mere notarizing a document never exempts it from being signed by the
attesting witnesses after executant put his/her signatures, because the notary
public can never assume the role of subscribing witness--The attesting witnesses
are nothing to do with the contents or the subject matter of the document
rather they only attest the signing of the document by the maker of the same,
while the notary public before the document is subscribed and sworn at attest
the embodiments of the document--Petition dismissed. [Pp. 378 & 379] A & B
Mr.
Aamir Altaf Khan Alizai, Advocate for Petitioner.
Mian
Shamas-ul-Haq Ansari, Advocate for Respondent.
Date
of hearing: 27.4.2010.
Judgment
The
present revision petition is to assail the judgment of learned Additional
District Judge, Multan, dated 04.12.1995,
whereby the appeal preferred by the present petitioners was dismissed while
confirming the judgment and decree dated 10.11.1990 passed by learned Civil
Judge, Multan as he had rejected the
plaint of the plaintiffs/present petitioners for suit for specific performance
of a contract. Allegedly an agreement to sell having been arrived at between
the predecessor in interest of present petitioners and the respondent on
31.12.1978 (admittedly an oral one), was subsequently renewed on 31.12.1983,
executed in writing between the present petitioners, as their predecessor in
interest had already died and the vendor Mazhar Hussain, the respondent, for
the sale of the house, mentioned in the plaint, hereinafter to be called the
disputed house, for sale consideration of Rs. 12000/-. Upon the application of
the defendant, the learned trial Court vide its order dated 08.10.1990 observed
that the then Plaintiff No. 5, present Petitioner No. 5, Mst. Shehnaz Nizami,
was not being represented before the Court either by any attorney or by pleader
duly appointed as she was residing abroad and no power of attorney was tendered
before the Court, therefore, the Court directed that the power of attorney of
the Plaintiff No. 5 might have been submitted before the Court within a period
of one month, failing which the plaint would have been rejected.
Consequentially on 10.11.1990, no power of attorney was tendered before the
Court nor any written explanation in that respect i.e., with regard to
direction to file the suit on her behalf, which was also asked by previous
order of the same Court, was tendered, hence the plaint was deemed defective
for having been proceeded upon, therefore the same was rejected.
2. The appeal was preferred against the said
order before learned Additional District Judge, who endorsed the judgment and
decree awarded by the learned trial Court with explanatory observation that in
the suit of specific performance, the transaction as a whole could only be
sought and the relief to the extent of one of the plaintiff i.e. Plaintiff No.
5 could not have been set apart as the partial transaction would have defeated
the whole of the sought claim with regard to other plaintiffs also.
3. Admittedly initially one pleader (advocate)
filed the said suit what bore no signature of any of the parties and the suit
was only signed by the Plaintiff No. 1, thereafter upon the application of
defendant the order dated 08.01.1990 was passed for tendering of Wakalat Nama,
hence on 04.02.1990 the same was submitted but that power of attorney was not
signed by then Plaintiff No. 5, Mst. Shehnaz Nizami that's why the above
narrated proceedings were made into effect. Leaving apart, for the time being
the question of fact and law with regard to power of attorney and Wakalat Nama
subsequently filed before the appellate Court, it is observed that the
observation made by the learned appellate Court with regard to defeat of whole
of the claim sought by the plaintiff in toto was correct as part of the sale
consideration was allegedly made by the plaintiffs collectively in lump sum
making no difference or distinction pertaining to entitlement of share of any
of the plaintiff seParately. In such like cases where the divisibility of transaction
of a sale is not evident or patent and the sale consideration is paid in lump
sum collectively by all of the plaintiffs then in case one of the plaintiff is
non suited or refuses to join in with rest of the plaintiffs, the whole of the
suit is liable to be defeated. Reliance in this respect can be placed upon
PLD-1958-SC-140.
4. During proceeding uptill now two documents
allegedly executed by the Plaintiff No. 5, having been placed on the file need
deliberation and legal appreciation for validity for the purpose of present
revision petition. The first one, is the Wakalat Nama
of one Muhammad Abrar Ansari, Advocate and jointly accepted by Altaf Khan
Alizai, Advocate. This Wakalat Nama was sent to Plaintiff/Petitioner No. 5 at America who signed it before
Notary Public of Michigan, Wayne County and the said Notary
Pubic embossed it s signature and seal thereupon, then the same was remained to
the said counsel, who presented it alongwith the envelope before the first
appellate Court. The second document is a special power of attorney which was
also drafted on a stamped paper duly purchased in Pakistan and so was probably
made into writing here at Pakistan and the executant Mst. Shehnaz Nizami
appears to have signed the same in the presence of two witnesses, admittedly
present at Multan at the time of putting their signatures as a witnesses on a
deed. Anyhow this document was also sent to Plaintiff No. 5 at America, who put her signatures
on the back of both of the stamped papers in the presence of the Notary Public
who also put his signature as well as the stamp worded,
"subscribed and sworn before me a Notary Public, in and for
the country of Oakland, Michigan, this 15th day of
December, 1993."
5. Thereafter the said special power of attorney
was posted back to the alleged appointed attorney, Khalid Mazhar, the Plaintiff
No. 1. Undoubtedly Section 95 of Qanun-e-Shahadat provides a presumption with
regard to authenticity of document which is attested by a Notary Public of a
foreign country. But the only question which renders the effectiveness of both
of these documents to no effect at all, is a question of fact that at the time
of attestation by Notary Public, the lady who put her signatures as Mst.
Shehnaz Nizami was never identified by any third witness nor from the stamp or
the signature of the Notary Public, it is evident that the said Notary Public
was to identify the executant as the Plaintiff No. 5 Mst. Shehnaz Nizami. As
per Order III, Rule 4 CPC, no pleader can act for any person in any Court unless
he has been appointed for the purpose by such person by a document in writing
signed by such person or by his recognized agent or by some other person duly
authorized or under a power of attorney to make such appointment. As the
signing of both of the documents i.e. Wakalat Nama and the power of attorney by
the Plaintiff No. 5 are never authenticated by any of the two entities i.e. the
pleader (advocate), or the Notary Public as the former was not present to
identify the lady who signed her Wakalat Nama and the latter was not made sure
with regard to identity of the said lady because of absence of subscribing
witness of document before him. It is further observed that mere notarizing a
document never exempts it from being signed by the attesting witnesses after
the executant put his/her signatures, because the Notary Public can never
assume the role
of subscribing witness.
The attesting witnesses
are nothing to do with the contents or the subject matter of the
document rather they only attest the signing of the document by the maker of
the same, while the Notary Public before the document is subscribed and sworn
at attests the embodiments of the document.
6. In the wake of above circumstances, as it is
now 22nd years after filing of the original suit but no valid power of attorney
or the Wakalat Nama has been made available to the Court including this one,
hence now even if the Plaintiff No. 5/the Petitioner No. 5 is ready to rectify
and ratify the omission to make the irregularity good, the permission cannot be
granted inspite of the fact that there would be no question of limitation
vis-a-vis filing of the suit or making the defect good, because the long
slumber by the Plaintiff No. 5 over her own right defeats the limited scope of
revisional Court for grant of relief at the first instance and secondly, the
estopple by conduct is patently manifested. The request of the learned counsel
for the Plaintiff No. 1 to 4/the petitioners, in terms observed hereinabove is
accordingly declined and the revision petition is dismissed.
(M.S.A.) Petition
dismissed.
