2016 C L C 789


2016 C L C 789

[Peshawar]

Before Mrs. Irshad Qaiser and Muhammad Younis Thaheem, JJ

KHAN MOHAMMAD and 2 others----Petitioners

Versus

JUMA GUL and 7 others----Respondents

W.P.No.2190-P of 2014(M), decided on 20th November, 2014.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Fraud and misrepresentation---Proof---Compromise effected by special attorney without authorization---Validity---Trial court decreed suit on basis of statement of one of defendants, special power of attorney/one of legal heirs, and compromise deed executed between plaintiffs and said defendant---Other defendants, legal heirs, filed application under S.12(2), C.P.C., challenging consent judgment and decree---Trial court dismissed the application---Revisional court, setting aside judgment of trial court, directed the trial court to proceed with case from stage before disputed compromise---Validity---Special power of attorney transpired that defendant was not authorized either to effect compromise between parties or to submit compromise deed before trial court---Special power of attorney was meant only to take part in court proceedings regarding civil suit, and no authorization with regard to effecting of compromise had been provided therein---Contents of special power of attorney had to be strictly construed-Impugned judgment of revisional court was well reasoned and based on proper appreciation of evidence warranting no interference---Constitutional petition was dismissed in circumstance.

            Muhammad Yousuf Siddiqui v. Haji Sharif Khan through his L.Rs. and others PLD 2005 SC 705 rel.

(b) Power of Attorney---

----Special power of attorney---Rules of construction---Contents of special power of attorney have to be strictly construed.

            Muhammad Yousuf Siddiqui v. Haji Sharif Khan through his L.Rs. and others PLD 2005 SC 705 rel.

            Hassan U.K. Afridi for Petitioners.

            Nemo for Respondents.

            Date of hearing: 20th November, 2014.

JUDGMENT

            MUHAMMAD YOUNIS THAHEEM, J.--- Khan Muhammad and two others, petitioners herein, seek the constitutional jurisdiction of this Court praying for that:--
         
"On acceptance of this writ petition, the impugned order/judgment of the learned Additional District Judge-IV, Kohat, vide dated 05-06-2014 may kindly be set aside and the order/judgment passed by the Civil Judge-IV, Kohat vide dated 01-12-2012 may be intact.

Any other writ or direction, which is deemed appropriate in the circumstances of the case, may please be passed/granted."

2.         The facts, as mentioned in the petition, are that Khan Muhammad and two others, petitioners filed a declaratory a suit against other legal heirs/respondents Nos.1 to 7 to the effect that Mst. Zolab Jan and Mst.Khano Jan daughters of Zareen Khan had died before the death of their father and, therefore, they were not entitled for their share in the inheritance of Zareen Khan; that they challenged the inheritance mutation No.693 dated 08-05-2007 regarding inheritance of Zareen Khan in favour of Mst. Zolab Jan and Mst. Khano Jan as well as inheritance mutation No.703 12-01-2007 in favour of defendants Nos.1 to 5, being the husband and children of Mst. Zolab Jan, who contested the suit by filing written statement wherein they pleaded that Zareen Khan had died on 08-12-1993, while Mst.Zolab Jan had died on 28-10-1996 and, she was entitled in the legacy of her deceased father; that under Section 4 of the Muslim Family Laws Ordinance, 1961 the legal heirs of Mst. Zolab Jan were entitled in the share of their deceased mother even if she had died prior to the death of their father.

3.         The learned trial Court, after framing issues, recorded the statements of Patwari Halqa and ADK when on 03-02-2011 Rikab Gul defendant No.3, while submitting the compromise deed arrived at with the plaintiffs, recorded his statement alleging therein that he, being special attorney on behalf of all the defendants, got no objection to the grant of decree in favour of the plaintiffs and, in consequence whereof, the suit of the plaintiffs was decreed vide judgment and decree dated 03-02-2011.

4.         It was on 22-03-2011 that Juma Gul defendant No.1 filed an application under Section 12(2), C.P.C. stating therein that his son Rikab Gul committed fraud by giving misstatement before Court regarding compromise on behalf of all the defendants because he was not authorized for all of them and hence, requested the Court that since the decree dated 03-02-2011 was obtained by committing fraud with the collusion of his son and Saliheen as well as with other legal heirs, i.e., co-defendants. The decree-holders contested the said application wherein Rikab Gul affirmed the factum of compromise, while Qeemat Gul brother of Rikab Gul admitted the claim of his father Juma Gul and the remaining defendants, being absent, were placed ex parte. The learned trial Court, after framing issues, recording pro and contra evidence and hearing arguments on both sides, dismissed the application holding that the petitioner failed to prove the fraud and misrepresentation allegedly given by his son before the Court vide judgment and order dated 01-12-2012.

5.         Feeling aggrieved from the said judgment, the petitioner Juma Gul/defendant No.1 filed revision petition bearing No.08/2014 in the Court of District Judge, Kohat. The learned revisional Court, while allowing the revision petition on 05-06-2014, set aside the judgment of the learned trial Court, accepted the application under Section 12(2), C.P.C. and set aside the decree dated 03-02-2011 in civil suit No.141/1/2008 with directions to the learned trial Court to proceed with the case from the stage before the disputed compromise.

6.         Learned counsel for the petitioners argued that the judgment of the learned trial Court has been passed in accordance with law; and that, after taking the consent from the respondents, the compromise was effected and suit of the plaintiffs was rightly decreed. Further argued that the learned revisional Court has wrongly set aside the judgment and decree without appreciating the evidence and the relevant law.

7.         We have considered the submission advanced by the learned counsel for the petitioners and gone through the available record.

8.         From the perusal of the record and the contents of special power of attorney it transpires that Rikab Gul defendant No.3 was not authorized either to effect compromise between the parties or to submit compromise before the Court. It is also crystal clear that the special power of attorney was meant only to take part in the Court proceedings regarding civil suit and no authorization with regard to effecting of compromise was provided therein, which lends support from the statements of Ishfaq Gul and Hazrat Gul, marginal witnesses (PWs.1 and 2) as well as special power of attorney Ex.P.C. In the context of aforesaid special power of attorney it is settled that its contents shall be construed strictly and in support of the proposition reliance is placed on the judgment of the Apex Court in the case reported as Muhammad Yousuf v. Haji Sharif Khan through his L.Rs. and others (PLD 2005 SC 705) wherein it has been held as under:-

"Act of attorney, to effect compromise in Court, in absence of any specific stipulation in the General Power of Attorney, was misrepresentation and it had elements of fraud. Principal having not delegated the authority to effect a compromise in a suit, the agent/attorney, could not have engaged a counsel/attorney for a purpose for which he had not been vested the authority. Agent cannot sub-delegate a power which was not delegated to him by the Principal. Where the concurrent judgments reflected misreading of evidence and non-application of law and that the judgment and decree had been procured through misrepresentation same was sequarely hit by mischief clause of Section 12(2), C.P.C. Supreme Court converted the petition into appeal and allowed the same by setting aside the impugned judgment."
         
We, therefore, hold that the impugned judgment of the revisional Court is well reasoned and based on the proper appreciation of evidence warranting no interference by this Court in constitutional jurisdiction.

4. (sic) Consequently, this writ petition, being bereft of merits, is hereby dismissed in limine.

SL/389/P                                                                                             Petition dismissed.



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