2016 MLD 209

2016 M L D 209

[Supreme Court (AJ&K)]

Before Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

SIKANDER HABIB—Appellant

Versus

SHAISTA JABEEN and 3 others—Respondents

Civil Appeal No.25 of 20143, decided on 30th January, 2015.

(On appeal form the judgment and decree of the Shariat Court dated 31-1-2013 in Civil Appeal No.57 of 2012)

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)—

—-S. 5, Sched—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42—Restitution of conjugal rights—Appeal to Supreme Court on the basis of power of attorney—Scope—Family Court passed decree for restitution of conjugal rights but Shariat Court dismissed the suit—Husband filed appeal before the Supreme Court through attorney—Contention of wife was that attorney could not file appeal in matrimonial matters—Validity—Husband had specifically authorized the attorney to file appeals, persue the matters in the revenue, civil/sessions court or criminal courts and appeals in the superior courts—Executant had not authorized the attorney to file suit or appeals with regard to matrimonial matters—Strict compliance should be made to the recitals of power of attorney—Had the intention of the husband be to authorize the attorney for matrimonial matter, he should have specifically mentioned the same—Attorney was not authorized by the husband to act on his behalf in the matrimonial matters—Executant had authorized the attorney only with regard to filing of suits or appeals in respect of revenue, civil and criminal matters—Appeal having been filed incompetently was dismissed by the Supreme Court.

Gul Taj Begum v. Lal Hussain and another PLD 1980 SC (AJ&K) 60 and Muhammad Afsar Khan and another v. Khadim Hussain and 3 others PLD 1978 SC (AJ&K) 143 rel.

(b) Power of attorney—

—-Strict compliance should be made to the recitals of power of attorney.

Kamran Tariq Advocate for Appellant.

Sh. Masood Iqbal Advocate for Respondents.

Date of hearing: 27th January, 2015.

JUDGMENT

MOHAMMAD AZAM KHAN, C.J.—The appellant filed a suit for restitution of conjugal rights against respondent No. 1 in Family Court, Dudyal on 16th September, 2010. After necessary proceedings, the trial Court passed a decree for restitution of conjugal rights in favour of the appellant on 29th September, 2012. The respondent filed an appeal in the Shariat Court. The Shariat Court through judgment and decree dated 31st January, 2013 accepted the appeal and dismissed the suit. Hence, this appeal by leave of the Court.

  1. At the outset, Sh. Masood Iqbal, Advocate, the counsel for the respondents, raised a preliminary objection that the appeal has been filed through attorney. In the deed of power of attorney executed by the appellant in favour of the attorney, no power has been conferred upon him for filing appeal in the Supreme Court in the matrimonial matters. The appeal being incompetently filed, merits dismissal.
  2. Mr. Kamran Tariq, Advocate, the counsel for the appellant, argued that the appeal has competently been filed. The appellant executed power of attorney in favour of attorney on 29th March, 2011 and in para 2 of the power of attorney, the attorney has been empowered to file an appeal in the Supreme Court. The learned counsel further argued that an important question in relation to the jurisdiction of Jama’at-e-Ahl-e-Sunnat (UK) Shariah Council is raised in the appeal, which is the question of public importance and it has to be decided in a regular appeal.
  3. We have heard the learned counsel for the parties and perused the record. The appellant filed a suit for restitution of conjugal rights against respondent No. 1 before the Judge Family Court, Dadyal. The suit was decreed, the appeal filed by respondent No.1 in the Shariat Court has been accepted and the suit filed by the plaintiff-appellant has been dismissed. The appellant has filed instant appeal by way of leave through attorney, Muhammad Jamil. For proper appreciation, we deem it necessary to reproduce the power of attorney, which is as under: –

“POWER OF ATTORNEY

Siknder Habib s/o Habib Hussian of 121 St Pauls road, Basall Heath, Birmingham west, u.k and formerly of tehsil Dadyal, District Mirpur AK. Pakistan, do hereby appoint Mr. Muhammad Jamil s/o Muhammad Azam id #342020706957-7 r/o Charyawala Adda Tehsil Kharian District Gujrat Pakistan.

(1) This power of attorney which was made by me on the 28th May, 2011.

(2) to initiate, commence, continue, defend or pursue and suit/ matters concerning the above said matter in the revenue, civil/ session Court or criminal Courts of Azad Kashmir/ Pakistan and to file an appeal, or any application in any superior court of higher jurisdiction including the High Court and Supreme Court of Azad Kashmir/Pakistan to which any application or appeal may lie.

(3) to communicate with any authority /department in connections with any matter relating to the abovesaid civil suit and to sign any document on my behalf to promote the purpose of this power of attorney.

(4) to do any act or take any step to promote the purpose or achieve the object of this power of attorney and to look after the interest of the principal with regard to the abovesaid matter in my absence from the country.

(5) to engage an advocate or barrister or any other agent to protect my rights in the abovesaid matter or for any other purpose necessarily connected with the above said matter.

(6) and for the purpose aforesaid or any of the to appoint and remove at pleasure any substitute for or agent under him in respect of all or any of the matter aforesaid upon such term that the attorney shall thinks fit.

(7) generally to execute any deed or sign any document which may be required and to do any other act matter or thing which the attorney shall consider necessary or expedient for carrying out any of the purpose or acts hereby authorized in the same manner and as fully and effectually in all respects as the principal could have done if personally present. The principal hereby undertakes to ratify everything which the attorney or any substitute or agent appointed by him under the aforesaid powers shall do or purport to do by virtue of the presents.”

A perusal of contents of power of attorney shows that the principal has authorized the attorney to initiate, commence, continue, defend or pursue any suit/matters concerning the above said matter in the revenue, civil/ sessions Court or Criminal Courts of Azad Kashmir/Pakistan and to file appeal or any other application in any superior Court of higher jurisdiction including the High Court and Supreme Court of Azad Kashmir/Pakistan, to which any application or appeal may lie.

  1. It is evident from para 2 of the deed of power of attorney that the appellant has specifically authorized the attorney to file appeals or persue the matters in the revenue, civil/sessions Court or Criminal Courts and appeals in the superior Courts. He has not authorized the attorney to file suit or appeal in respect of matrimonial matters. It is celebrated principle of interpretation of power of attorney that strict compliance shall be made to the recitals of power of attorney. Had the intention of the appellant be that he has authorized the attorney for a matrimonial matter, which was pending at the time of execution of power of attorney, in the Family Court, Dadyal, then he should have specifically mentioned the same as he has mentioned in para 2 the civil/sessions Court, revenue Court and Criminal Courts etc. In the case reported as Gul Taj Begum v. Lal Hussain and another (PLD 1980 SC (AJK) 60), Gul Taj Begum executed a power of attorney in favour of his husband, Sajawal Khan. He was appointed and given general power of attorney in respect of her land. He filed a suit for pre-emption on behalf of Gul Taj Begum on the strength of the said power of attorney. It was contained in the recitals of power of attorney that:–

The suit was dismissed on the ground that the attorney was not authorized to institute the suit for pre-emption. While relying upon the judgment of this Court delivered in the case reported as Muhammad Afsar Khan and another v. Khadim Hussain and 3 others (PLD 1978 SC (AJK) 143), it was observed as under:–

“A power of attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or preceded by the general words, general words are restricted to what is necessary for the proper performance of the particular act and general words in no way confer general power but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers.”

In a recent judgment titled WAPDA through chief engineer/project Director Mangla Dam Raising Project WAPDA Mangla/Mirpur v. Mohammad Iqbal and others (Civil Appeal No. 77 of 2013 decided on 2nd December, 2014), it has been held by this Court as under:–

“It is celebrated principle of interpretation of the power of attorney that a power of attorney should be construed strictly and should be interpreted to give only such authority to attorney as it confers expressly or by necessary implications. The important rule for the construction of such a document is that regard must be had to the recitals which show the object of the power. A power of attorney is always subjected to strict interpretation because it delegates powers which are to interpreted in strict terms and, in such a way, as would be necessary to carry into effect the authority that is expressly given. The power of attorney is not open to that liberal interpretation, which is given to less formal instruments such as ordinary letters or instructions in commercial transactions.”

In the instant case the attorney was not authorized by the appellant to act on his behalf in the matrimonial matters. He has authorized him only in respect of filing of suits or appeals in respect of revenue, civil and Criminal matters. The attorney has not been authorized by the appellant for filing appeals in respect of matrimonial matters. The objection prevails. The appeal being filed incompetently merits dismissal. The appeal is hereby dismissed.

  1. Before parting with the judgment, we may observe here that a very important legal question of public importance; whether, Jama’at-e-Aehl-e-Sunnat (UK) Shariah. Council, has jurisdiction to declare a marriage void and issue a decree for dissolution, is involved in the case, but the appeal being incompetently filed, has been dismissed, therefore, this question is left open to be resolved in some other appropriate case. No order as to costs.

ZC/16/SC(AJ&K) Appeal dismissed.

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