Wakalatnama and Special Power of Attorney attested in foreign country

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.