Mst. ASHRAF BIBI and others vs MUHAMMAD AMIN and others
This matter arises from a petition for leave to appeal against the dismissal of an application filed under section 12(2) read with section 151 of the Code of Civil Procedure 1908 for setting aside an order of withdrawal of a civil revision. The core legal question was whether an application under section 12(2) C.P.C. was rightly rejected where a counsel had withdrawn a revision petition based on an alleged compromise involving a monetary payment that was never actually disbursed to the clients. The Supreme Court held that the High Court erred in dismissing the application when the settlement amount remained with the counsel and was not paid to the petitioners. The Court converted the petition into an appeal, set aside the impugned order, and remanded the civil revision to be decided on its merits. The key principle laid down is that a compromise or withdrawal of a case by counsel based on receipt of funds is vitiated if the principals do not receive the consideration and dispute the counsel's authority.
- Can an order of withdrawal of a revision petition be set aside under section 12(2) C.P.C. when the counsel acted without proper instructions regarding a monetary compromise?
- Whether a compromise involving payment of money is valid when the settlement amount remains with the counsel and is never disbursed to the party?
- Section 12(2), Code of Civil Procedure 1908
- Section 151, Code of Civil Procedure 1908
' TANVIR AHMED KHAN, J.--- Leave to appeal is sought against the order dated 15-4-2003 whereby C.M.A. No,999-C of 2002 filed by the petitioners under section 12(2) read with section 151, C.P.C. For setting aside the order, dated 1-7-2002 passed in Civil Revision No,1350 of 1991, was dismissed.
2. Facts briefly are that the petitioner, Mst. Ashraf Bibi, filed a suit claiming 7/96 share through inheritance. She also took exception to the Mutation No,33 dated 28-9-1940. Ultimately, through judgment, dated 30-7-2001 Civil Revision No,1350 of 1991 filed by her was accepted and the impugned mutation was declared to be void and of no legal effect. However, after approach of the respondents an order was passed on 3-6-2002 for the rehearing of the revision petition. Malik Muhammad Ashhab, counsel for the petitioner, Mst. Ashraf Bibi, appeared before the Court on 1-7- 2002 and made a statement that he had the instructions to withdraw the revision petition.
Accordingly an order was passed to this effect.
3. The present petitioners on coming to know about this withdrawal, made an application on 18-7- 2002 under section 12(2) read with section 151, C.P.C. For the adjudication of the case on merits as she had never instructed her counsel to withdraw the revision petition. The learned Single Judge of the Lahore High Court through order, dated 15-4-2003 rejected that application. Hence, this petition for leave to appeal.
4. We have considered the contentions raised by the learned counsel for the parties and have gone through the documents appended with this petition with their assistance. The application of the petitioner, Mst. Ashraf Bibi, for adjudication of her revision petition on merits was dismissed simply on the ground that an affidavit of her counsel Malik Muhammad Ashhab before the Lahore High Court on 21-1-2003 was furnished wherein he made a statement that she had agreed to compromise with the other side who had paid Rs,14,00,000 (Rupees fourteen lacs). However, the impugned judgment and the documents appended therewith demonstrate that the said amount of Rs,14,00,000 remained with the counsel and was never paid to the petitioners. We are completely at a loss, how this compromise was effected when the petitioners were not paid even a single penny. The money is still lying with the learned counsel. In view of the nature of the order, which we are going to pass, we do not want to dilate much upon this issue.
5. Keeping all the aforesaid features of the case into consideration, we convert this petition into appeal and set aside the impugned order, dated 15-4-2003. The revision petition filed by the petitioner Mst. Ashraf Bibi would be deemed to be pending which shall be decided on its merits by hearing the parties. However, if the parties so agree and voluntarily reach at a genuine compromise, it can also be struck down between them.