HASSAN AKHTAR Versus AZHAR HAMEED

KHILJI ARIF HUSSAIN, J .---This judgment will dispose of civil Petition No.499 of 2009 and Civil Petition No.500 of 2009, since the parties as well as questions of law and facts involved in both petitions are common.

2. The petitioners seek leave to appeal in both these petitions from the impugned common judgment passed by learned Single Judge of the then Islamabad High Court, dismissing petitioners' R.S.A. Nos. 2 and 3 of 2007 filed against the two separate judgments of the learned Additional District Judge as well as that of learned Civil Judge, Islamabad, whereby the two suits filed by the plaintiff/predecessor-in- interest of the petitioners were dismissed.

3. Facts necessary for decision of these petitions are that Suit No.336 was filed by Sh. Asghar Hussain, plaintiff/predecessor-in- interest of the petitioners, seeking declaration to the effect that the sale-deed executed by Muhammad Yosuaf, attorney of original owner Sh. Ahmad Hassan, brother of the plaintiff, in favour of his relatives in respect of the land in question are void and in the alternative, a decree for possession through pre-emption was claimed.

4. Suit No.337 of 1983 was also filed by the predecessor-in-interest of the petitioners seeking declaration to the effect that the sale made by Muhammad Yousaf, Attorney of said Sh. Ahmad Hassan in favour of his relatives is void and in the alternative, a decree for possession through pre-emption was claimed.

5. Later on 7-8-1985, Sh. Asghar Hussain plaintiff/predecessor-in- interest of the petitioners, made a statement before the trial Court that he will only pursue the suit to the extent of pre-emption and withdraws the suit to the extent of cancellation of the sale-deed in question. The learned Civil Judge on the basis of the statement of the Advocate abandoned the claim of cancellation of the sale and ordered that the suit would proceed to decide issues relating to pre-emption.

6. On 17-2-1987 Raja Abdul Rahim, Advocate for the said plaintiff made a statement on the ground that he had filed a suit for cancellation of the sale and did not want to proceed with the pre-emption suit. Learned Civil Judge, dismissed the said suit on the same day. Before dismissal of said suit, Sh. Asghar Hussain, predecessor-in-interest of the petitioners, filed Suit Nos. 145 and 146 of 1987.

7. Both the suits were contested by the respondents filing written statements pleading that the suit are barred under Order XXIII, Rule 1(3), C.P.C. and Order II, Rule 2, C.P.C.

8. On the basis of the pleadings of the parties, after framing identical issues in both the suits including the issue "whether the suits is barred under Order II, Rule 2 and Order XXIII, Rule 1(3), C.P.C. and after taking into consideration the evidence led by the parties before him learned Trial Judge by separate judgments dated 15-12-200(sic) dismissed the suits, finding both of them barred under the provisions of Orders II, Rule 2 of the C.P.C. The plaintiff was estopped from his own words and conduct to file the suit.

9. Feeling aggrieved, the petitioners filed two appeals before the District judge, Islamabad. Both the appeals were dismissed by learned Additional District Judge, Islamabad, by his separate judgments dated 6-11-2006. There-against, the petitioners filed appeals before the High Court, which also could not succeed and were dismissed by the common judgment, impugned herein.

10. Heard Mr. Gulzarin Kiani, Advocate Supreme Court for the petitioners and Mr. Saeed-ul-Haq, Advocate Supreme Court for the respondents.

11. Contentions of learned counsel for the petitioners are that the orders for dismissal of the suits were passed by the learned Civil Judge on the basis of statement of the Advocate not pressing the relief pertaining to cancellation of sale-deed, whereas the Advocate was not authorized to make such statement and suits filed by the plaintiff/predecessor-in-interest of the petitioners were not barred by Order XXIII, Rule 1(3) or Order II, Rule 2 of the C.P.C. In support of the contention learned counsel placed reliance on Ghasiram Goenka v. Harbux Goberdhonedas and another AIR 1980 Cal. 477; Din Muhammad and another v. Farooq Mirza PLD 1955 Sindh 62 and Muhammad Hussain and others v. Mst. Hanaf Ilahi and others 2005 SCMR 1121.

12. We have heard learned counsel and, with their assistance, have gone through the material on record carefully. It appears from the record that the Advocate for the plaintiff, who made statement regarding withdrawal of the claim in Suit No.336 of 1983, filed subsequent suits for cancellation of the sale-deed.

13. It is by now well-settled that an Advocate has authority to make statement on behalf of his client, which is binding upon the client, unless there is any thing contrary in the Vakalatnama putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client. The Advocate's power in the conduct of a suit allows him to abandon the issue, which in his discretion, advisable in the general interest of his client.

14. From the record it appears that after making statement abandoning the claim pertaining to sale in question, learned advocate for the plaintiffs/predecessor-in-interest of the petitioners, not only kept representing him but also filed another suit seeking cancellation of the sale-deed and thereafter withdrew the earlier suit filed by him. All these acts of learned Advocate show that he acted with authority and consent of the plaintiff/predecessor-in-interest of the petitioners, who was bound by the acts of his Advocate.

15. From the Vakalatnama on record, it also appears that learned Advocate was authorized to make said statement on behalf of the plaintiff including the power to compromise or refer the matter to arbitration.

16. Where Vakalatnama is given, the counsel empowered to compromise the suit without any express authority from his client unless such powers are specifically countermanded by the client.

17. While dealing with the issue wherein terms of the Vakalatnama given to the Advocate, appear almost similar to one given to Advocate who was appearing before the trial Court which reads as under:--

This Court in the case of Messrs Arokey Ltd. and another v. Munir Ahmed Mughal and 3 others PLD 1982 SC-204 held that Advocate who represented the petitioner was competent to enter into compromise.

18. In the circumstances, no infirmity, legal or factual has been pointed out in the impugned judgment nor any misreading or non-reading of the evidence is shown justifying interference of this Court with the same.

19. Consequently, finding no merit in these petitions, we dismiss the same and leave refused.

S.A.K./H-3/S Leave refuse