MUHAMMAD VAKIL Versus MUHAMMAD YASIN

ORDER

1. This application under section 12(2) read with Order XLVII, rule 1 and section 151, C.P.C. has been filed by the appellant for reviewing the order, dated 7‑11‑1984.

2. The facts giving rise to this application are simple interesting. The respondent filed eviction application before the IInd Senior Civil Judge and Rent Controller, Karachi on the ground that the appellant had committed default intentionally and wilfully. The appellant resisted the eviction application. The learned Rent Controller by his order, dated 7‑11‑1984 allowed the eviction application and directed the appellant to vacate the premises and hand over vacant possession thereof to the respondent within sixty days of the order. The appellant being aggrieved against the order filed above appeal. The appeal came up for admission before me on 12‑1‑1984. I issued pre‑admission notice to the respondent for 22‑1‑1984. In response to the pre‑admission notice Mr. Naraindas C. Motiani .appeared. On 22‑1‑1984 the appeal was admitted for regular hearing within one year. On 7‑11‑1984 Mr. Ashiq Ali Anwar Rana appeared for the appellant and Mr. Naraindas L. Motiani appeared for the respondent. On 17‑11‑1984 the learned counsel for the parties filed compromise application stating therein that (1) the appellant/ tenant does not press this appeal; (2) that six months time be granted to the tenant/appellant for handing over the vacant possession of the premises to the respondent/ landlord; (3) that if the tenant /appellant failed to hand over the possession of the premises within six months from today the learned Rent Controller will issue a writ of possession without notice to the tenant; (4) that parties will bear their own cost and (5) that appeal may be disposed of in terms of compromise. I disposed of the appeal in terms of compromise.

3. Mr. Abdul Monem Khan, the learned counsel for the appellant has raised the following contentions:

(1) The appellant never gave instruction to his previous Advocate to compromise in the matter.

(2) Mr. Ashiq Ali was not authorised or instructed by the appellant to compromise with the matter.

(3) The appellant has got a strong case and the eviction order is likely to be set aside.

4. On the other hand Mr. Nariandas has submitted that Mr. Ashiq Ali had filed power on behalf of the appellant and he was authorised by the appellant to withdraw and/or compromise. The appeal was rightly disposed of in terms of the compromise application and is valid and binding on the appellant.

5. I have heard the learned counsel for the parties and gone through the record of the case.

6. Before examining the facts and circumstances for the purpose of determining whether Mr. Ashiq Ali Anwar Rana was competent to enter into compromise and sign the compromise application, it is not only desirable but necessary to advert to the law relating to the authority of an Advocate to enter into a compromise on behalf of his client.

7. Order III, rule 1, Civil Procedure Code, permits a party to a' proceeding in a Court to appear normally either in person or by a recognised agent or by a pleader. A pleader is prohibited under rule 4 of Order III from acting for any person except by a specific appointment under a document for the purpose by such person. In other words a pleader must be appointed under a document popularly known as "Vakalatnama" to appear and the act on behalf of his client in a given case. The term 'act' is not defined. It is of wide import so as to take in all kinds of acts.

8. I shall now revert to the decisions. In Sarat Kumari v. Amulyadhan A I R 1930 P C 13 the Privy Council held that a Vakil appointed under a usual power of attorney by a Pardanashin lady, and who never saw his client, never spoke to her in reference to any compromise nor had any communication with her touching any compromise was not empowered to compromise the suit and he had failed in his duty to his client when, without arguing the case he had entered into a compromise.

9. In Sourendra Nath v. Taribala Dasi A I R 1930 P C 158 at 161. Therein, an Advocate of High Court was appointed by a solicitor to conduct a suit in the Mofussil Court and he entered into compromise, the validity of his authority to enter into the compromise fall for decision. Lord Atkin observed thus: "their Lordships regard the power to compromise a suit as inherent in the position of an Advocate in India. The considerations which have led to this implied power being established in the Advocates of England, Scotland, and Ireland, apply in equal measure to India. It is a power deemed to exist because its existence is necessary to effectuate the relations between Advocate and client, to make possible the duties imposed upon the Advocate by his acceptance of the cause of his client."

10. The learned Lord proceeded to state thus: "the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of Barrister or Advocate‑at‑Law. It is implied in the interest of the client, to give the fullest beneficial effect to his employment of the Advocate, secondly, the implied authority can always be countermanded by the express directions of the client. No Advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief."

11. The same view has been reiterated by the Privy Council in Sheanandar Prasad v. Halim Abdul A I R 1935 P C 119. Therein it was observed that in England and in India, the council do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms.

12. A Full Bench of the Nagpur High Court in Jinibai v. Ram Kumar A I R 1947 Nag. 17 expressed the view that 'counsel in India, whether Barristers, Advocates, or pleaders, have inherent powers, both to compromise claims, and also to refer disputes in Court to arbitration, without the authority or consent of the client, unless their powers in his behalf have been expressly counter manded and this, whether the law requires a written authority to 'act' or 'plead' or not.

13. In Ansar Hussain Rizvi v. Mazahir Hussain Zaidi 1971 S C M R 634. The Hon'ble Supreme Court held that in the presence of written authority such a Vakalatnama, an Advocate has implied authority of his client to settle the dispute in absence of anything expressly or impliedly debarring him from entering into compromise contained in the Vakalatnama.

14. I am of the view that Order III, rule 4 lays down is a written authority of appointment when that is given it leaves counsel so appointed free to 'act' and draws no distinction between the various kinds of acting. If the Legislature has drawn no distinction there is no justification for the Court to make one.

15. The Vakalatnama in the case gave express authority to counsel to withdraw, compromise the appeal. The construction of a document appointing an agent is different from the construction of a Vakalatnampkl appointing counsel.

16. Reverting to the second contention of the learned counsel for the appellant that the compromise was entered into by misrepresentation. The special remedy provided by section 12(2), Civil Procedure Code will be available only in respect of cases where the ground of attack is based on fraud, misrepresentation or want of jurisdiction. I, therefore, pointed out to the learned counsel for the appellant to show me how his case fell within the ambit of this provision. He took me through this application submitted on behalf of the appellant but 1 find nothing in it which could possibly bring the case within the purview of the aforesaid grounds. There is nothing in the application suggesting in any way motivated by considerations of fraud, nor there any allegation of misrepresentation has been made. Since it is conceded that the Vakalatnama executed by the appellant in favour of the Advocate included the power to withdraw compromise. There is no question of jurisdiction of the Court involved in passing the order when the duly empowered ` counsel presented the compromise in Court alongwith the compromise application admittedly signed by the counsel. I had no objection but to accept the same and dispose of the appeal in terms thereof.

17. Reverting to the last contention of the learned counsel for the` appellant that the appellant had got a good case on merits. 1t is l pertinent to note that the respondent served notice, dated 5‑6‑198?. calling upon the appellant to stop depositing the rent in Court and make the payment of monthly rent directly to the respondent from F June, 1982 and onwards. The copy of notice was annexed to the eviction application and the acknowledgment due was on 17‑8‑1982, annexed to the affidavit‑in‑evidence. Till the filing of the eviction application the appellant did not comply with the notice, dated 5‑6‑1982. The appellant did not pay or tender rent to the appellant. In this view of the matter the order of the learned Rent Controller is in accord with the evidence on record.

18. For the reasons stated above, the application was dismissed by a short order, dated 16‑10‑1985.

19. A.A. Application dismissed.