KULSOOMBAI Versus SHIRINBAI

1. By this application the order of this Court dated 8‑5‑1,988 is sought to be declared as null and void, which was passed in Suit No.477/75. It will be useful to reproduce the order:‑

2. 8‑5‑1988

3. Mr. G . M. Qureshi, Advocate for Plaintiff.

4. 4

5. Mr. Hasan Asghar Rizvi Advocate for Defendants No.6 & 7. A statement is filed by the Advocate for the defendants No.6 and 7, Mr. Hasan Asghar Rizvi, which is signed by defendants No.6 and 7 as well as by the counsel of defendants No.l and 2 and defendants No.4 and 5. In this statement the claim of the plaintiff is admitted. Mr. dasan Asghar Rizvi has no objection if the suit of the plaintiff is decreed in accordance with this admission. Hence the suit of the plaintiff is decreed on admission and it is declared that the plaintiffs, in addition to their 50 paisas share are also entitled to 9~ paisas share in the 50 paisas undivided share originally belonging to late Rehmatullah, the ancestor of defendants No.l and 2 i.e. now plaintiffs are owners of 59~ paisas, share in the entire property while defendants No.l and 2 are entitled to 401 paisas share in the property. It is further declared that the sale‑deed dated ,6‑11‑1971 is binding only to the extent of 407 paisas share of defendants No.l and 2 and is illegal and void to the extent of the remaining 091 (nine & half) paisas share. The sale‑deed may be treated as rectified accordingly. A copy of this order will be endorsed to the concerned Registrar. The parties to bear their own costs. The suit stands disposed of.

2. Mr. S.A. Samad Khan Advocate contended that by this order the prayer of the plaintiffs particularly made by him in prayer clause

(b) which is to the effect that for declaration that the sale‑deed dated 6‑11‑1971 registered at Karachi by defendants No.l and 2 in favour of defendants No.4 and 5 in respect of property bearing No.GK‑2/32 whereby the defendants No.l and 2 illegally sold the share of the plaintiffs to defendants No.4 and 5, is void has been partly refused.

6. He therefore submitted that by this statement the counsel of the plaintiffs had agreed to give up a portion of the above prayer of the plaintiffs.

7. He submitted that the plaintiffs counsel had no authority to do so. He referred me to the Vakalatnamas, photo copies of which have been produced alongwith the application and the defendants counsel has not challenged their genuineness. These Vakalatnamas authorise M/s. G.M. Qureshi & Co. advocates to appear and act . He therefore pleaded that a Vakalatnama‑authorising an advocate to appear and act would not give him power to compromise the suit. Mr.S.A. Samad Khan cited the following rulinks in this behalf:‑

(1) 1980 C L C 337 Mukhtar Ahmed Farooqui v. Bank of Bahawalpur Ltd. Mr Agha Ali Hyder, J (as he then was) in this case had held that an advocate can enter into a compromise only when Vakalatnama empowers him to do so. This ruling is not of much assistance to Mr. S.A. Samad Khan because on facts it was found that the Vakalatnama given to the advocate did authorise him to enter into compromise and on the basis of the same the Court had come to the conclusion that the advocate had an authority to compromise the case. As such this ruling is not a direct authority on the facts which are there in this case.

(2) A I R 1949 Madras 98‑Ramappayya v. Subbamma. In this ruling it is held that an Advocate who had a Vakalatnama empowering him to appear and conduct and defend the suit did not empower him to settle the case binding his client. This authority of course supports the submission of Mr. S.A. Samad Khan, but it is an Indian authority and the Pakistani authorities are to the contrary.

(3) I L R 14 Bombay 455 Sadashiv Rayaji v. Maruti. In this ruling it was held that an agent holding a power of attorney authorising him to act and appear for a party to a suit cannot bring the suit to a close by the offering to be bound by the oath of the party in a particular form nor can a pleader so bind his client. This ruling is in fact an authority which deals with Section 9 of the Oaths Act and cannot be pressed into service in a case under Order XXIII, Rule 3, C.P.C.

(4) P L D 1955 Sind 62 Din Muhammad v. Farooq Mirza. In this ruling it was held that in case of Vakalatnama the power of the advocate depends on its terms. He can enter into a compromise only when the Vakalatnama empowers him to do so.

8. Mr. S.A. Samad Khan also cited 1971 S C M R 634 Ansar Hussain Rizvi v. Syed Mazahir Hussain Zaidi. This is a very pertinent ruling but I am afraid that it does not support the view of Mr. S.A. Samad Khan. The relevant observations of the judgment are reproduced as under which will make it clear that that ruling goes against Mr. Samad Khan.

9. The contention that the Advocate of the petitioner had no authority to compromise the matter on behalf of the petitioner is untenable. The Privy Council has held in the case of Sourendra Nath Mitra and others v. Tarubala Dasi, that unless there is specific authority to the contrary, and in the absence of a written authority such as a Vakalatnama an Advocate has implied authority to his client to settle the suit. It has not been contended that the learned Advocate concerned held any Vakalatnama, which expressly or impliedly debarred him from entering into a compromise. Nor anything has been produced to show that the learned Advocate s implied authority was countermanded by the express direction of his client.

3. Mr. Hasan Asghar Rizvi who appeared for the defendants Nos.6 and 7 first pointed out that the learned counsel for the plaintiffs had referred to the plaint which had been specifically amended and the prayer clauses (a) and (b) of the amended plaint read as under:

(a) For declaration that the plaintiffs are entitled to 91/2 paisas in 50 paisas undivided share originally belonging to late Rehmatullah. ancestor of defendants Nos.l and 2.

(b) For declaration that the sale‑deed dated 6‑11‑1971 registered at Karachi by defendants Nos.l and 2 in favour of defendants No.4 and 5 in respect of property bearing No. GK‑2/32 whereby the defendants Nos.l and 2 illegally sold the share of the plaintiffs to defendants No.4 and 5 is void, and also the Sale‑Deed dated 4‑6‑1986 executed by defendants No.4 and 5 in favour of the defendants No.6 and 7 is also void as executed during pendency of suit.

4. He therefore submitted that this order was an order passed on the admission of the defendants. But even if it was not so and even if it is treated as a consent order relying upon the authority of Supreme Court referred to above he submitted that the Vakalatnama did not contain any direction to the contrary nor anything was brought on record to show that the plaintiffs had given any direction or instruction to the contrary to his counsel. Hence the counsel for the plaintiffs had authority to enter into such a compromise. He additionally placed reliance on P L D 1962 Lahore 95 S . M . Qasim & Co. v . Sh. Azimuddin where it has been held as follows:‑

10. Held that art advocate; once he is authorised by his client to act on his behalf in the Court, is perfectly within his right to compromise or settle the suit without any express authority from his client for the purpose. The plaintiff in the case, had authorised his advocate to appear, act and plead on his behalf as an advocate and there was nothing mentioned in the power of attorney to restrict his power to compromise or settle the suit on his behalf and as such he had power to refer the suit to arbitration without any express authority from his client for the purpose.

11. There is preponderance of decisions on this point. In P L D 1982 SC 204 Arokey Ltd. v. Munir Ahmed Mughal it has been held that a counsel had an implied authority to do whatever he considered best for his client and such acts, are binding upon the client unless limitations. have been imposed on his authority. Reference in this connection may also be made to an Indian decision reported in AIR 1975 S C . 2202.

12. In Noor Mohammad v. Mohaihmad Shafi reported in 1986 SCMR

13. 127, statement made by counsel of a party while appearing in connection with an interlocutory matter, whereunder entire suit was liable to be disposed of, held, was binding on that party.

14. In 1986 C L C 1530 Mr. Justice Syed Haider Ali Pirzada, relying upon Sarat Kumari v. Amulyadhan A I R 1930 P.C. 158; Sheanandar Prasad v. Halim Abdil A I R 1935 P.C. 119; Jinibai v. Ram Kumar A.I.a. 1947 Nag. 17; Ansar Hussain Rizvi v. Mazahir Hussain Zaidi 1971 S C M R 634 has held that though the term act was not defined but would be of wide .import so as to take in all kinds of acts for purposes of Order III, rule 4, C . P.C. In 1985 C L C 72, a Single Judge of Lahore High Court held that power to compromise suit or to accept offer of special oath on behalf of his client was always available to a counsel representing, his client unless such power was specifically countermanded by the client.

15. Under these circumstances I am satisfied that the order dated 8‑5‑1988 was lawfully passed and that the advocate for the plaintiffs had power to compromise the suit and the suit was lawfully compromised. Even otherwise no injustice has been caused by this order to the plaintiffs and therefore I do not want to interfere with this order, J.M. 54/1988 is therefore dismissed. CMA No.6705/88 has become infructuous and is dismissed as such.

16. A . A . / K‑115 / K Application dismissed.