ALI NAWAZ RAJPUT vs MUHAMMAD ALI and another
This petition for leave to appeal was filed against the judgment of the Lahore High Court dismissing the petitioner's Regular Second Appeal in a pre-emption suit. The petitioner had instituted a civil suit for possession through pre-emption regarding agricultural land, which was later dismissed as withdrawn by the trial court upon a statement made by his advocate. The petitioner challenged the withdrawal, claiming it was unauthorized. The District Judge and the High Court affirmed the dismissal, finding that the counsel had withdrawn the suit on the instructions of the petitioner's special attorney, who was empowered under a valid power-of-attorney to compromise the matter. The Supreme Court reviewed the record, including the testimony of the advocate, and concluded that the evidence fully supported the lower courts' concurrent findings. Finding no misreading of evidence or defect in the High Court's judgment, the Supreme Court held that it was not a fit case for interference. Leave to appeal was accordingly refused, and the petition was dismissed.
- Whether an advocate can withdraw a suit based on instructions conveyed through a plaintiff's special attorney possessing a valid power of attorney?
- Can concurrent factual findings by lower courts regarding the authority to withdraw a suit be challenged in the absence of evidence misreading?
ORDER
' MIAN BURHANUDDIN KHAN, J.-- By this petition leave is sought to appeal against the judgment and order of the Lahore High Court, dated 16-2-1983 passed in R.S.A. No, 273 of 1977.
2. Facts leading to this petition are that land measuring 80 Kanals and 7 Marlas in District Gujranwala was sold by one Mst. Latifi and others to Muhammad All respondent No,1 for an ostensible price of Rs,40,500 through a registered sale-deed dated 2-12-1968. The petitioner being co-sharer in the Khata and Patti claimed superior right of pre-emption. On the ground he instituted a civil suit on 1-12--1969 for possession of the said land through pre-emption. The suit was instituted by the petitioner himself under his own signatures through his counsel Mr. M.A. Basit Advocate. The suit was contested by the vendee and proceedings continued upto 15-9-1971 when the suit was dismissed on the basis of a statement made by the counsel for the petitioner that the suit should be allowed to be withdrawn. Accordingly the trial Court dismissed the suit as withdrawn vide order dated 15-9-1971. The petitioner filed an appeal against the said order which was dismissed by the learned District Judge, Gujranwala vide order dated 15-3-1977. Thereafter, the petitioner filed R.S.A. In the Lahore High Court which was dismissed vide the impugned order.
3. The learned High Court Judge while considering the points raised before him observed in the impugned order:- "The finding recorded by the learned District Judge, who decided the first appeal, was to the effect that the appellant had appointed Muhammad Yusuf as his special attorney and that it was in pursuance of the instructions of the appellant, conveyed to the learned counsel through the said attorney, that the learned counsel had withdrawn the pre-emption suit. No misreading of evidence or any other defect justifying interference with the said finding was pointed out by the learned counsel for the appellant. The learned Advocate who had withdrawn the suit had appeared as a witness and stated on oath that he had withdrawn the suit as instructed by Muhmmad Yusuf..."
4. We have examined the finding of the learned High Court that the statements on record, support the impugned judgment. Mr. M.A. Basit, Advocate as P.W.3 stated that he had instituted a pre- emption suit on behalf of Ali Nawaz plaintiff and Muhammad Yusuf used to appear for the plaintiff as his special attorney and was in possession of the power-of-attorney which he had seen and by dint of this power-of -attorney he had the right to enter into a compromise and on 15-9-1971 Muhammad Yusuf informed him that the plaintiff wants to compromise and the case to be consigned to record. Accordingly he made a request to the Court that the suit be consigned to record. In view of this statement and the other statements on record, we do not consider this to be a fit case to grant leave. Leave refused and the petition is, consequently, dismissed.