Mst. SARWAT SETHI Versus Mst. KHALIDA PARVEEN

RASAAL HASAN SYED, J.--- This appeal arises from order dated 29.1.2011 by which appellant s application for restoration of application for setting aside of ex parte decree dated 15.6.2006, was dismissed.

2. Respondents Nos.1 and 2 instituted a suit for recovery of Rs.600,000/- against the appellant and predecessor of respondents Nos. 3 to 5 which was dismissed on 17.4.2002 by learned Civil Judge. The decree was challenged by filing R.F.A. No. 176 of 2002 which was later, with increase of pecuniary jurisdiction, transferred to District Judge and was entrusted to learned Addl. District Judge, Vehari, who decided it by judgment dated 15.6.2006 whereby suit was decreed ex parte. Appellant who was defendant No. 1 filed an application for setting aside of ex parte decree which was dismissed as withdrawn on 07.11.2006. Appellant moved an application for restoration of application for setting aside of ex parte decree dated 15.6.2006 by which application was dismissed as withdrawn on 07.11.2006 on the statement of learned counsel for the appellant. It is claimed that she had not engaged Mr.Zafar Javaid Khan Daha, Advocate to represent her nor she had given any instructions for withdrawal of her application and that the order may be recalled, the application be restored and ex parte decree be set aside. The application was contested by the respondents who controverted the entire claim made by the appellant in her application. Issues were framed, evidence was recorded and, thereafter, the learned Addl. District Judge after hearing the arguments dismissed the application by order dated 29.1.2011 which has been impugned herein.

3. Heard.

4. It is discernible from the record that recovery suit was filed against the appellant and Muhammad Parvez as defendant No. 2 and Muhammad Aslam as defendant No.3, both predecessors-in-interest of respondents Nos. 3 to 5. Appellant was arrayed as defendant No.1 in the suit. After evidence the suit was dismissed by learned Civil Judge vide judgment and decree dated 17.4.2002. R.F.A. No. 176 of 2002 was filed before this Court which was later transmitted to the District Judge, Vehari who further entrusted the same to the learned Addl. District Judge, Vehari, for final hearing and decision in view of the increase of pecuniary jurisdiction of District Court. The learned Addl. District allowed the appeal and decreed the suit vide judgment dated 15.6.2006. The appellant filed an application for setting aside of ex parte judgment and decree dated 15.6.2006 which was dismissed as withdrawn on 07.11.2006. Thereafter she moved an application for restoration of application which was dismissed as withdrawn vide order dated 07.11.2006 and requested for recalling of said order. The plea raised in the application was that Zafar Javaid Khan Daha, Advocate had no authority to withdraw the application and that she had not instructed him to do so and the order may be recalled, the application for setting aside exparte judgment may be restored and allowed. The learned Addl. District Judge did not agree with the stance taken by the appellant. Reason being that Zafar Javaid Khan Daha, Advocate was duly mentioned in the power of attorney executed by the appellant and that in terms thereof he had the power to withdraw the application, therefore, the order was not open to any exception. It is observed by this Court that the appellant did not implead Zafar Javaid Khan Daha, Advocate as a respondent in the application nor produced him as a witness. So much so she did not claim to have moved any complaint against the said counsel before the Punjab Bar Council on the allegations as contained in the application. It is also observed that no action or proceedings were ever claimed to have initiated against the Advocate on the allegations as are raised in the application. The only evidence produced by her was her statement which was not worthy of any credence and otherwise duly controverted in evidence in rebuttal.

5. The appellant could not categorically deny her signatures on the wakalatnama in favour of Zafar Javaid Khan Daha, Advocate nor could controvert that the wakalatnama did no place any restriction on his powers to make statement for withdrawal of the suit. In Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others (1971 SCMR 634) wherein it was observed to the effect that the contention that the Advocate had no authority to compromise the matter on behalf of the petitioner was untenable as there was implied authority to settle the suit unless wakalatnama expressly or impliedly debarred the Advocate from entering into a compromise and that such stance was untenable especially when nothing was produced to show that Advocate s implied authority was countermanded by the express direction of his client. In Muhammad Jamil v. Municipal Committee Mandi Bahauddin through Chairman and another (2001 MLD 568) following the rule supra it was observed to the effect that such argument loses sight of the provisions of Order III, Rule 4, C.P.C. which provides that no person shall act for any person in any court unless appointed for the purpose by such person by a document in writing signed by such person and that the term act is very wide and includes every conceiveable action with relation to the proceedings in which the Advocate has been authorized to act by a party and that consensus of judicial authority is that a counsel has an implied authority to do whatever he considers best for, his client and such acts are binding upon the client unless express limitations have been imposed upon his authority. Reference can also be placed on case of Fateh Khan v. Manzoor and 5 others (PLD 1993 Lah. 76) where it was observed that to the effect it is inconceivable that element of fraud and misrepresentation may any wise be involved in the exercise of lawful authority conferred on a counsel by means of vakalatnama and that appointment is made as per contemplation of Order III, Rule 1, C.P.C. and is essentially an authority conferred on an agent, exercisable under the ordinary rules governing the relationship of principal and agent, in quite a subtle and refined form and that effectiveness of such delegated authorization and the use thereof stand provided for by section 2 of the Powers of Attorney Act, 1882 as also Chapter X of the Contract Act, 1872, as such, authority to withdraw or compromise a litigation is inherent in the engagement of a counsel. In Noor Muhammad and others and others v. Muhammad Siddique and others (1994 SCMR 1248) the Supreme Court of Pakistan observed to the effect that terms of wakalatnama imply ample powers to the counsel to take any step and conduct proceedings in the suit as considered proper and that this was acceptable to the litigant who affixed their signatures in token of their approval. Reference can also be made to the cases Hassan Akhtar and others v. Azhar Hameed and others (PLD 2010 SC 657) and Afzal and others v. Abdul Ghani and others (2005 SCMR 946) . In Hassan Akhtar s case ibid. the Supreme Court of Pakistan held as under:

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.

6. In view of the rule supra and also the facts noted above the findings recorded by the learned Addl. District Judge, Vehari are not open to any exception nor call for any interference.

7. For the reasons supra there is no substance in this appeal which is dismissed .

UN/S-82/L Appeal dismissed.