Ch. NASIRUDDIN vs Maulvi MUHAMMAD MASKIN And Other
This appeal arose from a dispute over the transfer of a residential portion of a composite property under settlement laws. The appellant challenged a High Court judgment that dismissed his constitutional petition, which had been filed after the Settlement Commissioner refused to allow his participation in remand proceedings. The refusal was based on a concession made by the appellant's counsel in an earlier High Court judgment (dated 30-6-1967), wherein the counsel stated the appellant was not interested in the residential portion. The core legal question was whether the appellant could challenge the validity of that concession in the current appeal, given that the earlier judgment had attained finality. The Supreme Court held that since the appellant did not challenge the 1967 judgment through review or appeal, it achieved finality. Consequently, the appellant could not now contest the factual basis of that judgment, including the concession made by his counsel, in subsequent proceedings. The Court affirmed that a party cannot bypass the finality of an unappealed judgment by attempting to relitigate conceded facts in later stages of the same litigation.
- Can a party challenge a factual concession made by their counsel in a previous judgment that has already attained finality?
- Does a failure to challenge a High Court judgment via review or appeal preclude a party from contesting the findings of that judgment in subsequent remand proceedings?
- Is a statement made by counsel in open court binding on the client if the client subsequently claims it was made without authority?
1. MUHAMMAD AFZAL ZULLAH, J.----This appeal through leave of the Court is directed against judgment, dated 15-11-1974 of the Lahore High Court; whereby appellant's Constitutional Petition arising out of an urban settlement case, was dismissed.
2. After prolonged litigation concerning the disposal of the residential portion of a composite property, the matter was brought before the High Court by the respondents Nos.2 and 3 in Writ Petition No.1563-R of 1965, which was allowed and the case was remanded for fresh decision of a revision petition filed before the Settlement Commissioner by respondent No. l (Maulvi Muhammad Maskin). The learned Settlement Commissioner did not permit the present appellant to participate in the proceedings on the ground that it was stated in the order of remand by the High Court passed in Writ Petition No.1563-R of 1965, that the appellant was no longer interested in the transfer of the residential portion and that, in fact, no part thereof had been transferred to him. The matter was accordingly decided by the Settlement Commissioner and the appellant was excluded from the transfer of the residential portion. Aggrieved by this order, dated 20-9-1968 of the Settlement Commissioner this time the appellant filed a Writ Petition before the High Court which was dismissed by the impugned judgment dated 15-11-1974. It has been observed by the High Court that in the previous order of the High Court dated 30-6-1967 passed in Writ Petition No. 1563-R of 1965, it is clearly stated that the appellant was not interested in the residential portion, the Settlement Commissioner was, therefore, right in refusing to consider his case in the fresh proceedings taken by him after the remand order passed by the High Court.
3. Leave to appeal was granted to examine the question whether the High Court was not in error in thinking that the appellant. "was not the transferee of any part of the residential portion, or that he had not filed any revision petition against the order of the Additional Settlement Commissioner which had sought to interfere with that transfer or that he was not interested any longer in the transfer of the residential portion". And in this context it was also noted for examination that any concession made against the appellant by his counsel in proceedings before the High Court in Writ Petition No. 1563-R of 1965 could not be binding on the appellant as it was made under an obvious mistake of fact and without instructions from the appellant".
4. The learned counsel for the respondent-side has raised the preliminary objection that respondent No.3 having died, in 1985, the appellant has not impleaded the legal representatives as party to this appeal, therefore, it is liable to be dismissed on this ground.
5. We, however, have noticed that the widow of the deceased has already made an application for being impleaded as a party and the learned counsel appearing from the respondent-side represents her. We allow the application for her being impleaded as a party. There is no clash of interest between her and the other legal representatives of the deceased, therefore, in the circumstances of this case, the record of this appeal is complete for final hearing and disposal.
6. The statement made by the learned counsel for the appellant during the hearing of the Writ Petition No.1563-R of 1965 which was the main consideration on account of which the impugned judgment was rendered by the High Court in second round of litigation against the appellant needs to be reproduced. It reads as follows: "We have heard the learned counsel for the parties at some length. On behalf of respondent Nasir- ud-Din (present appellant) it was conceded by Mr. Jaffery, Advocate, that Nasir-ud-Din (present appellant) has not been transferred any residential portion in his favour as his entitlement for the residential portion was struck down by the Additional Settlement Commissioner by his order dated the 5th of December, 1960 and he did not go in revision against that order. In view of this concession on the part of counsel for Nasir-ud-Din (present appellant), we need not express any opinion about the residential portion which was transferred in his favour in the first instance. Nasir- ud-Din (present appellant) is content with the transfer of commercial portion of the property in his favour and as such he is not a contesting party before us for residential portion."
7. Learned counsel for the appellant strongly asserted the following ground taken in the Petition for Leave to Appeal. (It was also noticed when leave to appeal was granted.)
8. "(c)--That the petitioner never authorised and instructed his previous counsel to make any statement adverse to the interests of the petitioner nor their counsel was competent to make any such statement on the authority of the VAKALATNAMA. His statement at the Bar appears to be the result of some misunderstanding which is required to he ignored in the interest of justice and equity. The written statements filed by the petitioner in reply to the Writ Petition No.1563-R of 1965 also does not contain any material prejudicial to the petitioner."
9. The crucial question is whether the appellant can now in this appeal challenge the statement made by his counsel before the High Court in the first round of litigation? It is not denied that the judgment of the High Court, dated 30-6-1967 passed in Writ Petition No.1563-R of 1965, was not challenged any further by the appellant. He was a party in those proceedings and having accepted the same wanted to participate in the remand proceedings. If he thought that his counsel had made a wrong statement or it was without any authority or it was otherwise against the stand and interest of the appellant, he could have either sought a review of the High Court Judgment or could have come to this Court in appeal through leave of the Court. Instead, he accepted the same and wanted to participate in the remand proceedings. This would not dilute the finality of the High Court judgment passed on 30-6-1967. What the learned counsel intended to show was that such statement of the counsel could not be acted upon by the High Court in its judgment dated 30-6-1967. But that judgment is not under challenge before us. It, as already noted, has achieved finality vis-a-vis the appellant. We asked the learned counsel again and again to meet this point. But he tried to ignore it and did not want to face it. Instead he attempted to show that he has a good case on merits both with regard to the statement made by his lawyer and also regarding right to the transfer of the property.
10. No useful purpose would be served by examining the appellant's case on merits. This appeal fails and is accordingly dismissed with costs.
Cited by 1 case
- ALAIN KHATOON Versus GHULAM HYDER 1997 CLC 1034