WALI MUHAMMAD And Others vs Mst. QAISAR JEHAN BEGUM And Another
This petition for Special Leave to Appeal arises from a dispute concerning the unauthorized withdrawal of a pre-emption suit. The respondents filed a suit for pre-emption, which their counsel subsequently withdrew, citing a compromise. The respondents later filed a review application, alleging that they had never authorized the withdrawal and that the dismissal order was obtained through fraud. The trial court found that fraud had been committed and restored the suit. An appellate court reversed this decision, but the High Court restored the trial court's order. The petitioners, challenging the High Court's decision, argued that the counsel possessed the authority to compromise and withdraw the suit under the executed Vakalatnama, and that instructions were received from a family member of the respondents. The Supreme Court granted leave to appeal, noting that the contentions regarding the scope of the counsel's authority and the alleged fraud required further judicial examination. The Court directed that the trial court should not announce a final judgment while the appeal remains pending before the Supreme Court.
- Does a counsel have inherent authority to withdraw a suit on behalf of a client without specific instructions?
- Can a court order of dismissal be set aside on the grounds of fraud if the counsel acted without authorization?
- Is a review application maintainable against an order of dismissal passed on the basis of an unauthorized compromise?
- Section 114, Code of Civil Procedure 1908
- Order XLVII Rule 1, Code of Civil Procedure 1908
SAAD SAOOD JAN, J.--This is a petition for Special Leave to Appeal from the order, dated 28-5- 1980 of the Lahore High Court, Bahawalpur Circuit.
2. Mst. Qaisar Jehan Begum and Mst. Tasleem-un-Nisa Begun filed a suit for pre-emption in a civil Court at Dera Ghazi Khan. They were represented by Malik Naseem Ahmad, Advocate. In due course issues were framed and the proceedings were adjourned to 20-9-1972 for recording evidence of the parties. However, on 5-7-1972 an application was filed by Malik Naseem Ahmad for the withdrawal of the suit on the ground that the parties had entered into compromise. The learned trial Court recorded the statement of Malik Naseem Ahmad and dismissed the suit as withdrawn. ,
3. One Basit A.I used to pursue the case on behalf of Mst. Qaisar Jehan Begum and Mst. Tasleem- un-Nisa Begum. He appeared in the Court on 20-9-1972 which was the date originally fixed for recording evidence of the parties and found that the case had not been shown in the cause list.
According to him he made inquiries from Malik Naseem Ahmad, Advocate, about the fate of the case. Malik Naseem Ahmad told him that the file had been misplaced and for that reason it had not appeared in the cause list. A few days later, he came to know the circumstances in which the suit had been dismissed. On 3-10-1972 the two women filed an application under section 114 and rule I of Order XLVII-of the Code of Civil Procedure for review of the order of 5-7-1972 by which the suit was dismissed. Their case was that they had not given any instruction to Malik Naseem Ahmad to withdraw the suit and that the statement made by him in this regard was without authority. They further alleged that the order of dismissal had been obtained by practising fraud on the Court. This application was resisted by the petitioners. After considering the evidence led by the parties the learned trial Court held that the order of dismissal had been obtained from the Court by practising fraud. Accordingly, it set aside the impugned order and restored the suit. The petitioners filed an appeal before the Additional District Judge who set aside the order of the trial Court. The two women then filed a revision petition in the High Court. By a detailed order a learned Single Judge in the High Court accepted the revision petition, set aside the order of the Additional District Judge and restored that of the learned trial Court. The petitioners now seek leave to appeal from this Court.
4. In support of this petition it is contended that under the Vakalatnama executed by Mst. Qaisar Jehan Begum and Mst. Tasleem--un-Nisa Begum in his favour, Malik Naseem Ahmad had the authority to enter into a compromise and withdraw the suit. Apart from that Malik Naseem Ahmad had not acted in this case without instructions. In this context it is pointed out that the instructions to withdraw the suit were given to him by Kanwar Mushtaq Ahmad who was the husband of Mst.
Qaisar Jehan Begum and son of Mst. Tasleem-un-Nisa Begum. Thus, there was no basis for the Courts to hold that a fraud had been committed on the Court. The contentions raised on behalf of the petitioners require further examination. Leave to appeal is granted. Security in the sum of Rs.2,000. The appeal may be made ready for hearing on the present record with permission to the parties to produce additional documents, if any. The trial Court may not announce the final judgment during the pendency of the appeal in this Court.