FATEH KHAN vs MANZOOR and 5 others

' This writ petition relates to a pre-emption suit. Respondents were summoned and, in spite of due service, they did not engage a counsel. P.C. Intimations sent to them for today have not been received back unsaved. They are, hence, presumed to have reached them in due course of postal transmissions. Today, none has appeared for them. They are, therefore, placed ex parte.

2. Pre-emption suit was jointly filed by two brothers Khadim Hussain and Fateh Khan, the petitioner herein. It came to be dismissed by the trial Court on 22-1-1986, as withdrawn on the basis of statements to that effect made and signed by Khadim Hussain plaintiff-respondent No,5 and the counsel for both the plaintiffs.

' The other pre-emptor Fateh Khan, the petitioner herein, then moved an application under section 12(2) of the C.P.C. For the order of dismissal of the suit being recalled for reasons of fraud and misrepresentation. By his order dated 24-7-1986, learned trial Judge rejected the application for the reason that Wakalatnama in favour of Khan Ghazanfar Ali Khan, Advocate (signed by both the plaintiffs) authorised him to make any statement in the Court and to even withdraw the suit. Hence, withdrawal of the suit in exercise of that power would not provide any cause of grievance.

' Revision petition, thereagainst brought by the applicant Fateh Khan was dismissed on 43-11-1986 by learned District Judge with the conclusion that no fraud can be involved in the suit being withdrawn by a counsel on the basis of his authorisation in the Wakalatnama.

' Thereagainst, he has invoked Constitutional jurisdiction of this Court. My learned brother Zia Mahmood Mirza, J. Admitted this writ petition to regular hearing on 19-12-1987 for the mere reason that no inquiry at all was held by the trial Court before summarily rejecting the petitioner's application.

It is inconceivable that elements of fraud or misrepresentation may anywise be involved in the exercise of lawful authority conferred on a counsel by means of Wakalatnama. This appointment is made as per the contemplation of Rule 1 of Order III, 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, exercisable in the field determined by the terms of Wakalatnama itself. Effectiveness of such delegated authorisation and the use thereof stand provided for by section 2 of the Powers of Attorney Act (VII of 1882) as also in Chapter X of the Contract Act (IX of 1872). Authority to withdraw or compromise a litigation has been held to also be inherent in the engagement of a counsel.

3. After the engagement of counsel was admitted and established from the record to have been made on the basis of Wakalatnama, there could not be any occasion for holding inquiry in the limited field of proceedings held in the suit. In not entering upon the futile exercise of inquiry, the Courts below did not commit any mistake of law or error of jurisdiction to render their respective orders liable to be challenged by means of a Constitutional petition. Power so conferred on a counsel creates mutual obligations and any improper or malicious exercise of power thereby conferred would have its own consequences on the relationship of counsel and client, giving rise to different kinds of liabilities inter se, having nothing whatever to do with the relief envisaged by subsection (2) of section 12 of the C.P.C. And the herein contemplation of the petitioner is, in the circumstances, simply incapable of flowing therefrom.

' This writ petition is completely devoid of substance and is accordingly dismissed. Since the petitioner secured admission of an altogether untenable case, without there being any justification, factual or legal, therefore, he should bear the costs of respondents. Order is accordingly made.