ALI BROTHERS and others vs Miss NAUSHABA JABEEN
This matter concerns five Civil Miscellaneous Applications filed under Section 12(2) of the Code of Civil Procedure 1908, seeking to set aside a judgment dated 1-6-2001 which was based on a compromise between the parties' counsel. The petitioners alleged that their counsel, Mr. H.A. Rehmani, lacked the authority or instructions to enter into such a compromise and had colluded with the respondent. The Supreme Court examined the record and noted the absence of any affidavit from the petitioners' Advocate-on-Record confirming a lack of authority given to the arguing counsel. Furthermore, the Court observed that the petitioners failed to challenge the judgment for over a year, only doing so when the time to vacate the premises was expiring. Additionally, one of the petitioners admitted to providing travel expenses to the counsel for the hearing date, undermining the claim of ignorance regarding the proceedings. Consequently, the Court held that the petitioners failed to establish grounds for interference, finding the applications meritless and dismissing them accordingly.
- Can a judgment based on a compromise be set aside under Section 12(2) of the Code of Civil Procedure 1908 without evidence that counsel lacked authority?
- Does the failure to provide an affidavit from the Advocate-on-Record regarding the scope of instructions given to arguing counsel invalidate a claim of unauthorized compromise?
- Is a significant delay in challenging a compromise decree a factor in dismissing an application under Section 12(2) of the Code of Civil Procedure 1908?
- Section 12(2), Code of Civil Procedure 1908
ORDER
' By this common order, we propose to decide Civil Miscellaneous Applications Nos.1261 to 1265 of 2002 as questions of law and facts are identical in all of them.
2. Through order dated 1-6-2001, civil appeals filed by the petitioners were disposed of on the basis of the compromise arrived at between their learned counsel and the learned counsel for the respondent. These applications have been made under section 12(2), C.P.C. Alleging that Mr. H.A.
Rehmani, Advocate Supreme Court who appeared on behalf of the petitioners had no authority or instructions from the petitioners' Advocate-on-Record to enter into a compromise. It was also alleged that the said learned counsel for the petitioners had colluded with the other party and unauthorizedly entered into a compromise and obtained order dated 1-6-2001 in the appeals.
3. Mr. Akhlaq Ahmad Siddiqui, Advocate-on-Record was engaged by the petitioners but he was not present on the said date when the appeals came up for hearing as per record of the appeals. No affidavit or other statement of Mr. Akhlaq Ahmad Siddiqui, Advdocate-on-Record has been appended with these applications to the effect that he did not while instructing or authorizing Mr. H.A. Rehmani, Advocate Supreme Court to appear and plead the case on behalf of the petitioners give authority to settle the matter through compromise. No affidavit either of Mr. H.A. Rehmani, Advocate Supreme Court has been filed to the effect that he was expressly debarred by his Advocate-on-Record while giving instructions or authority from entering into any compromise.
4. We may also observe that the conduct of the petitioners is also not above board. The judgment based on the compromise was passed as far back as on 1-6-2001 whereas these applications have been moved after a period of more than one year when time granted to the petitioners to vacate the premises was about to expire.
5. Mr. Ali Baqar who is one of the tenants in one of the shops and appellant in one of the appeals present in Court when questioned admitted that Mr. N.A. Rehmani, Advocate Supreme Court was given travelling expenses, etc., for appearance before this Court on the date when the appeals were decided. He when further questioned has no answer that in these circumstances, how could he plead that the petitioners did not come to know about the judgment based on compromise immediately thereafter, for a man of ordinary prudence would certainly approach his learned counsel after the date of hearing to know as to what had happened in the appeal.
6. For the foregoing reasons, no case has been made out for interference in the judgment dated 1- 6-2001 based on compromise, therefore, these applications have no merits which are accordingly dismissed.