1999 PLP 2790 (MLD)

Ss. 3 & 4

Restoration of application for contempt of Court

Revision was withdrawn while pending applications were also dismissed as withdrawn without pointing out that a contempt application was also pending

Respondents who had committed violation of the order of High Court were liable to punishment irrespective' of the fact whether the main petition was pending or was dismissed on merits

Contempt of Court proceedings being a separate and independent cause, application for contempt of Court was restored in circumstances. Ghulam Muhammad Mughal for Applicant No.4. Syed Madad Allay Shah for Respondent No.3. On 14-11-1997, this Revision Application filed under section 115, C.P.C. was dismissed as withdrawn with the permission to the applicants to file a fresh suit on the same causes of action as provided under Order VII, Rule 13, C.P.C. The then counsel appearing for the respondent No.3, conceded to such proposal. Alongwith the main Revision Application, there were two more applications fixed on that day. The first application was C.M.A.277 of 1997, filed by the applicants under Order XXXIX, Rules 1 and 2, C.P.C. while the other was C.M.A.287 of 1997, filed -by the applicants under sections 3 and 4 of the Contempt of Court Act, 1'976 which was fixed for orders. Both these applications were dismissed by this Court on the grounds that they had become infructuous in view of withdrawal of main revision application.

2. Now, applicant No.4 has filed two applications, one (M.A-22/98) for recalling the order dated 14-11-1997 and the other (M.A. 23/98) for restoration of M.A. 287 of 1997. I have heard Mr. Ghulam Muhammad Mughal, Advocate for applicant No.4 and Mr. Syed Madad Ally Shah, Advocate for respondent No.3.

3. There were ten applicants who' filed the Revision Application being aggrieved with two orders passed by the subordinate Courts through which their plaint in First Class Suit No.129 of '1995 was rejected. It is argued by Mr. Mughal that the revision application was signed by one Muhammad Younas, respondent No.1, in his personal capacity as well as attorney of applicants Nos.2 to 9 which fact is further proved by the Vakalatnama of Mr. Muhammad Yousuf Leghari, Advocate, through whom this petition was filed. Subsequently, Mr. Muhammad Ibrahim Soomro, Advocate filed his Vakalatnama which was signed by applicant No.4, Zulfiqar Ali, on his behalf as well as on behalf of other nine applicants in the capacity of their attorney. It is vehemently denied that Zulfiqar Ali was attorney of the remaining applicants and, therefore, Mr. Ibrahim Soomro was not competent to withdraw this revision application on behalf of other applicants. Interestingly, Mr. Ghulam Muhammad Mughal has also filed his Vakalatnama which has been signed by the same respondent Zulfiqar Ali who has agitated this point on behalf of other applicants who are not before this Court. They have not objected to the dismissal of this revision application as withdrawn and the only person who has come forward to challenge the same is applicant No.4, Zulfiqar Ali, who, at the relevant time, was being represented by Mr. Muhammad Ibrahim Soomro. In these circumstances, he is not entitled in law to challenge his authority given in favour of Mr. Soomro and to plead the case of other applicants for whom he claims that they did not earlier sign Vakalatnama of Mr. Soomro. He cannot be permitted to blow hot and cold in the same breath. Since he was being represented by Mr. Soomro at the relevant time and since the other applicants have not come forward to challenge the withdrawal of this revision application even after a lapse of eleven months, it cannot be said that Mr. Soomro did not have any authority to withdraw the same.

4. Then it was argued by Mr. Mughal that Mr. Ibrahim Soomro was not authorised to withdraw this revision application even on behalf of applicant No.4 Zulfiqar Ali. He has placed reliance on the contents of Vakalatnama filed by Mr. Muhammad Ibrahim Soomro which shows that he was authorised to "appear, act and plead, compromise, refer the matter to arbitration, recover money due or property documents etc." It was further mentioned in the Vakalatnama signed by Zulfiqar Ali that "whatever is done by the counsel will be taken as done by me/us." In this Vakalatnama, Zulfiqar Ali has declared himself to be the attorney of remaining applicants. Mr. Mughal is not in a position to explain such declaration. However, he admitted that at present Zulfiqar Ali is attorney of the other applicants. Mr: Syed Madad Ally Shah has argued that the Vakalatnama contains implied authority to withdraw the revision application. He has placed reliance on the case Mumtaz Begum v. Karachi Building Control Authority and 5 others (1997 MLD 1953), Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 4 others (1971 SCMR 634), Noor Muhammad v. Muhammad Shafi and others (1986 SCMR 127) and Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/Registration. Authority, Government of Sindh, Karachi and another (PLD 1992 Karachi 183).

5. In the case of Dr. Ansar Has'san Rizvi (supra), it was held by a Full Bench of Hon'ble Supreme Court after referring to the case of Sourendra Nath Mitra and others v. Tarubala Das (AIR 1930 P.C. 158), that unless there is specific authority to the contrary and in absence of a written authority such as a Vakalatnama, an Advocate has implied authority of his client to settle the suit. In Mumtaz Begum (supra); a Division Bench of this High Court held, inter alia, that "it is now settled law in our country that a counsel appearing for a client has the power, inter alia, to compromise and withdraw proceedings even without specific instructions to do so." In Noor Muhammad (supra), it was held by Hon'ble Supreme Court while declining leave to file appeal against an order of Lahore High Court, that a counsel is competent to make a statement through which the entire suit was disposed of and that such statement of the counsel is t binding on the party. In the case Mobile Eye Service (supra), another Division Bench of this Court held, inter alia, that wherein Advocate enters into a compromise on behalf of a party without being specifically authorised, then, such matter is purely between the advocate and the party and that no compromise can be set aside merely on the ground that the Advocate had no authority to compromise.

6. As a result of the above discussion, I am of the considered view that respondent No.4, Zulfiqar Ali, is not in a position to challenge the authority of Mr. Muhammad Ibrahim Soomoro, Advocate on the ground that he was not authorised to withdraw this revision application. None of the nine applicants have come forward to challenge such withdrawal which creates doubts on the stand taken by the applicant No.4 who has filed its instant application (M.A.22/98) on his behalf and not on behalf of other applicants This application being frivolous is dismissed. At the same time, I am also of the view that the instant application filed by applicant No.4 was not maintainable either on factual or legal plane. I, therefore, burden the applicant No.4 with a cost of Rs.5,000 which will be paid to respondent No.3 being represented by Mr. Madad Ally, Shah.

7. M.A. No.23 of 1998 has been filed with the prayer to restore the contempt application bearing No. M.A. 277 of 1997 which was filed by the applicants under sections 3 and 4 of the Contempt of Court Act, 1976 which was dismissed by this Court on the ground that since the main revision application has been dismissed as withdrawn, the same has become infructuous. At the relevant time, it was not pointed out by the counsel appealing for the parties that this was an application for contempt against the respondents Nos.3 and 4 who have violated this Court order dated 17-3-1997. Perusal of case file indicates that on 6-10-1996, order to maintain status quo was granted and finally on 17-3-1997, it was ordered that the status quo granted earlier shall continue till further orders. Subsequent orders passed by this Court show that at no time this order of status quo was ever recalled. It was argued by Syed Madad Ally Shah that since the main case was dismissed as withdrawn, the contempt proceedings were also liable to be dismissed as at that time no cognizance was taken by this Court. I am not impressed by such arguments. If, for the sake of arguments, it is accepted that the respondents Nos.3 and 4 have committed violation of this Court order dated 6-10-1996, they are liable to punishment irrespective of the fact whether the main petition is pending or was dismissed on merits. Contempt E of Court proceedings are always treated as a separate and independent cause. In this view of the matter, I grant M.A. No.23 of 1998 and restore M.A. No.277 of 1997 to its original number. Issue notice to the alleged contempters for next date. Q.M.H./M-381/K Order accordingly.