1990 PLP 1744 (MLD)

This regular second appeal has been preferred against the judgment dated 10‑4‑1969, pronounced by the learned District Judge, Bahawalpur, who had decreed the suit of the pre‑emptor on payment of the sale price.

2. The brief facts of this case are that Muhammad a son of Bahadar Shah was the owner of the disputed land measuring 38 kanals situate in village Nand pura, Tehsil Ahmed pur East, District Bahawalpur. He sold it in favour of Manzoor Ahmad and Ilam Din, the present appellants for Rs. 5,

220. Sardar who claimed to be a co‑sharer in the Khata in dispute sought to pre‑empt the sale of the land in dispute on the basis of his superior right of pre‑emption on payment of Rs. 4,

750. The appellants/vendees denied the superior right of pre‑emption of the pre‑emptor and reiterated that Rs.5,220 were actually paid as the sale price to the vendor. The appellants pleaded waiver on the part of the right of the pr- emptor and inter alia contended that the sale in dispute was not pre‑emptible and the Civil Court lacked jurisdiction to hear this case. The learned trial Court formulated the following issues:‑‑ (1) Whether, the sale in dispute is not pre‑emptible? (2) Whether the plaintiff has got superior right of pre‑emption? (3) Whether the ostensible sale price has been paid or fixed in good faith? (4) What is the market value of the suit land? (5) Whether the plaintiff has waived his right of pre‑emption? (6) Whether the Court lacks jurisdiction? (7) Relief. The learned trial Court on its finding on issue No. 6 decided that it had no jurisdiction to try the suit and the plaint was accordingly returned to be presented to an appropriate forum under Order VII rule 10 of the C.P.C. The pre‑emptor lodged an appeal and the learned District Judge, Bahawalpur by means of the impugned judgment held that the sale of the evacuee property was pre‑emptible and the Civil Court had the jurisdiction to try the suit. The suit of Sardar for possession by pre‑emption of the land in dispute was decreed on payment of Rs.4,

750. Sardar died and his legal representatives were brought on the record.

3. The vendees preferred the Regular Second Appeal. Nobody appeared on behalf of the pre‑emptor and this Court remanded the suit for fresh trial on issues Nos. 1 to 5 by its order dated 3‑6‑1987. The pre‑emptor lodged a civil petition for leave to appeal before the Supreme Court which treated the civil petition as an appeal and it was decided that the vendees had specifically given up the pleas embodied in issues Nos. 1 to 5 and it was a technical error with regard to the reading of the order dated 30‑10‑1968. In fact that order was not pointed out to this Court. The case has been remanded to this Court on that ground.

4. The learned counsel for the appellants had filed three applications. First application pertains to the amendment of the written statement. The second application is regarding the framing of additional issues and the third application is that the learned counsel for the appellants had inadvertently made a statement for giving up issues Nos. 1 to 5 and it may be considered as having been retracted.

5. All these applications are dependent on the fact whether or not the appellants can plead regarding the given up issues.

6. The learned counsel for the appellants has cited Muhammad Sadiq Gondal v. Additional District Judge and others (1986 C L C 326) in which it was held that the statement of the counsel for compromise of the suit on the basis of special oath was unauthorised. In the present case Qazi Obaidullah, the learned counsel for the appellants had categorically made a statement on 30‑9‑1968 before the learned lower Court that he gave up issues Nos. 1 to 5 in favour of the plaintiff. Accordingly the learned Civil Judge made a decision on issue No. 6 only. In the Vakalatnama, it has been stated that the appellants would abide by all the proceedings. In Urdu it is written that "It covers the giving up of the issues or the compromise on behalf of the clients. It may be noted that before the learned first appellate Court, Qazi Obaidullah, Advocate appeared on behalf of the present appellants and did not raise even a little finger that he had made this statement dated 30‑9‑1968, inadvertently. The matter kept pending before this Court and this plea was not raised. Even before the Supreme Court, this point was not raised and when the case was‑remanded, the appellants came forward with three applications for the amendment of the written statement, framing of additional issues and reviving their pleas embodied in issues Nos. 1 to

5. It may also be noted that in this regular second appeal, no such plea has been taken that the statement of the learned counsel for the appellants dated 30‑9‑1968 was made by inadvertence. Alamgir Khan v. Rashid 1988 C L C 1171 has been quoted in which it has been stated that where an agreement between the parties is being made and the parties are present then the consent of the parties .to, an agreement must be taken and in their absence the counsel should make a statement that he was doing so as the attorney of his client and on his behalf. 1n the instant case on 30‑9‑1968, the parties were not present and the learned counsel for the appellants made a statement on the basis of his Vakalatnama and the principle enunciated in this precedent cannot safely be extended to the facts of the case in hand.

7. It has been asserted that the plaintiff in para 3 of the plaint had pleaded that he got sanctioned Mutation No.224 attested on 4‑7‑1966, and was, therefore, a co‑sharer of the Khata in dispute. It has been added that on a verbal sale of the property, the plaintiff could not asset his preferential right of pre‑emption and in accordance with Govt. of West Pakistan through Secretary P.W.D. (Irrigation Branch), Lahore v. Mian Muhammad Hayat P L D 1976 S C 202, admission by a counsel on a point of law or concession on interpretation or applicability of rules on the part of the learned counsel were not contemplated under the law nor binding on a particular party. It is pertinent to note that the plaintiff did not take the only plea that he had become a co‑sharer by virtue of attestation of Mutation No.224 but at the same time added that even before he was a co‑sharer in the Khata in dispute when the said mutation had not been sanctioned. It was not a purely matter of law worth to be considered while dealing with the right of pre emption. It was a mixed question of law and fact and where the point of law is dependent on certain factual point, it cannot be said that it is purely a point of law. This principle was endorsed in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others P L D 1965 S C 690.

8. Conversely in Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1976 S C M R 634, even an advocate appointed by a party had implied authority on his client to enter into a compromise and settle dispute unless such authority was expressly denied. In Nasir Muhammad Khan Vs. Fazal and others P L D 1965 (W.P.) Lahore 434, it was held that under Order III rule 1 of the C.P.C. a pleader had unfettered powers on behalf of his client and the powers include power to abandon issues and the civil revision was accepted on this point.

9. Mr. AA. Ansari, Advocate, who is representing the pre‑emptor has referred to Noor Muhammad v. Muhammad and others (1986 S C M RR 127) which asserts that the statement made by a counsel appearing in connection with interlocutory order whereunder the entire suit was to be disposed of, was binding on that party. There is an exception to this rule in which the conduct of a counsel is involved. If the party states that his learned counsel has made statement on account of fraud or misrepresentation, then such statement was not binding on a party, but in this case the bona fides of Qazi Obaidullah, Advocate have been admitted. In Mian Abdul Qayyum v. Dr. Muhammad Akram Khan 1982 C L C 950, a counsel conceded before the appellate Court that the decision on 01 the issues was correct and he had nothing to say in this matter. The contention was that there were certain circumstances which compelled the counsel to concede issues and those circumstances were not disclosed in the memorandum of appeal nor supported by the affidavit and it was held that this plea cannot be taken notice of in the circumstances of the case. I, therefore, conclude that Qazi Obaidullah, had made a statement on 30‑9‑1968 and it cannot be retracted on the ground taken by the learned counsel for the appellants.

10. Since the issue regarding preferential right of pre‑emption was conceded by the learned counsel for the appellants; so the written statement cannot be allowed to be amended so as to reopen the said issue nor additional issues can be framed. The inadvertence on the part of the learned counsel appearing before the learned trial Court on behalf of the appellants is also not evident.

11. The learned counsel for the appellants has nothing to say in respect of issue No. 6 which stands already settled. I, therefore, dismiss this appeal and also three miscellaneous applications filed by the appellants. As intricated questions of law were involved in this appeal, I make no order as to costs. M.BA./M‑2094/L Appeal dismissed