1994 PLP 1248 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑Leave to appeal was granted to examine the question ";whether the counsel of respondents was competent to make a statement accepting the offer made by the petitioners and whether the Court was right in. decreeing the suit of, the petitioners on the basis of that statement".

2. The facts, in brief, are that Noor Muhammad deceased, now represented by his legal representatives and his brother Subhan Khan, appellant No.2 herein, filed a pre‑emption suit against the respondents, who contested it. It transpires from the record that the appellants produced their evidence on 11‑3‑1971 and the case was adjourned to 8‑6‑1971 for evidence of the respondents. On that date, when the file came up for hearing before the trial Court, the learned counsel for appellants made an offer that, in case, the respondents admitted their superior right of pre‑emption, the suit may be decreed on payment of sale price of Rs.38,125; meaning thereby that the said sale price was acceptable to them. It may be stated that earlier in the plaint, the pre‑emptor had dubbed the sale price aforesaid as "Namaishi" and "Farzi"; averred that the market value of the land was Rs.27,420 only and in fact it was sold for that much price. In their statement, the learned counsel for the respondents as well as Muhammad Siddique, respondent No.1, who was present in the Court in person, accepted this offer. Accordingly, the learned trial Court decreed the suit on the basis of the consent of the counsel for the parties and Muhammad Siddique respondent. However, subsequently the respondents assailed the trial Court's decree through an appeal, on the plea, that their counsel was not authorized to enter into a compromise, but the learned First Appellate Court turned down this contention and maintained that under the "Vakalatnama" he was competent to do so. The appeal was thus, dismissed vide judgment dated 13‑4‑1972. The respondents then preferred second appeal in the High Court, which was accepted by the learned Single Judge and‑the case remanded to the trial Court for decision afresh on merits. He took the view that the counsel drew his authority from Vakalatnama, but upon the terms of the Vakalatnama in favour of the respondents' counsel, the power to enter into a compromise was not mentioned therein. 'The High Court's judgment dated 21‑3‑1990 is under challenge before us.

3. We have heard the learned counsel for both the parties and examined the available record with their assistance. Both the sides have cited some case- law on the question of counsel's authority qua client and to the principles governing the construction of Deed of Power‑of‑Attorney. This judgment, however, need not be burdened with the discussion of the case‑law, for, the copy of the Vakalatama in favour of the counsel for the respondents, namely, Mian Abdul Ghani Foke, Advocate, is available in the paper book and the fate of this appeal hinges on the interpretation of this document. After going through the language of the Vakalatnama we are firmly of the view that the respondents' counsel acted within the limits of his authority. The relevant contents of the Vakalatnama in Urdu are reproduced below:‑‑ It will be seen that the terms of Vakalatnama amply demonstrate that the counsel was empowered to take any step and conduct proceedings in the suit as considered proper by him, and that the same were acceptable to the respondents, who put their signatures on the Deed in token of their approval. It is not without significance that there is no allegation of fraud or collusion against the learned counsel. Furthermore, the vendee‑respondents are real brothers and had common interest. As already observed, Muhammad Siddique respondent No.1 was personally present in the Court and was part to the compromise. Strangely enough he too challenged the consent decree. It is not the case of other respondents that Muhammad Siddique had joined hands with the opposite‑party. We find that the learned Single Judge has not properly attended to the contents of the Vakalatnama and other features of this case. The view taken by him is palpably wrong. This appeal is, therefore, accepted and the impugned judgment set aside. Resultantly, the judgment of the First Appellate Court stands restored. The parties are left to bear their own costs. AA./N‑367/S Appeal accepted.