2006 PLP 2909 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

This civil revision seeks to challenge the order dated 25-10-2005 passed by learned Additional District Judge, Bahawalnagar whereby petitioner's application under section 12(2), C.P.C. challenging the validity of order dated 29-11-1982 accepting respondent's appeal on oath offered by the petitioner through his counsel was dismissed.

2. The facts in brief are that petition claiming himself as owner of the disputed property filed a suit for declaration as well as possession on 14-10-1974 against Ghulam Ali predecessor-in-interest of respondents Nos.1-A to 1-D and the same was decreed after consent by the respondent on 26-1-1978. Against the said judgment and decree respondent filed appeal. During A the pendency of said appeal on 29-1-1982 an offer was made by the petitioner through his counsel Qazi Rashid Ahmad Karimi, Advocate for decision of the said appeal on the basis of oath by Shah Alam the then General Attorney of respondent or his son Muhammad Rafiq on Holy Qur'an. The said offer of the petitioner made through hiscounsel was accepted by the respondent and his counsel and on the basis of said offer and acceptance, Muhammad Rafiq made required statement on oath, with tie result that appeal filed by the respondent against the judgment and decree of the learned trial Court dated 26-1-1978 was accepted by the learned Additional District Judge, as such, the judgment and decree of the learned trial Court was set aside and suit filed by the petitioner was dismissed on 29-11-1982.

3. It appears that in the year 2004 the petitioner suddenly woke up from slumber and thought to challenge the said judgment of the learned Additional District Judge by way of filing application under section 12(2), C.P.C. on the ground that same was procured by fraud, misrepresentation, etc. As in the meanwhile, Ghulam Ali had expired, hence his legal heirs respondents Nos.1-A to 1-D filed written reply to the said application controverting the contents of the application and praying for dismissal of the same. The learned Additional District Judge, Bahawalnagar vide judgment dated 25-10-2005 dismissed the said application which has now been challenged through this civil revision.

4. It is contended by learned counsel for the petitioner that as held by the superior Courts several times application under section 12(2), C.P.C. where involved factual controversy, could not be dismissed in a summary manner without framing of issues and recording of evidence and since in the present case the petitioner has raised several disputed questions of facts the learned Additional District Judge was therefore, not legally justified in dismissing petitioner's application in a summary manner; hence, the said order of the learned Additional District Judge was liable to be set aside and case merits remand for its decision after framing of issues and recording of evidence.

5. I have considered the arguments of learned counsel for the petitioner and perused the record appended with this petition.

6. In the application filed by the petitioner under section 12(2), C.P.C. appointment of Qazi Rashid Ahmad Karimi, Advocate as counsel before the learned Additional District Judge in appeal filed by Ghulain Ali deceased respondent, has not been denied nor any collusion or mala tide has been attributed to him. It has also not been denied in the said application that the offer for decision of appeal on the basis of oath was not made by his said counsel on 29-11-1.982. In the wake of this admitted factual position now the question requiring determination is as to whether Qazi Rashid Ahmad Karimi, Advocate had the authority to make such an offer and whether such offer was binding on the petitioner or not. Appointment of Advocate/Counsel/Pleader is regulated by provisions of Order III, rule 4, C.P.C. and in terms of sub-rule (2) of rule 4 of Order III, C.P.C. the pleader (Counsel or Advocate) once appointed, his appointment remains in force until specifically cancelled by the leave of the Court and since in the present case appointment of Qazi Rashid Ahmad Karimi, Advocate as counsel on behalf of the petitioner before the learned Additional District Judge for defending appeal of Ghulam Ali is not denied nor it is pleaded that his appointment was either withdrawn or had been cancelled by the Court on the relevant date i.e. 29-11-1982, hence the offer made by the said counsel on behalf of the petitioner as his counsel was not only legal but was also binding on the petitioner. It has been continuously held since 1930 in "Sourendra Nath Mitra and others v. Tarubala Dasi" (AIR 1930 Privy Council 158) till date that an Advocate unless there is anything to the contrary may enter into compromise on behalf of his client and has always implied authority to do whatever he considers beneficial for his client and such an act is binding on his client. Reliance is placed on the cases "M/s. Arokey Limited, Karachi and others v. Munir Ahmad Mughal and 3 others" (PLD 1982 SC 204), "Mst. Bashiran Bibi and others v. Jewni and others" (1997 SCMR 1079), "Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation" (PLD 1996 SC 213), "Mst. Noor Jahan v. Azmat Hussain Farooqi and another" (1992 SCMR 876) and "Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others" (1972 SCMR 634). In view of above admitted factual as well as legal position the learned Additional District Judge was right in dismissing the application of the petitioner without framing issues or putting the parties at regular trial as argued by learned counsel for the petitioner. Even otherwise, application filed by the petitioner under section 12(2), C.P.C. is silent with regard to inaction on the part of the petitioner from the pendency of the appeal till filing of application under section 12(2), C.P.C. and there is no explanation on his part as to why the petitioner did not bother to get in touch with his counsel during the period of twenty years of knowing about the fate of said appeal. This silence on the part of the petitioner for a period of more than twenty years smacks of mala fide on his part and shows implied ratification of act of his counsel, especially by not disputing his act of making offer to seek decision on oath in his application under section 12(2), C.P.C. and such ratification is gaily permissible in view of provisions of law contained in sections 196 and 197 of the Contract Act and also the law declared by this Court in D "Mst. Zainab Bibi v. Muhammad Siddique" (PLD 1990 Lahore 255).

7. Besides the above-noted situation, there is another important legal aspect of the matter i.e. admittedly the suit filed by the petitioner was decreed in his favour on 26-1-1978 whereby petitioner was given the decree for possession but till date the petitioner took no step for seeking executing of that decree, whereas, in terms of Article 183 of the Limitation Act such a decree could only be got executed by filing execution application within six years from its passage and in terms of section 48 within a period of six years where the judgment-debtor has, by fraud, or force, prevented the execution of said decree. This inaction on the part of the petitioner himself allowing the execution of the decree to become time-barred also leads me to conclude that decision of the appeal on 29-11-1982 through proposed oath on the basis of the offer made by him through his counsel was not only validly made with his consent and knowledge and he was therefore, . precluded from making application under section 12(2), C.P.C. after the expiry of more than two decades and no illegality or irregularity has been committed by the learned Additional District Judge in dismissing his application on merits even without framing of issues and recording of evidence on the basis of above admitted factual and legal position. This civil revision, therefore has no force and is dismissed in limine. H.B.T./M-345/L Revision dismissed.