1980 PLP 337 (CLC)

Mansoor-ul-Arfin for Respondent. Date of hearing : 5th November, 1973. This revision application has arisen in the following circumstances;

1. The respondent filed a suit in the Small Causes Court at Karachi for the recovery of Rs. 4,800 against Messrs English Glass and Ceramic Industries, a partnership firm at Karachi, and its three partners, namely. Muhammad Sharif, Ghaus Muhammad Khan and the present applicant, on the basis of a promissory note executed by Muhammad Sharif and Ghaus Muhammad Khan on behalf of the firm.

2. Mr. A. F. M. Mokarim, filed his power on behalf of the defen dants Nos. 1 and 3, and the written statement was filed only on behalf of the defendant No. 3, resisting the claim. The other defendants remained ex pate. When the case came up for bearing, Mr. Mokarim, admitted the claim and requested for instalments. The learned Judge, Small Causes Court, holding that the claim against the other defendants was also estab lished by the affidavit, promissory note and other documents, decreed the suit with costs against all the defendants, payable in 12 equal monthly instalments, resulting in the filing of this revision application.

3. Mr. Noor Muhammad, learned counsel for the applicant, con tended that the learned Judge, Small Causes Court, did not give due consideration to the fact that the promissory Note had been executed only by the other two defendants, when according to the terms of the partnership deed, the consent of all the three partners was necessary. I am afraid, these questions will arise, if it is found, that the consent decree, does not bind the applicant. If Mr. Mokarim was authorised to enter into compromise, the matter stands concluded.

4. In Saurendra Nath Mitra and others v. Tarubala Dasi (A I R 1930 P C 158) it was found that the power to compromise a suit was inherent in the position of an Advocate in this subcontinent. That was however a case in which no Vakalatnama had been filed. In cases where a counsel files a Vakalat nama, his power depends upon the terms of the instrument. He can enter into a compromise only when the Vakalatnama empowers him to do so. See Din Muhammad and another v. Farooq Mirza (P L D 1955 Sind 62). Shital Prasa Singh and others v. Surendra Nath Chatterji and others (A I R 1950 Pat. 252), Surendra Shankar Walkar v. Taxman Shankar Walkar and others (A I R 1960 Bom. 20).

5. The case of Aminabai v. Abbas and others (P L D 1958 Kar. 458) cited by Mr. Mansoor-ul-Arfin will not be of assistance, because it deals with the dropping of an application. In the instant case, the Vakalatnama as is to be found, clearly empowered the learned counsel to compromise the matter. Before this revision application was admitted, a copy of the petition was served on Mr. Mokarim, and be was directed to offer his comments and file an affidavit. Paragraphs 2 and 3 of the affidavit filed by him read as under :

'

2. That it is incorrect to say that I have acted without instruc tions. I maintain that whatever I, did was according to the instructions which were passed on to me by the applicant at the time he handed over the brief to me and held discussion with me. "

3. That when the applicant came to my office alongwith the suit papers I made searching enquiries about the dispute in suit. I enquired from him if he was prepared to deny on oath that no monies were received and he had no information. The applicant told me that he did not like to become dishonest for a small sum of Rs. 4,800 especially when he held a good reputa tion in the city as an architect. The applicant also instructed me to take such action as I considered fit in his interest."

6. No insinuations have been made against Mr. Mokarim and there is no conceivable reason to doubt his bona fides. The applicant would therefore be bound by the consent accorded by him. It is therefore not necessary to examine the other contentions raised by Mr. Noor Muhammad, learned counsel for the applicant.

7. In the result, the application is dismissed with costs. K. M. A. Application dismissed.