2004 PLP 882 (MLD)

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref. (c) Power of Attorney Act (VII of 1882)‑‑‑-- ‑‑‑‑S.2‑‑‑Power of Attorney of Advocate‑‑‑Effect‑‑‑Authority to withdraw a case‑‑‑Parties in litigation are bound by the bona fide acts of their counsel acting within the scope of their authority‑‑‑Unless there was anything to the contrary in the Wakalatnama an advocate may abandon an issue. Raja Ali Bahadur Khan v. Mir Hussain Khan and 2 others PLD 1979 SC AJK 47 and Munshi Muhammad Afzal Khan and another v. Khadam Hussain Khan PLD 1978 SC AJ&K 73 ref. Petitioner in person. Parties to the writ petition are sons and wife of Mian Abdul Hameed. Allegedly Mian Abdul Hameed executed a gift of certain property in favour of respondents Nos. l to 3 on 3‑3‑1983. One of the son of Mian Abdul Hameed namely Khalid Mehmood, petitioner, challenged the vires of the gift dated 3‑3‑1983 on the ground that the same is illegal and was with an intention to deprive the plaintiff petitioner from his legal right of inheriting the property of said Mian Abdul Hameed. During the pendency of the suit, respondents moved an application under Order 7, rule 11, C.P.C. for rejection of the plaint of the suit filed by Khalid Mehmood, petitioner, on the ground that Mian Abdul Hameed, father of the petitioner, is alive, therefore, impugned gift executed by surviving father in ones favour cannot be challenged under the law. This application was allowed. Consequently, the plaint of the petitioner suit was rejected by the Civil Judge vide order dated 17‑10‑2003 which order was assailed in appeal before the learned Additional District Judge, Lahore, who proceeded to dismiss the appeal as withdrawn, as well on the ground that vices of the impugned gift executed by a surviving father in ones favour in absence of a legal character is neither permitted nor warranted under the law.

2. On the last date of hearing, learned counsel for the petitioner was confronted with the proposition of law that how vires of gift made by a surviving father in favour of some one can be challenged without impleading him as a party to the suit. He sought time to assist the Court and argued that learned counsel in the Appellate Court was not authorized to withdraw the appeal, therefore, the order of the Additional District Judge is illegal. Pre‑admission notice was issued to the respondent for today i.e. 29‑1‑2004. Twice the case has been called. Petitioner in person appeared and states that his counsel Mian Muhammad Abbas, Advocate, is busy before other Bench of this Court. The case was kept in waiting but the counsel did not appear, therefore, the case is being disposed of on merits.

3. Order dated 11‑12‑2003 through which the appeal of the petitioner was rejected is revisable under section 115, C.P.C. Mian Abdul Hameed, who made the alleged gift is alive and has not been impleaded as respondents in the suit. Therefore, the writ petition is not competent. Even otherwise, the vires of the impugned gift made by the surviving father in ones favour cannot be challenged under the law. In case reported as Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) at page 627 it has been ruled that, "The Muhammadan Law does not recognise spes successionis i.e. an expectation or hope of succeeding to the property of another by survival. Till that death occurs of presumptive heir has no right to all in the property of his ancestor. A suit brought by a son, during the lifetime of his father, to challenge a gift made by the latter on the ground of undue influence was bound to be dismissed as the son had no interest in preesenti in his father's property during the latter's lifetime."

4. Petitioner has also appended the power of attorney (Wakalatnama) of Ch. Irshad Ahmad Virk at page 42 of this petition which shows that the learned counsel had authority to withdraw the appeal. The parties are bound by the bona fide acts of their counsel acting within the scope of their authority. Accordingly, unless there is anything to the contrary, an advocate may abandon an issue. See cases Raja Ali Bahadur Khan v. Mir Hussain Khan and 2 others (PLD 1979 SC AJK 47) and Munshi Muhammad Afzal Khan and another v. Khadam Hussain Khan (PLD 1978 SC AJ&K 73).

5. For what has been discussed above, this writ petition has no merits and the same is dismissed in limine. M.A.W./K‑8/L Petition dismissed.