1989CLC1316 (PLP)

Sh. Inayat Ali for Respondents. Date of hearing: 14th May, 1988. The land in dispute measuring 90 Kanals and 4 Marlas situate in Village Pacca Laran, Tehsil Liaqatpur, District Rahimyar Khan, belonged to Muhammad Bakhsh, respondent No.2, who exchanged it with the land of Khuda Bakhsh, respondent No.l, and by means of Mutation No.3435 sanctioned on 30‑10‑1972. Mumtaz Hussain, Jam Abdul Khaliq and Bashir Ahmad sought to pre‑empt the sale of the land in dispute on the plea that, in fact, the bargain was that of sale but it was disguised as an exchange. The claim was based on the plea that Mumtaz Hussain was the son of the vendor whereas plaintiffs Nos.2 and 3 were co‑sharers in the Khata in dispute.

2. The respondents‑vendees, inter alia, contested the suit on numerous grounds and raised preliminary objections. The respondents moved an application before the framing of the issues that the plaintiffs had conciliated the matter but later on backed out from the compromise. That application was contested on the following issue:‑ "Whether any agreement was effected between the parties out of the Court? OPD.

3. On 23‑1‑1976 Bashir Ahmad and Mumtaz Hussain plaintiffs made their statements that they did not want to prosecute the case and had no objection if the case was dismissed. The learned counsel for the plaintiffs had also made a similar statement alongwith the statement of Mumtaz Hussain and Bashir Ahmad and the suit was dismissed. The appeal also failed on 8‑9‑1976 and now Abdul Khaliq, the petitioner, has invoked the revisional jurisdiction of this Court.

4. Civil Revision No.175/D of 1976/BWP also contains the similar facts and point of law so both these revision petitions are being disposed of by means of this consolidated judgment.

5. It is fact that Mumtaz Hussain and Bashir Ahmad did not want to prosecute the suit and made a joint statement before the learned trial Court on 23‑1‑1976. It may be noted that Abdul Khaliq had entered into a compromise with Khuda Bakhsh after the receipt of Rs.7,000 that he would withdraw both the suits on the date of hearing. That compromise deed is on the file.

6. The learned counsel for the petitioner has contended that the learned counsel for the plaintiffs was not empowered to withdraw his suit. He has cited Din Muhammad and another v. Farooq Mirza PLD 1955 Sind 62 and Alamgir Khan v. Rashid 1988 CLC 1171. In PLD 1955 Sind 62 it was held that the counsel could compromise if the Vakalatnama had empowered him to do so whereas in the latter authority 1988 CLC 1171, it has been held that the statement of the parties must be recorded and in their absence, counsel should make a statement that he is doing so as attorney of his client and it is on his behalf. In the instant case, the principle enunciated in both these rulings cannot safely be extended to the facts of this civil revision because out of three plaintiffs, two had signed a statement for the dismissal of the suit and their learned counsel had signed the statement on their behalf presumably on the basis of his power of attorney.

7. Conversely, Sh. Inayat Ali, learned counsel for the respondents has cited Kailash Chandra Kar and another v. Haradhan Chatterjee 14 Indian Cases 190 wherein a general power was found in the Vakalatnama that a lawyer could perform all the necessary acts and it was held that it included the power to withdraw the suit. In the instant case, Mr. Afzal Saleemi, Advocate, had riled a power of attorney which, inter alia states as under:‑ It shows that the learned counsel appearing for the petitioner was empowered to do all the necessary acts and when he had executed a deed of compromise after the receipt of Rs.7,000 then his learned counsel was very safe to make a statement on his behalf. In a similar case cited as Aminabai v. Abbas and others PLD 1958 (W.P) Kar. 458 it was held that acting by the pleader included all steps which a pleader is expected to take in proper conduct of the case and the counsel could withdraw interlocutory applications. In Messrs Arokey Ltd. And Another v. Munir Ahmad Mughal and 3 others PLD 1~82 SC 2U‑1, it was held that the pleader had the power to make a compromise. In Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others 1971 SCMR 634, it was held that the, lawyer had implied authority of his client to enter into compromise and settle dispute unless such authority expressly denied.

9. On the basis of the authorities cited by the learned counsel for the respondents, it is clear that in the circumstances of the case and the conditions embodied in the power of attorney, the learned counsel for the plaintiffs could withdraw the suit on petitioner's behalf. The learned lower Courts have not committed any illegality or material irregularity in the exercise of their jurisdiction as envisaged under section 115 of the C.P.C. I, therefore, see no merit in this Civil Revision and dismiss the same with costs throughout. M.Y.H./A‑581/L Petition dismissed.