P L D 2000 Lahore 154 (PLP)

Zahid Hamid for Respondent This is an application under section 12(2) of the Code of Civil Procedure for setting aside the decree passed by this Court on 17‑5‑1999 in favour of the respondent‑bank and against the petitioners on the basis of statement made by the learned counsel for the petitioners to the effect that he would not like to contest the suit, if the defendants'/petitioners are allowed six months time to pay the decretal amount. The offer made by the learned counsel for the petitioners was accepted and a decree for recovery of Rs. 13,114,829.06 and U.S. $ 560,120 was passed. against them.

2. In this application it has been averred that the learned counsel appearing on behalf of the petitioners/defendants had no authority to make any statement conceding the suit especially when an application for leave to appear and defend the suit had already been moved.'

3. The learned counsel for the petitioners has reiterated that the learned counsel, who represented the petitioners at the time of passing of the decree had no instructions to make a conceding statement and he could not, therefore, admit the claim of the respondent‑Bank particularly when petitioner No.3 was a Pardanasheen lady. He has relied upon the following precedents:‑‑ (i)???????? Mst. Noor Jahan v. Azmat Hussiin Farooqi and another 1992 SCMR 876; (ii).?????? Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCMR 374; and (iii)?????? Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782.

4. The learned counsel for the respondent‑Bank, on other hand has argued that a counsel, who represents a party, has full power to concede and admit the claim of the opposite side and no legitimate exception can be taken to the decree passed by this Court on the statement of the learned counsel for the petitioners which was binding on them. 4‑A. As, already observed, this application has been filed under section 12(2), C.P.C. to challenge the decree passed by this Court on 17‑5‑1999. On a bare reading of section 12(2), C.P.C. it would appear that under that provision, a decree can only be set aside, if it has been procured through fraud or A misrepresentation or it is without jurisdiction. There is no averment in the application that any fraud has been played by the counsel for the petitioners or the respondent upon them. In Mobile Eye Service of Pakistan, Karachi v. Director, Social Welfare/Registration Authority, Government of Sindh, Karachi PLD 1992 Karachi 183, it was held that in such circumstances, no application under section 12(2), C.P.C. could be filed nor could decree be set aside under the said provision. Similar view was taken in Muhammad Saeed v. Indico Paint Colour and Varnish Co. PLD 1995 Kar. 25.

5. Even otherwise, on merits, the petitioners have no case. It is not denied that they had engaged Ch. Muhammad Saleem, Advocate, as their counsel in whose favour Wakalatnarna was examined which specifically authorised him to enter into any compromise or to concede the claim on behalf ' ‑of his clients. In law, every lawyer engaged by a party, has implied authority to enter into compromise even if no specific power hag been conferred upon him; Although in the present case, as already observed, Wakalatnarna. specifically authorised the learned counsel to enter into compromise. 6.???????? In Ansar Hassan Rizvi v. Syed Mazahir Hussain. Zaidi 1971 SCMR 634, it was observed that the counsel has implied authority to enter into compromise on behalf of his client, even though no specific power has been conferred on him. Same view was taken by this Court in Messrs S.M. Qasim & Co. v. Messrs Sh. Azim‑ud‑Din PLD 1962 Lah. 95 and Kulsoombai and 5 others v. Mst. Shirinbai and 6 others 1989 CLC

234. The only exception in such a case is where a counsel has been specifically instructed not to make a statement on behalf of his client and yet he proceeded to do so.

7. Reliance of the learned counsel, for the petitioner on the cases cited by him is misplaced as those cases are distinguishable on facts. In Government of Sindh through the Chief Secretary v. Khalil Ahmad and others 1994 SCMR 782 the decree had been challenged on the ground of fraud played by the parties against a third person who had applied to have the decree set aside under section 12(2), C.P.C. In Mst. Noor Jehan v. Azmat Hussian Farooqi and another 1992 SCMR 876 it was held that a counsel has no authority to enter into a compromise with respect to property which is not subject‑matter of the suit. It was in that context that it was observed that the, authority given by minors. and Pardanasheen ladies has to be minutely scrutinised. As already observed, in the present case, there was no averment that the learned counsel for the petitioners has acted collusively or fraudulently while making concession. The last case cited by the learned counsel for the petitioners namely Umar Bakhsh v. Azim Khan 1993 SCMR 374 has absolutely no applicability. For the aforesaid reasons, this petition is found to be without any force and is hereby dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./A‑180/L??????? ?????????????????????? Petition dismissed.