P L D 1965 (W (PLP)

Muhammad Ahsan Ullah Khan v. Muhammad Sand Ullah Khan P L D 1964 Lah. 101 considered. Karam Elahi Chauhan for Petitioner. Ismail Bhatti for Respondent No.

1. Date of hearing: 1st March 1965. Nasir Muhammad Khan petitioner filed a suit for pre‑emption of agricultural land. It was pleaded in the suit that the property in dispute had, in fact, been sold to defendants Nos. 1 to 7, although the deed had been executed as a deed of exchange. The suit was contested by the alleged vendees defendants Nos. 1 to 7 Defendants Nos. 8 to 15 were the alleged vendors. The case came up before the learned Civil Judge on the 25th of February 1960, when the counsel for the plaintiff made a statement that defendants Nos. 8 to 15 were not necessary parties and their names be struck off from the list of the defendants. Defendants Nos. 1 to 7 had filed a written statement and had contested the suit. Out of defendants Nos. 8 to 15, Allahdad and Pir Bakhsh, were served personally, while Elahi Bakhsh, Mst. Jindan and Mst. Aisha were served through the male members of their family. As regards Mst. Mehr Khatoon, Mst. Hayat Khatoon and Mst. Rabia Khatoon, the report was that Allahdad alias Ghulam Haider did not accept service on their behalf nor he indicated their address. None of these defendants Nos. 8 to 15 appeared on the 25th of February 1960. In accordance with the statement of the plaintiff's counsel the learned Civil Judge before framing the issues passed an order directing that their names be struck off of the record. The following issues were framed (1) Whether the transaction in dispute was a sale ". (2) Whether the plaintiff had a superior right of pre‑emption over the defendants? (3) Whether the suit has not been properly valued for the purposes of court‑fees and what is its' correct value? The parties led their evidence, and the case was fixed for arguments on the 2nd of June 1960. On that date defendants Nos. 4 and 6 were present along with the counsel for all the defendants Nos. 1 to

7. The learned Civil Judge recorded a joint statement of the two defendants and the counsel for all the defendants. They admitted that the transaction was in fact a sale. They further asked that the market value of the property be determined and a decree passed in favour of the plaintiff. The counsel for the plaintiff made a statement wherein he stated that in view of the statement of the defendants he may be provided an opportunity to lead evidence as regards the market value of the property. The case was consequently adjourned to 14th of Jelly 1960 for the evidence of the parties on the question of the market value of the property. On the 28th of June 1960 the respondents through another counsel Mr. Muhammad Sarfraz put in an application before the learned Civil Judge wherein all the defendants prayed that the proceedings taken on the 2nd of June 1960be declared as null and void. Allahdad and Chibbar defendants who had signed the statement took up the plea that they did it in a heat of passion and as regards their counsel they took up the plea that he had no authority to make the statement. The learned Civil Judge did not think it proper to pass final orders on this application of the defendants. He submitted the case to the District Judge for its transfer but in his order he clearly mentioned that he was satisfied that the statement was made with their free will by the defendants and the counsel for the defendants had made the statement after having been instructed by the defendants to that effect. He remarked that as everything had happened in his presence and he held adverse opinion to the defendants he would not like to pass any final orders. In the meantime, the learned Civil Judge was transferred so the case came back to the same Court and it was ultimately taken up by another Civil Judge who passed the impugned order. He has remarked in the order that in exercise of his powers under section 153 of the Civil Procedure Code he was correcting the earlier proceedings and was not passing any order in review. He further remarked that the parties can have the matters in dispute relating to the statements of defendants Nos. 4 and 6 and the counsel for the defendants determined by the Court. In the earlier part of his order he has remarked that the statement recorded on the 2nd of June 1960 was a joint statement of the counsel of the two defendants, and secondly that there was no application on behalf of any party that the matter be decided on oath and thirdly that all the defendants were not present. Relying on these three factors he had passed the impugned order correcting the proceedings of 2nd of June 1960. The result of this order evidently is that the three issues which had been given up by two of the defendants and counsel for all the defendants are revived and the Civil Judge would now determine those issues after hearing the arguments of the parties when in fact those issues stood already decided in accordance with the statement of the two defendants and the counsel for all the defendants. By this very order the learned. Civil Judge has impleaded Mst. Rabia, Mst. Mehr, Mst. Hayat, Allahdad alias Ghulam Haider, Malik Elahi Bakhsh, Haji Pir Bakhsh, Mst. Jindan and Mst. Aisha as defendants. These persons were already on the record as defendants but their names were struck off as the counsel for the plaintiff stated that they were not necessary parties. They are the alleged vendors. In a pre‑emption suit a vendor is not a necessary party. Since the defendants had admitted that the transaction was a sale and not an exchange they should not have been joined as defendants in the suit at that stage. The joining of these persons as defendants at that stage further indicates that the intention of the learned Civil Judge was to reverse the effect of the clear admission of the counsel for the defendants and defendants Nos. 4 and

6. Nasir Muhammad Khan petitioner has filed this revision petition challenging the order of the learned Civil Judge dated the 5th of October 1960.

2. It is urged by the learned counsel for the petitioner that Mr. Sultan Ahmad, Advocate, who had signed the statement, was within his rights to concede issues Nos. 1, 2 and

4. That there is an express power given to him in the power‑of‑attorney. It is further argued by the learned counsel that even if there was no express power an Advocate has an implied authority to make such a concession. Reliance is placed on Venkata Narasimha v. Bhashyakarlu Naidu (I L R 25 Mad. 367), which was relied in Buta Ram and others v. Sayyad Muhammad (A I R 1935 Lah. 71). The learned counsel has also cited Sourendra Nath Mura and others v. Tardbala Dasi (A I R 1930 P C 158) and Ramzan and others v. Gopal Das and others (A I R 1936 Lah. 199). It has been remarked in the Madras ruling that a Vakil's general powers in the conduct of a suit include the power to abandon an issue which, in his discretion, he thinks it inadvisable to press. This view has been followed in the other authorities. The reason assigned by the Honourable Judges of the Privy Council is that if the Courts were to insist for the presence of parties in all matters it will result in unnecessary adjournments for every trifling matter. It is remarked by Moore, J. in his judgment "It must be held that a Vakil appointed to conduct a case on behalf of his client, has the power to ask for an issue or to abandon an issue, to get a witness summond or to dispense with his evidence. Without such powers no case could be tried without frequent adjournments and endless references to the parties. Whether the Vakils in the present case acted wisely or the contrary in giving up this issue it is impossible to say in the absence of evidence as to it on the record, but it is perfectly clear that their action was taken deliberately and was not objected to by their clients till he went to Madras to give instructions as to the filing of this appeal in September 1897". There are stronger remarks to the same effect in A I R 1930 P C

158. The provisions in Order III, rule 1 of the Civil Procedure Code also give an unfettered power to a Pleader to act on behalf of his clients except where otherwise expressly provided by any law for the time being in force. I have seen the power‑of‑attorney as well. It is expressly mentioned in the same that anything done by the Advocate would be acceptable to the defendants as if they had done it themselves. Even if no such power had been givens in the power‑of‑attorney the mere fact that Mr. Sultan Ahmad Advocate appeared on behalf of the defendants he would be full competent to abandon any issue in his discretion. On that day, two of the, defendants who were present concurred in this action of the Advocate. I have no doubt in my mind that the Advocate could not have acted in the manner he did unless he had consulted all his clients in this connection. The learned counsel for the respondents contended that the two other powers‑of‑attorneys on the record of this case have given express power to the counsel to make a statement and since there was no such express power in the power‑of‑attorney executed in favour of Mr. Sultan Ahmad he could not make a statement and give up all the issues. I am not prepared to accept this contention of the learned counsel in view of what I have already remarked. My view is based on the authorities already cited and also on a plain reading of Order III, rule 1, C. P. C. The learned Civil Judge, who had written the statement, had remarked in his order that the statement was voluntarily made by the defendants and the counsel for the defendants. He was also satisfied that the learned counsel made that statement in accordance with the instructions of his clients. The proceedings of a Court deserve much better sanctity than has been shown by the learned Civil Judge. These should not be altered at the whim of a client. There was no material before the learned Civil Judge to arrive at those conclusions which he did. He had not even recorded the statement of any witness much less of the persons who made the statement and he has simply accepted the wild allegations made by the defendants in their application. I am, therefore, of the view that the order passed by the learned Civil Judge is without jurisdiction.

3. The learned counsel for the respondents has urged that since no final order deciding the issues had been passed by the learned Civil Judge on the 2nd of June 1962 this revision was not competent. He has further argued that this revision is, in any case, against an interlocutory order, which was not competent in view of Muhammad Ahsan Ullah Khan v. Muhammad Sami Ullah Khan (P L D 1964 Lah. 101). I am afraid these contentions of the learned counsel have no force. Firstly, the proceedings of 2nd of June 1960 leave no doubt in my mind that the learned Civil Judge had accepted the statement of the defendants' counsel and two of the defendants abandoning the three issues. That is why he proceeded to decide the question of the market value of the property. The statement of the defendants' counsel and the two defendants is to the effect that the market value of the property be determined and decree in favour of the plaintiff be passed. The learn Civil Judge, thereupon, proceeded to determine the mark value and after having determined the market value he had only to pass a decree in favour of the plaintiff on payment of the money determined as the market value of the property. His order clearly indicates that he .was proceeding accordingly. However, before the date fixed for the evidence as regards the market value of the property was reached the defendants tried to wriggle out of their commitment and put in an application after about 26 days of the earlier proceedings, which was simply an afterthought. The learned Civil Judge: who has dealt with the case now by his order has virtually set aside the proceedings taken by his predecessor on the 2nd of June 1960, although it is mentioned in the order that he was simply correcting the proceedings under section 153, C. P. C.

4. In view of what has been stated above, I would accept this revision petition with costs and set aside the order passed by the learned Civil Judge on the 5th of October 1960. The case will go back to the learned Civil Judge for the determination of the market value of the property in dispute. K. B. A. Petition accepted.