P L D 1990 Lahore 255 (PLP)

On 19‑12‑1985 Mst. Zainab Bibi petitioner instituted a suit against Muhammad Siddique respondent for a declaration to the effect that she was the owner in possession of the house in dispute (detailed in the plaint) on the basis of a gift deed made by Abdur Rashid, its owner, in her favour in lieu of services rendered by her, that after the death of Abdur Rashid aforesaid inheritance Mutation No. 154 dated 6‑11‑1983 was got sanctioned in favour of the respondent on the ground that be was the foster brother of Abdur Rashid aforesaid and that the said mutation was fictitious, collusive, illegal and ineffective against her rights. She also sought the issuance of a permanent injunction to restrain the respondent from interfering with her possession over the said house.

2. Muhammad Siddique respondent also instituted a suit against Mst. Zainab Bibi petitioner for the possession of the suit house and for the cancellation of the alleged gift deed dated 22‑11‑1974. Both the suits were contested.

3. As questions involved in both the suits were identical they were ordered to be consolidated and were heard together. Issues were framed and parties' evidence was recorded. After considering the said evidence the learned trial Court vide its judgment and decree dated 18‑2‑1989 decreed the petitioner's suit while the respondent's suit was dismissed.

4. Feeling aggrieved Muhammad Siddique respondent went in appeal. During the pendency of the appeal on 25‑9‑1989 Mr. Zia Ullah Malik, Advocate the learned counsel for Mst. Zainab Bibi petitioner made the following statement before the learned District Judge, Gujranwala:‑‑ Muhammad Siddique respondent accepted the said offer and made the following statement on oath on the Holy Ouran:‑‑ On the basis of the said statement the learned District Judge on the same day dismissed the petitioner's suit and decreed the suit of the respondent.

5. Being not satisfied with the said decision the petitioner has come up in revision against the above‑mentioned order and decree of the learned District Judge, Gujranwala.

6. I have heard the learned counsel for the petitioner and have also carefully gone through the material available on record.

7. Learned counsel has maintained that the petitioner did not authorise her counsel to make an offer of special oath to the opposite party and as such the proceedings taken by the learned lower appellate Court in that regard were wholly illegal. He also maintained that the Wakalatnama executed in favour of the petitioner's counsel did not authorise her counsel to make an offer of special oath. He further submitted that offer of special oath could only be extended by the petitioner and not by her counsel.

8. In support of his contentions the learned counsel has relied on a judgment of the Bombay High Court reported as Sadashiv Rayaji v. Maruti Vithal and others ILR 14 Bom. 455 in which it was held that:‑‑ "an agent, holding a power‑of‑attorney authorising him to act and appear for a party to a suit, cannot bring that suit to a close by offering to be bound by the oath of the opposite‑party in a particular form. Nor could a pleader so bind his client:' It was further held that: "Under the Indian Oaths Act (X of 1873) no person but the party himself can make such an offer as is contemplated in section 9."

9. The above view however, was not approved by this Court in Hata v. Smail and others AIR 1932 Lah. 414 and it was held: "Any act required or authorised to be done by a party to a suit can be done by his recognised agent provided the act falls generally within the scope of the latter's authority. It cannot be held that an offer to be bound by the oath of the other party must be made by the party personally and not by his duly authorised agent."

10. Again in Ramzan and others v. Gopal Das and others AIR 1936 Lah.199 their Lordships of this Court following the Privy Council decision in Sourendranath Mitra v. Tarubala Dasi AIR 1930 PC 158 held: "The power to compromise an appeal is an implied power inherent in the position of an Advocate in India and therefore, no power of attorney is necessary to empower a counsel to agree to a valid and binding compromise. The power to compromise may be validly exercised by an Advocate who has been authorised only to appear."

11. The principle laid down in Hata's case finds support in the cases of Mst. Masita Bibi and others v. Khuda Bakhsh AIR 1923 All.. 65, Muhammad Mahmud Chaudhry and others v. Behary Lal Saba and others AIR 1930 Cal. 463, Jadu Sahu and another v. Chamara Sahu AIR 1939 Pat. 222 and Narain Singh and others v. Har Bux Singh and others AIR 1953 All 312.

12. A similar question again arose in Haji Mewo v. Mst. Lai Khatoon PLD 1962 (W.P.) Kar. 162 and their Lordships of a Division Bench held as under: "There is thus preponderance of views in favour of the principle that prima facie a party to the judicial proceedings in sections 8 and 9 of the Oaths Act would include an Advocate of a party also. It appears to us that an Advocate empowered by a party to enter into a compromise etc. is fully competent to make an offer to abide by the special oath and in doing so he must be deemed to have been so instructed by his client. This appears to us to be a well‑settled principle of law."

13. It would thus be very clear from the above discussion that an Advocate duly authorised by a party, has the power to enter into a compromise with the opposite party and is also fully competent to make an offer to abide by a special oath. It is not disputed that the Wakalatnama which the petitioner had executed in favour of her counsel Mr. Zia Ullah Malik, Advocate empowered him to effect compromise etc. and therefore, he was fully competent to make an offer to abide by the special oath. It is also to be noted that in the present case the learned counsel for the petitioner made the statement in question in her presence and on her instructions but she never raised any objection to it. I am convinced that the said statement was made with the consent of the petitioner. Now it does not lie in her mouth to say that she did not instruct her counsel to make that statement or her counsel was not authorised to extend that offer. I, therefore, have no hesitation to hold that the petitioner's Advocate before the appellate Court was fully empowered to make an offer to abide by a special oath and it was not necessary that the said offer should have been made by the petitioner herself. The impugned order and decree in the circumstances of the case, therefore, do not suffer from any infirmity and consequently do not call for any interference. There is no merit in this revision which is dismissed in limine. M.BA./Z‑151/L Revision dismissed.