2016 PLP 126 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioner/defendant has challenged the order dated 12.04.2000 passed by the learned Additional District Judge, Vehari, whereby the appeal filed by the petitioner was dismissed, and the judgment and decree dated 28.09.1994 passed by the learned Civil Judge 1st Class, Vehari, whereby the suit for specific performance filed by the respondents/plaintiffs was decreed.

2. Briefly, the facts of this case are that the respondents/plaintiffs Allah Bakhsh etc on 14.05.1989 filed a suit for specific performance on the basis of agreement to sell dated 22.12.1987. The written statement was filed and suit was contested. Issues were framed and parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. In first round the suit was decreed vide judgment and decree dated 12.09.1992 and the same was set aside and matter was remanded by the learned first appellate Court. Again vide judgment and decree dated 28.09.1994 the suit was decreed. The petitioner-defendant preferred an appeal before the learned first appellate Court. During the pendency of appeal on 12.04.2000 learned appellate Court recorded the statement of son of appellant Mst. Sammo as well as her counsel, which is reproduced as under:- In response the statement of respondent/plaintiff Allah Bakhsh was also recorded, which is as under:- On the basis of statements noted supra, the appeal of petitioner/appellant was dismissed as withdrawn.

3. Learned counsel for the petitioner argues that son of appellant/petitioner was having no authority to appear on behalf of the appellant before the Court and even no such authority has been claimed by the decree holder/respondent that son of appellant was having authority to make such a statement. He has referred the contents of power of attorney given by Mst. Sammo in favour of learned counsel. Prays for acceptance of this civil revision and remand of case to the learned first appellate Court with a direction to decide the same on merits after hearing all the concerned parties.

4. On the other hand, learned counsel for the respondents/plaintiffs argues that counsel for the appellant/judgment debtor was having full authority to make any statement he wants. He refers the following Paragraph of power of attorney:- Prays for dismissal of this civil revision.

5. I have heard the learned counsel for the parties at length and also gone through the record minutely.

6. Admittedly the son of appellant was having no authority to make statement on behalf of the appellant before the lower appellate Court. The Paragraph referred by the learned counsel for the respondents/ plaintiffs is not helpful and cannot be used against the petitioner/appellant, as this Paragraph cannot be read in isolation. It relates to the language of power of attorney previous to this Paragraph. In my view this Paragraph means that the powers mentioned in the body of power of attorney if used by the counsel, the principal will not object to that use of powers simple this Paragraph in isolation as learned counsel for the respondents interprets that it is sufficient to hold that counsel for the appellant was having all the powers, I do not agree with the learned counsel for the respondents. This Paragraph correspondence to the powers mentioned in the body of power of attorney-Wakalat Nama. No powers of withdrawal or compromise or accepting the claim of other party have been conferred upon the learned counsel who was representing the appellant before the Court of competent jurisdiction, In this view when no power of withdrawal or compromise has been given to the learned counsel, interpreting this Paragraph that it gives the powers to the learned counsel to withdraw the appeal is misconceived, therefore, not acceptable in the light of judgments of august Supreme Court of Pakistan reported as "2005 SCMR 1121 (Muhammad Hussain and others v. Mst. Hanaf Ilahi and others) and 2008 SCMR 896 (Abdul Shakoor and others v. Haroon and others)". The relevant portion of Paragraph of the judgment "2008 SCMR 896" is reproduced as under: "Though learned counsel appearing on behalf of respondents was authorized to compromise the suit on their behalf but this authority was neither absolute nor unqualified. In fact it was conditioned with a settlement arrived at by the parties. The counsel as such could not be deemed to be authorized to enter into compromise in relation to the suit without any settlement having been arrived at between the parties themselves. The power to compound or settle the matter is vested with the parties and counsel acts according to the instructions given to him by the party. He may enter into compromise only where the Vakalatnama empowers him to do so specifically and cannot do so at his own."

7. In this view of the matter, this civil revision is accepted and the impugned order dated 12.04.2000 passed by the learned first appellate Court is set aside. The appeal filed by the petitioner/appellant will be deemed to be pending before the learned first appellate Court, which will be decided on merits. The parties to appear before the learned first appellate Court on 22.06.2015. ZC/S-95/L Revision allowed.