1995K6 (PLP)

Present application (C.MA. 258/93) was heard by my learned brother Syed Haider Ali Pirzada, J. (as he then was) on 15-8-1993 and on 16-8-1993. On 21-10-1993 his Lordship passed an order under which the appellant was directed to file affidavit-in-evidence to prove that fraud or misrepresentation was perpetrated in obtaining the order dated 4-10,-1992. In said order a finding was recorded to the effect that Mr. Munawar Malik was empowered to compromise or withdraw the appeal. Said order, dated 21-10-1993 was challenged in Civil Petition for Leave to Appeal No. 473-K of 1993 in the Supreme Court of Pakistan. Civil Petition was disposed of on 14-12-1993 with an observation that no adverse order was passed against the respondent and hence leave to appeal was refused. However, it was observed that the respondent can file a fresh petition for leave to appeal in case the application under section 12(2) of C.P.C. was granted. Mr. Hassan Jafar, learned counsel for the appellant argued that the appellant had not given any permission to Mr. Munawar Malik to make a statement, withdrawing Appeal No. 508 of 1991, that right of Advocate for the appellant in terms of Order 3, Rule 4 of C.P.C. and section 22(3) of the Legal Practitioners and Bar Councils Act was only to appear in the appeal and to argue and that said provisions do not authorize an Advocate to withdraw the matter. It was also argued that Mr. Munawar Malik had committed fraud and mispresentation by giving a false statement in the appeal on 4-10-1992. It was added that mere filing of Vakalatnama in favour of Mr. Munawar Malik did not authorize him expressly or impliedly to withdraw the appeal and that Mr. Munawar Malik had acted in collusion with the respondent and had played fraud for obtaining the impugned order, dated 4-10-1992. Learned counsel for the appellant referred to affidavit of appellant Muhammad Saeed in support of his application. In support learned counsel for the appellant cited the cases of: (i) Smt. Saratkumari Dasi v. Amulyadhan Kundu and others AIR 1923 Privy Council 13,, (ii) Keshav Ramkrishna Bhatt Phadke v. Subba Manga Naik and others AIR 1939 Bombay 490, (iii) Babu Sheonandan Prasad Singh and others v. Hakim Abdul Fateh Muhammad Raza and another AIR 1935 Privy Council 119 and (iv) Ramappayya v. Subbammo and others AIR 1949 Mad.

98. Mr. Rahmat Ellahi, learned counsel for the respondent argued that the appellant was partly heard on 27-9-1992 and had Mr. Munawar Malik any intention to obtain a favorable order fraudulently or by misrepresentation, he would have made such attempt on 27-9-1992. It was added that Mr. Munawar Malik vehemently fought the case of his client on 27-9-1992 and he would have done so even on 4-10-1992, but for the instructions from the appellant. It was also argued that due to the compromise of the appeal on 4-10-1992 the appellant got substantial benefit as he was allowed to continue with possession of the demised premises for another one year and two months. Learned counsel next argued that Mr. Munawar Malik had represented the appellant in other cases also and there was no question of fraud having been played by him with his regular client and that even if Mr. Munawar Malik played fraud upon the appellant the respondent was not concerned with that. In respect of affidavit of the appellant, it was argued that he had levelled allegations against his own Advocate. In support learned counsel for the respondent cited the cases of: (i) Mobile Eye Service of Pakistan, Karachi v. Director, Social Welfare/Regn. Authority, Government of Sindh and another PLD 1992 Karachi 183 and (ii) Bhooralal v. MA. Ansari etc. 1993 MLD

238. In the instant case the power filed by the appellant in favour of Mr. Munawar Malik, authorises him to appear and act for the former in F.R.A. No.508 of 1991 with following words in addition: "I/We also authorise the said Advocate to withdraw/compromise and to receive on my/our behalf all sums and amounts deposited on my/our in the above-noted matter." Note of said words in the Vakalatnama was taken by my learned brother Syed Haider Ali Pirzada, J. (as, he then was) in his order, dated 21-10-1993, where he has taken the view that Mr. Munawar Malik was empowered to compromise or to withdraw the appeal. Such finding was not set aside by the Supreme Court of Pakistan, which refused to grant leave to appeal against the said order. On examining the original Vakalatnama I have arrived at the same conclusion. In the case of Ramappayya AIR 1949 Madras 98 the Vakalatnama riled by a defendant in favour of his suit Advocate empowered the latter to appear in the Court and conduct and defend the suit. It did not empower him to settle the matter on his behalf and he was authorised to contest the matter, with no express or implied authority to effect a compromise. It was held that in the circumstances no implied authority could be deemed to have been conferred upon the Advocate to make a compromise, which could be binding upon his client. This case is distinguishable from the present case, where authority to withdraw the matter was expressly conferred upon Mr. Munawar Malik, Advocate. In the case of Smt. Saratkumari Dasi AIR 1923 PC 13 it was held that a Vakil appointed under a usual power of attorney, is not endowed with power or authority to compromise the suit. In the cited case the Advocate never saw his client, who was a Pardahnasheen lady and be never spoke to her in reference to the compromise and there was no communication between the two touching the compromise and it was held that in spite of all this if the Advocate purported to compromise the suit he had failed in his duty towards his client. In the present case neither the appellant is a Pardahnasheen lady nor the Vakalatnama was without authority to withdraw the appeal. In the case of Keshav Ramkrishna Bhatt Phadke AIR 1939 Bombay 490 the Vakalatnama filed in favour of a pleader did not give him any special authority to negotiate with the opposite-party and settle the terms of the compromise, but authorised him merely to sign the compromise application to be presented in court and if the party's consent to the compromise being presented in Court had not been obtained, the compromise which resulted in decreeing of the suit, was unauthorised, as held. In the case of Babu Sheonandan Prasad Singh and others AIR 1935 PC 119, it was held that the counsel in India have the same implied authority to compromise an action, as have counsel in the English Courts, but if such authority is invoked to support an agreement of compromise, the circumstances must be carefully examined. Facts of the cited cases are materially different from facts of the instant case where the counsel entering into the compromise (Mr. Munawar Malik), had all the authority from his client to "withdraw/compromise" etc. In the case of Mobile Eye Service v. Director, Social Welfare and another PLD 1992 Kar. 183 cited or. behalf of the respondent a compromise order, consented to by an Assistant Advocate-General on behalf of Director Social Welfare, was passed. Later on the Director, Social Welfare and others moved an application under sections 12(2 j, and 151 and Order 47, Rule 1 of C.P.C, for review of the consent judgment which was sought to be declared as that binding on them, an the ground that the Assistant Advocate-General who appeared for the Director social Welfare, had not been authorized by the latter to enter into a compromise. The matter was placed before a Division bench of this Court, which observed that there was nothing in the application moved for review even to remotely suggest that the Assistant Advocate General while giving his consent was motivated by any consideration of fraud or that he had colluded in any manner with the opposite-party. It was further observed in the said case that there was nothing to point out that any mis representation was made by the Assistant Advocate-General whose authority to enter into the compromise on behalf of the Director Social Welfare, was not questioned at the relevant time. After observing these facts, the learned Division Bench took view that reference to the provisions of section 12(2) of C.P.C. was misconceived and such provisions were not attracted to the facts of the said case. Said case applies to the instant case on all the fours. In the next case of Bhooralal 1993 MLD 238 cited on behalf of the respondent the view taken was that if an Advocate on account of his negligence causes any loss or damage to his client, then it will be open to his client to take any disciplinary action against him before a competent forum or claim damages. Coming to the facts of this case, I find that there is nothing to suggest that Mr. Munawar Malik while giving his consent to the compromise on behalf of his client, was motivated by any considerations of fraud or that he had connived in any manner with the opposite-party. Furthermore, there is nothing on record to suggest, much less establish, that any mis-representation was made by Mr. Munawar Malik while agreeing to the consent order, dated 4-10-1992. He strenuously argued the case of his client on 27-9-1992. He A would not have done so, had he been motivated by any consideration of fraud etc. Moreover the compromise in this matter is not unilateral but it extends benefit to the appellant also. While clearing the way for the respondent to ultimately obtain possession of the demised premises, the compromise order permitted the appellant to continue -remaining in possession of the demised premises for another one year and two months, It is unfortunate that Rent Case No. 720 of 1988 was filed by the respondent on 26-10-1988, was accepted on 11-7-1991 and Appeal No. 508 of 1991 was filed on 5-8-1991 and was disposed of on 4-10-1992, and yet the status quo remains in the case, and the respondent has not been able to reap fruit of the order, dated 11-7-1991 by which eviction of the appellant was ordered and of the older by .which he graciously allowed the appellant to continue with possession of the premises for another 14 months. There is no tinge of fraud or anything of that sort in. the acceptance of the compromise dated 4-10-1992. As in the case of Mobile Eye Service . so in the present case the provisions contained in section 12(2) of C.P.C. are not attracted. Consequently, this application stands dismissed with no order as to costs. The appellant to surrender possession of the demised premises within two weeks or else he would be forcibly thrum. out of possession. H.B.T./M-1985/K Application dismissed.