1986 PLP 1045 (CLC)

‑‑‑O. III, r. 4‑‑Counsel‑‑Authority to make statement made in Court as referee‑‑Statement made in Court by counsel duly appointed and accepted as referee was binding on petitioner who executed Wakalatnama in his favour and accepted him as referee and conferred full authority on him to make statement in Court on his behalf‑‑Question of want of authority of counsel to make statement in Court during pendency of suit, held, could not be agitated. ‑‑[Counsel and client]‑ The petitioner, against whom the respondents have obtained a declaratory decree to the effect that they are entitled to use the roof of his shop, has assailed judgment and decree, dated 14‑5‑1983 passed by the learned trial Court as affirmed in appeal by the learned District Judge, on 17‑9‑1985.

2. The suit, out of which this revision petition has arisen, was instituted by the respondents for a declaration that being the transferees of House No. 164, vide order, dated 15‑7‑1952 passed by the Settlement Department, they were entitled to use the roof of Shop No. 765/47 forming part of the aforementioned property, but occupied by the petitioner as an allottee. The above right was claimed on the basis that they had been using the aforementioned roof since 1947 without any objection or interference by the petitioner. The suit was contested by the petitioner , but during the trial, the parties agreed that the case be decided on the statement of Mian Muhammad Saeed Wattoo, Advocate, whom they accepted as the referee in the matter. On 14‑5‑1983, Mian Muhammad Saeed Wattoo made statement in Court supporting the respondent's claim. As a result of the above statement, the respondents suit was decreed. Feeling aggrieved by the judgment and decree of the trial Court, the petitioner preferred appeal in the Court of District Judge on the plea that the learned counsel, who made statement before the learned trial Court accepting Mian Muhammad Saeed Wattoo, Advocate, as referee for the decision of the suit, was not authorised to make such statement on his behalf, The learned District Judge, however, did not find any substance in the above plea, as it was observed that the Wakalatnama, signed by the petitioner in favour of his counsel, conferred full authority on the counsel to make statement on behalf of the petitioner for the decision of the suit on the basis of the statement of referee. The petitioner's appeal was accordingly dismissed.

3. The petitioner has raised the same plea in this Court, which he had taken up before the learned District Judge inasmuch as the counsel, on whose statement, the matter was referred to Mian Muhammad Saeed Wattoo as referee, had no authority to make such statement on behalf of the petitioner. It is further contended that the learned trial Court had acted with material irregularity in refusing permission to the petitioner's counsel to cross‑examine the referee after his statement was recorded. Learned counsel for the petitioner has stated that the right of easement to use the roof of the petitioner's shop could not be acquired by the respondents without proof, as contemplated by the Easement Act, 1882.

4. The question of want of authority of the counsel to make statement binding the petitioner during the pendency of the suit in the trial Court cannot be re‑agitated in the present revision petition. The view taken by the learned District Judge, after looking into the contents of the Wakalatnama, executed by the petitioner in favour of his counsel, is not open to question, as the petitioner has failed to show that the aforementioned Wakalatnama did not confer any authority on the counsel to make statement on his behalf for the decision of the suit on the statement of a person accepted as referee by the parties.

5. Petitioners contention that opportunity was not afforded to him to cross‑examine the referee, is also devoid of force, because the referee had not appeared as a witness in the case. The parties had agreed to accept his statement as final by making statement in Court that the case be decided on the basis of his statement. The question to cross‑examine the referee under the circumstances, therefore, did not arise.

6. There is also no force in the petitioner's contention that the respondents claim to use the roof of the petitioner's shop has been allowed without proof. The right of easement claimed by the respondents has not been allowed on the basis of any evidence, because the parties had agreed that the existence or non‑existence of any such right should be decided on the statement of Mian Muhammad Saeed Wattoo, Advocate, whom the parties had nominated as referee in the case. For the foregoing reasons, there is no merit in this revision petition which is accordingly dismissed in limine. H . B . T .???????????????????????????????????????????????????????????????????????????????? Revision dismissed.