P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This is a defendants' appeal arising out of a suit for partition of movable and immovable property left by one Mitho son of Kadir Bux who died in the year 1956. The deceased was survived by Mst. Lai Khatoon widow, Mst. Shafiat mother and Haji Mewo a consanguine brother. Mst. Lal Khatoon the respondent/plaintiff married another person called Imambux Junejo. After her second marriage on March 3, 1959, she filed Suit No. 10 of 1959 in the Court of the District Judge, Dadu, for partition, separate possession and mesne profits in respect of the properties mentioned in Schedules A and B of the plaint. During the pendency of this suit the respondent obtained an interim injunction order with regard to the produce of the property in dispute The appellants/defendants resisted the respondent's suit and contested the injunction granted by the learned District Judge, Dadu. In these proceedings Haji Mewo, appellant No. 1, was conducting the litigation both on his behalf and on behalf of appellant No. 2, Mst. Shafiat, his mother. The appellants were also represented by one Mr. Abdul Hakim Abbasi, a practising Advocate of this Court. The respondent, who is a pardahnashin lady, was represented before the learned District Judge by an attorney called Achar. On the first hearing of the suit held on the 30th of May 1959 appellant Haji Mewo along with Mr. Abdul Hakim Abbasi, the Advocate of both the appellants, and Achar the attorney of the respondent appeared before the learned Subordinate Court for conducting the litigation going on between the parties. The case of the appellants as set up during the interlocutory proceedings was that they had paid the share of the respondent in the property left by deceased Mitho in the shape of cash and ornaments and she had no more any claim in the property in suit. It appears that on the first hearing of the suit Haji Mewo, appellant No. 1, offered a special oath to Achar, the attorney of Mst. Lai Khatoon, in the following terms: "If Achar Khan attorney for Mst. Lal Khatoon swears on Holy Quran that 8 Jerebs of land of defendant Mewo Khan are not in his possession as `Amanat' (Trust), then I have no objection if the share out of the property shown in Schedule A of the suit is granted to the plaintiff, and the parties shall not litigate over the property any more." This offer was accepted on behalf of the respondent by Achar, attorney. Mr. Abdul Hakim Abbasi, Advocate for the appellants in the Subordinate Court, also signed the proceedings in token of acceptance on behalf of the appellants. The Advocate concerned signed both on behalf of appellant No. 1 and the other appellant. Thereupon Achar took the special oath in the following terms before the learned Subordinate Court: "Achar, the attorney swears on Holy Quran that he owes nothing to the defendant and that no land is in trust with him." As a result of this the learned District Judge passed a decree in favour of the respondent of four annas share in the immovable property left by deceased Mitho. He further ordered that the movable property would be retained by the parties concerned and directed the parties to bear their own costs. Both the appellants have challenged in this appeal the decree passed by Mr. Azizullah Memon, the then District Judge, Dadu, on the 30th of May 1959 in the above‑mentioned suit on three?fold grounds: firstly, that the statement of appellant No. 1 offering the special oath was obtained from him by the learned District Judge by force being on friendly terms with the husband of the respondent ; secondly, that appellant No. 2 was not a party to the special oath and the learned District Judge was not justified in passing a decree in terms of the special oath ; and thirdly, that the statement made by appellant No. 1, on the basis of which the decree was passed, did not admit the claim of the respondent/ plaintiff and the learned Judge erred in passing a decree in terms of the special oath. The allegation of exercise of threat and force by the learned District Judge in obtaining the offer of special oath from appellant No. 1 was referred to him and he has totally denied it. The allegation is no doubt baseless. Mr. Kaikobad, the learned counsel for the appellants, has dropped the allegation against the learned District Judge in this respect and has not pressed the first ground of attack against the decree under appeal. The only objection that has been seriously argued before us is whether the learned District Judge was competent to pass a decree on the basis of the special oath against Mst. Shafiat, appellant No. 2, who was not present In Court and had not personally accepted it. Mr. Kaikobad, the learned counsel for the appellants, contended that as the offer of special oath was not made on behalf of appellant No. 2, the learned District Judge was not competent to pass any decree against her. He referred us to section 11 of the Oaths Act, 1873 in support of his contention that the evidence recorded on special oath could have the effect of conclusive proof and binding nature only against the person who offered to be bound by special oath. Had the offer of special oath been not made on behalf of appellant No. 2, there would have been no difficulty in the disposal of this appeal. It is well settled that under section 11 an oath is conclusive as against the person who offers to be bound by it. There can be no doubt that as against other parties it is not conclusive evidence and a Court has no right to treat it as such and pass a decree on its basis. The difficulty in the present case is that the offer of special oath was not only made by Haji Mewo, appellant No. 1, but was signed too in token of acceptance by Mr. Abdul Hakim Abbasi, the Advocate for the appellants both on behalf of appellant No. 1 and appellant No.

2. Mr. Kaikobad has urged before us that an Advocate, unless specially instructed, could not bind the absent party by merely signing the proceedings recorded by the Court on the 30th of May 1959. In support of his contention the learned counsel has referred us to the case of Sadashiv Rayaji v. Maruti Vithal (I L R 14 Bom. 455). In that case the learned Judges of the Bombay High Court held that‑

"an agent, holding a power‑of‑attorney authorising him to act and appear for a party to a suit cannot bring the suit to a close by offering to be bound by the oath of the opposite party In a particular form. Nor can a pleader so bind his client." We have noticed that a similar view has been taken in Pethayya Pillai v. Karuppiah Nadar and others (A I R 1953 Mad. 708). Mack J., in that case held that an Advocate cannot bind the absent plaintiffs by signing the oath petition which is not contemplated by section 8 of the Oaths Act and is in fact contrary to law. So far as the Bombay case is concerned, it deals with the power of a pleader and it cannot be doubted that if the pleader concerned had no special authority to compromise the suit on behalf of a party, his authority to be bound by oath of the other party will be open to serious objection. But in the present case Mr. Abdul Hakim Abbasi being an Advocate of the High Court not only enjoyed special privileges of having an implied power to compromise cases on behalf of the parties for whom he appeared but was specially empowered under his vakalatnama filed in the lower Court to enter into compromise on behalf of both the appellants. 1n Ramzan and others v. Gopal Das and others (A I R 1936 Lah. 199), a Bench of the Lahore High Court held as under:‑ "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." In this decision the learned Judges of the Lahore High Court followed the Privy Council decision in Sourendranath Mitra v. Tarubala Dasi (A I R 1930 P C 158.). In Hata v. Smail and others (A I R 1932 Lah. 414) Jai Lal, J. observed as under:‑ "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 authorized agent." This view is also supported in the cases in Mst. Masita Bibi v. Khuda Bakhsh (A I R 1923 All. 65), Muhammad Mahmud Choudhry and others v. Behary Lal Saha and others (A I R 1930 Cal. 463), Jadu Sahu and another v. Chamra Sahu and others (A I R 1939 Pat. 222) and Narain Singh and others v. Har Bux Singh and others (A I R 1953 All. 312). 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 the 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. In the present case the circumstances show that Haji Mewo was the only male adult member who could conduct litigation or attend the Court cases on behalf of his mother Mst. Shafiat. In fact in the interlocutory proceedings resulting in the issue of a temporary injunction against the appellant this gentleman figured as the only person contesting the proceedings on behalf of his mother. He filed the counter‑affidavit where as Mr. Abdul Hakim Abbasi signed the application for discharge of the injunction on behalf of both the appellants. There is thus no doubt in our mind that Haji Mewo was acting both on his own behalf and on behalf of his mother in the proceedings pending in the lower Court and was also giving instructions on behalf of his mother to the Advocate concerned. There is' no allegation of any fraud or negligence against Mr. Abdul Hakim Abbasi. In the absence of any such allegation it appears to us that Mr. Abdul Hakim Abbasi acted within his authority and was fully competent to offer special oath on behalf of Mst. Shafiat, appellant No.

2. On this view of the matter it is quite plain to us that appellant No. 2 is bound by the act of her advocate. Mr. Kaikobad contended that the signature of Mr. Abbasi on the proceedings of the day was not in token of acceptance of the special oath or of offering the special oath but there is no affidavit either of Mst. Shafiat or of the Advocate that it was not so. In its absence it appears to us that when an Advocate signs the record of the proceedings containing the offer of special oath on behalf of the parties whom he represents, it would be deemed to have been done by him as agent of the parties whom he represented in the proceedings pending in Court. We have there?fore no hesitation in holding that the learned District Judge was fully justified in passing a decree against appellant No. 2 on the basis of the special oath put to Achar the attorney of the respon?dent. The contention of the appellants, therefore, that the learned District Judge was not justified in passing a decree against appellant No. 2 must fail. It was next contended by Mr. Kaikobad that the learned District Judge has not stated in the final order that the decree in favour of the respondent was only in respect of agricultural property mentioned in Schedule A. The learned counsel further contended that the decree in favour of the respondent in respect of agricultural land could be only of four annas share in the 8 annas 5 10/27 pies share left by the deceased in the property in dispute. In our opinion the learned District Judge in passing the decree in respect of the immovable property meant only agricul?tural property mentioned in Schedule A of the plaint. The final order passed by the learned District Judge clearly shows that the decree in favour of the respondent is only confined to her four annas share in the 8 annas 5 10/27 pies share of the deceased in the agricultural property in dispute. There appears to be no vagueness in the decree in this respect, but even if there is any misgiving in this respect it should now be taken to have been set at rest. In the result the appeal is dismissed. But since Mr. Kaikobad cited at the Bar both for and against views on the contention raised before us, we leave the parties to bear the costs of this appeal. K. B. A. ??????????? Appeal dismissed.