1989 PLP 1143 (SCMR)

Representation

• Izharul Haq, Advocate Supreme Court and Tanveer Ahmad, Advocate -on‑Record for Petitioners.
• Nemo for Respondents.
• Date of hearing: 26th February, 1989.
• Muhammad Safdar respondent herein on the basis of a decree secured by him against Bashir etc. with regard to one half of the house in dispute for a considerable sum of Rs.8,000, filed the present suit against Muhammad Saleem, Muhammad Saleh, Khushi Muhammad and Muhammad Sharif for the grant of a decree for possession of one‑half of the house for the reason that Bashir Ahmad and his brother Nasir Ahmad the exclusive owners of the house in dispute, had since died issueless and Muhammad Saleem, Muhammad Saleh, and Khushi Muhammad claimed to have inherited from them as collaterals, all having declined to surrender the possession of half of the house in dispute to the plaintiff. But Muhammad Sharif petitioner herein being only a tenant in the house has no title to the house. Contesting issues were framed but during the trial Muhammad Saleem defendant in person and Aziz Ahmad, Advocate on behalf of all the four defendants offered to have the suit decided on oath to be taken by the plaintiff on the Holy Quran to the effect that he had made a bargain for the house with Bashir deceased and the decree so obtained was not fictitious. It was further undertaken that if Safdar plaintiff take the oath, his suit will be decreed. The statement so recorded was signed by Muhammad Saleem defendant and his counsel Aziz Ahmad. The plaintiff after the acceptance of the offer took the proposed oath and in consequence thereof, the suit was decreed in his favour on 19‑9‑1984.
• Muhammad Sharif petitioner No.l, a mere tenant in the house filed an appeal against the respondent alongwith their legal heirs of the aforesaid defendants Muhammad Saleh and Khushi Muhammad. Muhammad Sharif took the plea that he has not engaged Aziz Ahmad, Advocate to make an offer which is not binding on him. The learned Additional District Judge who heard the appeal observed that the counsel on behalf of the defendant having made the offer could not be believed that the counsel for the defendants have not made an offer binding on all the defendants. The learned Judge further took notice of the fact that the 3 defendants whose right of ownership involved in the suit did not prefer an appeal and it was Muhammad Sharif defendant alone who challenged the validity of the suit and thus dismissed the appeal vide order dated 2‑3‑1985.
• Muhammad Sharif filed a 2nd appeal before the High Court. At the preliminary hearing it was contended that Aziz Ahmad Advocate was not actually representing any of the parties in the suit. The trial Court record was summoned by the learned High Court, wherein there was a statement signed by Aziz Ahmad described as counsel for the defendant No.l on behalf of all the defendants. Though the `Wakalatnama' on his behalf was not available, the fact is not denied that Aziz Ahmad was associated with the case on the side of the defendants and the proceedings recorded on 19‑9‑1984. The statement for the offer of the special oath made by him was signed by Aziz Ahmad and thus the High Court was not persuaded to attach any importance of the non‑availability of the Wakalatnama. The possession of Muhammad Sharif petitioner is clear from the record that he is a mere tenant, has no title in the house and the review application filed against the said order before the High Court, finding no reason for consideration that the judgment of the High Court was dismissed with no substance.
• In this petition the learned counsel advanced the same arguments and the fndings arrived at by the Courts below about the oath proceeding, which is essentially a question of fact and needs no interference by this Court. However, the observation made about the conduct of the Advocate by the learned High Court in its review order was not necessary and is considered as expunged.

Headnotes / Summary

Judgment & Decree