' MUHAMMAD JEHANGIR ARSHAD, J.---Mst. Khurshidan Bibi petitioner through this constitutional petition seeks annulment of the order dated 19-2-2002 passed by Civil Judge Ist Class, Sadiqabad dismissing petitioner's application under section 12(2), C.P.C. And the order dated 9-7-2002 passed by a learned Additional District Judge, Sadiqabad dismissing petitioner's revision petition against the abovementioned order of the learned Civil Judge.
2. The facts in brief are that petitioner filed a suit titled "Mst. Khurshidan Bibi v. Ghulam Hussain and another" in the Court of Civil Judge Ist Class, Sadiqabad against respondents No.2 (her real brother) and 3 seeking a declaration that she being owner in possession of the suit-land (inherited by her from her deceased father Muhammad Ibrahim through Mutation of inheritance No.259 dated 10-2-1998 and Mutation of Gift No.260 dated 10-2-1998 allegedly got sanctioned by her in favour of respondent No.2 was illegal, void, etc. The suit was contested by respondents who filed written statement. However, on 6-9-1999 petitioner's counsel without her consent withdrew the said suit unconditionally. On getting knowledge of the said withdrawal, the petitioner filed an application under section 12(2), C.P.C. On 4-7-2000 before the learned trial Court seeking setting aside of the said order of withdrawal of suit. The respondent No.2 filed reply to the said application and the learned trial Court after framing the following issues put the parties at trial:-- ' Issues:--
(1) Whether the counsel for the petitioner was legally authorized to withdraw the suit on behalf of the petitioner in her absence? OPR
(2) Relief.
However, before recording of any evidence, an application being under Order XIV, rule 2, C.P.C.
Read with section 151, C.P.C. Was moved by respondent No.2 for deciding Issue No.1 as preliminary one. The learned trial Court sought reply of the said application and after submission of reply by the petitioner, proceeded to decide the same against the petitioner and dismissed her application under section 12(2), C.P.C. On 19-2-2002 holding that as there was a legal presumption in favour of an Advocate/ counsel to compromise or withdraw the matter, hence, the application under section 12(2), C.P.C. Was not maintainable and the suit was rightly withdrawn by her counsel. Against the abovementioned order of the learned Civil Judge, the petitioner filed a revision which was also dismissed by the learned Additional District Judge, Sadiqabad on 9-7-2002, hence this petition.
3. It has been argued by learned counsel for the petitioner that although there is a presumption that counsel has an authority to withdraw the suit but such preiumption is always rebutable and as the petitioner had specifically challenged such authority of her counsel who had withdrawn the suit, hence, it was mandatory for the learned trial Court to have decided the said issue after recording of evidence. To support his plea, learned counsel has placed reliance on the case "Abdul Razzaq v. Muhammad Islam" 1999 SCM R 1714.
4. On the other hand, learned counsel for the contesting respondents, by placing reliance on the case "Allah Wasaya and others v. Irshad Ahmad and others" 1992 SCM R 2184 has argued that as the order of withdrawal of suit dated 6-2-1999 was passed on admission and confession, the same could not be considered a decree on the basis of compromise and could not have been assailed through application under section 12(2), C.P.C. Further argued that as an authority is always vested in the counsel/Advocate to withdraw a case or to enter into a compromise regarding subject- matter of the suit, hence the order dated 6-2-1999 allowing withdrawal of the suit by petitioner's counsel was neither based on fraud nor was a result of misrepresentation, therefore, the two Courts below rightly passed the impugned orders. To support last contention, the learned counsel has sought reliance on the case "Muhammad Jamil v. Municipal Committee, Mandi Bahaduddin through Chairman Municipal Committee and another" 2001 M LD 568.
5. I have considered the abovementioned arguments of learned counsel for the parties and have also gone through the cited judgments.
6. No doubt a counsel/Advocate has got an authority to withdraw a suit or to enter into a compromise and there is a legal presumption with regard to such authority yet said presumption is always rebutable and in case if the party challenges the authority of his/her counsel, he is at liberty to prove the same by producing evidence. Since the petitioner had specifically asserted in her application under section 12(2), C.P.C. That she never authorized her counsel to withdraw the suit, therefore, unless she failed to prove such a plea by way of dislodging such presumption through cogent evidence, she could not have been non-suited by the two Courts below on the sole ground that her counsel had an authority to withdraw her suit. The facts and circumstances of the case reported in "Abdul Razzaq v. Muhammad Islam" 1999 SCM R 1714 are almost identical to the facts and circumstances of the case in hand, whereby the Honourable Supreme Court of Pakistan held that application under section 12(2), C.P.C. Could not have been dismissed without allowing opportunity to the parties to lead evidence in support of their respective pleas.
7. Respectfully following the law declared by the Honourable Supreme Court in the cited judgment, this petition is allowed, the impugned orders of both the Courts below are declared as without lawful authority, as such are set aside. The case is remanded to the learned trial Court with the direction to decide the application of the petitioner under section 12(2), C.P.C. After recording evidence of the parties on the issues, already framed. The learned trial Court shall conclude the hearing and decide the said application as early as possible, but not later than 30-4-2006. The parties are left to bear their own costs.