' ABDUL HAMEED DOGAR, J.--- This appeal by leave of this Court is directed against the judgment, dated 29-10-1998 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby High Court Appeal No,39 of 1990 filed by the appellants was dismissed.
2. The relevant facts for the disposal of the instant appeal are that the parties are closely related to each other. Appellant No,1 Abdul Shakoor instituted a suit against Haji Abdul Latif deceased predecessor in interest of respondents before the Court of IInd Civil Judge, First Class, Karachi bearing No,671 of 1961 for partition of his share in certain properties. In January, 1961, Haji Abdul Latif met with an accident and remained in the Civil Hospital, where he died on 9th October, 1961. In the meanwhile compromise application was filed under Order XXIII, rule 3, C.P.C. By the parties, which was allowed and the suit was decreed on 16-9-1961. Feeling aggrieved respondents filed a suit on 11-4-1964 in the ,Court of IVth Senior Civil Judge First Class, Karachi but the same was returned on 27-10-1965 for want of pecuniary jurisdiction, thus, they filed Suit No,264 of 1966 before the High Court ' Sindh, Karachi. It was alleged in the suit that appellants taking advantage of ill-health of the deceased, forged the signature of the deceased on the compromise application. This fact came to their knowledge on service of summons in another Suit No,190 of 1963 filed by Mst. Sarabai widow of Haji Muhammad Ishaq. It was also alleged in the suit that they did not remember, if the deceased had been served with the summons of the earlier suit rather he was unaware of the proceedings and that he was unrepresented. The appellants controverted the above contentions by filing written statement and denied that deceased was unaware of the proceedings or that he was unrepresented in the proceedings. According to the appellants, deceased engaged a counsel who signed the compromise application in addition to the signature by the deceased on it.
3. The learned High Court framed as many as 11 issues. Issues Nos.1 and 2 were ordered to be heard as preliminary issues. The learned High Court after hearing the parties held that suit was not maintainable and dismissed the same on 28-10-1969. Feeling aggrieved, respondents filed L.P.A.
No,166 of 1969 which was allowed on 14-6-1980 and case was remanded to be tried on merits. In the post-remand proceedings both the parties led their respective evidence to substantiate their pleas. The learned Judge after hearing both the parties came to the conclusion that the compromise entered into by the learned counsel on behalf of deceased Abdul Latif was not binding on him or his successors as at the relevant time deceased Abdul Latif was bed-ridden and incapable of signing any document. It was also held that the counsel was authorized to compromise subject to the condition of the statement arrived at between the parties which fact was not proved. Consequently, vide judgment, dated 5-11-1989, the suit of respondent was decreed vide judgment, dated 5-11-1989 and the compromise decree, dated 16-9-1961 in Suit No,671 of 1961 was set aside declaring that it was obtained through fraud and not binding upon deceased Abdul Latif. This judgment and decree was challenged by appellants through High Court Appeal No,39 of 1990 before a learned Division Bench of High Court Sindh which was dismissed vide impugned judgment as stated above.
4. We have heard Mr. Akhlaq Ahmad Siddiqui, learned Advocateon-Record for the appellants and Mr. Khalilur Rehman, learned Advocate-on-Record for the respondents at length and have gone through the record and the proceedings of the case in minute particulars.
5. Mr. Akhlaq Ahmed Siddiqui, learned counsel for the appellants contended that the learned High Court has erred in holding that the authority of Advocate for the respondents to compromise was conditional. He further contended that the impugned judgment is even otherwise erroneous as no fraud had been established by the respondents. He contended that on 20-3-1961, the appellants filed a suit for partition before the Civil Court at Karachi which was decreed on account of compromise on 16-9-1961. Respondents challenged the said decree after about five years by filing a suit in 1966 which is hit by limitation but the learned High Court decreed the same on 5-11-1989.
6. Learned counsel for respondents controverted the above contentions and supported the impugned judgment for the reasons enumerated therein and further pointed out that no illegality whatsoever has been committed by the learned High Court and judgment being well-reasoned does not warrant interference. He contended that deceased Abdul Latif, predecessor-in-interest of respondents had got injuries due to an accident, which took place in January, 1961 and was admitted in Jinnah Hospital where he remained under treatment for a period of three months but could not recover. During this period compromise application was filed which was not signed by deceased but only his counsel signed it and on the basis of this compromise application, the earlier suit was decreed as such the same is not binding on the respondent.
7. From perusal of record it revealed that in compromise application filed by appellants deceased Haji Abdul Latif was not party and the compromise application was signed by his son as such his legal heirs cannot be deemed to be bound by such compromise. Though on the Vakalatnama given to Mr. A.P.F. Fances, Advocate it was endorsed that "we further authorize our advocate to compromise the suit and enter into any settlement arrived at by the parties". Though learned counsel appearing on behalf of respondents was authorized to compromise the suit on their behalf but this authority was neither absolute nor unqualified. In fact it was conditioned with a settlement arrived at by the parties. The counsel as such could not be deemed to be authorized to enter into compromise in relation to the suit without any settlement having been arrived at between the parties themselves. The power to compound or settle the matter is vested with the parties and counsel acts according to the instructions given to him by the party. He may enter into compromise only where the Vakalatnama empowers him to do so specifically and cannot do so at his own.
8. The learned Single Judge of High Court rightly set aside compromise decree on the ground that the same had been obtained by fraudulent means and the said order was maintained by learned Division Bench of High Court by discussing each and every aspect of the matter in detail. Learned counsel for the appellants though argued at length yet could not point out any illegality, misreading or non-reading of evidence warranting interference by this Court. We also do not find any reason to interfere with the concurrent findings of the Courts below. Accordingly, both appeal and criminal original petition stand dismissed being devoid of any merit. There shall be no order as to costs.