' MUHAMMAD MUNIR PERACHA, J.---This judgment shall dispose of R.S.A. No,2 of 2007 and R.S.A. No,3 of 2007. The appellants are successors-in-interest of Sheikh Ahmad Hassan, a displaced person, who owned land in village Tarlai Kalan, Tamma and Sodar. He executed a registered General Power of Attorney Exh.D-2, in favour of Muhammad Yousaf on 3-7-1982. The Power of Attorney authorized the attorney to sell, exchange, gift and mortgage the property of the principal. On the strength of the said Power of Attorney, Muhammad Yousaf executed registered sale-deed on 9-9-1982 Exh.P- 29 in respect of land measuring 12 Kanals, 13-Marlas, situated in village Tarlai Kalan in favour of his grand-sons Azhar Hameed and Nasir Hameed respondents Nos.1 and 2 in R.S.A. No, 2/07. He also executed another registered sale-deed in respect of land measuring 8-Kanals, 11-Marlas, owned by Ahmad Hassan in village Tarlai Kalan again in favour of Azhar Hameed and Nasir Hameed along with Mst. Akram Jan his daughter on 15-9-1982. After the death of Ahmad Hassan on 23-9-1982, his brother Asghar Hussain (Ahmad Hassan died issueless) filed Suit No,337 of 1983 for declaration to the effect that sale-deed executed by Muhammad Yousaf attorney in favour of his grand-sons on behalf of Ahmad Hassan in respect of land measuring 12-Kanals, 13-Marlas, is void. In the alternative, a decree for possession through pre-emption was claimed. Raja Abdul Rahim Advocate, who filed the said suit on behalf of Sh. Asghar Hussain made the following statement before the Trial Court seized of the case on 8-7-1985:- {{URDU TEXT}} ' On 17-2-1987, Asghar Hussain made a statement that he has filed a suit for cancellation of the sale, therefore, withdraws the suit of pre-emption. On the same day, learned Civil Judge dismissed the suit as having been withdrawn. Before the said dismissal, he filed Suit No,10/87 on 13-1-1987, which was renumbered as 145/1987 and is the subject-matter of R.S.A. No, 02/07.
2. With respect to land measuring 8-Kanals 11-Marlas, Sh. Asghar Hussain filed suit for declaration to the effect that the sale made by Muhammad Yousaf General Attorney in favour of his grand sons and daughter is void. In alternative, a decree for possession through pre-emption was claimed. This suit was registered as Suit No,336 of 1983. Raja Abdul Rahim Advocate made a similar statement on 8-7-1985 as is mentioned at page 2 of this judgment. This suit too was withdrawn by Sh. Asghar Hussain on 17-2-1987 on the ground that he had filed a suit for cancellation of the sale and did not want to proceed with the pre-emption suit. Learned Civil Judge dismissed the above said suit on the same day. Before the dismissal of Suit No,336/1983, Asghar Hussain filed Suit No,146 of 1987, out of which R.S.A. No,3 of 2007 has arisen.
3. In both the suits i.e, 145/1987 and 146/1987, the case of the plaintiff Asghar Hussain was that sale made by Muhammad Yousaf on the strength of the Power of Attorney executed by Ahmad Hassan is void and inoperative on the rights of the plaintiff.
4. Both the suits were contested by the defendants by filing written statements. The defendants in both the suits pleaded that the suit is barred under Order XXIII Rule. 1(3) of the C.P.C. It was also pleaded that the suit cannot proceed in view of Order II, Rule 2 of the C.P.C. The issues framed by the Trial. Judge in both the suits are identical. The issues framed in Suit No,145 of 1987 are reproduced:-- 'ISSUES
1. Whether the plaintiff has no cause of action or locus standi to file this suit? OPD
2. Whether the suit is barred under Order II Rule 2 and Crder XXIII Rule 1 (3) of C.P.C? OTD
3. Whether the plaintiff is estopped to file the suit by his own words and conduct? OPD
4. Whether the suit is within time? OPD
5. Whether the deed of general attorney executed by Ahmed Hassan deceased in favour of defendant No,4, has been obtained by fraud and misrepresentation? OPP
6. If issue No,5, is proved, whether the registered sale-deed dated 15-9-1982 is illegal, void, and without lawful authority ineffective upon the rights of the plaintiff?OPP
7. Whether the plaintiff is entitled to the possession of the suit-land? OPP
8. Relief.
5. The parties led evidence on the above said issues. The Trial Judge dismissed both the suits on 15-12-2000 through two separate judgments. Learned Trial Judge recorded findings in both the suits that suits are barred by the provisions of Order XXIII and Order II Rule 2, C.P.C. In both the suits, learned Trial Judge held that the plaintiff is estopped from his own words and conduct to file the suit. Issue No,5 was found in the negative in both the suits. Issue No,6 was found in the negative in both the suits. Both the suits were found within limitation.
6. The appellants/plaintiffs challenged the judgment of the Trial Judge through two separate appeals. Both the appeals were dismissed by the learned Additional District Judge through two separate judgments dated 6-11-2006. The findings recorded by the Trial Court in both the suits were maintained except one modification and that is that it was held by the learned First Appellate Court that Order XXIII, Rule 1(3), C.P.C. Is not attracted. However, the findings of the learned Trial Judge that both the suits were barred under Order II Rule 2, C.P.C. Were upheld by the First Appellate Court. Through the present Regular Second Appeals, the judgment of the Trial Judge and that of the learned First Appellate Court have been challenged.
7. T nave heard the learned counsel fet the appellant as well as learned counsel for the respondents and have gone through the record of the case with their able assistance.
8. Learned counsel for the appellant Sh. Zameer Hussain Advocate raised the following points:-
(i) Raja Abdul Rahim Advocate, who made the statement on 8-7-1985, on behalf of Sh. Asghar Hussain that he relinquishes the claim of declaration, was not authorized to make such a statement. Relies on "Din Muhammad v. Farooq Mirza (PLD 1955 Sindh 62)" and "Sh. Muhammad Fazil v. Sh. Abdul Qadir (1997 CLC 243)"
(ii) Order II Rule 2, C.P.C. Has no applicability and the suit could not have been dismissed on the ground that it is barred under Order II Rule 2, C.P.C.
(iii) Order XXIII Rule 1(3), C.P.C. Was also inapplicable in view of the fact that the suit was filed before the order permitting the withdrawal of the earlier suit has been passed and the suit actually withdrawn. Relied on "Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344)"
(iv) By mere statement of the plaintiff that he withdraws the suit or relinquishes a part of the claim, the suit does not stand withdrawn or claim relinquished unless an order to that effect is passed by the Court Relies on "Shams-ud-Din and 4 others v. Mst. Sitara Begum (1993 MLD 962)"
(v) The attorney was not competent to transfer the land of the principal in favour of his close relatives. Relies on:--
1. "Fida Muhammad v. Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341)",
2. "Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818)"
3. "Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811)"
4. "Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique and another (1994 CLC 1690)" and
5. "Maqsood Ahmad and others v. Salman Ali (PLD 2003 SC 31)."
9. On the other hand, learned counsel for the respondents submits that a pure question of fact has been found concurrently against the appellants. Under section 100 of C.P.C, second appeal is competent only if the decision is contrary of law or usage having the force of law. He further submits that the suit was hit by the provision of Order II, Rule 2, C.P.C.
10. Let me first examine whether Raja Abdul Rahim Advocate was competent to make statement reproduced at page 2 of the judgment on behalf of Asghar Hussain. Power of Attorney executed by Asghar Hussain in favour of Raja Abdul Rahim Advocate is Exh.P-34 in Suit No,145/1987. The power given by Asghar Hussain inc ludes : {{URDU TEXT}}
11. In case reported as "Messrs Arokey Ltd and another v. Munir Ahmad Mughal and 3 other (PLD 1982 SC 204)"exactly the same powers were given by the client to his counsel. The Honourable Supreme Court ruled out that the Advocate was competent to enter into a compromise on behalf of his client. In case reported as "Mst. Noor Jahan v. Azmat Hussain Farooqi and another (1992 SCMR 876)", the apex Court held that Advocate having power to compromise can enter into a settlement with regard to the subject-matter of the suit in respect of which authority has been given but cannot introduce any alien matter or any collateral subject in such settlement or compromise. In case reported as "Muhammad Jamil v. Municipal Committee, Mandi Bahauddin through Chairman and another (2001 MLD 568)", it was held that the term "act" was very wide and would include every conceivable action with relation to the proceedings in which Advocate had been authorized to act by a party. It was further held that counsel had an implied authority to do whatever he considered best for his client and such acts were binding upon the client unless express limitation had been imposed upon his authority. It was ruled out that in the absence of the provision to the contrary in the document appointing an Advocate to act, he could withdraw or compromise or settle the dispute. The two judgments cited by the learned counsel for the appellants "Din Muhammad v. Farooq Mirza (PLD 1955 Sindh 62)" and "Sh. Muhammad Fazil v. Sh.
Abdul Qadir (1997 CLC 243) are distinguishable. In case reported as "PLD 1955 Sindh 62", Sindh High Court came to the conclusion that if an Advocate has been appointed through a Vakalatnama, then his power flows from the terms of Vakalatnama and he will have no implied authority and he can exercise only those powers, which are specifically delegated to him by his client. Similarly, in case reported as 1997 CLC 243, it was ruled out by the Lahore High Court that if some power does not find mentioned in Vakalatnama, the same cannot be exercised by the counsel by invoking the principle of implied authority.
12. The matter can be looked from another angle. Raja Abdul Rahim, Advocate made the statement on 8-7-1985. From 8-7-1985 upto 17-2-1987, when the suit was withdrawn, the suit was being treated to be a pre-emption suit. Sh. Asghar Hussain did not object. He had been prosecuting the case of pre-emption. On 17-2-1987, he made the following statement:- {URDU TEXT}} 'The statement itself shows that he had accepted the statement made by his learned counsel on 8-7-1985. I have come to the conclusion that Raja Abdul Rahim competently made statement, made by him on 8-7-1985.
13. The next question to be examined is whether the suit is hit by Order II, Rule 2, C.P.C. Order II, Rule 2 is reproduced:-- "2. Suit to include the whole claim. ---
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
'Relinquishment of part of claim.--
(2) where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
Omission to sue for one of several reliefs. ---(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purpose of this Rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
14. Order XXIII Rule 1, C.P.C. Reads as under:-- "Withdrawal of suit or abandonment of part of claim. ---(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied:--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule, (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others."
' By reading Order H Rule 2 and Order XXIII, Rule 1, C.P.C, it can be concluded that Order II Rule 2, C.P.C. Is applicable when a part of the claim arising out of same cause of action is not included in the plaint. Order XXIII Rule 1(3), C.P.C. However, covers a different situation. It would be attracted if the claim is included in the plaint but the plaintiff withdraws from the suit or abandons part of a claim. In the earlier suit, when the original plaint was filed, the claim of declaration was included in the plaint. Order II Rule 2, C.P.C. Therefore, is not applicable to the subsequent suit.
15. Let me now consider, whether the subsequent suits (145/1987 and 146/1987) are hit by the provision of Order XXIII, Rule 1(3) of the C.P.C. As has already been mentioned, the plaintiff through his counsel abandoned the claim to the extent of declaration to the effect that the sale made by Muhammad Yousaf on the strength of Power of Attorney is void. The subsequent suit in respect of this part of the claim is barred under the provisions of Order XXIII Rule 1(3), C.P.C. However, the learned counsel relying on the case reported as PLD 1983 SC 344, submits that since fresh suit was instituted and was pending at the time of withdrawal of the earlier suit, the fresh suit was not barred under Order XXIII Rule 1(3) of the Code. In my opinion, this arguments of the learned counsel does not have any merit in it. The whole suit might have been withdrawn after the filing of the fresh suit but the claim of declaration was abandoned on 8-7-1985 much before the filing of the fresh suit. The judgment of the Honourable Supreme Court "PLD 1983 SC 344" is therefore, not applicable to the case in hand. The learned counsel, however, with reference to a case reported as "Shams- udDin and 4 others v. Mst. Sitara Begum (1993 MLD 962)" submits that the suits or a part of the claim in the suit does not stand withdrawn by mere making a statement. The Trial Court has to pass an order. As the general proposition of law, I am in agreement with the learned counsel for the appellants. If plaintiff makes a statement that he withdraws the suit or abandons a part of the claim, the Trial Court has the power to burden him with such costs as the Court may award. This rule gave powers to the Court to determine the amount of costs. In the words of Mr. Justice Gul Zarin Kiani: -- "So, when the plaintiff applies or informs for an unconditional withdrawal of the suit, it falls on the Court to consider, whether in view of the nature and stage of proceedings, plaintiff could be permitted to unconditionally withdraw and if he could be so permitted, what were the amount of costs payable by him to the other side. Unless the aforenoted two acts were decided upon by the Court, the withdrawal was not complete. Without injecting life into the statement for unconditionally withdrawal of the suit by the order of the Court, the withdrawal was not finally effectuated. Till then, the lis was alive on the cause list of the Court."
16. However, in this case, after 8-7-1985 when the statement was made by Raja Abdul Rahim Advocate, the case was being treated as a case of pre-emption. Both the parties as well as the learned Trial Court was dealing with the case as a suit of pre-emption. It is thus established that parties as well as the learned Trial Court were conscious that the claim of declaration stood abandoned on 8-7-1985. Both the suits are therefore, liable to be dismissed as barred under Order XXIII Rule 1(3) of the C.P.C. I am conscious of the fact that the learned first Appellate Court recorded a finding that the suit is not barred under Order XXIII Rule 1(3), C.P.C. And no appeal or cross- objection has been filed by IA the respondents. The respondents in an appeal can support a decree even on grounds, which were found against him by the subordinate Court without filing an appeal or cross objection in view of Order XLI, Rule 22, C.P.C. The Court has also powers under Order XLI, Rule 33, C.P.C. To pass any decree or make any order which ought to have been passed or made notwithstanding the fact that the respondent has not filed any appeal or objection.
17. Since I have reached the conclusion that both the suits were hit by Order XXIII Rule 1(3), C.P.C, there is no need to record any findings on the merits of the case.
18. In view of what has been said above, both the appeals are dismissed with no order as to costs.
Second .