' PERVAIZ INAYAT MALIK, J.---Since common questions of law and facts are involved in C.M. No,1705- C-01 filed in C.R. No,31/1984 and C.M. No,1708-C/2001 filed in C.R. No,261/1984,. Therefore, the same are being disposed of through single order.
2. Briefly stated facts as those emerge out of these petitions are that respondent Muhammad Arif and his brother Muhammad Muzafar were allotted land measuring 200 Kanals under Islamabad Oustees Scheme in Chak No,3 Hans, Tehsil and District Multan. Both the above mentioned brothers entered into agreement to sell with one Karam Ellahi orally for consideration of Rs,40,000 in the year, 1965 and after receipt of the above stated amount handed over possession of the land in dispute to said Karam Elahi plaintiff/petitioner. After confirmation of proprietary rights in favour of Muhammad Arif and Muhammad Muzaffar allottees above said Muhammad Muzaffar executed sale deed to the extent of 100 Kanals in favour of Karam Elahi but other Allottee Muhammad Arif fraudulently transferred the remaining 100 Kanals of land to one Muhammad Shahid Ali.
3. That Karam Elahi above said filed a suit for specific performance against Muhammad Arif and Shahid Ali in the Court of learned Civil Judge Multan on 9-7-1976 which was dismissed vide judgment and decree, dated 8-4-1980 which was assailed before the learned District Judge, Multan who dismissed the same vide the judgment and decree, dated 17-12-1983. The learned Additional District Judge Multan observed that subsequent vendee Shahid Ali was not a bona fide purchaser.
4. Aggrieved whereof plaintiff/petitioner Karam Elahi filed Civil Revision No,31/1984 in this Court likewise subsequent vendee Shahid Ali aforesaid also filed a Civil Revision bearing No,261/84 before this Court. During the pendency thereof, a compromise was effected between Shahid Ali and Karam Elahi above said and a written agreement was executed mark "C" filed through C.M.A No,93 of 1999. In view whereof, the suit of plaintiff/petitioner Karam Elahi was decreed to the extent of 34 Kanals whereas remaining land measuring 69 Kanals and 2 Marlas were allowed to be retained by Shahid Ali above said. On behalf of Muhammad Arif, as general attorney, Haji Muhammad Hayat accepted the compromise entered into between the parties, whereupon, both the revision petitions were disposed of in terms of the compromise referred to above. That in view of the order passed by this Court in the afore stated revision petitions, in view of compromise between the parties mutation No,446 was sanctioned in favour of legal heirs of Karam Elahi to the extent of 34 Kanals of land whereas Mutation No,452 was entered on 30-12-1999 in favour of Allah Ditta respondent No,3 in C.M. No,1705-C/1.
5. The legal heirs of Karam Elahi through Mutation No,454, dated 31-1-2002 alienated land measuring 34 Kanals to respondent No,4 in C.M. No,1705-C-01 in Civil Revision No,31 of 1984.
6. That after the lapse of more than two years i.e, on 13-11-2001, applicant Muhammad Arif in C.M.
No,1705/2001 and C.M.A. No,1708/C/01 filed an application before this Court under section 12(2), C.P.C. Praying to set aside the judgment and decree, dated 5-7-1999 A passed by this Court, by declaring the same to have been obtained by fraud and misrepresentation etc. Above said petitioner Muhammad Arif alleged in the application that he never entered into sale agreement with Karam Elahi.
7. It is inter alia contended that at the time of alleged agreement to sell he was minor and even could not enter into agreement with any party; that respondent gave wrong address of the petitioner and he was never served in the above mentioned revision petition. It was further alleged that general power of attorney, on his behalf, in favour of Muhammad Hayat was forged and he never authorized him to enter into compromise. IV is thus prayed that the impugned judgment and decree, dated 5-7-1999 passed by this Court in above said civil revision may be set aside and by restoring the civil revision to its original number the same may be decided on merits.
8. Conversely, learned counsel for the respondents with vehemence has opposed submissions made at Bar by learned counsel for the petitioners submits that Muhammad Hayat general attorney and the learned counsel who compromised on behalf of Muhammad Arif applicant have not been impleaded as parties, therefore, the applications are liable to be dismissed. Reliance is placed upon 1987 SCM R 171 and PLD 2001 Lah. 154; vide Annex "B" at page 27 in sale deed date of execution of power of attorney in favour of Muhammad Hayat is 30-9-1974, which cannot be assailed under section 12(2), C.P.C.; that the power of attorney, dated 30-9-1974 has been challenged after 28/30 years, Refers to provisions of section 8 of the Limitation Act which prescribe that the minor is competent to challenge the documents within a period of three years of obtaining majority and as such these applications are barred by time; that the judgment and decrees under the, titled civil revisions was a result of compromise, therefore, the application under section 12(2), C.P.C. Is not competent. Reliance is placed upon 1997 SCM R 938 and 1992 SCM R 2184; Further submits that no particulars of fraud have been given in the application regarding the execution of power of attorney in favour of Muhammad Hayat aforesaid, therefore, the plea of alleged fraud being baseless and unfounded is not sustainable in law. Places reliance upon 2001 SCM R 1316, 1988 SCM R 1703; sale deed in favour of Shahid Ali Khan and in favour of Allah Ditta, power of attorney in favour of Muhammad Hayat and power of attorney in favour of advocates, authenticity whereof was not challenged/assailed before any Court of competent jurisdiction. Thus according to the learned counsel, these miscellaneous applications are misconceived. Places reliance upon PLD 1975 Karachi 930, PLD 1975 SC 624; the applicant Muhammad Arif submitted number of applications to Corps Commander and District Collector concerned which were decided in accordance with law by them but the same facts have been concealed; the applicant has not approached this Court with clean hands rather has suppressed material facts, therefore, not entitled to any relief. That applicant Muhammad Arif has not challenged those proceedings conducted by Civil Courts and Revenue Hierarchy, which were favourable to him and he has confined himself to the proceedings conducted by his attorney, which are not favourable to him.
He thus under the law cannot be allowed to a probate and reprobate, while summing up his submissions learned counsel for respondents with vehemence submits that if the aforesaid attorney Muhammad Hayat was not a validly appointed attorney and not authorized to represent the applicant, he should have assailed the document as a whole. In support of his contentions he places reliance upon PLD 1987 SC 107 and 1984 CLC 2499. Further submits that in the years, 1999 Muhammad Arif admittedly was major, the document of power of attorney was executed in the year, 1974, which was not assailed before any forum, therefore, the documents during the year, 1999 stood regularized under section 18(A) of the Specific Relief Act. Lastly in support of his contentions, refers to various documents attached with the written reply filed by him to this civil miscellaneous in particular proceedings before the District Collector Multan with application of Muhammad Arif, dated 19-10-2000, wherein, Muhammad Hayat general attorney of Muhammad Arif was also produced who contradicted the version of application Muhammad Arif and supported the stance taken by one of the answering respondents Shahid Ali Khan and Allah Ditta.
10. Arguments heard. Record perused.
11. Apart from hearing the learned counsel, I have also minutely gone through the written arguments filed by both the learned counsel.
The sole question for determination before this Court is the legality of the compromise entered into by Muhammad Hayat general attorney on behalf of the applicant who claims to be a minor at the time of its execution. There is no denying the fact that the disputed document was executed as far back as on 30-9-1974 and it was never assailed before any forum. The compromise between the parties was effected in presence of their learned counsel and they have not been arrayed as respondents in these applications nor the power of attorneys given to learned counsel have been disputed. The respondent was not a minor during the year, 1999 when compromise between the parties was effected and prior to decision of these revision petitions, he never disputed authority of general attorney. I also find force in the arguments of learned counsel for the respondents that the applicant Muhammad Arif has opted to dispute a part of the acts done by general attorney on his behalf, whereas, he has neither denied the execution of documents of general attorney in favour of Muhammad Hayat nor has assailed those acts performed by Muhammad Hayat which were beneficial for him. By now it is well settled law that a party cannot be allowed to approbate and reprobate in same breath nor can a party be allowed to take benefit of part of the document or transaction. A document has to be read as a whole. Apart from the afore stated powers of general attorney, it may be observed that the learned counsel representing a party has full authority to make any statement on behalf of his client and if a party is aggrieved of any acts of the counsel, regarding professional duties performed by him, in case of loss suffered by him, the remedy available to such a litigant is to file suit for damages against such counsel or approach the concerned Bar Councils for initiation of proceedings for commission of alleged gross professional misconduct in view' of Provisions of Legal Practitioners and Bar Councils Act, 1973 and rules made thereunder. There is nothing on record to suggest that any suit for damages were ever filed by present applicants against their counsel or he moved the concerned Bar Council for initiation of disciplinary proceedings in that regard.They have not been arrayed as respondents. I am in full Agreement with learned counsel for the respondents that the applications have been filed for ulterior motive and the applicant also appears to have approached this Court with unclean hands.
The law relied upon by learned counsel for the respondents is fully attracted in view of peculiar facts and circumstances of the case.
12. For what has been discussed above and while respectfully following the case law relied upon by the learned counsel for the respondents, I find no merits in these civil miscellaneous applications