This petition bas questioned the judgment and decree dated 6-7-1980, whereby the learned Additional District Judge, Lahore maintained the decree dated 26-1-1980 of the Civil Judge decreeing the suit on the basis of an alleged compromise.
2. In a suit for administration of the property, both movable and immovable, left by Agha Abdul Ghafoor deceased, the plaintiffs-petitioners and Agha Abdul Hamid respondent No. 2 claimed 3/4 share, but the same was contested by his widow Mst. Naseem Begum respondent on the ground that half portion of the house situated in Shad Bagh was purchased by her alongwith her deceased husband and the one-half purchased by him was gifted to her by him, with the result that she had become full owner in possession of the said house in dispute. She claimed that a sum of Rs.20,000, was fixed as her dower which still remained unpaid and that a sum of Rs.5,000, spent by her on the funeral of the deceased was a charge on the property in dispute. The controversy was put to the issues on which the parties led evidence. It was on 26-1-1980 that the parties were said to have come to an understanding and made a joint statement showing that for the reasons already given above the house situated in Shad Bagh had become the exclusive property of the respondent and that she was entitled to another Rs.25,000, as mentioned above. It was further agreed that she was an heir having 1/4th share of a house situated at Yakki Gate in which her husband owned 1/5th share. It is stated that the trial Court passed a preliminary decree in the' light of the terms settled by the parties against which the petitioners made an appeal on the ground that the counsel acting on behalf of Agha Abdul Hamid was not a counsel duly appointed by them, and as such he had not authority 'to enter into a compromise and make a statement admitting the claim of the respondent. The appeal was dismissed on the ground that the decree was the result of compromise and therefore, no appeal was maintainable.
3. It is not safe to conclude that the so-called admission attributed to Agha Abdul Qayyum and Agha Abdul Hamid, who were plaintiffs in the main suit, had any binding effect on the. Remaining plaintiffs. For proper determination of the dispute whether Mr. Israr-ul-Haq Advocate was authorised by all the plaintiffs, it was necessary that the very power of attorney or the vakalatnama was examined, but the same was not done. There is thus no material on record justifying an inference that any of the plaintiffs-respondents, except Agha Abdul Hamid, had at any stage of the proceedings, appointed Mr. Israr-ul-Haq as their counsel. It appears at the same time by the affidavit dated 9-10-1980 sworn in by Khawaja Muhammad Sharif, Advocate that the plaintiffs had initially engaged him and Kamil Ali Agha as their counsel, and during trial it was only Agha Abdul Hamid respondent No. 2 who had appointed Mr. Israr-ul-Haq, Advocate as his counsel. That being so the new counsel could represent Agha Abdul Hamid alone and nobody out of the remaining plaintiffs.
4: It is undisputed that any appearance, application or act in or to any Court required or authorized by law to be made or done by a. Party in such Court, may except where otherwise expressly provided by any law for the time-being in force, be made or done by the party in person, or by his recognised agent or by a pleader appearing, applying or acting, as the case may be, on his behalf.
It is provided by rule 4 (1) and (2) of Order III, Code of Civil Procedure; that no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power of attorney to make such appointment. And every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceed--ings in the suit are ended so far as regards the client. This matter has been discussed at length in Mian Bashir Ahmad v. Mrs. Mary Minck (AIR 1938 Lab. 698), holding that a pleader who puts in an application on behalf of a litigant acts for him and cannot, therefore do so, unless he is authorized in writing by him. The same view is taken in The Thal Development Authority v. Nisar Ahmad Qureshr (PLD 1962 Lah. 830). In view of what has been laid down, no pleader or Advocate can act in Court, unless duly appointed by instrument en writing. In the instant case Mr. Israr-ul-Haq Advocate made statement and compromised the matter on behalf of all the plaintiffs. Although he was a counsel for only one. The parties who had not engaged him were thus not bound by what the counsel had done apparently on their behalf. In the circumstances the compromise could not be deemed to be made by all the parties and was, there--fore liable to be set aside.
5. On the basis of the decision reported as Muhammad Bibi and others v. Abdul Ghani and others (PLD 1973 Kar. 444), learned counsel for the respondent questioned the maintainability of the appeal before the learned Additional District Judge and also of the present petition, and contended that consent order embodying agreement between parties, attacked on the ground of fraud played upon a party cannot be set aside on a motion under section 151, nor by invoking rule 1 of Order XLVII, Code of Civil Procedure, but a separate suit was required to be brought to have it set aside. The argument does not apply to the circumstances of the present case because the compromise was attacked not on the ground of fraud but on the ground that the decree did not bind the plaintiffs who were not consenting parties, and that the Court by dismissing the suit on no material on record had acted without jurisdiction. A judgment by consent may be as effective as estoppel between the parties just like judgment whereby the Court exercises its mind on a contested case but the instant case is one where all the parties did not consent at all. It was, therefore, a case of fraud played upon the Court and the order in such circumstances could be re- called by the Court in the .Same proceedings in which it was made in exercise of its inherent jurisdiction, or by the appellate Court, or by the revisional Court. It cannot thus be argued that the learned Additional District Judge or this Court had no jurisdiction to set aside the judgment, which was not binding on all the parties.
For the foregoing reasons I accept the revision petition, set aside the judgment and decree of the trial Court as well as of the learned Additional District Judge and remand the case to trial Court for deciding the same on merits in accordance with law. The parties are, however, left to bear their own costs.