MIRZA VIOAS RAUF, J. The instant petition is directed against the order dated 23rd of December, 2014, passed by the learned Additional District Judge, Khanpur whereby revision petition filed by the petitioners against the order dated 27th of April, 2013 passed by the learned Civil Judge, Khanpur, has been dismissed.
2. Precisely the facts necessary for the adjudication of instant petition are that the petitioners filed a suit for declaration and permanent injunction against one Muhammad Hussain predecessor-in- interest of the respondent No.3 (i to xiii) before the learned Civil Judge, Khanpur. The petitioners, through the said suit, challenged the vires of mutation No.15 dated 18th of November, 1979 which was sanctioned in terms of estate left by one Inayat Muhammad regarding the property, the detail of which is described in the plaint which does not require reproduction for the decision of the instant petition. The said suit was initially decreed ex-parte vide judgment dated 16th of June, 2010.
In pursuance thereof, a mutation No.406 dated 10th of May, 2011 was sanctioned in favour of the petitioners. The predecessor-in-interest of the respondent No.3 (i to xiii) moved an application before the learned Civil Judge for setting aside the ex-parte decree dated 16th of June, 2010. On the said application, the ex-parte judgment and decree was set aside vide order dated 7th of February, 2011. Later on during the proceedings before the learned trial court, the petitioners withdrew the suit by way of statement recorded on 13th July, 2011, as a result of which the suit was dismissed as such by the learned trial court.
3. The petitioners then moved a petition under Section 12(2) of the Civil Procedure Code, 1908 before the learned Civil Judge, Khanpur for setting aside the order dated 13th of July, 2011. The said petition was contested by the predecessor in-interest of the respondent No.3 (i to xiii). After hearing the arguments from both the sides, the learned Civil Judge by way of order dated 27th of April, 2013, dismissed the said petition. Feeling aggrieved from the said order, the petitioners preferred a revision petition before the learned Additional District Judge, Khanpur which was also dismissed vide judgment dated 23rd of December, 2014.
4. Learned counsel for the petitioner, while challenging the judgment passed by the learned Additional District judge Khanpur as well as order passed by the learned Civil Judge, Khanpur submitted that both the courts below have erred in law while dismissing the petition under Section 12(2) of the Civil Procedure Code, 1908. He maintained that the learned Civil Judge was bound to frame the issues before deciding the fate of the petition which has not been done, so the order passed by the learned Civil Judge is not tenable under the law. Learned counsel further submitted that the learned lower appellate court, while exercising its revisional jurisdiction was bound to take note of the material irregularity committed by the learned trial court but the same has not been done, which renders both the judgment as well as order nullity in the eyes of law.
5. I have heard the learned counsel for the petitioners and also perused the record.
6. The record reveals that initially the suit filed by the petitioners was decreed ex-parte vide judgment dated 16th of June, 2010. The predecessor-in-interest of the respondent No.3 (i to xiii) moved an application for setting aside ex-parte decree which was allowed vide order dated 7th of February, 2011, so at the time of sanctioning of mutation No.406 dated 10th of May, 2011 in terms of ex-parte decree, the judgment dated 16th of June, 2010 was no more in field, as the same was set aside on the application of the predecessor-in-interest of the respondent No.3 (i to xiii) by way of order dated 7th of February, 2011. Sanctioning of mutation No.406 was illegal and unlawful. During the pendency of the suit on 13th of July, 2011, learned counsel for the petitioner, who too has now been impleaded as the respondent No.4 in the instant petition, got recorded his statement in presence of the petitioner No.1. Upon the said statement which was even signed and thumb marked by both the learned counsel for the petitioners as well as the petitioner No.1, the learned trial court vide its order dated 13th of July, 2011, dismissed the suit as having been withdrawn. The petitioners filed a petition under Section 12(2) of the Civil Procedure Code, 1908 on 13th of May, 2012 before the learned Civil Judge, Khanpur wherein they asserted that the suit was withdrawn on the basis of wrong advice of their counsel. It was further asserted that the order dated 13th of July, 2011 was the result of fraud. The said petition was contested by the predecessor-in-interest of the respondent No.3 (i to xiii) who filed the written reply of the same. It is evident from the record that the statement was recorded in presence of the petitioner No.1 before the learned trial court and in token of its correctness, he also marked his thumb impression on the order sheet alongwith the signatures of the counsel. It is admitted on the record that the suit was withdrawn on the statement of the learned counsel for the petitioners in presence of the petitioner No.1 and this fact has even not been denied by the learned counsel for the petitioners today before this Court. Even otherwise presumption of truth is attached to the judicial record. The counsel appearing on behalf of either of the party is always vested with the authority to make statement on behalf of his client, it is always treated to be binding upon the client unless some restraint has been placed on exercise of such authority in the power of attorney specifying such restraint. In this context, guidance can be sought from the case of "Hassan Akhtar and others versus Azhar Hameed and others" (PLD 2010 Supreme Court 657) wherein the Hon'ble Supreme Court of Pakistan has laid down the following principles in para Nos.13 to 17 of the judgment supra : "13. It is by now well-settled that an Advocate has authority to make statement on behalf of his client, which is binding upon the client, unless there is any thing contrary in the Vakalatnma putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client. The Advocate's power in the conduct of a suit allows him to abandon the issue, which in his discretion, advisable in the general interest of his client.
14. From the record it appears that after making statement abandoning the claim pertaining to sale in question, learned advocate for the plaintiffs/predecessor-in-interest of the petitioners, not only kept representing him but also filed another suit seeking cancellation of the sale-deed and thereafter withdrew the earlier suit filed by him. All these acts of learned Advocate show that he acted with authority and consent of the plaintiff/predecessor-in-interest of the petitioners, who was bound by the acts of his Advocate.
15. From the Vakalatnama on record, it also appears that learned Advocate was authorized to make said statement on behalf of the plaintiff including the power to compromise or refer the matter to arbitration.
16. Where Vakalatnma is given, the counsel empowered to compromise the suit without any express authority from his client unless such powers are specifically countermanded by the client.
17. While dealing with the issue wherein terms of the Vakalatnama given to the Advocate, appear almost similar to one given to Advocate who was appearing before the trial Court which reads as under:-- {{ URDU TEXT }} This Court in the case of Messrs Arokey Ltd. And another v. Munir Ahmed Mughal and 3 others PLD 1982 SC 204 held that Advocate who represented the petitioner was competent to enter into compromise."
7. The dictum laid down leaves no ambiguity with regard to the authority of a counsel to act on behalf of his client before the court of law. So far as the contention of learned counsel for the petitioners regarding the non-framing of issues by the learned trial court while deciding the petition under Section 12(2) of the Civil Procedure Code, 1908 is concerned, there is no hard and fast rule that framing of issues on each and every such application is necessary. Framing of issues depend upon the facts and circumstances of each case which is not readily available in the instant case as admittedly the statement of the learned counsel was recorded in presence of one of the petitioner, which is even not denied till date. The judgment relied by the learned counsel for the petitioner rendered in the case of "Syed Sultan Shah versus Ghulam Qadir and 8 others" (2014 CLC 1384) is not attracted to the present case, as the facts and the preposition of law discussed therein is altogether different. Reliance in this regard can also be placed on the case of "Mrs. Amina Bibi through General Attorney versus Nasrullah and others" (2000 SCM R 296) wherein the Hon'ble Apex Court has held as under : "8. Be that as it may, while dealing with the allegations under section 12(2), C.P.C., it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held if Amiran Bibi v. Muhammad Ramzan (1999 SCM R 1334). In the instant case, we have gone through the application under section 12(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner under section 12(2), C.P.C., was liable to be dismissed without formulating issues and recording evidence of the parties."
8. This Court observed that mutation No.406 dated 10th of May, 2011 was sanctioned in pursuance of ex-parte judgment and decree dated 6th of June, 2010 when the same was even not in field as the said judgment and decree was set aside on the application of predecessor-in-interest of the respondent No.3 (i to xiii) vide order dated 7th of February, 2011 which was passed much prior to the sanctioning of the said mutation. Even the Revenue Authorities cancelled the said mutation on 22nd of May, 2012 on the application of the predecessor-ininterest of the respondent No.3 (i to xiii).
The petitioners then through Muhammad Niaz who was allegedly their lessee in the property filed a suit for perpetual injunction which was dismissed. The petitioners thereafter preferred another suit before the learned Senior Civil Judge, Rahim Yar Khan which also met the same fate and after resorting all these techniques, the petition under Section 12(2) of the Civil Procedure Code, 1908 was moved, which at the face of it was frivolous. The petitioners employed all possible negative tactics to thwart the process of law which is even apparent from the available record.
9. In view of above, this Court is of the considered view that the petition under Section 12(2) of the Civil Procedure Code, 1908 was rightly dismissed by the learned trial court and the revisional court has committed no illegality or material irregularity, while upholding the said order. The petitioners have failed to point out any slightest illegality calling for interference either with the order dated 23rd of December, 2014 passed by the learned Additional District Judge in revision or the order dated 27th of April, 2013 passed by the learned Civil Judge while dismissing application under Section 12(2) of the Civil Procedure Code, 1908. The conduct of the petitioners is rather contemptuous as they tried to play a hoodwink with the process of court and remained adamant to persist on their stance which was vexatious. Thus the instant petition is being devoid of any merits is dismissed in limine with costs of Rs.25,000/-.