1. ZAFFAR HUSSAIN MIRZA, J.---This is a petition for special leave to appeal from an order, dated 27- 12-1981, passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby petitioners,' application for setting aside, an earlier order dated 18-10-1981 disposing of his constitutional petition, in terms of compromise between the parties, was dismissed.
2. Since in the prayer clause of this petition, the petitioners have sought leave to appeal, also in respect of the earlier order mentioned above, dated 18-10-1981, the office has raised objection that the petition is barred by 20 days. The petitioners have, therefore, submitted application for condonation of delay. We have first heard the learned counsel on the question of delay. Although we are satisfied as to the sufficiency of the grounds urged in support of the prayer for condonation of delay, since the petition is also directed against the subsequent order of the Court, dated 27-12- 1981, we have allowed the counsel to argue the petition and propose to dispose of the same on merits.
3. Briefly the facts leading to this petition are that the petitioners are in occupation of commercial premises Show Room No. 8, Imailjee, Jinnah Road, Rawalpindi. Respondents Nos. 3 and 4, the owners and landlords of the premises, applied to the Rent Controller for ejectment of the petitioners on the grounds of default in payment of rent and personal requirement. The Rent Controller by his order, dated 24-7-1980, allowed the application. On appeal the learned Additional District Judge, Rawalpindi maintained the order of ejectment on the second ground, vide his judgment dated 5-4-1981.
4. Being aggrieved by the aforesaid judgment, the petitioners, sought to challenge the legality of the same before the High Court and filed Writ Petition No. 383 of 1981. When on 18-10-1981, this writ petition came up for summary hearing before the Court, a compromise application on behalf of the parties was submitted on which the learned Single Judge of the High Court passed orders, recording the compromise and directed : "In terms of the compromise, the petitioner is directed to hand over the vacant possession to respondents Nos. 3 and 4 by 18th of January, 1982 without recourse to execution proceedings". The writ petition was disposed of in these terms. On 26-12-1981, the petitioners moved the Court through another Advocate under section 151, C. P. C. For recalling the aforementioned order, on the ground that "the compromise was effected without the knowledge or instruc--tions from the petitioners". The Court by the impugned order, as already stated, dismissed the application.
5. It may at the very outset be stated that it was conceded before us and rightly so, that in terms of the vakalatnama given to the Advocate who appeared for the petitioners in the writ petition, the petitioners had empowered him to compromise the case or their claim in the following words :- We are, therefore, satisfied that the Advocate who represented the petitioners on 18-10-1981 was competent to enter into a compromise and execute the same on their behalf. It is, however, the contention of the counsel that, notwithstanding the fact that the Advocate was given the power to compromise, he was not entitled legally to exercise that power so as to bind the petitioners without specific instructions in that behalf. Counsel argued that the conferment of the powers does not ipso facto authorise the Advocate to settle the terms of compromise. On these premises, learned counsel emphatically contended that, the Court was bound to enquire into the matter and could not throw out the application summarily, in view of the clear terms of section 12(2), C. P. C. In order to appreciate the contention of the counsel, it will be of advantage to set out the aforesaid pro-- visions hereunder :- "1 2. Bar to further suit.-(1)
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
6. Subsection (2) of section 12, C. P. C., referred to above was inserted by Ordinance X of 1980 with effect from 26-3-1980. Before the amendment of section 12 by the insertion of the said subsection, an order passed by a Court was not liable to be challenged collaterally before the same Court on the ground of fraud, misrepresentation or want of jurisdiction. A separate suit was maintainable for having such order declared a nullity on these grounds. However, the effect of the amended provisions is that a separate suit is not competent to seek relief on the grounds covered by subsection (2) of section 12. Clearly, therefore, the provisions have the effect 9f encroaching upon and curtailing the remedy before the general Courts of jurisdiction in the relevant field. It is a well- established principle of interpretation of statutes which create new and extraordinary remedies, or remedies unknown to common law, to be strictly construed. Same rule is applied for construing statutes which have the effect of ousting the jurisdiction of ordinary Courts. Applying these principles of interpretation, it appears to us that The special remedy provided by section 12(2), C. P.
7. C. Will be available only in respect of cases where the ground of attack is based on fraud, misrepresentation of want of jurisdiction. We, therefore, pointed out to the learned counsel to show us how his case fell within the ambit of this provision. He has taken us through the application submitted on behalf of the petitioners, but we find nothing in it which could possibly bring his case within the purview of the aforesaid grounds. There is nothing in the application even remote suggesting that the Advocate of the petitioners or for that matter the respondents while entering into the compromise, were in any way motivated by considerations of fraud, nor is there any allegation of misrepresentation having been made. Since it is conceded that the vakalatnama executed by the petitioners in favour of the Advocate included the power to compromise, there is no question of jurisdiction of the Court involved in passing the order when the duly empowered counsel presented the compromise application in Court along with the agreement for compromise admittedly signed by the counsel. The Court had no option but to accept the same and dispose of the petition in terms thereof. The only ground on which the prayer for, recalling the order was based, was that the compromise was not effected under the instructions of the petitioners. 1t appears to us, therefore, that the application was not maintainable. We also find from the impugned order of the Court, dated 27-12-1981 that no argument was advanced before the Court relying on grounds of fraud, misrepresentation or want of jurisdiction and the only ground urged was that the petitioners had not instructed the counsel to enter into any compromise arrangement. In Mrs. I. Khan v. Controller of Rents 1976.SCMR 457a somewhat similar question was raised and it was argued that the power of attorney executed by the petitioner in favour of her agent to enter into agreement on her behalf had to be construed strictly, so that entering into an agreement to refer the dispute in the litigation to be decided upon a special oath was in excess of authority of the agent. This contention was repelled and it was observed. "The power was with reference to the litigation between her and the third respondent, and she had, by the power of attorney expressly empowered the fourth respondent to enter into agreements on her behalf. As the power to enter into agreements was conferred with reference to the pending litigation, it included the power to settle that litigation by any type of agreement and the manner in which the fourth respondent had compromised the appeal was only a type of agreement, therefore, it cannot be said that he had exceeded the authority conferred on him by settling the appeal in the manner adopted by him". The principle is applicable on all fours in the facts and circumstances of this case, specially in view of the fact that no fraud or other unconscionable motives have been attributed to the Advocate who entered into the compromise. We have also perused the supporting affidavit filed by the local Manager of the petitioners at Rawalpindi - and it is noteworthy that there is no allegation that while empowering the Advocate to compromise the disputes between the parties in the litigation, any restriction was placed upon him. To our pointed ques--tion whether the petitioners called upon their counsel at any time to inquire from him as to why he had entered into the compromise or whether any notice was sent to the Advocate or other communication was addressed to him, challenging his authority to have entered into the impugned compromise, the reply of the counsel was that no such thing had been done by the peti--tioners. In the circumstances, it does not lie in the mouth of the petitioners at this stage, when they have taken the advantage of the time gained under the terms of compromise, to turn round and challenge the validity of the compromise entered into by their counsel on their behalf.
8. Learned counsel has referred us to several decisions from the foreign jurisdiction on the various propositions of law urged by him in the course of his arguments. He first referred to Sourendra Nath Mltra v. Tarubala Dasi (1), in which it was postulated that an Advocate of the High Court, has when briefed on behalf of a party in a subordinate Court, the implied authority of his client to settle the suit, but such implied authority can also be countermanded by express directions of the client. This Court in Ansar Hussan Rizvi v. Mazahir Hussain Zaidi (2) followed the dictum laid down by their Lordships of the Privy Council and held that in the presence of written authority such as a Vakalat-- nama, an Advocate has implied authority of his client to settle the dispute in absence of anything expressly or impliedly debarring him from entering into compromise contained in the Vakalatnama.
9. Council also referred to Thenal Ammal v. Sokkammal (3) in which it was held that it was not the ordinary duty of an Advocate to negotiate terms without reference to his client, with the opposite- party. It is, however, not clear from the judgment as to the terms in which the power to settle the matter was given in the Vakalatnama of the counsel. At any rate, we do not consider that the present is a fit case to go into this question.
10. For the foregoing reasons, we are of the view that no interference is called for in this case and accordingly dismiss this petition.
(1) AIR 1930 P C 158(2) 1971 SCMR 634
(3) AIR 1918 Mad, 656