This civil revision questions the vires of order dated 07 of April, 2017, whereby the learned Additional District Judge, Chakwal dismissed the application under Section 12(2) of The Code of Civil Procedure (V of 1908)
(hereinafter referred as "CPC') moved by the petitioners.
2. Precisely the facts necessary for adjudication of instant petition are that petitioners moved an application under Section 12(2) of "CPC' questioning the vires of judgment and decree dated 06 of July, 1994 on the ground that same was obtained by the respondents with the connivance of counsel for the petitioners through fraud and misrepresentation. As per averments contained in the application, the predecessor-in-interest of petitioner namely Zulfiqar Hussain was though party to the lis but he neither appointed Ch. Ejaz Hussain, Advocate as his counsel nor ever appeared before the court for recording of his statement on the basis of which judgment dated 06 of July, 1994 was passed.
3. Learned counsel for the petitioners, while reiterating the contents of application submitted that learned Additional District Judge has dismissed the applicat ion under Section 12(2) of "CPC" in a cursory manner without framing of issues. He added that dismissal of application in limine is unwarranted under the law .
4. I have heard learned counsel for the petitioners at some length and also perused the record.
5. It is evident from the record that respondents instituted a suit for separate possession through partition by impleading the predecessor-in-interest of the petitioners as defendant in the same . The suit was initially dismissed vide judgment and decree dated 30 of August, 1990. Feeling aggrieved from the said judgment and decree, the respondents preferred an appeal before the learned Additional District Judge, Chakwal which was decided vide judgment dated 06 of July, 1994 on the basis of respective statements of the parties recorded on 14 of June, 1994.th th th th th th
6. Record is indicative of the fact that on 25 of May, 1994 an application was moved on behalf of the respondents that parties have entered into compromise, however, on the said date proceedings were adjourned for 05 of June, 1994 on account of non-availability of learned counsel for the petitioners. On the next date both the learned counsels made a joint request for finalizing the terms of compromise and the proceedings were adjourned for 14 of June, 1994. It is manifestly clear from the proceedings of the relevant date that on the said date counsel representing father of the petitioners namely Ch. Ejaz Hussain, Advocate recorded his statement to the following ef fect. {{URDU TEXT}} Similarly Mst. Parveen Akhtar, one of the respondents in the appeal also got recorded her statement and all in attendance also appended their signatures as well as thumb impressions in token of correctness of their respective statements.
7. It is the stance of the petitioners that their father has only appointed Malik Mulazim Hussain, Advocate to conduct the proceedings on his behalf. The power of attorney in the name of Ch. Ejaz Hussain, Advocate clearly depicts that he was duly appointed by Malik Mulazim Hussain, Advocate to conduct the proceedings on behalf of his client.
The power of attorney executed by the predecessor-in-interest of the petitioners in the name of Malik Mulazim Hussain, Advocate clearly reflects that he was vested with the authority to further delegate his powers to any other counsel for prosecuting the appeal on behalf of his client. This leaves no ambiguity that Ch. Ejaz Hussain, Advocate was a duly appointed counsel and his statement was binding upon the petitioners.
8. Order III of "CPC" deals with the matter of appearance by a person or his recognized agent or pleader in the proceedings before the court and any such appearance, application or act in or to any court, require 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 recogniz ed agent or by a pleader on his behalf. The appointment of pleader is governed by Rule 4 of Order III of "CPC" which reads as under :- "4. Appointment of pleader .--(1)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 authorized by or under a power-of-attorney to make such appointment.
(2) 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 proceedings in the suit are ended so far as regards the client.
(3) For the purposes of sub-rule (2) an application of review of judgment, an application under S. 144 or S. 152 of this Code, any appeal from any decree or order in the suit and any application or act, for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.
(4).
(5).
(a)...
(b)...
(c)...
It is manifestly clear from the above that a pleader duly appointed by a person to act on his behalf in a court can delegate his powers to another pleader. The petitioners are thus precluded to wriggle out of statement recorded by their duly appointed counsel before the court.
9. Even otherwise presumption of truth is attached to the judicial proceedings in terms of Article 129(e) of The Qanun-e-Shahadat Order , 1984. A party is always bound by the statement of his counsel, unless there is anything contrary in the power of attorney places restriction on the authority of the counsel to compromise or abandon the claim on behalf of his client. Reference in this respect if needed can be made to "HASSAN AKHT AR and others versus AZHAR HAMEED and others" (PLD 2010 Supreme Court 657) and "AFZAL and others versus ABDUL GHANI" ( 2005 SCMR 946 ).th th th
10. This Court is cognizant of the fact that now a days such a tendency on the part of litigants is increasing day by day that after having appointed a counsel of their choice, bestowing an authority to act on their behalf before the court, after settlement of the issue on the basis of bilateral compromise between the parties and recording of statements before the courts to this effect, move applications on the false pretext in order to wriggle out of the consequences pursuant to such statements for achieving their illegal designs. This practice cannot be appreciated and if such a trend is allowed to flourish that will completely destroy confidence and trust attached to the relationship of counsel and client on the one hand and on the other will diminish the sanctity attached to the judicial proceedings. It is thus high time to curb such tendency on the part of chronic litigants.
11.The petitioners remained mum for a considerable period and now after the death of their father, who died in the year 2009 moved the application under Section 12(2) of "CPC' which is clearly based on ulterior motives.
The learned Additional District Judge was justified to dismiss such frivolous application in limine. The decision of an application under Section 12(2) of "CPC' in a cursory manner without framing of issues is nowhere prohibited under the law. It is always dependent upon the judicial conscious of the court, either to frame issues or to proceed with such an application without framing of any issue and decide the same summarily. No hard and fast rule can be made for the said purpose. Apparently there is no infirmity in the procedure adopted by the court below to decide the fate of application under Section 12(2) of "CPC'. Reference can be made to "Messrs DADABHOY CEMENT INDUSTRIES LTD. and 6 others versus NATIONAL DEVELOPMENT FINANCE CORPORA TION, KARACHI" (2002 SCMR 1761) and "NAZIR AHMED versus MUHAMMAD SHARIF and others" (2001 SCMR 46).
12. After examining the record, I am of the considered opinion that a frivolous application was moved by the petitioners to stifle the process of the court and to undermine the sanctity attached to the judicial proceedings.
Resultantly this petition is dismissed in limine with costs of Rs.50,000/- which shall be deposited with the Deputy Registrar (Judicial) of this Court within fortnight, failing which the same shall be recovered from the petitioners as arrears of land revenue in accordance with law .