MUZAMIL AKHTAR SHABIR, J. Through this application filed under section 12(2) read with section 151 of C.P.C., the applicant/Appellant Company seeks recall/setting aside of order dated 10.11.2021 passed by this Court whereby the Intra Court Appeal No.4/2019 filed by the applicant was dismissed as withdrawn on the statement of respondent No.7 who had appeared as counsel on behalf of the applicant.
2. It is contended by learned counsel for the applicant that the applicant had not given any authority to respondent No.7 to withdraw the titled ICA which is evident from the contents of Vakalatnama power of attorney submitted in Court by the said respondent which does not include authority for withdrawal of the case. Moreover , it is claimed that the signatures of executant on power of attorney filed by respondent No.7 with C.M. No.468/2021 were entirely different from the signatures of the person who had filed the ICA on behalf of the applicant-Company . Furthermore, respondent No.7 put her appearance in ICA on the basis of power of attorney allegedly signed by Hazoor Bukhsh Shahid s/o Muhammad Mittha, Admin Officer of the applicant-Company , wherea s the said person had died on 20.11.2020 and authorization on his behalf, if any, was no more in existence on 10.11.2021 when the ICA was withdrawn. Furthermore, it is claimed that the applicant had no reason to withdraw the ICA particularly when the applicant has deposited huge amount of Rs.67,57,742/- as condition imposed by the Court vide order dated 14.01.2019 in ICA for allowing interim relief to the applicant against impugned demand raised by Cane Commissioner and as a consequence of withdrawing of ICA, Deputy Commission er and Assistant Commissioner concerned on the instruction of Cane Commissioner , have started proceeding against the applicant to effect recovery of disputed amount. Further adds that the ICA has been withdrawn through fraudulent means, hence, the said order may be recalled and after restoring the ICA to its original number , the same be decided on merit.
3. On the other hand, learned A.A.G. has defended the impugned order by controverting the arguments of counsel for the applicant.
4. The first ground raised by the applicant is that the respondent No. 7, who appeared as counsel was not duly authorized to represent the applicant in the ICA as the signature on power of Attorney in her favour differed from the signatures of person who had filed the ICA. Suffice, it to observe that the said objection was without any substance for the reason that the applicant-Company through its duly authorized officer namely Hazoor Bukhsh Shahid, Admin Officer of the applicant-Company ('Admin officer'), had filed the ICA which had been dismissed for non-prosecution on 13.01.2021 and the same Admin Officer filed restoration application C.M. No. 468/2021 through the respondent No. 7 and not through the previous counsel who had filed the ICA. The perusal of Power of Attorney shows that the admin officer, signatory of power of Attorney in favour of respondent No. 7, had executed the same for the purpose of conducting proceedings in the ICA and not for limited purpose of the C.M. only, wherein she had been authorized to act on behalf of the company in the said appeal, which also included the implied authority to compromise/withdraw the matter if circumstances of the case so required.
Besides had the Admin Officer not filed the restoration application, the status of appeal would still be 'dismissed for non-prosecution' and would not have been taken up before the Court for further proceedings as the case was already decided and nothing would be pending before this Court.
5. Even otherwise, no one during the pendency of the restoration application, which was filed on 01.02.2021 and allowed on 02.03.2021 or after its restoration till withdrawal of ICA on 10.11.2021 called in question the authority of Respondent No. 7 to represent the applicant-Company and no one else appeared on the said date on behalf of the company to argue the matter despite the fact that the case was listed out in the cause list for hearing on the said date after due notice to the parties. In view of the afore-referred position, it cannot be disputed that the restoration application was filed by the applicant through the Respondent No. 7 and the claim regarding difference of signature is also without any substance especially when the executant in his life time did not take the said stance.
6. The claim that Hazoor Bukhsh Admin Officer of the Applicant, who executed the power of attorney , died on 20.11.2020 and authorization on his behalf, if any, was no more in the field on 10.11.2021 i.e. the date when case was withdrawn is also without any substance as he had engaged the services of respondent No. 7 to represent applicant-Company and not for himself in his personal capacity. It is pertinent to mention here that a company is a separate legal entity from its directors and shareholders and its separate existence continues regardless of who represents it before the Court or any other authority, hence, the death of executant of power of attorney would not take away the authority vested in the respondent No. 7 to represent the company in the ICA pending before this Court. We are fortified in our view by the dictum laid down by the Honourable Supreme Court in cases reported as State Life Insurance Corporation of Pakistan versus Sami-ur-Rehman and others (2018 SCMR 443), Messrs Uzma Construction Co. versus Naveed H. Malik (2015 SCMR 642) and Najam Aziz Sethi versus Muhammad Azeem Butt (2009 SCMR 652). Hence for all intents and purposes the power of attorney was executed on behalf of the company to represent it in the Court and the same would remain in field unless it is withdrawn by either the applicant-company or the counsel by the leave of the Court, in view of provision of Order III rule 4(2) CPC. Reliance is placed on Pakistan through General Manager, Pakistan Railways versus Messrs Q.M.R. Expert Consultants (PLD 1990 SC 800), United Bank Limited versus Mian Tajammal Hussain (PLJ 1998 Kar 747 = 1998 CLC 179 (Kar)), Messrs Aziz Flour Mills and 2 others versus The Industrial Development Bank of Pakistan (1990 CLC 1473 (Lah)).
7. It is important to mention here that Power of Attorney signed by a party in favour of advocate is a contract between the client and his counsel and it is the duty of party as well as the advocate to revoke or terminate the power of attorney through notice if it is to be terminated otherwise the same remains in the field and both parties are bound by the same. Reliance is placed on Mukhtar Ahmad versus Mushtaq Ahmad and 2 others (2004 YLR 392 (Lah)). Where power of attorney is not withdra wn, the counsel engaged in the matter by a party , were under legal obligation to represent their client as long as they had not sought discharge of the vakalatnama in accordance with law. Reliance is placed on Muhammad Aslam versus Messrs Pacific Textile Industries 2006 YLR 2881 (Kar)).
In the present case the applicant company did not withdraw the Power of Attorney executed in favour of the respondent No. 7 till the date the ICA was withdrawn, hence till then the respondent No. 7 had the authority to represent the applicant-company .
8. In order to further appreciate the contentions of both the parties, reference is required to be made to the order dated 10.1 1.2021 passed by this Court, whereby , the ICA was withdrawn which is reproduced as under: "10.1 1.2021. Miss Imbesat Mehar , Advocate for the appellant.
Jam Muhammad Afzal Gasoora, Assistant Advocate General.
Syed Ghulam Shabbir , Advocate for respondent No.4.
After arguing the matter at some length, learned counsel for the appellant seeks permission to withdraw this appeal.
2. Dismissed as withdrawn."
9. Perusal of the afore-referred order shows that learned counsel/respondent No.7 had not withdrawn the ICA at the outset rather had argued the appeal on merits and subsequently , after arguing the matter at some length had sought to withdraw the same. The reason for the same may have been manifold , i.e., the Bench may have not agreed with the contentions raised by the applicant on merits or may have not agreed to condone the delay in filing the ICA, which was barred by limitation for 10 days or may have not agreed with the maintainability of the ICA due to availability of remedy of appeal against the order in original passed by the Cane Commissioner .
10. To elaborate the above, it is noted that in fact, the ICA had been filed on 10.01.2019, i.e., after 35 days from the dismissal of Constitution Petition No.7477-2017/BWP on 6.12.2018, which after deduction of 5 days required for obtaining copy of order and 20 days limitation was still barred by 10 days.
11. Furthermore, the dismissed constitution petition had been filed by the applicant challenging the demand raised by the Cane Commissioner under section 13-A of the Punjab Sugar Factories Control Act, 1950 through order dated 22.08.2017 for the payment of Rs.74,15,871/- (i.e. Rs.67,57,742/- principal amount due + Rs.6,58,129/- as amount for illegal deductions) with 11% mark-up per annum for crushing season 2016/17, which was directed to be paid within seven days. The said order of the Cane Commissioner was appealable before the Secretary Food in terms of section 13-A(5) of the Act which is reproduced as under:- "13-A. Powers of the Cane Commissioner to determine the liability of an occupier of a factory :- (1) The Cane Commissioner shall determine the liability of the occupier of a factory for payment of cane price to a cane- grower or the cane-growers, as the case may be, not later than forty five days of the end of the crushing season.
(2) When the Cane Commissioner makes a determination under sub-section (1) and the amount so determined is not paid within the stipulated time period of fifteen days, the amount shall be recoverable as arrears of land revenue under the Punjab Land Revenue Act, 1967 (XVII of 1967).
(3) An amount recoverable as arrears of land revenue under sub-section (2) shall be recovered by the Additional Cane Commissioner of the concerned District from an occupier of the factory and the recovered amount shall be paid to the cane-grower in question.
(4) The powers granted under subsectio ns (1), (2) and (3) shall be deemed to have always been vested in the Cane Commissioner and the Additional Cane Commissioner , as the case may be."
(5) An appeal shall lie to the Secretary Food against an order passed by the Cane Commissioner or Additional Cane Commissioner under this Section. (emphasis supplied)
Hence, one of the reasons to withdraw the ICA may have been availability of appeal against original order , which prior to insertion of newly inserted Section 13 A, was also previously available under Section 13-A(2) of the said Act.
12. Moreover , presumption of authenticity is attached to the judicial proceedings, which cannot be set-aside merely because a party challenges the same through an application supported by an affidavit of that party , when the circumstances of the case available on the record do not support the assertion of the said party . For this we are fortified in our view, by the dictum laid down by the Honourable Supreme Court of Pakistan in case titled "Fayyaz Hussain versus Akbar Hussain and Others" (2004 SCMR 964) the relevant portion of the same is reproduced below: "Learned counsel attempted to persuade us, to accept the affidavit of Ch. Muhammad Afzal Kahloon Advocate over the judicial proceedings recorded in the Court of Additional District Judge in view of unfair reputation of the Presiding Officer but we are not inclined to adopt this course of action which may lead to a large number of legal complications. In any event this being an essentially a disputed question of fact could neither be resolved by the High Court nor by this Court in the exercise of extraordinary Constitutional Jurisdiction. There is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and unimpeachable evidence is required to rebut the presumption, which is badly lacking in the case. We are fortified in our view, by the dictum laid down by this Court in Ghulam Muhammad versus Malik Abdul Qadir Khan PLD 1983 SC 68 which is on all fours and attracted in the facts and circumstances of this case.
4. Resultantly , we find not merit in this petition which is devoid of any substance and id accordingly dismissed."
13. It is important to note here that when an Advocate is duly engaged by a party, it is bound by the statement recorded by the said Advocate in the Court even if the same is for withdrawal of the suit or appeal as ICA in this case. Reliance in this behalf is placed on Siraj Din versus Muhammad Yousaf and others (1982 SCMR 539) wherein the counsel made statement in Court binding petitioner as a result of which the suit of petitioner was dismissed and decree was passed agains t him in accordance with statement of parties. The Court held that same amounts to a consent order and the petitioner in circumstances could not claim that Advocate engaged by him was not competent to make statement.
14. Moreover , where power of attorney/ vakalatnama was duly executed, a lawyer has the authority to bind a party in compromise and such compromise decree could not be set aside on an application u/s 12(2) CPC. Reliance is placed on Mst. Sanober Jan versus Shaukat Ali and others ( 2001 MLD 321 ).
15. Be that as it may, whatever the reason for the withdrawal of the ICA may have been, mere assertion that lawyer was not authorized to withdraw appeal is not sufficient for recall of said order through application under Section 12(2) of CPC because for that purpose the Applicant in addition to above was also required to establish grounds of fraud, misrepresentation or lack of jurisdiction provided under Section 12(2) CPC, which has not been done. As no fraud or misrepresentation on behalf of the respondent No. 7 has been pointed out from the record of this case, therefore, there is no ground for this court to exercise its jurisdiction under section 12(2) CPC to recall the order of withdrawal of ICA, hence the application merits to be dismissed. Reliance in this behalf is placed on case titled Subedar Sardar Khan through Legal Heirs and another versus Muhammad Idrees through General Attorney and another (PLD 2008 SC 591), where in it has been held that decree could be set aside only on the grounds stated in section 12(2) CPC. Where no case of fraud or misrepresentation was made out and ground for setting aside the decree was not at all such a ground as envisaged by section 12(2) CPC but pertained to merits of the case, application under section 12(2) CPC was liable to be dismissed.
16. Hence, this court is not inclined to recall the earlier order of withdrawal of ICA.
17. For what has been discussed above, this application being devoid of merits is dismissed .