1. ' This is an application under section 151, C. P. C. Filed on behalf of the appellant praying for recalling the order dated 18-5-1981, whereby the compromise filed by the parties was accepted and the appeal was disposed of in terms thereof.
2. ' The facts giving rise to this application briefly stated, are as follows : ' The appellant is the tenant of the respondent in respect of a bungalow situated at plot of land bearing .No, 165-A, Block III, Sir Sayed Road, P. E. C. H. Society, Karachi.
3. ' The respondent filed an application, under section 13 of the Sind Urban Rent Restriction Ordinance 1959, being Rent Case No, 259 of 1978, for eviction of the appellant on the ground of bona fide personal requirement of the premises. This application was allowed by the Controller by the order dated 20-7-1980. Being aggrieved by the order the appellant filed an appeal in this Court.
4. ' During the pendency of the rent proceedings the respondent, who was, as stated at the bar, in Government service, filed another application under section 14 of the Sind Rented Premises Ordinance, 1979, after coming into force of that Ordinance. That application was allowed and against that order also the appellant preferred an appeal, being First Rent Appeal No, 1003 of 1980, in this Court, which was allowed and the case was remanded to the Controller for fresh decision according to the directions contained in the order.
5. ' Being aggrieved by this order the respondent filed a petition for Special Leave to Appeal being No, 31 of 1981, which was granted and now the appeal is pending hearing in the Supreme Court.
6. ' Meanwhile on 28-5-1981, parties hereto filed an application containing the terms on which they had compromised the dispute in the appeal. It may be of advantage, if the relevant paragraphs of this compromise are reproduced immediately hereinbelow : "(1) The appellant/tenant shall vacate the premises in dispute on or before 31st October, 1982 and hand over vacant and peaceful possession to the respondent/landlord.
(2) The appellant/tenant shall continue to deposit the current monthly rent in Court as per order of the Court for this period, and in case of default in payment of rent for two consecutive months, the respondent/ landlord shall be entitled to obtain vacant possession of the premises in question forthwith.
(3) In case the appellant/tenant fails or refuses to vacate the premises in question on 31st October, 1982 for any reason whatsoever, the respondent/landlord shall be entitled to get the premises in question vacated in execution proceedings without notice to the appellant/tenant."
7. ' This compromise was admittedly signed by the parties as well as by Mr. Khalid Ishaque, Advocate for the appellant and Mr. Akhtar Mahmood, Advocate for the respondent. The matter rested there until 17-10-1982, when Mr. Z. U. Ahmed on behalf of the appellant filed the present application under section 151, C. P. C. Inter alia stating as follows :- "(4) Meanwhile in the present appeal the appellant was given to understand that this appeal be disposed of in the terms that in the event the respondent succeeds CP his Appeal K-31/81, the appellant would hand over possession by 31st October, 1982 giving this period for a decision by the Supreme Court in favour of the respondent so that only one matter may continue.
(5) That it appears that on 28th May, 1981 an order was passed in absence of the appellant and only both the counsel seem to have appeared from either side and the appeal seems to have been disposed of on terms other than agreed. Incidentally the power given to the counsel for the appellant filed in this honourable Court is signed by Mr. Mushtaq A. Memon and Mr. Mumtaz Ahmed, Advocates only accepting the power to act on behalf of appellant and does not bear any signature of Mr. Khalid M. Ishaque, accepting his appointment as a counsel for the appellant nor the power of appointment constituted any right to arriving at a compromise."
8. ' Notice of this application was served on Mr. Akhtar Mahmood, learned counsel for the respondents on 30-10-1982, for appearance on 31-10-1982. However, on 31-10-1982, the hearing was adjourned for today.
9. ' I have heard Mr. Z. U. Ahmed, Advocate in support of this application and Mr. Akhtar Mahmood, Advocate in opposition.
10. ' The learned counsel for the appellant submitted that the compromise is invalid on the following grounds :- "(a) The counsel who has signed the compromise had not accepted the appointment by signing the Vakalatnama.
(b) The Vakalatnama does not contain the power to compromise."
11. ' It may be stated here that the memo. Of appeal is signed by the appellant and Mr. Mushtaq A.
12. Memon. It contains the address of the appellant's Advocate as follows :- "Khalid M. Ishaque, Advocate. 1st Floor, Karim Chambers. Mereweather Road, Karachi."
13. ' Alongwith the memo. Of appeal the Vakalatnama was filed and the material part thereof reads as follows :- "I/we Ibrahim Ismail Atoha, the above-noted appellant hereby appoint and constitute Mr. Khalid M.
14. Ishaque and Mushtaque A. Memon, Advocate to appear and act for me/us as my/our Advocate in the above matter.
15. ' I/we also authorise the said Advocate to withdraw and receive on my/ our behalf all sums and amounts deposited on my/our account in the above-noted matter."
16. ' It is clear from the above-quoted contents that although the name of Mr. Khalid M. Ishaque appeared in the body of Vakalatnama but he did not sign it and that the Vakalatnama does not confer any specific power to compromise or settle the dispute.
17. ' Now, so far as the first ground is concerned although factually it is correct that the Vakalatnama does not bear the signature of Mr. Khalid M. Ishaque in token of his acceptance of the appointment, yet the fact remains that throughout the proceedings on all material dates he had been appearing on behalf of the appellants. The appeal had come up on 1-10-1980, for Katcha Peshi when he had appeared and argued the case and the appeal was admitted. Thereafter, the adjournments were sought on two different dates by Mr. Salahuddin, Advocate holding his brief. Thereafter, the case had come up on 26-5-1981, when Mr. Khalid M. Ishaque and Mr. Akhtar Mahmood, Advocate jointly requested for adjournment of hearing to 28-5-1981 and the hearing was accordingly adjourned.
18. ' Although nothing is recorded therein but it is stated at the bar by Mr. Akhtar Mahmood that the case on that date was adjourned as the parties were negotiating for compromise and in support he pointed out that the compromise application is dated 2E-5-1982.
19. ' Accordingly the appeal was taken up on 28-5-1982, when the compromise was recorded and the following order was made :- "28-5-1981. Mr. Khalid M. Ishaque, Advocate with the appellant. Mr. Akhtar Mahmud, Advocate with the respondent.
20. ' Learned counsel for the parties have presented an application containing terms on which the parties have settled the dispute. One of the terms I may record is that the appellant shall vacate the premises by 31-10-1982. The compromise appears to be lawful. I therefore, record the same and dispose of the appeal in terms thereof."
21. Now, reverting to the submission of Mr. Z. U. Ahmed that the compromise is invalid as Mr. Khalid M.
22. Ishaque did not accept the appointment, it may be stated that it is settled that accidental omission to sign the Vakalatnama or to mention the name of the Advocate in the body of Vakalatnama is not material or fatal. In this case there is ample evidence on record that Mr. Khalid M. Ishaque had accepted the appointment by his conduct by appearing at Katcha Peshi and other stages. I may here refer to some decisions from Indian jurisdiction as from our own Courts.
23. ' The first decision which I have noticed is of Calcutta High Court in Nibaranchandra Shaha v. Motilal Shaha (1). In this case the pleader had not signed the Vakalatnama but his name appeared in the body of the Vakalatnama and he was allowed to appear and conduct the case. Thereafter, a compromise was filed signed by him on behalf of his client and the same was questioned on the ground that the same was invalid as the Advocate had not accepted the Vakalatnama in writing.
24. Following Mohesh Chandra Addy v. Panchu Mudali (2), it was observed : "I now take up the question of the Pleader Manmohan Babu's authority to bind plaintiff No, 1 by the compromise. He had not
(1) I L R 62 Cal. 642 (2) I L R 43 Cal. 884 accepted the Vakalatnama in writing, but his name appeared in the Vakalatnama and was allowed to appear and conduct the case. Under these circumstances, there was an acceptance of the Vakalatnama by him (Mohesh Chandra Addy v. Panchu Mudali) and he had all the powers which had been mentioned in the Vakalatnama."
25. ' The next case which is also similar in nature as the one presently under consideration, is of Abdul Raud Ahmad and others v. Nani Bai and others (1). In this case a Division Bench of Nagpur High Court observed in paragraph 9 of the report as follows :- "Shri Damle by failing to signify his acceptance of the Vakalatnama by putting his signature at the appropriate place could well have said, if occasion arose that he was not bound to appear for the appellants' because though they purported to appoint him he had not accepted the appointment.
26. His failure to signify his acceptance on the Vakalatnama however does not mean that the appellants did not authorise him to appear for them.
27. ' Indeed, by filing a memorandam of appearance on 13-8-1938 Shri Damle showed his willingness to act for the appellants as Shri Bhave for whom he was to appear was appearing for the appellants and by filing the application and by appearing for them he tacitly accepted his appointment."
28. ' It was further observed in paragraphs 23 & 24 as follows :- "23. As pointed out by my learned brother, the Vakalatnama dated 7-3-1938, executed by the Am- mukhtyar. Of the appellants, appointed both Shri Bhave and Shri P. P. Damle. It was filed in the proceedings to bring on record the appellants as the legal representatives of the deceased plaintiff.
29. ' It was signed by Shri Bhave in token of acceptance while Shri Damle had not signed it. His failure to sign the Vakalatnama in token of acceptance does not mean that the plaintiffs did not intend to appoint Shri Damle to act for them or that he did not accept the appointi ment. After the Vakalatnama was filed in Court Shri Damle appeared and acted for the appellants at several hearings in those proceedingt which terminated on 23-3-1939.
30. ' The appointment dated 7-3-1938 was thus accepted by Shri Damle appearing and acting for the appellants as legal representatives. Latel on, he made the application for making the decree final.
31. No objection was raised by the other side to his acting till 18-1-1943 apparently because Shri Damle was appointed pleader, for the appellants and hot had accepted the appointment.
32. ' Even after 18-1-1943 Shri Damle made a written application for adjourn. Ment and pressed it. The other side did not object.
24. Under Order III, rule 1(2), acceptance before filing the Vakalatnama is not necessary. The words "when accepted by a pleader" occurring after the words "every such appointment" in rule 4 (2) were omitted by the Civil Procedure Code Second (Amendment) Act, 1926. Order III rule 4 does not require ,that the acceptance should be in writing.
33. ' Since the amendment, it is not at all necessary for a pleader to sign (1) A I. R 1955 Nag. 276 the Vakalatnama in token of acceptance. The 'Vakalatnama filed without such signature is not invalid."
34. ' There are cases where although the Advocate has accepted the appointment in writing by signing the Vakalatnama his name accidentally was not mentioned in the Vakalatnama and in all these cases omission was held not to be fatal. I may particularly refer to Shambhu Nath v. Badri Das (1). Shyam Sunder Koer v. Rahmatunnissa and another (2), Malik Sajawal Khan v. The Deputy Commissioner, Sargodha and another (3).
35. ' In the first named case it was observed at page 211 of the report as follows :- "If the Vakalatnama had been accepted by the pleader, as was the case in the present suit, we think it would be too technical to hold that the Vakalatnama was not a valid authority to the pleader to appear because his name did not appear in the body of I n Patna case, which is a Division Bench case it was observed by the Division Bench at pages 4 and 5 as follows :- "The contention however is that the previous Vakalatnama filed by Mr. A. B. Mukherji with the memo, of appeal was defective and invalid, and consequently the memo. Of appeal was also invalid. We have considered the facts, the law and the authorities on the subject. The Government Pleader relies upon Chhayunnissa Bibi v. Basirur Rehman (1910) 37 Cal. 399, Mahfoozul Haq v. Mazkorul Haq (1917) 41 C 68.,, and Shambhu Nath v. Badri Das AIR 1921 All.
210. Mr. N. N. Seh relies upon Ram Rup Agrahri v. Naik Ram AIR 1926 All. 252, Muhhmmad Ali Khan v.
36. Jasram (1913) 36 All. 46, Kunji Behar Singh V. Sheodahin Pandey AIR 1922 Pat. 504, Abdul Ghaffar v.
37. Mrs. F. B. Downing AIR 1926 Pat. 246 and Sheikh Palat v. Sarwan Sahu (1919) 55 I C 271. There can hardly be any doubt that the Vakalatnama filed by Mr. A. B. Mukherji on 28th October, 1927 was valid. The endorsement on the back of it clearly shows that the Manager, Court of Wards, appointed Mr. A. B. Mukerji as Vakil, for the Vakalatnama was received from the Manager himself and it was accepted by Mr. A. B. Mukherji. The aforesaid endorsement in itself creates a valid contract or agreement between the Manager and Mr. A. B. Mukherji, and it was a sufficient authority for Mr. A. B. Mukherji to act in the case and to present the memo. Of appeal. The body of the Vakalatnama described the powers given to the Vakil by the executant, and whoever that Vakil may be, he was authorised to act and appear on behalf of the Manager, Court of Wards, who duly executed the Vakalatnama by signing it as stated above.
38. ' The omission of the name of Mr. A. B. Mukherji from the margin of the Vakalatnama on the front page of it was rectified by the endorsement on the back of it, and Mr. A. B. Mukherji did act in consonance with the agreement inasmuch as he tiled the memo. Of appeal duly signed by himself. It is clear from the endorsement on the back of the Vakalatnama and the execution thereof on the front page that the omission of the name of Mr. A. B. Mukherji from the margin on the front page of the Vakalatnama was merely clerical and by inadvertence, as also the omission to strike out I or we, etc., from the
(1) AIR 1921 All. 210 (2) AIR 1932 Pat. 3 (3) PLD 1968 Lah. 527 body of the Vakalatnama. The Vakalatnama in question has not contravened the provisions relating thereto contained in Order III, C. P. C. Rules 2 and 4 do not make such a Vakalatnama invalid. Those rules simply forbid a pleader from acting in any case unless he had been duly appointed by the client. Here by the Vakalatnama in question Mr. Mukherji was duly appointed as the endorsement on the back of it as well as the execution on the front page of the Vakalatnama show. Therefore the Vakalatnama in question was valid and the appeal was properly presented. Whatever defect there might have been it was cured by the subsequent Vakalatnama filed by Mr. Shiveshwar Dayal on 5th January, 1931.
39. ' In these circumstances the appeal is properly filed and there is no occasion for invoking the aid of sections 148 and 151, C. P. C,, or sections 5 and 14, Limitation Act. Even if there was any such occasion the Court has ample powers under section 151 to deal with the question and to condone the formal detect in the Vakalatnama."
40. ' In Lahore case in which it was observed by S. A. Mahmood, J., who wrote the opinion of the Court, at page 533, as under :- "5. The election petition, though not signed by the petitioner, was signed by the attorney and the question, which falls to be considered is whether, by reason of the name of the Advocate not being recorded in the body of the Vakalatnama, he was not a duly constituted agent of the petitioner, and the presentation was not valid. As mentioned already, the rule dces not specifically require that the agent should have authority in writing to be able to present the election petition. Even where Order 111, rule 4 requires a document in writing signed by a person authorising a pleader to Act in any Court, it has been held Mst. Masumbi v. Dingar Singh and others AIR 1920 Nag. 1 0, Munt Krishna Reddi v. Ramaraja and Shambhunath v. Badri Das AIR 1921 All. 210 that where a Vakalatnama is signed by a party and is accepted by the pleader or Advocate, but his name is accidentally omitted from the body of Vakalatnama, it would be too technical to hold that the Vakalatnama was not a valid authority to the pleader to appear because his name did not appear in the body of it. The omission in the Vakalatnama was only a clerical error and since the intention of the parties was quite clear, there was sufficient compliance with the provisions of the law and the presentation of the suit, application or appeal is not invalid."
41. ' It is worth mentioning that this case was approved by the Supreme Court in Toor Gul v. Mst.
42. Mumtaz Begum (1), to which reference was made by Mr. Akhtar Mahmood and it was also a case in which the name of the Advocate was omitted to be mentioned in Vakalatnama although he had signed the same. Dealing with this question it was observed by Hamoodur Rahrnan, C. J., at page 13 of the report, as follows :- "We find ourselves unable to accept the view taken in the High Court that such an omission will by itself invalidate the Vakalatnama. The rules framed in the Code of Civil Procedure are rules made for the advancement of justice and they should not, as far as possible, be allowed to operate so as to defeat the ends of justice. If we were to accept the highly technical view taken by the High Court in the
(1) PLD 1972 SC 9 present case, then it would result in making it extremely difficult for people living in the interior of the country to appoint pleaders to present their cases at the District Headquarters where Courts are usually situated. These rules are in the nature of enabling provisions and substantial compliance with them should be enough."
43. It would therefore be seen that the omission to sign the Vakalatnama or the acceptance in writing, on the facts and circumstances of the case, wasl neither material nor fatal. I therefore, find no substance in this ground.
44. ' I do not consider it necessary to refer to the provisions of Order III, rule 4, C. P. C. Or rule 68, Chapter V of the High Court Rules in view of the observation of the Supreme Court.
45. ' However, I may mention that Mr. Z. U. Ahmad referred the case of Official Receiver, Aligarh and others v. Hira Lal (1). In this case. An application for substitution and execution was signed by a pleader and was accompanied by a Vakalatnama in which the place meant for the name of the pleader was left blank and the Vakalatnama did not bear any signature of the pleader showing that he had accepted it. On these facts it was held that the application as filed had not been filed by a duly authorised person and was not in accordance with law and did not save the limitation.
46. ' Firstly, in the present case the name of the Advocate does find mention in the Vakalatnama and pursuant to the same he acted and therefore, this case is distinguishable on facts. Secondly, in view of the dictum of the Supreme Court such an objection is only of technical nature. Further, if the Vakalatnama is not signed in token of acceptance by mistake the mistake could be rectified at any time on pointation. It is nobody's case tha Mr. Khalid Ishaque was not engaged for this case and indeed there could not be such a case in view of the fact that even in the memorandum of appeal Mr. Khalid Ishaque's name appeared as the counsel for the appellant, and acceptance could be made by appearing and acting in Court. Moreover, when a client gives a Vakalatnama to a counsel he obviously authorises hi to appear unless it is alleged and proved that his client had not intended to engage the counsel who had filed the Vakalatnarna. I may here refer to a passage from the judgment in Toor Gul's case which reads as follows :- "No one has in the present case challenged that the appellant did not wish to engage Mr. Mahmood Akhtar to represent his case before the Rent Controller, nor has it been challenged that Mr. Mahmood Akhtar was not willing to accept the appellant's brief."
47. Now, taking up the second ground that Vakalatnama does not contain power to compromise it would suffice to say that the compromise is signed by the appellant himself. It is not his case that he had not signed the compromise application. He however, has pleaded in paragraph 4 of the application that "the appellant was given to understand that this appeal disposed of in the terms that in the event the respondent succeeds in his Appeal K-31/81, the appellant would hand over possession by 31s October, 1982 giving this period for a decision by the Supreme Court in favour of the respondent so that only one matter may continue." So far as this explanation is concerned, firstly, it is not the case of the appellant that h is ignorant of English language and therefore, he could not understand the contents of the compromise application. Indeed he has signed the compromise application in English. Secondly, the explanation does not appear to be satisfactory for if the appellant had to succeed on merits of the appeal before
(1) AIR 1935 All. 727 the Supreme Court then there would have been no question of coming to any settlement in this case, and in such a case at best a request could have been made for adjourning the hearing till the decision of the appeal pending in the Supreme Court.
48. ' Therefore, the question whether Mr. Khalid M. Ishaque had powers to compromise or not is of no consequence. According to the order sheet on the date of hearing the compromise was filed in the Court and recorded namely, 28-5-1981, the appellant was present alongwith Mr. Khalid Ishaque.
49. However, it is submitted by Mr. Z. U. Ahmed that the appellant was not present on that date in Court.
50. Firstly the plea is against the record and no application was made to Court for correction of the record during the 17 months period which lapsed between the order and the application, secondly, even if the appellant was not present it would not make any difference for the compromise was recorded in the presence of the Advocate whose authority to appear and act on behalf of appellant has already been upheld by me.
51. ' I therefore, hold that the compromise application was validly presented and filed.
52. ' To me the present application appears to be an afterthought for the same was filed after more than 16 months and after receiving notice from Advocate for the respondent to vacate the premises by due date i,e, 31-10-1982.
53. ' I therefore, find no substance in this application and dismiss it with costs.