' Taj Muhammad son of Bahwal Bakhsh owned about 103 Kanals of land in village Kotla Musa Khan, Tehsil Ahmadpur East, District Bahawal pur, but was issueless. He was murdered in June, 1971, and regarding his property a mutation of inheritance No. 528, dated 10-10-1971 was entered in favour of the appellants. Muhammad Yousaf, respondent, instituted a suit for a declaration that he was owner in possession of the said land on the basis of oral gift made in his favour by late Taj Muhammad and the said mutation of inheritance was fictitious, against law and void. As 'consequential relief he sought permanent injunction restraining the defendants/appellants from getting the suit-land trans ferred in their names and also from interfering with his possession. The suit was contested. Two issues were framed and tried. After the parties concluded their evidence the case was fixed for arguments on 17-2-1979. On that day, Muhammad Yousaf, plaintiff/respondent made an offer of special oath that if Rahmat Ali, appellant No.1, states on oath of Holy Quran:-
(i) Whether Mst. Begum is the sister of Taj Muhammad (propositus) or not?
(ii) Whether plaintiff/respondent has been serving Taj Muhammad or not?
(iii) Whether the suit-land was in possession of the plaintiff/ respondent or not? and
(iv) Whether Taj Muhammad made a will or gift in favour of the plaintiff/respondent or not? ' then the fate of the suit be decided in accordance with that statement. This offer was recorded and Muhammad Yousaf, plaintiff/respondent, and his counsel as well as Ghulam Qadir, special attorney of the appel lants and their counsel Mr. Hamidul Hassan, Advocate, signed it. The case was then fixed for 26-5-1979 for the appearance of Rahmat Ali, appellant, who appeared on that day and accepted the offer and the case was then posted to 19-6-1979 for recording his statement on oath. On that day, Rahmat Ali took oath on the Holy Quran and stated that Mst. Begum was not the sister of Taj Muhammad; that Muhammad Yousaf had neither been serving Taj Muhammad nor in recognition thereof Taj Muhammad made will or gift in favour of Muhammad Yousaf; and that Muhammad Yousaf is in possession of the land as tenant of which they (the appellants) are the owners. Thereafter, the respondent stated that he has heard statement of Rahmat All and that decision thereon be pronounced. He signed this statement also. In pursuance of prescribed oath taken by Rahmat Ali, appellant, learned Civil Judge dismissed the suit, the same day. Feeling aggrieved, the plaintiff/respondent preferred an appeal challenging the judgment and decree of the trial Court on the ground that the respondent never made offer of special oath to Rahmat All and that proceedings in this regard were taken by the trial Court of its own in order to short circuit the matter and that he signed the relevant statement under pressure of the Presiding Officer.
During arguments, however, these grounds were not urged before the District Judge and instead it was contended that the offer for special oath made by the respondent was accepted by Qadir Bakhsh who was riot an authorised attorney of appellants and Mr. Hamidul Hassan, Advocate, their counsel, was also not expressly authorised in this behalf, therefore, "acceptance" was defective and as a result no valid contract between the parties came into existence, hence the subsequent proceedings thereto relating to special oath had no legal and binding effect on the plaintiff/respondent. Learned District Judge having observed that there was no power-of-attorney on record showing that Qadir Bakhsh was special attorney of the appellants and likewise in Vakalatnama of the appellants counsel there was no express clause authorising him to accept such offer or to compromise the suit on their behalf consequently held that the suit was wrongly decided on the basis of oath and remanded the case for deciding afresh in accordance with law.
Feeling aggrieved of the remand order, the defendants/ appellants have filed the instant appeal.
2. Learned counsel for the appellants contended that learned District Judge was not right in holding that Ghulam Qadir was not special attorney of the appellants because special power-of- attorney showing Ghulam Qadir as such is present at page 86 of the file of the trial Court. He also referred to Vakalatnama signed by Rahmat All as special attorney of the defendants/appellants Nos. 1 to 4, 7 and 8 executed in favour of Mr. Hamidul Hassan, Advocate (at page 127/13 of the file of the trial Court) which bears a note to the effect that the original special power-of-attorney is appended therewith and the Presiding Officer has writing thereon the word "File". He further contended that the judgment and decree of the trial Court was a "consent decree" which was passed in pursuance of the special oath taken by Rahmat Ali, appellant, as a result of agreement arrived at between the parties, therefore, the same being not appealable in the meaning of section 96 (3), C.P.C. learned District Judge had no jurisdiction to interfere with it in exercise of his appellate powers, hence the order remanding the case' was without lawful authority.
3. On the other hand, learned counsel appearing on behalf of the respondents submitted that the power-of-attorney purported to have been executed in favour of Ghulam Qadir and referred to by learned counsel for the appellants (at page 86) has been subsequently placed on record. Learned counsel submits that there is observation in the judgment of learned District Judge to the effect that no such Mukhtarnama was available on the file and that this fact was even conceded by learned counsel for the appellants before learned District Judge, there fore, this document cannot be taken into consideration and therefore, in the absence of any power-of-attorney Ghulam Qadir was not competent to accept the offer of special oath on behalf of appellants. He further argued that even if it is admitted that there was a valid Vakalatnama in favour of Mr. Hamidul Hassan, Advocate, on behalf of appellants Nos.1 to 4, 7 and 8 yet there is no such power-of-attorney in his favour on behalf of appellants Nos. 5 and 6. On this account also the 'acceptance' was not complete and the agreement of special oath is automatically rendered invalid and the judgment and decree based on it cannot be sustained.
4. I have carefully considered the submissions of both the learned counsel for the parties. The first and foremost question which falls for determination is that whether the offer for special oath made by Muhammad Yousaf, respondent, was validly accepted by or on behalf of Rahmat All and other defendants/appellants before he actually took oath or not? Assuming without conceding that the special power-of-attorney purported to have been executed by the defendants in favour of Ghulam Qadir (special attorney) was not on record on 10-5-1979 when Muhammad Yousaf, respondent, made the offer but this much is, however, clear that Rahmat Ali (who is attorney of appellants Nos.1, 4, 7 and 8) appeared and accepted the offer on 26-5-1979 in the presence of the respondent. Thereafter his statement on oath was recorded on 19-6-1979 in the presence of plaintiff/respondent. Again, Rahmat Ali as attorney of others had given Vakalatnama to Mr. Hamidul Hassan, Advocate, and there is a note on the Vakalatnama that special power-of- attorney showing him as attorney of appellants Nos.1 to 4, 7 and 8 was also attached therewith which also bears endorsement of the Presiding Officer. Obviously, therefore, he was also competent to accept offer for special oath on their behalf as well except defendants Nos. 5 and 6. As for defendants Nos. 5 and 6 are concerned, it is clear from the record that they made statement on 7- 2-1979 conceding the suit of the plaintiff/ respondent and, therefore, when respondent made offer to Rahmat Ali to take special oath, defendants Nos.5 and 6 were on his side and their interest was thus common and the oath taken by Rahmat All either way would not have affected them adversely. In the circumstances, I find that offer of special oath was legally validly and completely accepted by the appellants.
5. As for the objection that Vakalatnama given to Mr. Hamidul Hassan, Advocate, did not expressly contain a clause that he could compromise the suit or accept the offer of special oath on behalf of his clients, it may be stated that these powers are always available to an advocate representing his client, unless such powers are specifically countermanded by the client as has been held in Dr. Ansar Hassan Rizvi v. Syed Mazhar Zaidi and 3 others 1971 SCMR 634.
6. The record depicts that the offer was made by the respondent in presence of his counsel on 10- 5-1979 and the same was accepted by Rahmat Ali on 26-5-1979 and further after 3 weeks he took oath and made statement on 19-6-1979. This shows that sufficient time elapsed between the respondents offer of special oath and the making of statement on oath by Rahmat Ali yet the respondent at no stage before the dismissal of the suit resiled from it. Rather it appears that the respon dent participated throughout in the proceedings so much so that he signed the statement made by Rahmat Ali and also made and signed a statement requesting the Court to announce the judgment accordingly.
7. For the foregoing reasons I hold that agreement of special oath between the parties has validly matured in pursuance whereof Rahmat All took oath in the manner and mode prescribed by the respondent and consequently the decree passed was a consent decree which was not appealable, in the meaning of section 96(3), C.P.C. and the learned District Judge thus had no power to interfere with it in exercise of his appellate jurisdiction. I am fortified in this view by the dictum laid down in Lal v. Siddiq and others PLD 1961 (W.P.) Lah.
823. The relevant observation at page 841 is reproduced hereunder with advantage:- "But where there is an agreement between the parties that the suit be decided in accordance with the statement made on oath by one of them, and that party does take the oath in accordance with the agreement, there is nothing left for the Court to adjudicate and a decree must follow on the basis of the statement made on such oath. In such a case the agreement between the parties has matured into an adjustment, once the oath is taken, and therefore, the decree that follows is nothing but a consent decree."
8. For what has been stated above, the remand order, dated 16-5-1982 by learned District Judge is illegal for want of jurisdiction and is hereby set aside. Consequently, this appeal succeeds and the