Mst. Rakiya Bi pre-empted the sale of land measuring 14 kanals 4 marlas out of land measuring 28 kanals 9 marlas from survey number 1086, situate in village Khor, Tehsil Kotli. The land was sold by Muhammad Sultan in favour of Mohammad Munshi and Muhammad Bashir. The pre-emptor asserted her superior right of purchase by virtue of--
(i) her relationship with the vendor; and
(ii) as co-sharer in the suit land.
It was averred that the price of the land was settled as Rs.2,70,000 and a sum of Rs.4,00,000 was fictitious. The same was entered in the sale-deed to defeat her right of prior purchase. The defendant-vendees resisted the suit. Subsequently, by amendment, an objection was raised in the written statement that `Vakalatnama' purported to be signed by the pre-emptor, was fake. It was alleged that the purported thumb-impression of the plaintiff was forged one, as such the suit was liable to be dismissed on that score. The trial Court sustained the objection and dismissed the suit.
On appeal, the learned District Judge, nevertheless, disagreed with the finding of the trial Court and decreed the suit on payment of Rs.4,00,000, the price of the land, in addition to the expenses suffered on the execution of the sale-deed. Both the parties being dissatisfied with the order of the learned District Judge, preferred counter-appeals. As both the appeals arise out of common order, these are disposed of together.
2. Chaudhry Aleem-ud-Din, the learned counsel for the vendees, contended that the learned District Judge was wrong to hold that the thumb-impression of the plaintiff-respondent on `Vakalatnamas' Ex.PA was genuine. It was argued that the evidence was misconstrued on the point.
Malik Muhammad Yusuf, the learned counsel controverted the proposition by supporting the inpugned order of the learned District Judge to the extent of acceptance of the superior right of the pre-emptor. The learned counsel, in support of the counter-appeal filed by the pre-emptor, challenging the price of the land, argued that the actual price of the land was settled as Rs.2,70,000 and the same was paid. The excessive price in the sum of Rs.4,00,000 was fictitious and the same was entered in the sale-deed to defeat the right of pre-emption.
3. The appointment of counsel to prosecute the suit is contemplated under Order 111, Rule 4 of the Code of Civil Procedure. The provisions of Rule 4 postulate that no pleader shall act for any person in the Court, unless he has been appointed for the purpose by a document in writing, signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. It further lays down that the document appointing a counsel shall be filed in the Court and shall be presumed to be in force until revoked or death of the client or counsel. It is this condition recognised by law which requires that a counsel appearing on behalf of a party has to submit `Vakalatnama' duly signed by the party to whom he represented.
4. 1n this case, the `Vakalatnama' as postulated under Rule 4 of Order III of the Code of Civil Procedure is accepted to have been filed in the Court. The only objection of the defendants is that the document was not signed by the plaintiff or that the thumb-impression on it, was not that of the pre-emptor---plaintiff. The proposition deserves its examination from various angles.
5.The first act of the counsel in the case is that he designed the pleadings of the plaintiff, signed and verified it. Rule 14 of Order VI postulates that every pleading shall be signed by the party and his pleader. Provided that a counsel may sign the pleadings on account of absence of party or for other good cause. Rule 15 further provides that every pleading shall be verified by the party or by some other person acquainted with the facts of the case. It is well-accepted rule of procedure applicable to the signing and verification of pleadings that an omission to sign and verify was only an irregularity curable at any stage of the proceedings and not an illegality likely to result in dismissal of the suit. In this ease, in the alternative, if it is believed that counsel was not duly engaged, on account of absence of signatures of the plaintiff, the inference would be that the signatures and verification of the pleadings was not that of an authorised person. In other words, it shall be deemed that the pleadings was neither signed nor verified. Therefore, at the best, in such a situation, the Court has to exercise its discretion and may call the plaintiff to sign and verify the pleadings at subsequent stage. For, such a formal defect is rectifiable at any stage. Therefore, even on acceptance of the proposition raised by the defendants, the suit is not liable to be dismissed on account of such defect.
6. Another aspect of the proposition pertains to the institution of the suit. Rule 1 of Order IV, C.P.C.
Provides that every suit shall be instituted by presenting the plaint to the Court or such officer as it appoints in this behalf; on presentation of the plaint, the suit is registered with the Court. The law does not provide that the suit has to be presented essentially by party or the counsel. It only refers to the presentation of the plaint to the Court or officer concerned. Once a suit is presented and registered with the Court, the Court has to issue summons to the defendants to appear and answer the claim on a day fixed for the purpose. The omission in both the cases is merely an irregularity and not an illegality.
7. In order to prove the allegation of forgery of thumb-impression, it was enjoined upon the vendees-defendants to prove the allegation satisfactorily. This has not been done in the present case. Evidence of handwriting and finger-print expert led by the defendants was rebutted by the evidence of another handwriting and finger-print expert. In presence of even and balanced evidence of the experts, the onus of proof is not seen to have been discharged. Moreover, the plaintiff who appeared in the Court, made a statement on solemn affirmation in support of affixing the thumb-impression on `Vakalatnama' Ex.PA in order to engage Chaudhry Muhammad Hanif as counsel to institute the suit and to prosecute it on her behalf. Fatal Hussain has also appeared as a witness on behalf of the pre--emptor. He was not an eye-witness of execution of `Vakalatnamas'.
However, he testified that the form of `Vakalatnama' was sent to England and after its execution, it was received back by him and that he engaged the counsel to institute the suit on behalf of Mst.
Rakiya Bi. There are some inconsistencies in the statement of this witness but such inconsistencies are not material so much so to out rightly discard his evidence. The learned District Judge rightly construed the evidence of the parties.
8. Another factual aspect of the proposition is that power of attorney was completed in a single hand on April 12, 1981. The digit "1" is tampered with as the date of completion of `Vakalatnama' is shown as April 28, but I am convinced to construe it as April 12, instead of April 28, power of attorney was accepted by the counsel on May 6, the date when the suit was instituted. Thus, there was an interval of 24 days between the completion of `Vakalatnama' and its acceptance and institution of the suit. The explanation rendered in the evidence is that `Vakalatnama' on its completion, was sent to England through husband of the plaintiff. She put her thumb-impression in England and sent back the `Vakalatnama' through another person who delivered it to Fazal Hussain at Kotli. Fazal Hussain, on receiving the `Vakalatnama' duly signed by the plaintiff gave it to the counsel who accepted the same and initiated the civil action. The claim of the plaintiff finds support from the chain of facts resting on time interval, the completion of `Vakalatnama' in single hand in black ink, supported by the statement of Mst. Rakiya Bi, plaintiff.
9. The relationship of a client and a counsel is recognised in law at the level of relations of principal and an agent. In such a situation, when an agent acts on behalf of the principal, even though he is not authorised in the prescribed manner for acting as such at the relevant time, the principal is vested with the authority to ratify the act of his agent with retrospectivity. On this principle, it is permissible to hold that action of Chaudhry Muhammad Hanif, Advocate by signing and verifying the pleadings and institution of the suit, could be ratified by the plaintiff with retrospective effect.
10. A very close proposition to the case in hand was raised in Ghulam Mohi--ud-Din's case, PLD 1988 S.C. (AJ&K)
42. In that case, the suit was instituted by counsel who signed and verified the plaint. The `Vakalatnama' was not signed by the plaintiffs at the time of framing of the suit and its institution. This omission was discovered at subsequent stage when an application was moved for permission to secure the signatures of the plaintiffs on `Vakalatnama'. The plaintiffs were permitted to sign the `Vakalatnama' at subsequent stage as in view of the Supreme Court, it was just a formal defect. Moreover, the plaintiff (the principal), under law, was empowered to ratify the act of his counsel (agent) with retrospective effect. The principle was laid down as under:- "In the present case, the objection is to the effect that in absence of signatures of the plaintiff on `Vakalatnama' the pleadings of plaintiff could not be signed by the Advocate nor the same could be presented in .The Court. In other words, it was emphasised that in absence of due authority in form of signature on `Vakalatnama', it shall be deemed that the plaint was neither signed by the plaintiffs and verified nor it was presented in due course of law. Therefore, there was no suit of plaintiffs before the Court. The answer to the objection is that the rules of procedure contained under Rules 1 and 4 of Order III are directory in nature and not mandatory as suggested by the learned counsel for the appellants. This is so as no public policy is involved nor the provisions are accompanied by a penal clause for its non-compliance. The object of rules is to ensure that facts stated in the pleadings are duly owned by the parties presenting the same and that the pleadings are presented by parties personally or through an authorised person. This check is laid down to avoid fraudulent and fictitious litigation. The interpretation of these provisions received attention of superior Courts frequently. There is no denying the fact that the omission to sign `Vakalatnama' was considered as a formal defect rectifiable at any stage of the proceedings. Moreover, the rectification of the defect was given effect back from the date of institution of the suit. Here, it is relevant to state that omission to sign `Vakalatnama' on the part of the counsel or party, is not different in degree. Therefore, irrespective of the fact that `Vakalatnama' was not signed by the party or the counsel, the formal defect shall have the same effect. In present case, in the application moved at the earliest stage of the proceedings to remove the defect, it was frankly accepted that the omission to sign `Vakalatnama' was by an inadvertence. On the date of hearing, when the application was moved by the counsel for removal of defect, Noor Dad, plaintiff was present in the Court as the same is borne out from the interim order of the trial Court. This leads to an inference that the application for removal of defect was made under the instructions and consent of Noor Dad plaintiff who was also attorney of other plaintiffs. The bona fides of the case of the plaintiffs is clearly established from the aforesaid facts. We are, therefore, of the opinion that the absence of signatures of the plaintiffs on `Vakalatnama' is not an illegality but an irregularity.
Such an irregularity is curable at any stage of proceedings."
11. The proposition in question received attention of this Court in Muhammad Khaliq's case, 1987 CLC 1366. The relevant observation is:- "At this stage, the obvious question is as to whether in absence of specific authority to institute the suit, the ratification of the actions of attorney can validate the institution of the suit or not. When a person is authorised by principal to act as his attorney or agent in respect of particular property, the scope of such authority is described in instrument, any incidental action to the property of such attorney or agent is binding on the principal only when he accepts, acknowledges or undertakes by ratifying the same. In absence of ratification of such an action constituting transgression of authority, the principal cannot be held responsible for such an action. On this premises, it is always deemed expedient to uphold even an unauthorised action of attorney in a suit or proceedings, when it is so ratified by the principal."
12.In Nargis Begum's case, 1983 C.L.C. 2923 S.C. (A J & K), in a petition for leave to appeal, at the conclusion of arguments, it was discovered that `Vakalatnama' contained no name of the counsel nor it was signed by the counsel. The learned Chief Justice held that the absence of name of the counsel and signatures of counsel on `Vakalatnama' was an irregularity curable under law. The relevant observations are at paras. 3 and 5 of the judgment as under:-- "3.The arguments on the above-stated points were concluded at Mirpur on 7th April, 1981. However, before writing the judgment, it was brought to my notice that Mr. BA. Sheikh, Advocate who appeared and argued the case on behalf of the petitioners, does not seem to have been validly appointed as the body of `Vakalatnama' neither enters his name nor the `Vakalatnama' is signed by him to show his acceptance.
5.After giving my considered thought to the issue, I have formed the view that the above-noted defects in the `Vakalatnama' do not invalidate the petition for leave to appeal. My conclusion is based on the following grounds: The omission to enter Mr. Shaikh's name in the body of the `Vakalatnama' appears to be through mistake, No deep thought is required to trace out the reasons. The `Vakalatnama' bears the signatures of the petitioners which shows that the petitioners have engaged the counsel. Who is that counsel? There is and was no allegation that the signatures on the Wakalatnama' were not those of the petitioners. The fact which is not disputed that Mr. BA. Sheikh had signed the petition for leave to appeal coupled with the fact that the `Vakalatnama' is signed by the petitioners conveys a clear impression that it was Mr. Sheikh who was appointed by the petitioners as their counsel.
(ii)It is well-recognised principle of law that accidental omission of the name of a pleader from the body of `Vakalatnama' (a technical defect), is merely an irregularity and cannot invalidate the `Vakalatnama'.
(i.e)I may quote rule 4, Order III of the Code of Civil Procedure. It provides: "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 recognised agent or by some other person duly authorised by or under a power of attorney."
The close reading of this rule would show that the only requirement under the aforementioned provision is that a pleader shall be appointed by a person. It is not visualised that the pleader must formally accept the appointment. Such acceptance, however, can be gathered from the acts performed by the pleader. In the present case, as elsewhere said, there is no allegation that the petitioners had not engaged Mr. BA. Sheikh as their counsel nor it is disputed that the petition for leave to appeal does not bear his signatures. In these circumstances, it is only an irregularity which could be remedied by getting the entry of the name of the counsel in the body of the `Valatnama' and also getting his signatures. This was got done by me in the open Court.
13. The aforesaid view was approved in Muhammad Sarwar's case, 1980 CLC 946 (Lahore). In that case the `Vakalatnama' and memorandum of appeal were not signed by the appellant. The respondents raised an objection seeking dismissal of the appeal. The learned Judges constituting Division Bench, repelled the objection by holding that the absence of signatures on memorandum of appeal and `Vakalatnama' was merely an irregularity rectificable under law.
14. In Muhammad Bibi's case 1986 MLD 771 an objection was taken that `Vakalatnama' of counsel who instituted the suit by signing and verifying the plaint was not signed by the pre-emptor. It was urged that the suit may be dismissed. The objection was accepted by the trial Court; however, in appeal before the High Court, the order of the trial Court was reversed. It was observed that non- signing of plaint and `Vakalatnamas' was purely an irregularity and not an illegality. It is relevant to state here that it was a pre-emption suit like the present one and the defect of absence of signatures was pointed out after the expiry of limitation applicable to pre-emption suits.
15. In Khayam Film's case, 1982 C.L.C. 1275, the learned Judge who spoke for the Court, held an extreme view, even ahead of aforesaid consensus. It was held that the authority for institution of the suit by counsel, was questionable only by the client on whose behalf the suit was instituted and not by the opposite-party. This principle was illustrated on the premises that when a counsel who instituted the suit and prosecuted it throughout and his performance of functions as counsel was not questioned by the client, it was permissible to be presumed that the actions of the counsel on behalf of his client, tantamount to ratification by the client.
16. In Ibrabim Ismail's case, PLD 1983 Karachi 154, Mr. Justice Naimud--din observed that the presence of signatures of counsel or client on `Vakalatnama' was in token of acceptance of appointment of counsel. Despite absence of signatures, when the counsel appeared in the case and prosecuted it throughout, it was a sufficient proof of his acceptance of brief. An objection relating to the absence of signatures, was declared as technical fault.
17. In Hyderabad Import Export Company's case, A.I.R. 1958 A.P. 652, an application was made for execution of the suit decree. It was preferred by counsel without `Vakalatnama'. The opposite-party sought dismissal of the application for want of proper authority. The objection was turned down by presentation of `Vakalatnama' of the counsel at subsequent stage, after the lapse of the period of limitation for execution. Similar view was recorded in Dahyabhai Girdhasdas v. Bobaji Dahyaji, A.I.R 1953 Bom. 28 and in A.I.R. 1960 Calcutta 61. The consensus is that when a counsel acts in a case even in absence of `Vakalatnama' or signature on `Vakalatnama', unless his authority is denied by the client (principal), the omission of filing the `Vakalatnama' or securing signatures on it was considered merely an irregularity and not an illegality. In present case, Mst. Rakiya Bi who appeared in the Court, expressly stated on solemn affirmation that C she put her thumb impression on `Vakalatnama' and engaged Chaudhry Muhammad Hanif, Advocate to institute the pre-emption suit and prosecute it on her behalf. Chaudhry Muhammad Hanif died somewhere in 1984. He prosecuted the suit of pre-emption throughout. His authority was not questioned by the plaintiff. In the circumstances, it has to be accepted that Chaudhry Muhammad Hanif was authorised to frame the plaint, sign and verify it and to institute the suit on behalf of Mst. Rakiya Bi.
The presumption was obviously in favour of engaging his as counsel by the plaintiff.
18. The proposition of forgery of signatures on `Vakalatnama' ascribed in Fazal Hussain's case, PLD 1982 SC (AJ&K) 89, was decided in a different context. The attention of the Court was not invited to the legal aspect of the proposition so as to accept that even if the signatures were forged ones, it would tantamount to absence of signatures. In addition to that, when a counsel prosecuted the action on behalf of his client and his authority was not challenged by the plaintiff, the presumption was in favour of engaging the counsel to act on behalf of the party. Likewise, the decision of the Supreme Court recorded in 11 Azad Jammu and Kashmir Government's case, PLD 1984 SC (A J & K)
13, was distinguishable from this case. The objection of the learned counsel of the vendees is, therefore, repelled.
19. Mr. Muhammad Yasuf Malik, learned counsel argued that the learned District Judge was wrong to fix the price of the land as Rs.4,00,000. He invited my attention to different sale-deeds produced on behalf of the pre-emptor to satisfy that the actual price of the land was Rs.2,70,000 and not Rs.4,00,000 as claimed by the vendees.
20. The price of the land settled by the learned District Judge finds support from the certificate of Sub-Registrar who registered the sale-deed. It is evident from the endorsement of Sub-Registrar that a sum of Rs.4,00,000 was admitted and paid as price of the land. The initial presumption is, therefore, in favour of the claim of the vendees. In rebuttal, the pre-emptor produced various copies of sale-deeds executed by different persons in respect of the different lands. These sale- deeds are not helpful, unless it is satisfied that the quality of the land transferred vide such sale- deeds, was identical to the land in dispute. Mr. Muhammad Yusuf Malki, agreed that the pre- emptor failed to adduce evidence to satisfy that the quality of the land in dispute was similar to the kind of the land transferred through the sale-deeds produced by the plaintiff. There was no other evidence on record to record disagreement with the learned District Judge. No force is found in the objection. It is, therefore, not sustained. <p.m></p.m>