This judgment will dispose of F.A.Os. Nos. 189, 190, 192 and 193 of 1975 as common questions of fact and law are involved therein.
2. These first appeals are directed against the order dated 29-7-1975 passed by the learned Civil Judge 1st Crass, Sialkot whereby application of the appellants seeking to resile from the offer of oath were dismissed and simultaneously the suits of the plaintiffs/appellants in FAO No.189/75 and the petitions under section 33 of the Arbitration Act, 1940 and another petition under section 14/17 of the said Act were disposed of in terms of the statement on oath made by Sh. Manzoor Elahi the original respondent No:5.
3. The dispute forming subject-matter of the appeals noted above has a chequered history of its own which may be summarised as under:--
(i) Sh. Muhammad Fazil the original appellant in Appeal No.189/75 and the original respondents in the said appeal (most of them have died and are now being represented by their legal representatives) constituted a firm on 26-4-1951 under the name and style of Mehandru Rattra & Company and started to manage and run the same as per terms agreed amongst them. It was on 1-9-1969 that the plaintiff-appellant in Appeal No.189/75 filed a suit for dissolution of abovesaid firm as also rendition of accounts on the ground that the other partners had mismanaged the affairs thereof and had also misappropriated certain amounts to their personal use. The said' suit was contested between the parties but by an agreement dated 15-12-1969, the parties to the suits agreed to refer the dispute forming subject-matter of the suit to the Arbitration of four nominated Arbitrators and a Sarpanch. The above-referred agreement was filed in Court and it was thereafter that the statements of the parties to the suit were recorded and the matter was referred to the named Arbitrators. In pursuance of the agreement aforenoted as also - the order passed by the Court, the named Arbitrators entered upon the reference and it was during the course of proceedings before the Arbitrators that the parties to the suit as also some other persons entered into a fresh agreement dated 10-4-1970 thereby superseding the earlier agreement but at the same time consenting that the dispute be decided by the same Arbitrators as also the Sarpanch named in the earlier agreement. The scope of the dispute as also that of the Arbitration was enlarged. It appears that this second agreement was not filed in Court though the Arbitrators continued to seek extension from the Court for the purpose of making an award in regard to the dispute between the parties to the suit as also the other parties added in the said second agreement. In any case the award was finally announced on 22-7-1970 and the same was filed in Court on 30-7-1970 by Haji Muhammad Siddique i.e. One of the nominated Arbitrators.
The Court invited the objections to the award whereupon the plaintiff/appellant in Appeal No.189 of 1975 and the original defendants Nos.1 to 5 (now respondents in the original appeal) filed the same in Court thereby praying that the award be set aside. The other defendants i.e. 6 to 8 however, did file any objection to the award and as a matter of fact requested that the same .Be made rule of the Court. It would also be relevant to mention here that Sh. Manzoor Elahi one of the original defendants (respondent No.5 herein) filed an application under Order XXIII, Rule 3, C.P.C. With the prayer that since the parties have consented to the award, therefore, the suit should be adjusted and disposed of in accordance therewith. The matter was still pending when one Shafiqur Rehman not a party to the suit but a signatory and party to second agreement filed an application under section 33 of the Arbitration Act, 1940 thereby praying that the second agreement as also the award be declared to be invalid. Similarly placed Sh. Abdul Qudus filed an application under sections 14/17 of the said Act thereby praying that the award dated 22-7-1970 be made rule of the Court. The above-referred suit and the applications under the Arbitration Act were still pending when Sh. Muhammad Fazil, the original appellant in Appeal No.189/75 made a statement in Court on 12-3-1973 that if Sh. Manzoor Elahi the original defendant/respondent No.5 opts to make a statement on Holy Quran, the suit filed by him may be disposed of in terms of the statement. This offer of the original plaintiff/appellant was joined and adopted by Sh. Abdul Wahid original defendant No.4 on his behalf as also on behalf of defendants Nos. l to 3 while Manzoor Ahmad Bhatti, Advocate for Shafiq-ur-Rehman i.e. Petitioner in application under section 33 of the Arbitration Act as also Farooq Sethi, Advocate for Sh. Abdul Qudus i.e. Petitioner in application under sections 14-17 of the Arbitration Act also joined and adopted the said offer. Ch. Mohammed Safdar, Advocate for respondents Nos. 10 to (sic) in the petition under section 33 of the Arbitration Act also made a statement to the similar effect thereby agreeing that the three proceedings noted above be disposed of in the term of statement to be made by Sh. Manzoor Elahi. This part of the case having been completed the learned trial Court decided to put the offer to Sh. Manzoor Elahi, original defendant No.5 who proceeded to accept the same in the following terms:------ "Statement of Manzoor Ahmad defendant No5 on S.A.: I have carefully heard and understood the offer made by the rest of the parties and their counsel today. I agree to take the proposed oath on the Holy Book, but need time to work out the amounts, if any, due to the respective parties. I will be able to make statement by the middle of September when I state on the Holy Book as to what, if any, is due to the parties to the litigation. "
It was on the same day that the three proceedings noted above were consolidated and it was ordered that further proceedings will be taken in the civil suit filed by the original plaintiff/appellant.
In view of the statement of Sh. Manzoor Elahi the case was adjourned to 18-9-1973 on which date the said Sh. Manzoor Elahi was directed to make a statement on oath but before the abovesaid oath could be taken some of the defendants namely Abdul Qadir, Abu Bakar and Muhammad Aslam filed an application under section 151, C.P.C. Thereby alleging that they had never instructed or authorised their counsel, Ch. Muhammad Safdar, Advocate, to make the statement that they would be bound by the oath of Sh. Manzoor Elahi. It was prayed that the said statement be struck off the record and the case be decided on its own merits. On the same date i.e. 26-7-1973 another application was filed by M/s. Javed lqbal, Parvaiz lqbal and Mst. Razia Begum wherein it was submitted that they had never permitted and authorised either Sh. Abdul Wahid defendant No.4 or Ch. Muhammad Safdar, Advocate to make the statement that they would be bound by oath of Sh.
Manzoor Elahi. It was further asserted in the said application that their Advocate had given the statement without their knowledge and consultation and to cap it all, it was specifically pleaded that they had no faith in the integrity and honesty of Sh. Manzoor Elahi, hence prayed that the said statement be struck off the record and the matter be decided in accordance with law. In these circumstances the learned trial Court directed Ch. Mohammed Safdar to appear and file his comments in regard to the abovesaid application who in turn submitted the same on 18-9-1973 by maintaining that the proceedings were being defended by Sh. Abdul Wahid original defendant No.4 and that he had made statement under his instructions alone. It was thereafter that the learned trial Court directed the original appellant i.e. Plaintiff in the suit and the other parties to submit their replies to the abovesaid application. The same were filed on 5-11-1973 wherein the stand taken by the original plaintiff/appellant and Sh. Abdul Wahid defendant No.4 was to the effect that a quarrel had taken place between Sh. Manzoor Elahi, the offeree of the oath, and his brother Sh. Abu Bakar defendant No.3 as also Sh. Zia-ur-Rehman in the office of Income Tax Officer, Sialkot and because of the resultant tension the relations between the parties had extremely worsened, therefore, they no longer repose confidence in Sh. Manzoor Elahi, they be allowed to revoke the offer earlier made by them. It would be pertinent to mention here that Shafiqur Rehman i.e. Petitioner in application under section 33 of the Arbitration Act and respondents in other proceedings also sought permission to revoke his offer on the similar grounds. Abdul Karim original defendant No.7 also filed an application on somewhat similar grounds alongwith the added assertion that respondent No.5 who was his real brother had obtained signature on the Vakalatnama for contesting the cases but since one and the same counsel represented him and Sh. Manzoor Elahi, the offeree of the oath, therefore, the offer carrier made by the said counsel may be allowed to be revoked. The said respondent also asserted that he had no confidence and faith in the integrity and honesty of Sh. Manzoor Elahi as according to him he had reason to believe that Sh. Manzoor Elahi would make a false statement. He prayed that the statement of Sh. Manzoor Elahi may not be recorded and the case be decided on merit.
4. The abovesaid order has been assailed in the present appeals by Sh. Muhammad Fazil the original appellant/plaintiff in the suit for dissolution of partnership and rendition of accounts (F.A.O.
No.189/75) Javed Iqbal and 2 others (F.A.O. No.190/75) and Sh. Abdul Qadir and 2 others (F.A.O.
No.192/75) as also by Shafique-ur-Rehman i.e. Petitioner in petition under section 33 of the Arbitration Act (F.A.O. No.193/75). 1 intend to dispose of the abovesaid appeals by this single judgment.
5. Learned counsel for the respondents has raised a preliminary objection as to maintainability of the appeals, therefore, it would be expedient to dispose of the said objection in the first instance. It was submitted that excepting F.A.O. No.193/75, all the persons who were parties to the original dispute referred to the arbitrators had not been impleaded as parties to the other appeals i.e. F.A.Os. Nos. 189, 190 and 192 of 1975, therefore, the same are not properly constituted and are liable to be rejected in view of provisions of Order XLI, Rule 3, C. P. C. As for F. A. O. No. 193 of 1975 was concerned it was submitted that although all the required parties were impleaded therein yet the certified copy of the judgment impugned in the said appeal was not produced and since no order on the application seeking dispensation thereof has been passed, therefore, the said appeal is also liable to be rejected because of the said reason. Another limb of the same objection was to the effect that certified copies of the decree---sheet were not appended with F. A. Os. Nos. 190 and 192 of 1975, therefore, on this score also the said appeals could not be deemed to have been properly constituted. It was lastly urged that in any case the decree having been passed in the case no appeal from the order was competent. All in all it was submitted that by one reason or the other the appeals having not been properly constituted or competently field the same should be out- rightly rejected or dismissed. Learned counsel for the appellants, on the other hand, contested the objection on the ground that this being a case of consolidated hearing, the objection as to maintainability is absolutely misconceived and since an appeal is provided against the order recording compromise or adjustment of suit, therefore, no valid objection could be taken in regard to filing of appeal against such an order. Reliance was placed on Haji Sikandar v. Malik Khan Muhammad and others 1973 SCMR 420 and Mst. Chawli and another v. Kidar Nath AIR 1938 Lahore 350 as also Jarnail Singh v. Mst. Narain Kaur and others AIR 1938 Lahore 766.
PLD 1989 SC 532. He however, insisted that the provisions of Rule 20, of Order XLI, C.P.C. Would not come to the aid of the appellants inasmuch as all the appeals noted above remained pending for about twenty years yet no effort was made by the appellants either to implead all the parties in the appeals or to rectify the errors as pointed out by him. The objection of the learned counsel for the respondents are not well-founded. It is an admitted position of fact on the record that the suit filed by the appellants in F.A.O. No.189/75 was consolidated with the petition under section 33 of the Arbitration Act and the other petition under sections 14 and 17 of the said Act whereafter the proceedings were taken in the suit filed by Sh. Muhammad Fazil and the dispute was ultimately disposed of by the learned trial Court by way of a consolidated judgment. Various parties being aggrieved of the judgment passed by the learned trial Court had proceeded to file four appeals which were heard together and are being disposed of by this single judgment. It is not denied that in one of the appeals all the parties were arrayed either as appellants or as respondents meaning thereby that all parties were duly represented before this Court. It was held in the case of Said Muhammad supra that the Court is vested with ample powers to add any party even though the limitation for filing the appeal had already run out. The purpose behind the suo motu powers is not only to condone the delay but also to avoid technicalities, for the laws or procedure are meant for advancement of justice and not for denying it. In the instant case impleadment in each and every appeal may not be required for the particular reasons that the appeals are being heard together and all the parties are represented in one appeal or the other. This is the advantage of consolidated hearing of the appeals which cannot be denied in the peculiar circumstances of this case. Again it is not denied that certified copies of the judgment had been filed alongwith the three appeals while in the fourth an uncertified copy thereof had been appended with the appeal with an application seeking dispensation from the filing of certified copies thereof. All the parties being present before this Court and the certified copy of the judgment impugned in all the appeals being available on the record in one appeal or the other, it would be hypertechnical to reject one of the appeals on this ground and decided the other on merits. Since all the parties have been represented and the certified copy of the judgment is also available on the record, therefore, the defect, if any, in the appeals as pointed out by the learned counsel for the respondents stood cured. I am fortified in this view by the judgment of the Supreme Court reported as Haji Sikandar v.
Malik Khan Muhammad and others (1973 SCMR 420) wherein the Supreme Court having considered the various judgments available on the subject proceeded to distinguish them on the ground that where the proceedings are consolidated and appeals are heard together, the defect of non-impleadment of a party is cured because of the reason of its being present before the Court in the connected matter. The dictum is one of wisdom, therefore, respectfully following the same I hold accordingly. Faced with this situation the learned counsel for the respondent fell back upon the rule of law laid down in an earlier judgment of the Supreme Court reported as Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan etc. (PLD 1964 SC 590) to contend that limitation for filing the appeal having expired no party could be allowed to be added to the appeal unless it is shown that the mistake in not impleading the said party is bona fide. I am afraid the reliance of the learned counsel for the respondent on the above-cited judgment is not very apt. The rule of law laid down in the above judgment is not at all attracted in the facts and circumstances of the present case for the particular reason that these appeals are being heard together and all the parties are represented in one appeal or the other. Needless to add that this judgment had also been considered and distinguished in the case of Haji Sikandar as noted above.
All said and done, the total argument of the learned counsel for the respondents is fundamentally at odds with the provisions of Rules 4 and 33, of Order XLI, C.P.C. It has been provided under Rule 4, Order XLI, that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants, any one of the plaintiffs or of the defendants could file an appeal from the whole decree and thereupon Appellate Court could reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be even though only one of the plaintiffs or the defendants had appealed against the said decree while Rule 33 of the same Order provides that the Appellate Court could pass any decree and make any order which ought to have been passed or made and could also pass and make such further or other decree or order as the case may require and this power may be exercised by the Appellate Court notwithstanding that the appeal is as to a part only of the decree' and may also be exercised in favour of all or any of the respondents or parties although such respondent or party may not have filed any appeal or objection. The wisdom of the two rules quoted above is so obvious that the result now being sought to be achieved by filing four appeals could also be achieved if only one appeal had been filed by any one of the parties to the suit because the order impugned in the appeals proceeds on the ground common to all the parties and in a case of the nature, the Appellate Court is vested with the power to pass any decree or make any order which ought to have been passed and made or even make such further order as the case may require notwithstanding that the other parties had not appealed or filed any objection against the said order. Reference may be made to Punjab Road Transport Board through its Chairman v. Abdul Ghafoor and 6 others (PLD 1989 SC 541). The learned counsel for the respondent being steadfast in his objections still maintained that in any case since in the F.A.O.
193/75 no order as to dispensation of filing of certified copy of the judgment impugned therein was passed nor the certified copy of the judgment was placed on the record within the time prescribed for filing the appeal, the appeal itself had patently become barred by limitation, therefore, the same should be dismissed as such. Reliance was placed on Mst. Safia Begum v. Taj Din and another (1990 CLC 1503). It was a case of second appeal wherein it was held that the filing of the certified copy of judgment of the Court of first instance being mandatory, the appeal could not be said to be properly constituted unless the requirement thereof had been dispensed with by the Court. The judgment is distinguishable on its own facts and is not applicable in the peculiar facts and circumstances of the case. As already observed the certified copy of the judgment impugned in these appeals is available on the record because of the consolidated hearing, therefore, the ratio of the case Haji Sikandar, though in different context, would be available in answer to this limb of the objection as well.
6. As for the objection that certified copies of the decree-sheet had not been appended with F.A.Os.
190 and 192 of 1975, suffice it to say that the said appeals had been preferred against the order adjusting the suit in view of the statement made by Sh. Manzoor Elahi, therefore, the filing of the decree-sheet was not at all required. Manifestly the appeals were preferred against the order adjusting the suit and not against the decree that followed, therefore, it could not be successfully argued that non-filing of the decree would be fatal to the appeals. Learned counsel for the appellant has very aptly relied on the judgments in the cases reported as Mst. Chawli and another v. Kidar Nath (AIR 1938 Lahore 350) and Jarnail Singh v. Mst. Narain Kaur and others (AIR 1938 Lahore 766) to contend that an appeal from an order recording a compromise having been provided under Order XLIII, Rule 1(m), C.P.C., there was no need to file the copy of the decree-sheet and the copy of the consolidated order satisfied the requirement of Order XLI, Rule 1, C.P.C. It was further observed that it was not necessary for the appellants to prefer an appeal both from the order and the decree passed in pursuance of the said order. The ratio of the two judgments noted above squarely meets the objection raised by the learned counsel for the respondents.
7. As far the merits of the case the learned counsel appearing on behalf of various appellants argued that it was manifestly a case where the parties seeking to resile from the offer of oath ought to have been permitted to do so because of the facts available on the record. It was mainly submitted that Ch. Muhammad Safdar, Advocate was definitely not authorised or instructed by Javed Iqbal, Parvaiz Iqbal and Mst. Razia Begum i.e. Respondents Nos. 14 to 16 in petition under section 33 of the Arbitration Act as also respondents Nos.7 to 9 in petition under sections 14 and 17 of the said Act to make a statement thereby adopting the statement of Sh. Muhammad Fazil, plaintiff in the suit for dissolution of partnership and rendition of accounts, whereby it was offered that if Sh. Manzoor Elahi (defendant No. 5 in the suit referred to above) opts to make a statement on Holy Book, the suit filed by said Sh. Muhammad Fazil be disposed of in terms thereof. In amplification of the argument the two powers of attorney executed by the abovesaid parties thereby authorising Ch. Muhammad Safdar, Advocate to conduct the case on their behalf were also referred to maintain that the said powers of attorney were not routine and usual powers of attorney which are normally executed and filed in Court for the prosecution of civil cases as according to the learned-counsel, the said powers of attorney simply authorised Ch. Muhammad Safdar to plead and act as an advocate on behalf of the said parties. The only other power as incorporated in the said power of attorney was to the effect that the said Advocate was authorised to withdraw or to receive any sum or amount deposited in the account of his clients. It was submitted that apart from the fact that Ch. Muhammad Safdar, Advocate was not authorised or instructed to make such a statement, the said powers of attorney could not be deemed to have authorised the said learned Advocate even impliedly to make such a statement. Learned counsel further referred to the comments filed by Ch. Muhammad Safdar, Advocate, in regard to the application filed by the abovesaid respondents to submit that the said learned counsel had very candidly conceded that he had made that statement on the instructions of defendant No.4 i.e. Sh.
Abdul Wahid who had been defending the cases. It was vociferously maintained that said Abdul Wahid was neither an attorney of the abovesaid respondents nor it has been shown on the record that he was ever instructed by the saia respondents to impart such instructions. Learned counsel appearing on behalf of the legal heirs of Sh. Muhammad Fazil having adopted and supported the abovesaid arguments maintained that the offer of oath as originally made was to the effect that if Sh. Manzoor Elahi opts to take oath on Holy Book the suit filed by the said original plaintiff (appellant in this appeal) be disposed of in terms thereof while the record shows that Sh. Manzoor Elahi did not make any statement in regard to the questions involved in the suit nor, as a matter of fact, the suit has been disposed of: The precise submission was to the effect that the oath having not been taken in accordance with the offer the same could not form basis of the decision. It was submitted that the oath of the opposite-party to be binding must always be administered and taken in accordance with the offer and not otherwise. It was also argued that the period of almost two years taken between the offer of oath and the administration thereof was a negative feature and the same ought to have been considered while disposing of the application seeking to resile from the offer particularly when it had been brought to the notice of the Court that parties had quarrelled with each other with the result that the relations between them had worsened. The arguments were summed up with the plea that most of the parties including defendant No.7, real brother of offeree had shown no confidence in the honesty and integrity of the offeree of oath, therefore, in the circumstances of the cases, they should have been allowed to resile from the offer and revoke the same.
Learned counsel for the respondents, on the other hand, maintained that the parties or their counsel having joined in making the offer that the case be decided on oath and defendant No.5 having accepted the same, a valid agreement had come into existence which could not be revoked nor the parties could be allowed to resile therefrom unless the contract was shown to have become void or frustrated. It was submitted that no material was brought on the record to establish that the contract had become void or had frustrated, therefore, the appellants could not be allowed to resile from their offer or even to revoke the same. Reliance was placed on Syed Abdul Hakim v. Abdul Wahid 1991 MLD 762, Attiqullah v. Kafayat Ullah 1981 SCMR 162, Mst. Asifa Sultana v.
Honest Traders, Lahore and another PLD 1970 SC 331, Muhammad Tufail v. Muhammad Rashid 1990 ALD 403, Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237 and Syed Muhammad Ramzan v. Muslim Zaidi 1990 SCMR 681. As far the argument that Ch. Muhammad Safdar had no authority to make such a statement it was submitted that the counsel having been authorised to plead and act had all the authority to make such a statement. Reliance was placed on Muzaffar A.I etc. v. Ch. Asghar A.I 1991 CLC 2110, Muhammad Tufail v. Muhammad Rashid etc. 1990 ALD 4030), Mst. Zainab Bibi v. Muhammad Siddique PLD 1990 Lahore 255, Rehmat A.I and others v.
Muhammad Yousaf 1985 CLC 72.
It was submitted that since Sh. Muhammad Fazil had made an offer that, if Sh. Manzoor Elahi opts to make a statement on Holy Book, his suit may be disposed of in terms thereof, therefore, no valid grouse could be made in regard to disposal of the suit even if there is no mention of either dissolution of partnership or rendition of accounts of the said partnership firm. It was submitted that in final analysis the dispute forming subject-matter of three proceedings between the parties was dealt with by Sh. Manzoor Elahi during the course of his statement, therefore, it is wrong to contend that the dispute forming, subject-matter of the suit was not decided. It was then submitted that the parties or their learned counsel having agreed to abide by the oath of Sh.
Manzoor Elahi could not possibly be allowed to turn around to maintain that they had no confidence or faith in the integrity or honesty of the said offeree and the plea that the parties had quarreled with the result that the relations amongst them had worsened is of no avail to the appellant because the offer of oath having been accepted, an agreement had come into existence which could not be revoked at the whim one of the parties.
8. The question debated at the Bar entailed a decision on an oft-repeated proposition of law as to whether a person could be allowed to resile from the offer of oath when the same had been accepted by the other party and if so under what circumstances as also the allied question as to whether a counsel could make such an offer on the strength of power of attorney in his favour so as to bind his client. The initial part of the primary question may not detain me any longer as the same stands answered in the case of Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC Civil 331 wherein it has been held that the question whether the party who made the offer of oath could resile from it depends on the facts and circumstances of each case. To the same effect is the judgment of this Court reported as Syed Muhammad Ramzan v. Muslim Zaidi PLD 1986 Lahore
66. It is thus to be seen as to whether there exist circumstances under which the appellants herein could at all be allowed to resile from the offer of oath made by them or their counsel on the grounds forming subject-matter of their applications as also the replies filed thereto. It would be noticed that Javed Iqbal, Parvaiz Iqbal and Mst. Razia Begum specifically pleaded in their application that they had neither authorised nor instructed their counsel. Ch. Muhammad Safdar to make such an offer and in that regard the power of attorney executed by the abovesaid parties was specifically referred to maintain that the said Advocate was authorised simply to plead and act on their behalf and that the only other power given to him was to receive any amount deposited in their name. There is no denying the fact that a counsel in the conduct of a case performs a solemn and sacred duty for the obtainment of justice yet intrinsically he acts as en agent/attorney of his client and that too on the basis of a written instrument commonly known as Vakalatnama. Vakalatnama by its terms is essentially a power of attorney as understood in the legal parlance and has not been treated apart, therefore, the same should also be construed as an ordinary/routine power of attorney.
Speaking for the law as to construction of powers of attorney it is well --understood that different clauses thereof are scrutinized so as to understand the scope and object of various powers granted thereby and it is too well-known that the clauses contained therein are all too important to understand the same. Over the period of years the rule as to construction of power of attorney have been interpreted to mean that the powers which have not been incorporated in the power of attorney should not be imported therein nor the general power as is usually incorporated at the end of the document of power of attorney should be construed to include all the powers of the principal. Needless to add that the general powers as included in the power of attorney have always been read in conjunction with the specific powers incorporated in the general power of attorney and not beyond and that it has also been insisted that for every and any power which an attorney is supposed or purported to exercise, there must be a specific clause thereby authorising him to exercise such a power. Again it is now well-settled that in case of difficulty an attorney, in the exercise of his authority must also show that he had consulted the principal in regard to such a difficulty and had also taken all reasonable care in communicating with his principal. In this behalf I would wish to rely on enunciation of law made by the Supreme Court of Pakistan in the case of Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341. In the instant case it would be seen that Muhammad Fazil having made a statement that if Sh. Manzoor Elahi opts to make a statement on Holy Qur'an then his suit be decided in terms thereof, the other parties (may be that they were petitioner or respondents in the connected matters) proceeded to join Sh. Muhammad Fazil in the offer made by him and readily adopted the same. In most of the cases the parties made statement and undertook to be bound by the oath of Sh. Manzoor Elahi yet in the case of Javed Iqbal, Parvaiz Iqbal and Mst. Razia Begum, their counsel Ch. Muhammad Safdar made the relevant statement thereby undertaking that the abovesaid parties would remain bound by the statement on oath to be made by Sh. Manzoor Elahi. The question is whether Ch. Muhammad Safdar, Advocate could at all make such a statement and the answer can be found from the Vakalatnama executed in his favour. A bare perusal of Vakalatnamas executed by said parties in favour of Ch. Muhammad Safdar, on the other hand, shows that it was not a usual and routine Vakalatnama which is normally presented for the prosecution of a civil suit. The two Vakalatnamas available on the record reveal that Ch. Muhammad Safdar, Advocate was authorised to plead and act on behalf of said Javed Iqbal etc. And the only other power given to him to receive any money on their behalf. The principle of implied authority which is applied in many cases to say that a counsel has all powers of his client in the conduct of a case can also be applied in the negative form saying that Javed Iqbal etc. By delegating only two powers i.e. "to plead and act" on their behalf and to receive money did impliedly meant that no other power could be exercised by their counsel. Even otherwise implied authority to do whatever is necessary in a case should not be taken to mean more than what is incidental to the express authority. Apart from the application of the abovesaid principle it could be very safely concluded from the words and, clauses used in the Vakalatnama that excepting for the two powers referred to above no other power was either meant to be given or in fact given to Ch. Muhammad Safdar. The scope of the words "to plead and act" cannot be enlarged to such an extent that Ch. Muhammad Safdar was authorised to do all or any act on behalf of his clients, for, if that construction is allowed to be made, it would render nugatory the Age Old Principle of drawing documents of powers of attorney containing various clauses thereby investing the attorney with the specified powers so as to establish the extent and authority of an attorney. Need it be reiterated here that a counsel acting on behalf of his client is not to be treated on a better footing than an attorney acting on behalf of his principal. In nutshell the power of counsel emanates from the Vakalatnama and is dependent upon the terms thereof, therefore, if some power does not find mention in the Vakalatnama the same cannot be exercised by the counsel even by invoking the principle of implied authority. Reference may be made to Shital Prasad Singh and others v. Surendra Nath Chatterji and others AIR (37) 1950 Patna 253, Rijharam Badaldas and others v. Vithaldas Jethanand and others AIR (34) 1947 Sind h 4, Din Muhammad and another v. Farooq Mirza PLD 1955 Sindh 62, Mukhtar Ahmad Farooqi v. Bank of Bahawalpur Ltd., Karachi 1980 CLC 337, Muhammad Sadiq Gondal v. Additional District Judge and others 1986 CLC 326 and Muhammad Siddique v. Additional District Judge, Multan 1991 CLC Note 67 at p.50.
There is yet another angle of the case which need be attended to in view of the rule of law laid down in the case of Fida Muhammad noted supra PLD 1985 SC 341 that in cases of difficulty the agent must use all reasonable diligence in communicating with the principal so as to obtain his instructions. It would be seen that this was a case of difficulty inasmuch as Ch. Muhammad Safdar, Advocate having no authority to compromise the suit or to make a statement of the nature in the process thereof was required under the law to consult his clients so as to know their intention as to whether they were willing to make that offer and remain bound by the statement of Sh. Manzoor Elahi or not. It cannot be denied that the statement on oath is evidence in the case and is of conclusive nature meaning thereby that the moment oath is taken the case is decided on the basis thereof. Since the case was to be decided on the statement of the opposite-party and that too on the basis of simple statement, therefore, intrinsically it was for the parties to the suit to decide as to whether they would like to make such an offer so as to remain bound by it and the said power could not be exercised by their learned counsel unless the same had been delegated either directly or impliedly. The facts and circumstances of the present case on the other hand reveal that no such power was ever given to Ch. Muhammad Safdar either by way of any express clause in the Vakalatnama or even by implication, therefore, it is really hard to believe that Ch. Muhammad Safdar had any instructions or authority to make such a statement particularly in view of comments offered by Ch. Muhammad Safdar wherein he had very candidly admitted that he made the statement on the instruction of Sh. Abdul Wahid who was conducting/defending the case. Now it is matter of record that Sh. Abdul Wahid did not have any power of attorney on behalf of Javed Iqbal etc., nor it is shown that he was in fact authorised by the said persons to conduct and defend the suit on their behalf. The power to act as indicated above may include the usual power but not an unusual power because decision on the basis of oath, though permissible under the law, is an unusual mode, therefore, the counsel choosing to adopt such a mode must have shown that he had such a power because otherwise it would lead to some very anomalous results.
Manifestly it was a case of difficulty, therefore, unless Ch. Muhammad Safdar had shown that he had obtained instructions from his clients, the offer made by him could not be deemed to be on behalf of Javed Iqbal etc., nor could the same be termed as duly authorised. The judgments relied by the learned counsel for the respondents are in regard to the cases where the counsel had the authority to make a statement in the case or to compromise the same. In all these cases it was held that although the counsel had not been given any specific authority to make an offer of oath yet the power to make a statement and to compromise the suit did include the power to obtain decision of the case on oath because in the ultimate analysis the suit is adjusted either on the basis of a compromise or on the basis of oath. Basically the ratio of these cases is not applicable to the facts and circumstances of the present case because in all the cases relied by the learned counsel for the respondents, the counsel had the powers to snake statement of any kind as also to compromise the suit while in the instant case no such power was given to Ch. Muhammad Safdar who had even otherwise admitted that he made the statement on the instructions of Sh. Abdul Wahid alone, therefore, the said judgments are distinguishable on their own facts and are not relevant for the point in issue. The plea that the three years' time taken between the offer of oath and administration thereof was a negative feature and that the relation between the parties had worsened because of quarrel having taken place amongst them definitely merited consideration.
The question as to whether a party should be allowed to resile from its offer of oath was considered in the case of Mst. Asifa Sultana because of the following facts and circumstances:-- "It was after the offer of oath and the acceptance thereof having been made by opposite-party that one of the parties filed an application seeking to resile from the agreement on the allegation that outside the Court the other party had bragged that he had won the case and had also said that by taking oath on Holy Qur'an his legs would not break and that he did not mind- taking an oath for his own purpose. "
It was in, view of this incident that the said party was permitted to resile from his offer and the said decision was upheld till the Supreme Court of Pakistan. In the present case also it was brought to the notice of the Court that some of the patties had quarreled with each other in the office of Income Tax Officer with the result that relations between them had worsened and that the said parties had lost confidence in the honesty and integrity of Sh. Manzoor Elahi i.e. The offeree of the oath. Obviously Sh. Manzoor Elahi did not mind picking a quarrel with his brother Sh. Abu Bakar. His nephew and another for the reason that he knew that the cases are going to be decided on the basis of his statement. Even otherwise the time spent between offer of oath and the administration thereof was definitely a negative feature because the intervening events had made all the differences inasmuch as almost all the parties had filed objections that they had either no confidence in the integrity and honesty of Sh. Manzoor Elahi or had lost confidence because of the quarrel. Needless to add that Javed Iqbal etc., had 'also objected on the ground that they had not instructed their counsel to make such a statement. Manifestly the events as they took place between the offer of oath and the administration thereof were enough to relieve the parties of the effect of their admission/submission or to permit them to resile therefrom. It would be seen that Javed Iqbal and others having come to know that their counsel had agreed to decision of case on the basis of oath to be taken by Sh. Manzoor Elahi immediately rushed to the Court thereby contending that the statement made by their counsel is wholly unauthorised and without their instructions, therefore, the same be struck off the record. This application alongwith other application as also the other aspects of the matter were not properly attended to by the learned trial Court. Had the learned trial Court cared to look into the two powers of attorney filed on the record it could have seen that Ch Muhammad Safdar had no power to make an offer that the case be decided on oath, therefore, it. Is but obvious that the statement made by Ch. Muhammad Safdar on behalf of Javed lqbal, Parvatz lqbal and Razia Begum was wholly unauthorised, hence they could not be held to be bound by the same. Since all the parties to the three proceedings pending before the learned trial' Court had not agreed to making the offer of oath and there did exist circumstances to resile from the statement made in regard thereto therefore, the oath taken by Sh. Manzoor Elahi is inconsequential and could not form basis of the decision of the suit and other proceedings. As a matter of fact there were enough good reasons to allow the parties to resile from the offer of oath, therefore, the findings recorded by the learned trial Court in regard thereto are hereby reversed and the parties are allowed to resile from the offer of oath as also relieved of the effect of their, submission made in that regard.
9. Apart from the abovesaid aspect of the matter it would be seen that the matter had already been referred to the Arbitrators; who having arbitrated between the parties had also delivered their award. The parties having objected to the award, the Court was proceeding to determine the same when the offer of oath was made and the case was decided on the basis thereof. A reference to arbitration through intervention of the Court is always made in the nature of compromise and the proceedings having commenced cannot be rolled back by superimposing another compromise and that too without revoking the authority of the Arbitrators. The scheme of Arbitration Act indicates that once the award is made the same can be set aside only by determining an objection petition under section 30 or by superseding the reference under section 33 or by revoking the authority of the Arbitrators under section 5 of the Arbitration Act. The only other mode of bringing an end to the arbitration proceedings is under section 19 of the said Act when the proceedings become 'void and that too when the award having been remitted to the Arbitrators for reconsidering the same is not refiled. The question as to whether the parties having referred their dispute to the arbitration could agree to another mode of decision i.e. By having recourse to the offer of oath may not be free from difficulty but it is well-settled that any other mode could not be adopted unless the authority of the Arbitrators had been revoked by the Court. If any authority is needed reference may be made to Prafulla Chandra Karmakar Marmaker and another v.
Panhuman Karmakar AIR 1946 Calcutta 427. It is matter of record that Sh. Manzoor Elahi while making a statement on oath did, in fact attempt to modify the award and also stated that award of the Arbitrators would stand cancelled and superseded, which in fact tantamount to revoking the authority of the Arbitrators. This could not be done by one of the parties because the authority to revoke arbitration vested with the Court and not with the parties muchless one of the parties.
10. For the reasons stated above it is but obvious that the judgment of the learned trial Court suffers from a vitiative infirmity, therefore, the same is set aside. Resultantly, the parties are permitted to resile from their offer of oath. These appeals are allowed and the cases are remanded to the learned Civil Judge who shall proceed to decide the same in accordance with law. Since the matters have already taken long, therefore, the learned trial Court is directed to dispose of the main suit as also the connected matters till 23rd of December, 1996.