The petitioners of this Constitutional petition and respondents Nos.5 and 6 (Bahawal Bux and Jan Muhammad) were the defendants in a suit for possession through pre-emption. This suit was decreed on 19-7-1986 on the consenting statement of the defendants' counsel (Sardar Muhammad Arshad Khan, Advocate), Bahawal Bux and Jan Muhammad who were two of the seven vendees/defendants. Two applications under section 12(2), C.P.C. Were filed by the petitioners herein on the ground that the decree had been obtained by practising fraud inasmuch as Sardar Muhammad Arshad Khan, Advocate was not their duly appointed counsel and Ahmad Bux defendant had died before his purported appointment as a counsel. It was also alleged that Bahawal Bux and Jan Muhammad who used to appear and defend the case on behalf of all the defendants gave consenting statement in collusion with the plaintiff without authority for the other defendants. Both the applications under section 12(2), C.P.C. Were accepted by the learned trial Court on 18-2-1991 mainly on the consideration that Sardar Muhammad Arshad Khan, Advocate was appointed counsel on 23-10-1994 but before that Ahmad Bux defendant had already died on 18-8-1984. The learned Additional District Judge, however, in revisional jurisdiction set aside the order of the trial Court and upheld the decree against all the defendants/vendees except Ahmad Bux. The learned revisional Court after discussing the evidence on record came to the conclusion that except Ahmad Bux all the other defendants had appointed Sardar Muhammad Arshad Khan, Advocate. He further found that the consenting statement was not made only by the learned counsel but two other defendants/vendees, namely Bahawal Bux and Jan Muhammad had also made the consenting statement on the basis of which the decree was passed. With regard to the appointment of counsel it was observed that power of attorney by Sardar Muhammad Arshad Khan was filed on 23-10-1984 and thereafter he contested the suit on six different dates from 1984 to 1986. He also found that no application was made for the comparison of the thumb-marks of the defendants on the power of attorney in favour of Muhammad Arshad Khan, Advocate.
Consequently he held that Sardar Muhammad Arshad Khan was the duly appointed counsel of the present petitioners and he was fully authorised to make statement on their behalf. The conclusion made by the learned revisional Court in that behalf reads as under:-- "Record shows that initially respondents/judgment-debtors appointed Mushtaq Ahmad, Advocate as their counsel, who filed written statements on their behalf on 5-4-1983. The issues were framed on 23-5-1984 and that after proceedings were adjourned. To 23-10-1984 for the evidence of the pre-emptor. On this date of hearing of 23-10-1984 made the consenting statement on the basis of which the decree was passed. With regard to the appointment of counsel it was observed that power of attorney by Sardar Muhammad Arshad Khan was filed on 23-10-1984 and thereafter he contested the suit on six different dates from 1984 to 1986. He also found that no application was made for the comparison of the thumb-marks of the defendants on the power of attorney in favour of Muhammad Arshad Khan, Advocate. Consequently he held that Sardar Muhammad Arshad Khan was the duly appointed counsel of the present petitioners and he was fully authorised to make statement on their behalf. The conclusion made by the learned revisional Court in that behalf reads as under:-- "Record shows that initially respondents/judgment-debtors appointed Mushtaq Ahmad, Advocate as their counsel, who filed written statements on their behalf on 5-4-1983. The issues were framed on 23-5-1984 and that after proceedings were adjourned to 23-10-1984 for the evidence of the pre- emptor. On this date of hearing of 23-10-1984 respondents/defendants/judgment-debtors filed Wakalatnama of Sardar Muhammad Arshad Khan, Advocate. That after on 20-2-1985, 26-5-1985, 23-10-1985, 23-1-1986 and 12-4-1986 Sardar Muhammad Arshad Khan, Advocate has been regularly appearing on their behalf. This long appearance of Sardar Muhammad Arshad Khan for about 1-1/2 years and for about more than six dates of hearing prove that actually Sardar Muhammad Arshad Khan, Advocate was their counsel. Alleged statement, dated 19-7-1986 is a joint statement of two of the vendees and learned counsel for the vendees.
Respondents/judgment---debtors have not levelled any allegations of fraud etc. Against the vendees making joint statements with Sardar Muhammad Arshad Khan, Advocate, which prove that Sardar Muhammad Arshad Khan, Advocate was a counsel of all the living vendees."
3. Learned counsel has attempted to argue that since Ahmad Khan had already died when the Wakalatnama was executed/filed, therefore, this power of attorney on behalf of the other defendants should be presumed to be fraudulent and the statement made by the learned counsel cannot be held to be binding on them.
4. The present petition has been filed under Article 199 of the Constitution. The impugned order can be set aside only if it is shown to have been passed without lawful authority and of no legal effect.
No jurisdictional error has been pointed out by the learned counsel for the petitioner. The findings of fact recorded by the learned Additional District Judge are duly supported by the material on record, therefore, the same cannot be said to be arbitrary and fanciful. Sardar Muhammad Arshad Khan, Advocate had not appeared for the first time when the consenting statement was recorded on 19-7-1986. He had been engaged much earlier on 23-10-1984 and he appeared and contested the suit on behalf of the defendants on six different dates from 1984 to 1986. Moreover, it was not merely statement of the counsel of the defendants on the basis of which the suit was decreed but two of the defendants also made the consenting statement. It may be observed that Bahawal Bux is the brother of Wahid Bux defendant while Jan Muhammad is brother of co-defendants Allah Ditta and Ahmad Bux and son of Kabir. It is admitted in the application under section 12(2), C.P.C.
That Bahawal Bux and Jan Muhammad "used to appear and defend the case on behalf of all other defendants". It is also to be noted that none of the defendants appeared in the witness-box to state that Sardar Arshad Khan, Advocate was not appointed by them or that they did not thumb-mark the power of attorney in his favour, or that the consenting statement was made fraudulently. In view of these facts the conclusions arrived at the learned Additional District Judge through the impugned judgment could reasonably be formed. Similarly the learned Additional District Judge appears to be correct in observing that some of the judgment-debtors felt tempted to impugn the decree because of the decision in Said Kamal's case which was announced shortly after the passing of the decree in hand. No interference in exercise of the Constitutional jurisdiction is, therefore, called for.
4. For what has been discussed above, there is no merit in this petition which is accordingly dismissed in limine.