' IRSHAD HASAN KHAN, J.---This appeal, with the leave of the Court, is directed against the order, dated 24-5-1993, passed by the Lahore High Court, Multan Bench, Multan, in Writ Petition No,943 of 1993.
2. The facts of the case and the questions for consideration arising therefrom have been succinctly stated in the leave granting order, which read thus:-- "On 8-2-1978 Imam Din entered into an agreement with the petitioner for the sale of land measuring 32 Kanals situated in Chak No,23-S.P., Pakpattan for a consideration of Rs,24,000. When the petitioner learnt that Imam Din was going to dispose of the land to some third party, he instituted a suit for specific performance of the contract on 25-6-1981. Imam Din appeared in Court and deposed that he will pay Rs,20,000 before 15-2-1983 and on failure the suit would be decreed.
During the pendency of the suit Imam Din sold the disputed property to Anwar Baig, respondent No,4, who transferred the same to respondents Nos.1 to 3. They were joined as defendants and amended plaint was accordingly filed. This suit was compromised and was disposed of in terms thereof. According to the compromise, defendants Nos.2--4 had to pay Rs,60,000 to the plaintiff till 12-9-1991 and in that event the suit was to be treated as dismissed, but in case of default in payment, the plaintiff's suit was to be treated as decreed against a consideration of Rs,30,000, which had already been paid by him. As the said defendants Nos.2--4 did not make payment in terms of the compromise, the plaintiff's suit was decreed on 11-6-1991. The plaintiff/decree-holder filed an execution application on 7-11-1991 upon which Muhammad Islam, one of the defendants, moved an application under section 12(2), C.P.C. On 3-12-1991 alleging therein that compromise decree dated 11-6-1991 was obtained through fraud and misrepresentation because he had not compromised the suit with the decree-holder and that he had not made any statement in this respect. The learned trial Court dismissed the application with the following observation:- 'On 11-6-1991 parties, had arrived at compromise and Syed Anwar Hussain Gardezi, Advocate, who was counsel for the present applicant, made a statement in respect of the compromise arrived at between the parties. Shabbir Ahmed real brother of the applicant also made a statement in respect of the compromise on the same day. It was never pointed out that land bearing Khasra No,23/20 was not in possession of the present applicant or his brother, so the objection raised in this application in this respect is baseless and not sustainable. It is a well-established law that a party is bound by the statement made by his counsel. So, the statement made by Syed Anwar Hussain Gardezi, Advocate, counsel for the applicant is binding on him and he cannot resile from the same. Compromise was arrived at between the parties and statements were recorded in open Court in the presende of learned counsel for the parties. No fraud whatsoever was played by either of the parties in this respect. False and baseless objections have been raised in this application, which are bound to be repelled. Litigation in respect of the disputed land is pending since 25-6- 1981 and more than 11 years have elapsed. There must be some end to it. Therefore, this baseless application is hereby dismissed with costs of Rs,500.'
' Muhammad Islam filed revision application against this order, which was accepted by the learned District Judge by his judgment, dated 2-2-1993 and the case was remanded to the learned trial Court for decision of the application under section 12(2), C.P.C. The petitioner filed Constitution Petition against the said judgment, which was dismissed in limine by the impugned order with the following observation: -- 'It is well-settled that petition under section 12(2), C.P.C. Had to be adjudicated upon like a suit. The parties are to be given an opportunity to lead evidence in support of their respective pleas and it is thereafter only that same can be finally decided. The learned Civil Judge, had, therefore, erred in law in disposing of the application in a summary manner.'
3 The learned counsel for the petitioner contended that in the facts and circumstances of the case the learned Civil Judge had adopted the proper procedure and it was not a case in which any evidence was required. The question raised requires consideration. Leave is granted."
3, Ch. Attaullah, learned Advocate Supreme Court for the appellant contends that the respondent was bound by the statement made by his counsel on the basis of which the compromise decree was passed between the parties before the trial Court. He further contends that a consent decree cannot be termed as the result of fraud and misrepresentation within the purview of section 12(2), of the C.P.C. In support of the above plea, reliance is placed on Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi (1971 SCM R 634), wherein Salahuddin, J. Observed at page 636 of the report:- - "The contention that the Advocate of the petitioner had no authority to compromise the matter on behalf of the petitioner is untenable. The Privy Council has held in the case of Sourendra Nath Mitra and others v. Tarubala Dasi (AIR 1930 PC 158), that unless there is specific authority to the contrary, and in the absence of a written authority such as a Vakalatnama an Advocate has implied authority of his client to settle the suit. It has not been contended that the learned Advocate concerned held any Vakalatnama which expressly or impliedly debarred him from entering into a compromise. Nor anything has been produced to sh'ow that the learned Advocate's implied authority was countermanded by the express direction of his client."
4. There is no cavil with the proposition of law laid down in the case of Dr. Ansar Hassan Rizvi (supra). In the instant case, however, Muhammad Islam, respondent No,1 took the plea in his application under section 12(2), C.P.C. That he never authorised any person to compromise in his behalf. Thus visualized, the High Court was right in holding that it was not possible for the trial Court to decide the application under section 12(2), C.P.C. Without framing proper issue and allowing opportunity to lead evidence on the same. The same view was taken by this Court in Ghulam Muhammad v. M. Ahmad Khan (1993 SCM R 662) and Haji Abdul Ghafoor v. Abdul Qayyum (1996 SCM R 1524). In this view of the matter, remand of the case for fresh trial, after providing an adequate opportunity to the parties to lead evidence in support of their respective pleas was inevitable. In the facts and circumstances of the case the trial Court could not give proper decision on the material available on record.
5. When faced with this, learned counsel for the appellant placed reliance on Messrs Arokey Limited, Karachi, v. Munir Ahmad Mughal (PLD 1982 SC 204), wherein it was held that where Vakalatnama given empowers an Advocate to compromise the case and the counsel is not attributed any fraud or unconscionable motives nor any notice or communication sent to him challenging his authority to enter compromise, the compromise application signed by counsel possessing duly executed Wakalatnama empowering him to enter into compromise should have been accepted. In the instant case, however, respondent No,1 has taken the plea that he has not authorised his brother to enter into compromise and the same has been obtained through fraud.
The High Court was, therefore, right to direct the trial Court to allow the parties to lead evidence in support of their respective pleas. The case of Messrs Arokey Limited (supra) is distinguishable and not attracted to the facts of the present case.
6. Ch. Aattaullah also heavily relied on Allah Wasaya v. Irshad Ahmad (1992 SCM R 2184), to contend that the application under section 12(2), C.P.C., moved by the aforesaid respondent, was not maintainable, in that, the decree in question, had been passed by the Court, after contest, on the basis of admissions and confessions made by the respective parties. This plea is also untenable, in that, respondent No,1 has denied and alleged admission and confession made on his behalf, therefore, the controversy raised herein could not be decided without allowing the opportunity to the parties to lead evidence.
7. After hearing the learned counsel for the appellant at considerable length and perusing the impugned judgment as well as the application moved by respondent No,1 under section 12(2), C.P.C., and the leave granting order, we are of the view that it was necessary for the trial Court to have decided the application after framing necessary issues and allowing opportunity to the parties to lead evidence in support of their respective pleas. It may, however, be observed that framing of issues and recording of evidence in an application under section 12(2), C.P.C., depends upon the facts and circumstances of each case.
8. Resultantly, the appeal is dismissed but there shall be no order as to costs. We, however, direct that the trial Court shall decide the application within six months from the receipt of this order.