' This revision petition is directed against the judgment and decree, dated 4-7-1994 passed by Additional District Judge, Gujrat, whereby the appeal of the respondent against the order, dated 24-6-1993 passed by Civil Judge, Gujrat has been accepted and the case has been remanded to the trial Court.
2. Muhammad Akram Munir, respondent herein, filed a suit for possession after demolition of construction, against Mirza Muhammad Saeed etc. In the Civil Court, at Gujrat on 30-5-1989.
Respondent No,1 plaintiff stated in the plaint that land measuring 10 Marlas, Khasra No, 1175/518 had been illegally occupied by the petitioners/ defendants and construction had been raised thereon.
The suit was contested by the petitioner and defendant No,2, who was proceeded against ex parte in the trial Court. During the proceedings before the trial Court on 16-2-1993 counsel for the plaintiff-respondent No, I proposed that Local Commission be appointed to demarcate the property in dispute and in case the property in occupation of the petitioner-defendant was not found to be that of respondent-plaintiff he would pay the costs incurred by the petitioners- defendants. Further it was proposed that in case some land of the respondent-plaintiff was found to be with the petitioner-defendant he would pay the price thereof alongwith expenses of registration of the sale-deed. The price of the land was suggested to be that mentioned in the sale deed. The aforesaid proposal was accepted by both the parties and at their joint request Munawar Ahmad Langarial, Naib Tehsildar was appointed as Local Commissioner. Before the Local Commission could carry out the spot inspection and made a report, respondent No,1 plaintiff on 19- 4-1993 filed an application before him that he had no faith in him and therefore he should not act as Local Commission. He sought appropriate orders from the Court, at which the trial Court appointed Ch. Abdul Wahid, Tehsildar, Gujrat as Local Commission, with mutual consent of both the parties vide order, dated 8-5-1993. The Local Commission submitted his report on 24-5-1993.
Respondent No, 1 plaintiff accepted the same whereas petitioner filed objections thereto but the same were withdrawn on 12-6-1993. The matter came up before the learned trial Court on 24-6- 1993 when the counsel for the respondent-plaintiff informed the Reader of the Court that the report of the Local Commission was not acceptable to him so the case he decided on merits. The learned trial Court after perusing the record found that the respondent No,1 plaintiff was bound by the proposal made by his counsel so the suit was decreed against the petitioner-defendant to the extent of Rs, 2750 vide judgment and decree, dated 24-6-1993. Feeling aggrieved thereby, the respondent No,1 plaintiff filed an appeal. The learned Additional District Judge accepted the appeal of the respondent No,1 vide judgment, dated 4-7-1994 and accordingly the case was remanded to the trial Court for decision on merits. The petitioner has come up in revision, assailing the vires of the impugned judgment, dated 4-7-1994, of the learned Additional District Judge, before this Court.
3. The learned counsel for the petitioner argued that the decree passed by the trial Court, dated 24-6-1993 was a consent decree on the basis of concluded agreement reached between the parties on 16-2-1993 on the suggestion of the counsel for the plaintiff-respondent therefore against a consent decree the appeal before the District Judge was not competent under section 96 of the C.P.C. Further submits that counsel for the plaintiff-respondent had the authority to make statement and the said statement is binding on his client, namely, Muhammad Akram Munir, respondent No,
1. To substantiate his arguments the learned counsel relied on 1971 SCMR 634, PLD 1992 Lahore 432, 1992 MLD 741, and 1990 ALD 623, 403. Further argued that the impugned judgment of the first appellate Court suffers from gross misreading of the record on the file.
4. Conversely, the learned counsel for the respondent argued that since no separate statement of the parties were recorded by the Trial Court on 16-2-1993 therefore there was no offer and acceptance of the parties and in this view of the matter no concluded agreement reached between the parties and it is an order of the Court through which the Local Commission was appointed. Further submits that no statement on oath of either party or his counsel is on the record. According to the learned counsel, it was necessary for the trial Court to record a separate statement because the plaintiff was not present on 16-2-1993, but was in U.K. And was being represented through General Attorney. Further submits that before the agreement, dated 16-2-1993 could have been acted upon the counsel retracted from the same which is evident from the order, dated 24-6-1993 and in this view of the matter the Court should have framed the issues from the divergent pleadings of the parties and the case should have been decided on merits and further that an issue should have been framed by the Court inviting the objections regarding admissibility and evidentiary value of the report of the Local Commission. According to him, since no opportunity to file regular objections was granted therefore the report of the Local Commission cannot be relied. Finally the learned counsel submitted that the impugned order dated 24-6-1993 is beyond subject-matter of the suit as it amounts to compelling the respondent-plaintiff to make sale of his land in favour of the petitioners and that too on a very meager amount of Rs,2750.
According to him, the value of the land has not been assessed therefore the judgment and decree, dated 24-6-1993 should not have been passed. He also argued that the plaintiff-respondent was out of the country. The general power of attorney dated 19-3-1987 is on the file which was executed by the respondent-plaintiff in favour of his father Nasrullah Khan, who engaged the counsel and filed the suit, and in this view of the matter, the counsel was bound to do the lawful act and before making the statement/suggestion on 24-6-1993 he should have consulted his client. He further submitted that the report of the Local Commission is vague, it had not ascertained the encroached land and there was no reference to ascertain the value of the land the Court could not delegate its functions to the Local Commission.
' To substantiate the above said arguments the learned counsel for the respondent relied upon the provisions of sections 188, 214 and 215 of the Contract Act. He has also placed reliance on the case Malik Riaz Ahmad and others v. Mian Inayatullah and others 1992 SCMR 1488, Haji Faqir Muhammad and others v. Pir Muhammad and another, Muhammad Baldish v. Nizam Din PLD 1978 Lahore 31, National Bank of Pakistan, Shahrah-e-Quaid-e-Azam Lahore v. M/s Ch. Auto and Tools Agency PLD 2001 Lahore 135 and Ambalal Chunthabhai Patel and another v. Sombhai Bakorbhai Patel and another AIR (31) 1944 Bombay 46.
5. There are three points for determination in this case, which are:---
(1) Whether the counsel of the respondent-plaintiff had the authority to make a suggestion and statement before the trial Court on 16-2-1993, and that the statement of the counsel is binding on his client and whether the matter was not subject of the suit?
(2) Whether the impugned judgment and decree, dated 24-6-1993 is within the scope of Order 23, Rule 3, C.P.C. And the statement of the counsel for the respondent-plaintiff is beyond the subject- matter of the suit?
(3) Whether the trial Court could have decreed the suit of the encroached land of 2-1/2 Marlas for Rs, 2750 on the basis of report of the Local Commission who was appointed with the consent of the parties vide order, dated 16-2-1993?
6. Under Order III Rule 4 of the C.P.C., the suit can proceed by appointment of the attorney and agent and therefore the statement that the suit or the matter be decided by specific mode was within the scope of the authority conferred on the counsel by his client by way of executing Wakalatnama. The client thus could not contend that he was not bound by the statement of his counsel, specifically when he had fully participated in the proceedings right from filing the suit till its finalization. In case reported as Dr. Nisar Hassan Rizvi v. Syed Muzahir Hussain Zaidi and 3 others 1971 SCMR 634 while interpreting the provisions of Order III Rule 4, C.P.C. The Hon'ble Supreme Court of Pakistan held:--- "Civil Procedure Code (V of 1908), 0.111, R.4---Wakalatnama (Power of Attorney)---Advocate appointed by---Has implied authority of his client to enter into compromise and settle dispute unless such authority expressly denied."
' This view is consistent, and in the case (supra) reference was also made to the judgment of Privy Council reported as Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158. In case of Muhammad Bashir v. Election Tribunal, Kharian and others PLD 1992 Lah. 432, it has been observed:--- "... Counsel's statement that his petition be decided by specific mode was within scope of his authority conferred on him by Vakalatnama'---Petitioner thus, could not contend that he was not bound by the statement of his counsel especially when he did not object to the mode of deciding his cause and in fact participated therein."
' In case of Islamuddin v. Allah Nawaz and others 1990 ALD 623(1) while interpreting the provisions of Order 3 Rule 1, C.P.C., wherein the authority of the counsel was subject-matter of the interpretation, it was ruled:--- "Act of counsel is binding upon party whom he represents in Court. Party to proceedings would be completely precluded to question any order which was passed at his own initiative."
' I have also gone through the judgment relied upon by the learned counsel for the respondent, i.e, Ambalal Chunthabai Patel and another v. Sombhai Bakorbhai Patel and another (AIR (31) 1944 Bombay 46) in which it was held:--- "Applying this test, it is evident that Mr. Barot could not enter into a compromise involving the sale of the defendants interest in Survey No,135/1/3 which was not in suit at all."
' But here in this case, Khasra No,1175/518 Khata No, 672/1154 owned by the respondent-plaintiff and Khasra No,1975/1180 purchased by the petitioner-defendant was subject-matter of the suit itself.
Plaintiff himself in the plaint claimed that he had purchased Khasra No, 1174/1518 vide registered sale-deed, dated 17-1-1985. The suit was filed by Muhammad Akram Munir through his father Nasarullah Khan on the basis of General Power of Attorney dated 25-3-1987 through Ch. Ali Muhammad, Advocate, who was engaged by Nasarullah Khan, the attorney of the plaintiff.
Application was moved on 19-4-1993 to the Consolidation Officer by Nasarullah Khan, Attorney, in which he stated that he had no trust in him (Ch. Munawar Hussain, Officer (Consolidation) Sialkot) who was appointed as Local Commissioner to demarcate the suit property. The order, dated 16-2- 1993 shows that the agreement was concluded after recording of the evidence on the suggestion made by the counsel for the plaintiff and the parties agreed to the decision of the suit by specific mode.
' On the basis of record, the provisions of Order III, Rules 1 to 4, C.P.C. And following the dictum laid down by the Hon'ble Supreme Court and this Court in the above referred judgments, I am of the view that the counsel of the respondent-plaintiff had the authority to make a suggestion and statement before the trial Court on 16-2-1993 and that the statement of the counsel is binding on the respondent-plaintiff. In this view of the matter, the judgment and decree, dated 24-6-1993 was within the scope of Order 23, Rule 3, C.P.C. And the statement of the counsel for the respondent- plaintiff was not beyond the subject matter of the suit and the case relied on by the learned counsel for the respondent (AIR (31) 1944 Bombay 46) is not applicable to the facts and circumstances of the present case.
' The next question regarding the encroachment of land of 2-1/2 Marlas found by the Local Commissioner in his report regarding Khasra No, 1175/518 and decreeing the suit to the extent of Rs, 2750 on the basis of the report of the Local Commission, who was appointed with the consent of the parties vide order, dated 16-2-1993, I find the decree is in accordance with the statement made by the learned counsel for the respondent-plaintiff on 16-2-1993, which reads as follows:--- {{URDU TEXT}} ' The agreement reached between the parties on 16-2-1993 on the statement of the counsel of the plaintiff that his suit be decided by specific mode by appointing a Local Commissioner, who may demarcate the property, and in view of the statement, after calculating the price of the total land mentioned in the sale-deed the price of 2-1/2 Marlas encroached by the defendant came to Rs, 2750 and in this view of the matter, the trial Court decreed the suit of the plaintiff.
' Now I come to the case law cited by the learned counsel for the respondents. In case Malik .Riaz Ahmad and others 1992 SCMR 1488 (supra), general power of attorney was not acted upon although the power of attorney was executed in favour of the Attorney to sell the property. For a very long period prior to executing the agreement to sell he did not bring it to the knowledge of the executor of the Power of Attorney, it was held that the sale could not have been validly made and also that attorney was duty bound to have brought to the notice of the executant of power of attorney the intended sale prior to entering into the agreement to sell and sought instructions in that behalf and failure of the Attorney to do so was a complete failure on his part to discharge his duty in this regard. But, in the present case, the General Power of Attorney has been acted upon, as Nasarullah Khan, real father of the plaintiff, engaged the counsel Ch. Ali Ahmad, Advocate on 30-5- 1989 and the plaintiff filed a suit through General Attorney. The General Attorney participated in the proceedings throughout. Even in the appeal before the District Judge and in the present revision petition counsel have been engaged by Nasarullah Khan, General Attorney of the respondent.
' The facts of the case of National Bank of Pakistan PLD 2001 Lahore 135 (supra) are not applicable to the facts and circumstances of the present case as the same were regarding the execution of the decree. No doubt, the powers of the Court to decide a matter cannot be delegated to the Local Commissioner and it is so held in case Muhammad Bakhsh v. Nizam Din PLD 1978 Lah.
31. In that case question of genuineness of documents was involved, which was to be determined by the Court and it was held that the Court cannot delegate its power to the Local Commissioner as the matter cannot be decided by direct evidence. In the present case the parties entered into a compromise. Counsel for the respondent/plaintiff made a statement that suit be decided by specific mode, which was within the scope of the authority conferred on the counsel by Wakalatnama. Therefore, it cannot be contended that authority had been delegated to the Local Commissioner.
7. For the above stated reasons, the learned Additional District Judge has committed material irregularity and illegality while setting aside the judgment and decree, dated 24-6-1993 passed by the trial Court. This revision petition is accepted. Judgment and decree, dated 4-7-1994 passed by the learned Additional District Judge, Gujrat is set aside and the judgment and decree, dated 24- 6-1993 of the Civil Judge, Gujrat is restored. ##ES## ' Parties to bear their own costs.