Brief facts of the case are that the petitioner filed an application under section 12(2), C.P.C.
Challenging the judgment and decree dated 18-10-1995 passed by Civil Judge, Toba Tek Singh. The learned Civil Judge after framing issues and recording evidence rejected the same vide order/decree dated 12-11-1997. Feeling aggrieved by the abovesaid order/decree the petitioner filed 'a civil revision in the Court of District Judge, Toba Tek Singh. On 11-12-1997 it was entrusted .To the learned Additional District Judge. On 27-3-1999, the learned counsel for petitioner made a statement before the Court to the effect that due to lack of pecuniary jurisdiction the revision petition be returned for filing the same before High Court. The learned Additional District Judge on the statement made by the learned counsel returned the revision petition vide order dated 27-3- 1999. It was, however, instituted in this Court on 8-4-1999 and fixed for 9-4-1999, on which date pre- admission notice was issued to respondents Nos. l and 4.
2. In response to pre-admission notice Mr. Abdul Wahid Chaudhry, Advocate, entered appearance on behalf of respondent No. 1. The learned counsel for respondent has raised preliminary objection about maintainability of revision and prayed for its dismissal being barred by time. On merit he also advanced argument in favour of order/decree dated 12-11-1997 and contended that the order suffers from no illegality or infirmity.
3. The learned counsel for petitioner on the point of limitation has relied on Sherin and 4 others v.
Fazal Muhammad and 4 others (1995 SCM R 584). While on merit he has contended that the finding recorded by the learned Civil Judge on issues Nos. l, 2, 3, 4 and 6 is result of illegal and wrong presumption drawn by him and is also result of misreading of evidence-
4. I have attended to the arguments advanced by the learned counsel for parties and have also perused the record. Judgment and decree passed by learned Civil Judge dated 18-10-1995 was assailed by the petitioner by way of filing application under section 12(2), C.P.C. Which was instituted on 31-10-1995. Her application under section 12(2), C.P.C. Was dismissed vide order/decree dated 12-11-1997 by the learned Civil Judge, Toba Tek Singh. The petitioner, thereafter, instituted revision petition on 11-12-1997 before District Judge, Toba Tek Singh which was entrusted to Additional District Judge. No objection was raised about the pecuniary jurisdiction and the case remained pending for about more than one year and four months and during this period no objection was raised either by the respondent or by the Court about pecuniary jurisdiction of the revision petition. On 27-3-1999, the learned counsel for petitioner made a statement for return of the revision petition for filing the same before High Court. Institution of the revision petition in District Court was well within time. Period of limitation for filing revision petition in High Court is 90 days. It is important to note that when the Revision was instituted in District Court period of more than 1/1-2 months was available to the petitioner for filing the same in High Court. Had the learned revision Court applied its mind to the record before it and attended to the value of the revision for jurisdictional purpose and returned the petition to the petitioner without undue delay, she could easily refile it in the High Court within a period of limitation. The Hon'ble Supreme Court in case Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCM R 584) held as under:-- "We feel that omission on the part of learned District Judge to take timely action is the major cause of refiling of the appeal by the appellants, in the High Court, out of time. They have been the victim of the act of the Court, which furnishes 'sufficient cause' under section 5 of the Limitation Act, for condonation of delay. The fact that after receiving the memorandum of appeal from the District Court, sometime was consumed by the appellants, in presenting it to the High Court, in the circumstances of the case is inconsequential. We are, therefore, inclined to condone the delay in presenting the memorandum of appeal to the High Court."
The petitioner alongwith civil revision has filed application under sections 5 and 14 of the Limitation Act for condonation of delay. Respectfully following the rule laid down in the above-cited case, the delay in filing this civil revision before the Court is hereby condoned.
5. Now coming to the merits of the case, the learned Civil Judge on the application filed by the petitioner under section 12(2), C.P.C. Framed the following issues:
(1) Whether the present petitioner was not aware regarding the pendency of the suit under title 'Shaukat A.I v. Abdul Ghafoor', in which the alleged consent decree was passed? OPA.
(2) Whether the petitioner never engaged any counsel in the above---stated suit and the alleged statement of learned counsel for the present petitioner was without authority, without knowledge of the petitioner and outcome of fraud and forgery and result of collusion of respondent No.2 the husband of the petitioner with the- other respondents? OPA
(3) Whether the order and decree dated 18-10-1995 was result of fraud and forgery and liable to be set aside? OPA
(4) Whether there are sufficient grounds to accept the present application under section 12(2), C.P.C. As prayed for? OPA
(5) Whether the application is not maintainable? OPR
(6) Whether the petitioner engaged her counsel Ch. Manzoor Akhtar, Advocate, marked her thumb- impressions upon Vakalatnama and written statement and written reply and the learned counsel was competent to enter into a compromise? OPR
(7) Whether the present application has been filed malafidely? OPR
(8) Whether the present application is result of collusion of petitioner with her husband respondent No.2? OPR
(9) Whether the present application is frivolous and false and respondent,No.1 is entitled to recover special costs? OPR-1
(10) Relief.
The learned Civil Judge after recording evidence of the parties rejected the application vide order/decree dated 12-11-1997. The petitioner in support of her application appeared as A.W.1 and deposed that she is owner of 99 Kanals of land in Chak No.257-GD out of which she had sold 6 Kanals and 12 Marlas in favour of Ghulam Rasool and mutation has been sanctioned in his name and she is still owner of rest of the land. It was further deposed that on 23rd October, 1995, when she contacted Patwari concerned, she was told that the stay order has been granted regarding her land. Therefore, she enquired from the Civil Court, from where it was transpired that a decree had been passed against her. She further deposed that in suit filed by Shaukat A.I against Abdul Ghafoor she never appeared, never appointed her husband as attorney and never authorised him to make statement on her behalf; further that she never appeared in the Court. In cross- examination she was confronted with the documents--Written statement Exh.D,2, thumbimpression Exh.DW.2/1, written reply, Exh.D.3, thumb-impression upon Exh.D.3/1, written statement in suit titled Muhammad Siddique v. Abdul Ghafoor Exh.DW.4/1, her thumb-impression Exh.DW.4/1. Written reply Exh.D.5, her thumb-impression Exh.DW.5/1, Vakalatnama Exh.D.6 and her thumb-impression Exh.DW.6/1. The petitioner has denied about the execution of the document and her thumb-impression upon them. In rebuttal thereof, respondent No.1 has produced Ch. Manzoor Akhtar, Advocate, R. W .1, who in his cross-examination got exhibited the abovesaid documents and. Deposed that the petitioner had been visiting him and the abovesaid documents were thumb-marked by the petitioner herself. It was further deposed that he was duly appointed counsel by the petitioner and her husband and in his presence the parties authorised to make compromise and the compromise was made according to the instructions of petitioner, which was in her best interest. This witness further stated that in his presence no fraud was committed with the petitioner. Respondent No. l , also appeared as R.W.2. The learned trial Court after discussing the documentary evidence produced by respondent No. 1 was legally justified in observing as under:-- "The documents, written statement, written reply and Vakalatnama Exh.D.I to Exh.D.3 are part of judicial file. Such documents have presumption of truthfulness until those are rebutted from unimpeachable and cogent evidence. If she never marked her thumb--impressions upon Vakalatnama, written statement and written reply, she could get examined those by finger expert.
She never prayed for such examination. The record of previous litigation shows that the applicant was always accompanied by her husband. Admittedly she is living in the house of her husband and relations between then are cordial. She has not stated that her husband was not aware of the suit. The awareness of her husband about the litigation can be considered that the applicant was also in knowledge. She has failed to prove her alleged thumb-impressions upon written statement, written reply and Vakalatnama Exh.D.I to Exh.D.3 forged."
With the above discussion the issue was rightly answered in negative. It is well-settled that the compromise entered into by the counsel on behalf of the party would bind such party. Where Vakalatnama is given the counsel is empowered to compromise the suit without any expressed authority from his client unless such powers are specifically countermanded by the client. See the cases Dr. Ansar Hassan Rizvi v. Syed Mazhar Hussain Zaidi and 3 others (1971 SCM R 634), Mian Ghulam Muhammad v. Moulvi Fazal-ul-Haq (1979 CLC 518), Mukhtar Ahmad Farooqi v. Bank of Bahawalpur Ltd., Karachi (1980 CLC 337), Kamal Din and others v. Nazir Ahmad (1987 CLC 1208) and Messrs Azhar Asia Shipping Agency v. Ghaffar Corporation (PLD 1996 Supreme Court 213).
6. The petitioner has failed to prove any fraud, misrepresentation in passing the decree dated 18- 10-1995 and the finding recorded by the learned Civil Judge rejecting the application of petitioner is eminently just and correct and suffers from no illegality or material irregularity. This revision and the same is dismissed. The parties shall bear their own costs.