Abdul Ghafoor vs Maqbool Ahmad

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

C.R.No.1619 of 2017

Abdul Ghafoor. Vs. Maqbool Ahmad, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 11.12.2017. Mr. Mumtaz Hassan Awan, Advocate for petitioner.

Through this civil revision, the petitioner has called in question the order dated 16.11.2017 passed by the learned Addl. District Judge Karor Lal Eason, District Layyah, (‘ADJ’), whereby the application filed by Azhar Iqbal (‘respondent No. 2’) to withdraw his earlier application under Section 12 (2) of the C.P.C filed by him on behalf of Maqbool Ahmad (‘respondent No.1’) was dismissed.

2.Brief facts of the case are that the petitioner filed a suit for specific performance against respondent No.1, which was decreed in favour of the petitioner vide judgment and decree dated 25.10.2014 passed by Civil Judge Karor Lal Eason, District Layyah. Respondent No.1 filed R.F.A No. 437/2014 to challenge the afore-referred judgment and decree through his special Attorney Azhar Iqbal/respondent

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No.2 (‘Attorney’). The said appeal was admitted to regular hearing and operation of the impugned judgment and decree was suspended vide order dated 27.11.2014 by this Court. The respondent No.2 filed an application i.e., C.M.No.1097-C/2016 to withdraw the afore-refereed R.F.A. The said application was allowed by this Court vide order dated 21.04.2016 and the appeal was dismissed as not pressed. Respondent No.1 filed application under Section 12 (2) of the C.P.C bearing C.M.No.1672/2016 against the order dated 21.04.2016 passed by this Court, whereby the appeal had been dismissed as not pressed. This application was filed through special Attorney/respondent No.2.

During the pendency of the same, the pecuniary jurisdiction of the appellate court to hear the appeal was enhanced. This court transmitted the application under Section 12 (2) of the C.P.C filed by respondent No.1 to the District Court. Respondent No.2 filed an application before the ADJ for withdrawal of application under Section 12 (2) of the C.P.C but his request was rejected vide order dated 16.11.2017. The said order is under challenge through this civil revision.

3.Learned counsel for the petitioner has argued that respondent No.2 had filed R.F.A.No.

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437/2014 on behalf of respondent No.1 as special Attorney. Thereafter, a compromise was affected between the parties, as a result of which the matter was settled outside the court and the afore-referred R.F.A was withdrawn. Subsequently, an application under Section 12 (2) of the C.P.C was filed by respondent No.1 through respondent No.2 but as the matter was again settled between the parties, so the respondent No.2 filed an application for withdrawing application under Section 12 (2) of the C.P.C, therefore, the court should have allowed the same instead of dismissing the application for withdrawal of application under Section 12 (2) of the C.P.C and directing the petitioner to file reply. Besides, as compromise had been effected outside the court, respondent No.2 has got statement recorded in the court to the effect that he seeks to withdraw this petition and thereafter the court was not vested with the jurisdiction to continue with the matter any further, hence, the order of dismissal of application is liable to be set-aside.

4.Heard. Record perused.

5.It is observed that the petitioners’ suit for specific performance of agreement against respondent No.1 was decreed by the learned trial court on

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25.10.2014, against which respondent No.1 filed an appeal through respondent No.2. Subsequently, the said appeal was withdrawn by respondent No.2 from the court. Subsequent to the withdrawal of the said appeal, an application under Section 12 (2) of the C.P.C was filed by respondent No.1 though respondent No.2 by claiming therein that the learned counsel of the respondent No.1 has colluded with the petitioner and order for withdrawing the appeal be set-aside. During the pendency of the afore-referred application under Section 12 (2) of the C.P.C, the respondent No.1 personally (‘Principal’) filed an application for amendment of application under Section 12 (2) of the C.P.C by claiming therein that respondent No.2, who was his Attorney had in fact colluded with the petitioners’ side, therefore, he may be allowed to amend his application under Section 12 (2) of the C.P.C, accordingly. The application for amendment filed by respondent No.1 was dismissed by the court. In the meantime respondent No.2 filed an application for withdrawal of application under Section 12 (2) of the C.P.C filed on behalf of respondent No.1 and the respondent No.1 wants to establish his plea of fraud and misrepresentation through his oral and

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documentary evidence. The learned ADJ dismissed the said application for withdrawal of application under Section 12 (2) of the C.P.C, which order has been called in question through this civil revision.

6.The claim of respondent No.1 is that his Attorney colluded with the petitioner’s side and he needs to prove the same, whereas Attorney/respondent No.2 seeks to withdraw the application under Section 12 (2) of the C.P.C filed by him. In this view of the matter, there are two different opinions and conflict of interest arising between the ‘Principal’ and the ‘Attorney’. The Attorney as an agent has to act on behalf of the Principal and was not authorized to act beyond the powers vested in him by the Principal or against the instructions of the Principal, therefore, where the Principal had denied that authority was not vested in the Attorney to withdraw the application under Section 12 (2) of the C.P.C and also Principal/ respondent No.1 himself wanted to pursue the matter therefore, by necessary implication authority vested in the Attorney came to an end. The counsel for the petitioner has stated that power of attorney given to respondent No.2 has not been withdrawn by respondent No.1, therefore, he has authority to

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withdraw the suit. Moreover, it is stated that the said power of Attorney is an unregistered document, through which the Principal / respondent No.1 vested the respondent No.2 with powers as Attorney to file appeal relating to the suit on his behalf as he was not in a position to follow the same and seek further remedy in shape of revision and up to the Supreme Court of Pakistan. From the perusal of the said Attorney although it is mentioned that the Attorney/respondent No.2 can do all the acts on behalf of the Principal but power to withdraw from litigation is not forthcoming on the record. Even otherwise, before the case could be withdrawn by the Attorney, the Principal had himself appeared in the court to claim that he would pursue the application under Section 12 (2) of the C.P.C and had disowned the action of his Attorney relating to withdrawal of application under Section 12 (2) of the C.P.C. The power to attorney is unregistered document, there was no need for another written document for its cancellation when the Principal himself had appeared in the court and specifically claimed that the power did not vest in the Attorney to withdraw the claim. Besides he is now pursuing the matter on his own behalf.

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7.The learned counsel for the petitioner stated that as the matter has been settled between the parties outside the court, and he has settled the matter with the Attorney, therefore, the Principal/respondent No.1 had no authority to continue with application under Section 12 (2) of the C.P.C. It is yet to be determined that on what ground and under what circumstances the matter has been settled between the parties and whether respondent No.1/Principal was bound by the said settlement which can only be determined by the decision of application under Section 12 (2) of the C.P.C on merits, therefore, the learned trial court was justified to dismiss the application for withdrawal filed by respondent No.2 and to refuse him permission to withdraw application under Section 12

(2)of the C.P.C filed on behalf of the Principal.

8.It is by now settled that an agent had a fiduciary relationship to his Principal, having been entrusted with Principal’s property or funds. Agent cannot absolve himself of his responsibility to be held accountable to his Principal and an agent cannot be allowed to dispute the authority of his Principal, therefore, he cannot be allowed to have a different and

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conflicting stance than the Principal. Reliance is placed on PLD 2017 SC 1 (Al-Meezan Investment Management Company Ltd vs. WAPDA First Sukuk Company Limited, Lahore).

9.For what has been discussed above, no illegality, infirmity or erroneous exercise of jurisdiction is seen in the afore-referred orders passed by the ADJ, resultantly, this Civil Revision being devoid of any force stands dismissed in limine.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan