Abdul Aziz Vs Mst Humaira Yasmeen & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Civil Misc. 12(2) CPC No.70-D/2025 with Civil Misc. Application No.73 & 85-D/2025 Abdul Aziz Vs.

Mst. Humera Yasmin etc

For petitioner: Mr. Tariq Abbas Qureshi Advocate For respondent #1: Miss Zunaira Kanwal Advocate Date of hearing 11.09.2025

JUDGMENT

INAMULLAH KHAN, J.- Petitioner, through this petition has challenged the validity of order dated 21.02.2023, passed by this Court vide which the Writ Petition No.24- D/2023 was dismissed as withdrawn due to the request of petitioner’s counsel.

2.Facts forming factual canvas of the instant petition are that the petitioner instituted a writ petition No.24-D/ 2023 wherein he challenged the decree of dissolution of marriage in favour of respondent No.1 vide Judgment dated 23.12.2022. The writ petition came up for hearing before this Court on 21.02.2023 and both the learned counsel

representing petitioner requested to withdraw the petition under the instructions from petitioner. Accordingly, the writ petition was dismissed as withdrawn vide even dated order.

Now, the petitioner has stepped in the Court with an application under Section 12(2) CP to cancel the withdrawal order dated 21.02.2023 on the ground of misrepresentation as his counsel, without any authority, had withdrawn the writ petition and that too without his consent.

3.Arguments heard and record gone through.

4.The record shows that the writ petition filed by the petitioner against the decree of the Family Court was withdrawn by his counsel through an order dated 21.02.2023. In the current petition, the petitioner is seeking the cancellation of this order, claiming that his counsel did not have the authority to withdraw the writ petition.

Therefore, he is requesting the withdrawal order be set aside and his writ petition be restored, citing misrepresentation and fraud.

5.The memo of writ petition reveals that it was signed by the petitioner and both of his counsels. Separate vakalatnamas (power of attorneys) of both counsels were attached to the petition, in which the petitioner granted them the rights to plead, defend, concede, and withdraw from the

proceedings. A relevant and common excerpt from both vakalatnamas reads as follows:

دوعی اور دروخاتس ارجاء ٰ اور ولیک وموصف وک رعیض- - -" رِٹ دارئ رکےن زین رہ مسق یک،ڈرگی و رظن اثین الیپ رگناین دروخاتس ایبن یفلح و دصتقی رکےن اور اس رپ دطختس رکےن اک یھب اایتخر وہاگ۔ اور یسک مکح ای ڈرگی ےک ارجاء رکاےن اور مسق اک روہیپ ووصل رکےناور ردیس دےنی اور دالخ رکےن اک رہ مسق اک دوعیٰاک ٰ ایبندےنیاوررپسداثیثلورایضانہمودربتسداریواابقل ٰ"ٰ-ٰ-ٰ-اایتخریھبوہاگ۔

(Underlined is my emphasise)

6.The contents of Vakalatnamas, reproduced above, reveal that the petitioner had given to both of his counsels the right to withdraw the petition and make any statements on his behalf. The impugned order shows that both of the petitioner's counsels were present in Court and requested the withdrawal of the petition as per the petitioner's instructions. As a result, the writ petition was dismissed as withdrawn. The relevant order is reproduced below for convenience.

“The learned counsels for the petitioner stated at the bar that they are under instructions from their client to withdraw the instant petition. The same is, therefore, dismissed as withdrawn.

7.The counsels’ request for withdrawal constitutes their statement before the Court, for which they were fully authorised in the Vakalatnama. Similarly, the withdrawal of the petition was also within the parameters and framework of the power of attorney. The consent of the petitioner would not make a difference in whether he had instructed his counsels to act on his behalf or not. In the Vakalatnama, there was no requirement or condition of prior instruction or consent from the petitioner. Therefore, the actions taken by the counsels on behalf of the petitioner are fully binding on him. Since his authorised counsels were present before the court, he has neither been misrepresented nor defrauded.

8.It is well-settled that an advocate has the authority to make statements on behalf of their client, which are binding unless there is a restriction in the Vakalatnama that limits the advocate’s authority to compromise or abandon claims on behalf of the client. The advocate’s power in conducting a case allows them to abandon all or part of the claim if they believe it is advisable in the best interest of their client.

Reliance in this regard can be placed on the case titled “Hassan Akhtar and others vs. Azhar Hameed and others” (PLD 2010 Supreme Court 657).

9.In light of the above, the petitioner’s claim that the writ petition was withdrawn without authority lacks merit

and is unfounded. The petitioners cannot retract the statements made by his appointed counsel in court.

10.In view of above, the stance of the petitioner that the writ petition was withdrawn without any authority loses its efficiency and is highly ill-founded. The petitioners are precluded to wriggle out of statement made at the bar by his duly appointed counsels before the Court.

11.After examining the record, I am of the considered view that the petitioner, following the withdrawal of the writ petition, may have acted under some misunderstanding.

The remarks made regarding his duly appointed counsels seem to be a result of miscommunication rather than intent.

There is no merit in this petition and the same is, therefore, dismissed with listed CMAs.

Announced.

(*M/Subhan) Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Inamullah Khan