Muhammad Mehmood Chaudhry, Advocate for Petitioners.

Mubeen Arif and Ihsan Ullah Ranjha, Advocates for Respondents.

Date of hearing: 4^th October, 2022.

JUDGMENT

Shahid Bilal Hassan, J: Facts, in concision, are as such that respondents instituted a suit for malicious prosecution against the petitioners on 27.07.2017. During pendency of the suit, learned counsel for the respondents namely Ch. Hasnain Sadiq Sahi, Advocate appeared before the learned trial Court alongwith one of the plaintiffs Muhammad Akram and recorded his statement, by virtue of which the suit was withdrawn on 09.01.2019 and the impugned order dated 10.01.2019 was passed. After 30 days of the said withdrawal of the suit, an application was filed by the respondents for restoration of the suit. The learned trial Court after hearing both the parties dismissed the said application vide order dated 04.03.2019, against which they filed a revision petition which was partially allowed vide impugned order dated 26.02.2020; hence, the instant constitutional petition.

2.    Heard.

3.    Engagement of counsel namely Hasnain Sadiq Sahi, Advocate and conducting of proceedings by him on behalf of the respondents, under Order III, Rule 1, Code of Civil Procedure, 1908, is admitted one. The respondents have appointed the said learned Advocate as their counsel for conducting of suit on their behalf and signed the power of attorney, which authorizes the said learned Advocate to conduct the suit on their behalf including recording of any kind of statement. Record reveals that the statement was recorded on 09.01.2019 on the application of the learned counsel and one of the plaintiffs/respondents namely Muhammad Akram and after recording statement, the case was ordered to be produced on the date already fixed i.e. 10.01.2019, when order with regards to withdrawal of the suit was passed. By singing Wakalatnama all the powers including withdrawal of suit or to take any step and conduct proceedings have been delegated upon the counsel. In Fateh Khan v. Manzoor and 5 others (PLD 1993 Lahore 76), this Court held:-

‘It is inconceivable that elements of fraud and misrepresentation may anywise be involved in the exercise of lawful authority conferred on a counsel by means of Wakalatnama. This appointment is made as per the contemplation of Rule 1 of Order III, C.P.C. and is essentially an authority conferred on an agent, exercisable under the ordinary rules governing the relationship of Principal and Agent, in quite a subtle and refined form, exercisable in the field determined by the terms of Wakalatnama itself. Effectiveness of such delegated authorisation and the use thereof stand provided for by section 2 of the Powers of Attorney Act (VII of 1882) as also in Chapter X of the Contract Act (IX of 1872). Authority to withdraw or compromise a, litigation has been held to also be inherent in the engagement of a counsel.’

Further reliance is placed on Noor Muhammad and others v. Muhammad Siddique and others (1994 SCMR 1248) wherein the Apex Court of country has invariably held that:-

‘It will be seen that the terms of Vakalatnama amply demonstrate that the counsel was empowered to take any step and conduct proceedings in the suit as considered proper by him, and that the same were acceptable to the respondents, who put their signatures on the Deed in token of their approval.’

A party is always bound by the statement of his counsel unless there is anything contrary in the power of attorney places restriction on the authority, delegated upon the counsel, to compromise or abandon the claim on behalf of his client(s). Reliance is placed on Hassan Akhtar and others v. Azhar Hameed and others (PLD 2010 Supreme Court 657) and Afzal and others v. Abdul Ghani (2005 SCMR 946). In Hassan Akhtar case ibid, the Hon’ble Supreme Court has held:-

’13. It is by now well-settled that an Advocate has authority to make statement on behalf of his client, which is binding upon the client, unless there is any thing contrary in the Vakalatnama putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client. The Advocate’s power in the conduct of a suit allows him to abandon the issue, which in his discretion, advisable in the general interest of his client.’

4.    For the foregoing discussion, the learned revisional Court has wrongly construed law on the subject and has failed to exercise vested jurisdiction as per mandate of law and this Court in exercise of constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not denuded of correcting the wrong committed by the learned Court below. As such, the impugned order dated 26.02.2020 passed by the learned Addl. District Judge, Wazirabad being illegal is set aside by allowing the constitutional petition in hand and consequent whereof the order dated 04.03.2019 passed by the learned trial Court is restored. No order as to the costs.

Petition allowed