PLJ 2012 Lahore 511
Present:
Muhammad Khalid Mehmood Khan, J.
REHMAT
ALI--Appellant
versus
Mst. RABIA BEGUM
and 10 others--Respondents
R.S.A. No. 89 of
2000, heard on 28.4.2010.
Rendition of
Account--
----Local
commission was appointed in terms of preliminary decree--Objections against but
withdrew--Blunt statement of counsel for accepting report of local
commission--No objection against the final decree according to report of local
commission be passed--Question of--Whether counsel was authorized to record
statement--Fresh instructions for challenging the report were issued--Terms and
conditions of Wakalat Nama--Validity--When
local commissioner submitted the report, appellant must have consulted the same
with counsel and appellant might be under his legal advise
has decided to raise objections against report of local commission--Withdrawal
of objection mean the appellant is taking liability of loss suffered after
death of predeceased was admittedly for the period when respondents were
conducting the business--Not given instructions to his counsel to withdraw the
objections against report of local commissioner and the appellate Court has
declined to interfere on the ground that there is no specific allegation of
lack of authority on part of appellant against counsel--Withdrawal of objections
is collusive malafide and without authority--Case was
remanded to trial Court with direction to file an application challenging
authority of statement of counsel in light of grounds of appeal. [Pp. 515 & 516] A, C, D & F
Relationship of
Counsel and Client--
----Recording of
statement the counsel under instructions of appellant--Validity--Relationship
of counsel and client is a privileged relationship and counsel is morally and
legally bound to act on instructions of his or her client. [P. 515] B
Non-existent
Partnership--
----Partnership
on day of death and suffered loss--Partnership on day of death become
non-existent and trial Court come to conclusion that there was no partnership
between the parties and dismissed suit to that extent--Validity--After finding
of trial Court that no partnership exist between the parties, trial Court was
bound to adjudicate issue of liability of loss recoverable from estate of
deceased occurred after his death. [P.
516] E
1994
SCMR 1248, rel.
Mr. Tariq Masood, Advocate for Appellant.
Mian Abdul Hayee, Advocate for Respondents.
Date of hearing:
28.4.2010.
Judgment
This second
appeal has been preferred against judgment and decree passed by the learned
Addl. District Judge Sialkot on 11.4.2000 and judgment and decree dated
11.2.1999 passed by learned Civil Judge Sialkot.
2. Briefly stated the facts of the case are that
on 2.7.1995, the appellant filed a suit for rendition of accounts claiming that
he and his brother Muhammad Ali (since deceased) were doing business in partnership
jointly of Iron Rods and T.R. Their share of profit and loss was equal. The
investment of both the partners in the business was Rs. 5,00,000/-.
His brother Muhammad Ali died on 9.4.1993 and after his death the Respondents
No. 1 and 2 took over the charge of business. He further claimed that after the
death of Muhammad Ali the Respondents No. 1 to 3 and appellant are his legal heirs. He adds that he is not responsible for
the loss caused by the respondents after the death of Muhammad Ali. The Respondents
No. 1 and 2 have refused to render the accounts and as such a decree of
rendition of accounts be passed.
3. The Respondents No. 1 and 2 contested the
suit and the learned trial Court framed the following issues:--
"ISSUES.
1. Whether the plaintiffs have got no
cause of action and locus standi to file the present suit?OPD
2. Whether the suit is bad for mis-joinder of parties?OPD
3. Whether the Plaintiff No. 2 is not
widow of Muhammad Ali as Muhammad Ali deceased has already divorced to
Plaintiff No. 2 during his life time?OPD
4. Whether the plaintiffs have estopped by their words and conduct to file the present suit?OPD
5. Whether the plaint is liable to be
rejected U/S. 7 Rule 11 CPC? OPD
6. Whether the suit is
false, frivolous and base
less and the defendants are entitled to special costs U/S. 35-A CPC? OPD
7. Whether the plaintiffs are entitled to
decree of rendition of accounts as prayed for? OPP
8. Relief.
4. After recording evidence of both the parties
the learned Civil Court
passed preliminary decree on 10.5.1999 and appointed Rao
Muhammad Pervaiz Advocate Sialkot as local commission
with the direction to take possession of the books of accounts and submit
detailed report about the assets, liability, profit
and loss of the business. However, the suit to the extent of claim of
partnership was dismissed. The preliminary decree dated 19.5.1997 was assailed
through an appeal which was dismissed on 6.12.1997. The local commission
submitted his report on 21.1.1998. The appellant filed objections to the report
of local commission and finally on 7.2.1998 the learned counsel for the
appellant recorded his statement and accepted the report of local commission.
In terms of statement of learned counsel for the appellant dated 7.2.1998, the
learned trial Court passed final decree vide judgment
and decree dated 11.2.1999.
5. The appellant assailed the judgment and
decree through an appeal which was dismissed on 11.4.2000.
6. Learned counsel for the appellants submits
that their counsel was not authorized to withdraw the objections raised against
the report of local commission. His authority was restricted to the extent that
he has to prosecute the objections filed against the report of local
commission, he was never authorized nor any instructions were passed on to him
for the withdrawal of objections and as such the preliminary and final decrees
dated 11.2.1999 and 11.4.2000 are against law and facts. He further submits
that learned Courts below have wrongly accepted the report of local commission
to the effect that after the death of Muhammad Ali Respondents No. 1 and 2 have
illegally conducted the business and loss caused by these respondents cannot be
charged against the estate of deceased.
7. Learned counsel for the respondents submits
that the local commission has submitted his report in terms of his reference.
The withdrawal of the objections raised by the appellant by his counsel is
binding on the appellant, the final decree was passed by the learned Courts
bellow is perfectly in accordance with law, the case was adjourned six times
after the withdrawal of objections against the report of local commission but
the appellant never objected about the statement recorded on 7.12.1998. He
submits that if the appellant is dis-satisfied that
his counsel has not acted under his instructions, he
has the right to sue his counsel and to recover damages if any. He relied on Noor Muhammad and others Vs. Muhammad Siddique
and others (1994 SCMR 1248).
8. Arguments heard. Record perused.
9. It is a matter of record that Rao Muhammad Pervaiz Advocate was
appointed a local commission in terms of preliminary decree dated 10.6.1997
passed by the learned Civil Court. The learned local commission submitted his
report on 21.1.1998. Appellants raised objections there against but withdrew
the same vide statement dated 17.12.1998, it is also a matter of record that
after recording the statement of appellant's counsel the case continued to
adjourn from 7.12.1998 to 11.2.1999 but the appellant has not objected the
statement of his counsel. The argument of learned counsel for the respondent
that counsel of appellant has recorded the statement under his instructions is
concerned, the record shows that on the day when the counsel of the appellant
made statement appellant was not present in Court. Learned
counsel while recording his statement has not mentioned that he is recording
the statement under instructions of appellant. On 7.12.1998 appellant
learned counsel made the following statement:--
10. Perusal of statement of learned counsel shows
that it is no where mentioned that he is recording statement under the
instructions of the appellant, rather, it is a blunt
statement of learned counsel for the appellant, whereby he frankly conceded
that he accepts the report of local commission dated 21.1.1998. He has no
objection there against and the final decree according to the report of local
commission be passed. The question arose whether the counsel for the appellant
was authorized to record this statement or not? The appellant has executed
power of attorney in favour of his counsel. A
preliminary decree was passed and local commission was appointed, the local
commission submitted his report,
the counsel for
the appellant filed
objections under the instructions of appellant as the
appellants were not satisfied about the report of local commission. This means
that appellant issued fresh instructions to his counsel for challenging the
report and objections were filed and as such these objections were under the
specific instructions of the appellant. If the counsel for the appellant wants
to withdraw the objections, he was bound to obtain fresh instructions from the
appellant, as this was not a routine matter covered under the terms and conditions
of power of attorney (Wakalat Nama).
When the local commission submitted the report, the appellant must have
consulted the same with their counsel and the appellant may be under his legal advise has decided to raise objections against the report
of local commission. The withdrawal of objection mean the appellant is taking a
liability of loss suffered after the death of Muhammad Ali, which was
admittedly for the period when Respondents No. 1 and 2 were conducting the
business. The other possibility may be that parties were ag
