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Civil Petition for Special Leave to Appeal No. 37-P of 1972, decided on 7th December 1972.

(On appeal from the judgment and order of Peshawar High Court, Peshawar, dated the 15th December 1971, in L. P. A, No. 38 of 1968).

Civil Procedure Code (V of 1908),

O. III, rr. 1 & 2-Agen, holding power of attorney filing compromise petition Power of attorney authorising holder to compromise suits-Agent, held, acted within authority and no exception could be taken to dismissal of suit on basis of such compromise-Party if defrauded has his remedi byway of a suit for damages.

Mian Muhammad Yunas Shah, Advocate Supreme Cour Instructed by M. Qas1m Imam, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing : 7th December 1972.

This petition for special leave is the outcome of a pre-emption suit, which was filed by the petitioner on the 26th of October 1966, in the Court of Civil Judge, Mansehra. One Ghulam Rabbani was appointed by the petitioner as his attorney for the conduct of that suit by a special power of attorney dated the 25th of October 1966, which was annexed with the plaint. The suit was fixed for the evidence of the plaintiff for the 1st of March 1967. On that date, a Razinama duly signed by the aforesaid Ghulam Rabbani attorney for the petitioner, was filed in Court. This was also signed by the defendant and two witnesses. In this Razinama, it was prayed that as the matter has been compromised, the plaintiff-petitioner wants to withdraw the case, which should. therefore, be dismissed. On the back of the Razinama, the following statement of Ghulam Rabbani, the aforesaid attorney, was also recorded;

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As a result, the Civil Judge passed the following order :----

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The petitioner thereafter instituted a declaratory suit to the effect that the compromise dated the 1st of March 1967, which had been made by his attorney, Ghulam Rabbani, whereby he withdrew the pre-emption suit, was based on a fraud and collusion, and liable to cancellation. He further prayed that the dismissal of his pre-emption suit on the basis of that compromise was not binding on him. This suit was decreed by the trial Judge, but it was dismissed on appeal by the District Judge, Hazara. A second appeal taken to the High Court by the petitioner was also dismissed, and this dismissal was confirmed by the Letters Patent Bench.

We have examined the original power of attorney given by the petitioner to Ghulam Rabbani, which clearly recites that the Mukhtar will have the power to compromise the suit and to make any other application, which was considered to be necessary for the course of the suit. In view of this power conferred on the Mukhtar, the latter acted within his authority to withdraw the suit. No exception can be taken to the dismissal of the suit on the basis of the statement of the petitioner's attorney. If, however, the petitioner feels that he was defrauded by his attorney by collusion with the other party, he may, if so advised, seek the remedy against him by way of damages. There is no substance in this petition, which is dismissed.

Petition dismissed,

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