Friday, 19 February 2016

Local Commission after Preliminary Decree

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 onNoor 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 agreed to settle the dispute as is argued by learned counsel of the respondents. The statement recorded by the counsel for the appellant shows that appellant was not present in Court. Further while recording the statement the counsel of the appellant has not mentioned that he is recording the statement under the instructions of appellant. The relationship of counsel and client is a privileged relationship and the counsel is morally and legally bound to act on the instructions of his or her client. In this case the matter is otherwise. The appellant is claiming that he has not given instructions to his counsel to withdraw the objections against the report of local commission and the appellate Court has declined to interfere on the ground there is no specific allegation of lack of authority on the part of appellant against the counsel. The grounds of appeal before the first appellate Court shows that appellant has specifically alleged against his counsel that withdrawal of objections is collusive, malafide and without authority. As far as the objections of respondent that after recording the statement of their counsel the case remained pending upto 11.2.1999 but no objection was raised by the appellant is concerned, nothing is available on record showing that the statement of withdrawal was in the knowledge of the appellant. The allegation of appellants against his counsel required to be proved on record, it is factual controversy whether the appellant has passed on instructions to his counsel authorizing him to withdraw the objections, in these circumstances learned appellate Court was bound to probe the actual facts either himself or through learned trial Court.
11.  Other argument of learned counsel for the appellant is also convincing when he submits that even if for the sake of arguments if it is admitted that counsel for the appellant has withdrawn the objections against the report of local commission even then the Court was bound to pass a decree according to the report of local commission. The report of local commission shows that Respondents No. 1 and 2 were conducting the business after the death of Muhammad Ali and suffered loss, the learned trial Court was bound to give verdict that the said loss is payable by whom. The partnership on the day of death of Muhammad Ali become non-existent and the learned trial Court further itself come to the conclusion that there was no partnership between the parties and dismissed the suit to that extent. After the finding of learned trial Court that no partnership exist between the parties the learned trial Court was bound to adjudicate the issue of liability of loss recoverable from the estate of deceased occurred after his death. The learned Courts below have not examined this aspect of the case and passed the decree without deciding the controversy between the parties. Learned counsel for the respondent has placed reliance on Noor Muhammad and others Vs. Muhammad Siddique and others (1994 SCMR 1248). The facts of this case are different from the present case. In this case the defendant made an offer to plaintiff in a suit for pre-emption that if plaintiff pays the amount mentioned in the sale deed, he has no objection for passing a decree. There was a dispute between the parties about the sale price, the plaintiff was claiming sale price Rs.27,420/- and the defendant was claiming Rs.38,125/- meaning thereby the defendant was gaining some thing out of his statement, but in the present case the appellant is losing every right and is accepting liability. So the facts of this judgment are distinguishable.
12.  As there was serious allegation of appellant against his counsel it was obligatory on the Court below to call reply of learned counsel for the appellant and to record his statement to confirm or deny the allegations of appellant, but the learned Courts below has not examined this legal aspect of the case.
13.  In view of above, I have no hesitation to hold that the allegations of appellant have not been redressed or attended to by the learned Courts below while deciding the appeal and suit. In view of the above, I hereby set aside the judgment and decree of the learned appellate Court as well as the learned trial Court and remand the case to the learned trial Court with the direction that he will frame the issue on their allegations against their counsel and will record the evidence of the parties and will decide the case on merits. The trial Court will allow the appellant to file an application challenging the authority of statement of their counsel in the light of the grounds of appeal and will call reply from the respondent. This is an old case, the learned trial Court will decide the suit within six months from the date of receipt of this order.
(R.A.)  Case remanded

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