PLJ
2004
Present: abdul shakoor paracha, J.
KHALID MAHMOOD-Petitioner
versus
Mst. ZOHRA BEGUM and 4 thers-Respondents
W.P. No. 565 of 2004, decided on
29.1.2004.
(i) Muhammadan
Law-
-—Constitution of
challenged by petitioner while donor was alive and he was not impleaded-
-Writ petition was not competent against rejection of plaint-Even
otherwise, varies of impugned gift made by surviving father cannot be
challenged under law. [P. ] A
(ii) Civil Procedure Code (V of 1908)--
—O. Ill, R. 1-Withdrawal of appeal by counsel-Power of attorney indicated that counsel had authority to withdraw appeal-Parties were .bound by bona fide acts of their counsel acting within scope of their'authority-Unless there was anything to the contrary, counsel can abandon an issue.
[Pp. 1035 & 1036] B
PLJ 1975 SC 624; PLD 1979 SC (AJK) 47; PLD 1978 SC (AJK) 73 ref.
Petitioner in person. Date of hearing: 29.1.2004.
judgment
Parties, to the writ petition are sons and wife of Mian Abdul Hameed. Allegedly Mian Abdul Hameed executed a gift of certain property in favour of Respondents Nos. 1 to 3 on 3.3.1983. One of the son of Mian Abdul Hameed namely Khalid Mehmood, petitioner, challenged the varies of the gift dated 3.3.1983 on the groun$ that the same is illegal and was with an intention to deprive the plaintiff-petitioner from his legal right of inheriting the property of said Mian Abdul Hameed. During the pendency of the suit, respondents moved an application under Order 7 Rule 11 CPC for rejection of the plaint of the suit filed by Khalid Mehmood, petitioner, on the ground that Mian Abdul Hameed, father of the petitioner, is alive, therefore, impugned gift executed by surviving father in ones favour cannot be challenged under the law. This application was allowed. Consequently, the plaint of the petitioner suit was rejected by the Civil Judge vide order dated 17.10.2003 which order was assailed in appeal before the learned Addl. District Judge, Lahore, who proceeded to dismiss the appeal as withdrawn, as well on the ground that varies of the impugned gift executed by a surviving father on ones favour in absence of a legal character is neither permitted nor warranted under the law.
2. On the last date of hearing, learned counsel foPthe
petitioner was
confronted with the proposition of
law that how varies of gift made by a
surviving father in favour of some
one can be challenged without impleading
him as a party to the suit. He sought
time to assist the Court and argued
that learned counsel in the
-appellate Court was not authorized to withdraw
the appeal, therefore, the order of the Addl. District Judge is illegal.
Pre
admission notice was issued to the
respondents for today i.e. 29.1.2004.
Twice the case has been called.
Petitioner in person appeared and states that
his counsel Mian Muhammad Abbas,
Advocate, is busy before other.bench of
this Court. The case was kept in
waiting but the counsel did not appear,
therefore, the case is being
disposed of on merits.
3. Order dated
11.12.2003 through. which the appeal of'the
petitioner was rejected is revisable
under Section 115 CPC. Mian Abdul
Hameed, who made the alleged gift is
alive and has not been impleaded as
respondents in the suit. Therefore,
the writ petition is not .competent. Even otherwise, the vires of the impugned
gift made by the surviving father in ones favour cannot be challenged under the
law. In case reported as Mst. Hamida Begum versus Mst. Murad.Begum and others (PLD 1975 S.C. 624) at page 627 it has been ruled that, "The
Muhammadan Law does not recognise
spes successions i.e. an expectation or hope of succeeding to the property of another by survival. Till that death
occures of presumptive heir has no
right to all in the properly of his ancestor. A.suit brought by a son, during
the lifetime of his father, to challenge a gift made by the latter on the ground of undue influence was bound to be dismissed
as the son had no interest in
presenti in his father's property during the latter's lifetime."
4.
Petitioner has also appended the power of attorney
(Wakalat
nama) of
Ch. Irshad Ahmad Virk at page 42 of this petition which' shows that
the
learned counsel had authority to withdraw the appeal. The parties are
bound by
the bonafide acts of their counsel acting within the scope of their
authority. Accordingly,
unless there is anything to the contrary, an advocate
may abandon an issue. See cases Raja All
Bahadur Khan versus Mir
Hussain Khan and 2 others
(PLD 1979
S.C. AJK 47) and Munshi
Muhammad Afzal Khan and another
versus Khadam Hussain Khan (PLD
1978 S.C. AJ&K 73).
5.
For what has been discussed above, this writ petition has
no
merits and the same is
dismissed in limine.
(A.A.) . Petition dismissed.