1996SCMR1376 (PLP)
Sh. MUHAMMAD AKRAM and 11 others‑‑‑Petitioners Versus MUHAMMAD IQBAL and 18 others‑‑‑Respondents
| Citation | 1996SCMR1376 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Ajmal Mian and Zia Mahmood Mirza, JJ |
| Parties | Sh. MUHAMMAD AKRAM and 11 others‑‑‑Petitioners Versus MUHAMMAD IQBAL and 18 others‑‑‑Respondents |
| Primary Law | Civil Procedure Code (V of 1908)‑‑‑ |
Q1: What are the key laws and sections cited in 1996SCMR1376 (PLP)?
This judgment primarily cites: Civil Procedure Code (V of 1908)‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1996SCMR1376 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Ajmal Mian and Zia Mahmood Mirza, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1996SCMR1376 (PLP) (Sh. MUHAMMAD AKRAM and 11 others‑‑‑Petitioners Versus MUHAMMAD IQBAL and 18 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- ‑‑‑‑O. III, Rr. 5 & 4 (2)‑--‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Non appearance of counsel of party on the ground that petitioners had taken away the brief from him, therefore, notice be sent to them directly‑‑‑High Court had declined such request of counsel‑for power of attorney in favour of counsel had not been cancelled or withdrawn and consequently dismissed appeal ‑‑‑Validity‑‑ Petitioner contended that failure/refusal of petitioner's counsel to appear at hearing of appeal on the plea that petitioners had taken away brief from him amounted to his withdrawal from appeal and as such Court should have issued notices to petitioners in person‑‑‑Such contention had no merit for neither petitioners nor their counsel had filed any document in writing/application in Court in terms of O.III, R. 4 (2), C.P.C. seeking leave of Court to determine counsel's power/authority‑‑‑That being so, notice/process served on counsel would be presumed to have‑been duly communicated and made known to petitioners and would be effectual for all purposes as if same had been given to or served on the party in person‑‑‑Appointment of petitioner's counsel being still in force and he having notice of date of hearing and yet not turning up at the hearing,' Court was under no obligation to issued notice to petitioners‑‑‑High Court had rightly proceeded to dismiss petitioner's appeal for non‑prosecution‑‑ Leave to appeal was refused in circumstances.
- Rana Nasrullah Khan. Advocate Supreme Court, and Walayat Umar Chaudhry, Advocate‑on‑Record for Petitioners.
- Hamid Ali Khan. Advocate Supreme Court with Sh. Masud Akhtar, Advocate‑on‑Record for Respondent No.4.
- Date of hearing: 25th October, 1995.
- Rana Nasrullah Khan. Advocate Supreme Court, and Walayat Umar Chaudhry, Advocate-on-Record for Petitioners.
- Hamid Ali Khan. Advocate Supreme Court with Sh. Masud Akhtar, Advocate-on-Record for Respondent No.4.
- The question was mooted on an application filed by the petitioners for re-admission of their appeal (R.S.A. No. 576/1972) dismissed for non prosecution on 7-12-1988 for the reason that no one had appeared for them. The learned Single Judge had noted in his order that the counsel for the appellants had sent an application informing the Court that the petitioners/appellants had taken away the brief from him and, therefore, the notice be sent to them directly. This request was declined by the Court as power of attorney in favour of the counsel, Sh. Nasim Hasan, Advocate, had not been cancelled or withdrawn. The application for re-admission of their appeal was moved by the petitioners on 17-7-1989, which was barred by time and, therefore, they also moved an application under section 5 of the Limitation Act seeking condonation of delay. The plea taken by the petitioners was that Sh. Nasim Hasan, Advocate continued to be their counsel and they had taken away the brief from him for a short period in connection with the defence of another suit.
- 3. We have heard the learned counsel for the petitioners as also Mr. Hamid Khan, A.S.C. for the caveators. The former reiterated the contention which was raised by the petitioners in the High Court and submitted that the failure/refusal of the petitioners' counsel to appear at the hearing of the appeal on the plea that the petitioners had taken away the brief from him amounted to his withdrawal from the appeal and as such the Court should have issued notices to the appellants/petitioners in person. We find no merit in this contention as admittedly neither the petitioners nor their counsel (Sheikh Naseem Hasan, Advocate) had filed any document in writing/application in Court in terms of Order III, rule 4 (2), C.P.C. seeking leave of the Court to determine the counsel's power/authority. That being so, the notice/process served on the counsel would be presumed to have been duly communicated and made known to the petitioners and "shall be as effectual for all purposes as if the same had been given to or served on the party in person". Refer rule 5 of Order III, C.P.C., import/legal effect whereof was examined by this Court in Abdul Latif v. Jamal Din (1979 SCMR 183) relied upon by the learned Judges of the High Court. It was held in that case that the counsel having been served, it was his duty to have informed his client of the date of hearing. "The only way he could have avoided communicating with the appellant was to have filed a document in writing under Order III, rule 4, sub-clause (2) of the C.P.C. showing that his authority was determined in which case the Court would have granted him leave to withdraw. Not having done that the legal consequence provided by rule 5 of Order III, C.P.C. would follow, i.e., it shall be presumed that the notice was duly communicated and made known to the party. But for the presumption which arises under rule 5, a counsel if he were empowered, would decline to accept notice and thus the work of the Court would be impossible. It is for this reason that the Legislature has provided for the consequence of service on the counsel". In this view of the matter and on the admitted factual position that the appointment of the petitioners' counsel was still in force and he had the notice of the date of hearing and yet he did not turn up at the hearing, the learned Judge hearing the appeal was under no obligation to issue notice to the petitioners who, in the circumstances, would be presumed to have been duly served. The learned Judge, therefore, rightly proceeded to dismiss the petitioners' appeal for non- prosecution.
Headnotes / Summary
(On appeal against the judgment of the Lahore High Court, Lahore dated 6‑4‑1994 passed in R.S.A. No. 576 of 1972). Abdul Latif v. Jamal Din 1979 SCMR 183 rel.
Judgment & Decree
ZIA MAHMOOD MIRZA. J.
This petition for leave to appeal arises from an order of a Division Bench of the Lahore High Court dated 6-4-1994 passed on the following question:-- "Whether intimation to the counsel about the fixation of the case raises a valid presumption under Order III, rule 5, C.P.C. of service on the party?. The question was mooted on an application filed by the petitioners for re-admission of their appeal (R.S.A. No. 576/1972) dismissed for non prosecution on 7-12-1988 for the reason that no one had appeared for them. The learned Single Judge had noted in his order that the counsel for the appellants had sent an application informing the Court that the petitioners/appellants had taken away the brief from him and, therefore, the notice be sent to them directly. This request was declined by the Court as power of attorney in favour of the counsel, Sh. Nasim Hasan, Advocate, had not been cancelled or withdrawn. The application for re-admission of their appeal was moved by the petitioners on 17-7-1989, which was barred by time and, therefore, they also moved an application under section 5 of the Limitation Act seeking condonation of delay. The plea taken by the petitioners was that Sh. Nasim Hasan, Advocate continued to be their counsel and they had taken away the brief from him for a short period in connection with the defence of another suit.
2. Contention of the petitioners before the learned Division Bench of the High Court was that Order III, rule 5, C.P.C. raises only a rebuttable presumption that the service of a notice on the counsel amounted to notice to the party whom he represents and that once a counsel informs the Court that he had ceased to be the counsel, the presumption stands rebutted and it becomes essential for the Court to effect personal service on the party before taking any penal action. The learned Judges of the Division Bench, relying upon a judgment of this Court reported in 1979 SCMR 183, held that unless a counsel seeks permission to withdraw and he is granted such a permission by the Court, the legal consequence provided in rule 5 of Order III, C.P.C. would follow i.e., it shall be presumed that the notice was duly communicated and made known to the party. The learned Judges then after reviewing the case-law cited by the petitioners' counsel came to the conclusion "a notice served upon the counsel duly appointed is deemed to be a notice upon the party in the absence of any permission by the Court to the counsel to withdraw his power of attorney as provided by Order III, rule 4 (2), C.P.C." The answer to the question mooted before them was, therefore, found in the affirmative with the result that the applications for re-admission of the appeal as also for condonation of delay, were dismissed vide the impugned order sought to be challenged in this petition.
3. We have heard the learned counsel for the petitioners as also Mr. Hamid Khan, A.S.C. for the caveators. The former reiterated the contention which was raised by the petitioners in the High Court and submitted that the failure/refusal of the petitioners' counsel to appear at the hearing of the appeal on the plea that the petitioners had taken away the brief from him amounted to his withdrawal from the appeal and as such the Court should have issued notices to the appellants/petitioners in person. We find no merit in this contention as admittedly neither the petitioners nor their counsel (Sheikh Naseem Hasan, Advocate) had filed any document in writing/application in Court in terms of Order III, rule 4 (2), C.P.C. seeking leave of the Court to determine the counsel's power/authority. That being so, the notice/process served on the counsel would be presumed to have been duly communicated and made known to the petitioners and "shall be as effectual for all purposes as if the same had been given to or served on the party in person". Refer rule 5 of Order III, C.P.C., import/legal effect whereof was examined by this Court in Abdul Latif v. Jamal Din (1979 SCMR 183) relied upon by the learned Judges of the High Court. It was held in that case that the counsel having been served, it was his duty to have informed his client of the date of hearing. "The only way he could have avoided communicating with the appellant was to have filed a document in writing under Order III, rule 4, sub-clause (2) of the C.P.C. showing that his authority was determined in which case the Court would have granted him leave to withdraw. Not having done that the legal consequence provided by rule 5 of Order III, C.P.C. would follow, i.e., it shall be presumed that the notice was duly communicated and made known to the party. But for the presumption which arises under rule 5, a counsel if he were empowered, would decline to accept notice and thus the work of the Court would be impossible. It is for this reason that the Legislature has provided for the consequence of service on the counsel". In this view of the matter and on the admitted factual position that the appointment of the petitioners' counsel was still in force and he had the notice of the date of hearing and yet he did not turn up at the hearing, the learned Judge hearing the appeal was under no obligation to issue notice to the petitioners who, in the circumstances, would be presumed to have been duly served. The learned Judge, therefore, rightly proceeded to dismiss the petitioners' appeal for non- prosecution.
4. In the aforesaid view of the matter, the judgment of the learned Division Bench of the High Court is unexceptionable. This petition has no merit and the same is accordingly dismissed. A.A./M-3212/S Leave refused.