2002 PLP 1703 (MLD)

Miss Sakina Gul for Appellant. Respondent in person Miss Musarrat Hilali A.A.‑G. JUDGMENT/ORDER MUHAMMAD ALAM, (MEMBER). ‑‑‑This order will dispose of an application filed by the respondent for setting aside the ex -parte proceedings initiated by the Disciplinary Committee of the N.‑W.F.P. Bar Council vide order‑sheet dated 11‑8‑2001. As similar question is involved in case titled Mst. Gul Khana v. Abdul Kabeer, Advocate, Takht Nasrati in Complaint No.T‑38 of 2002, therefore, we propose to dispose of the same also through this single order.

2. Brief facts of the case are that Rehman Khan complainant and Mst. Gul Khana complainant filed two separate complaints against the respondent, alleging therein that the complainant had instituted suits for pre‑emption in the Court of Senior Civil Judge, Karak and had deposited the pre‑emption money. The respondent had been engaged as counsel in the above suits and the professional fee as struck between the parties was paid to the respondent. It is further alleged by the complainants that the above suits were dismissed on 31‑10‑1994 by the Civil Court. Being busy in the domestic affairs could not withdraw the pre‑emption money, rather, when the petitioner approached the Court concerned on 30‑9‑2000 through an application for return of pre‑emption money, it was reported that the said money had been paid to the respondent- Advocate on 1‑11‑1994 through voucher. It was alleged that as the respondent has misappropriated his clients' money and thus, has committed a gross professional misconduct, so stern legal action under the law, against the respondent, was prayed for.

3. That the Disciplinary Committee of N.‑W.F.P. Bar Council initiated proceedings against the respondent and on 19‑5‑2001 and 11‑8‑2001, the respondent was placed ex parte. The learned Member of the Disciplinary Committee after considering the ex parte evidence and data available on the record referred the matter to this Tribunal for final adjudication on 11‑8‑2001.

4. It was in these circumstances that the respondent submitted an application for setting aside of ex parte proceedings. Complainant has submitted the replication in which the allegations contained in the application were hotly contested.

5. We have heard the learned counsel for the parties and have gone through the record of the case. Perusal of the record would show that the respondent was placed ex parte vide order sheet dated 11‑8‑2001 without waiting for the return of acknowledge due card by the Postal Authorities in order to confirm that whether the summons have been duly served or not. The law is clear on the subject that when a person is placed ex parte, he can join the proceedings at any stage of the case. Reliance is placed on Azizullah and others v. Arshad Hussain and others (PLD 1975 Lah. 879).

6. There is no evidence on record that the respondent has been duly served in this case. Furthermore, the law also insist to decision on merits. So; the respondent should not be condemned unheard and a chance should be given to him to present his defence before the Disciplinary Committee of the N.‑W.F.P. Bar Council, Peshawar.

7. In view of the facts and circumstances of the case narrated above, we accept the application of the respondent, set aside the ex parte proceedings initiated against the respondent vide order dated 11‑8‑2001. Consequently, this case is sent back to the Disciplinary Committee of N.‑W.F.P. Bar Council with the direction to proceed with the case in accordance with law. Parties are directed to appear there on 22‑6‑2002. Q.M.H./M.A.K./507/P Case remanded.