P L D 1983 Peshawar 137 (PLP)

Date of hearing : 5th March, 1983. Sahib Din preferred an appeal against an order dated 15‑4‑1974 passed by the Rent Controller, Peshawar and the appeal was dismissed for non pcosecution on 3‑10‑1977 by the District Judge, Peshawar. An application was made 'for restoration of the appeal but it was dismissed by the same Court on 8‑5‑1978. Aggrieved from the said order Sahib Din has come on Second appeal to this Court. The facts proceeding the impugned order briefly are that Sahib Din had brought the appeal on 24‑5‑1974 through his counsel Mr. Saimullah Jan, Advocate. On 3‑10‑1977 when the appeal was called for hearing neither the appellant nor his counsel was present and it was dismissed for non‑prosecution. Mr. Muhammad Latif, Advocate moved an application on 1‑11‑1977 for restoration of the appeal and inter alia alleged that Mr. Samiullah Jan had been appointed as Sessions Judge whereas the appellant was residing in America and, as such, the absence of the counsel or the appellant was not deliberate. The application was accompanied by a memorandum of appearance wherein Mr. Muhammad Latif disclosed that he had been engaged by the appellant and a Vakalatnama will be filed in due course. The state ment of Mr. Muhammad Latif was recorded by the learned appellate Court and he reiterated the facts mentioned above. It was, however, admitted by him that he had filed the application for restoration of the appeal on the information received from Mr. Samiullah Jan and that the appellant Sahib Din had not contacted him till the filing of the application. He produced a Vakalatnama before the Court the same day. The learned District Judge was of the view that Mr. Muhammad Latif had no locus standi to file the application without Vakalatnama on behalf of Sahib Din or an authority to act on behalf or Mr. Samiullah Jan, his counsel. The learned counsel for the appellant strenuously contended that on the day when the appeal was called for hearing, it was within the knowledge of the learned appellate Court, as is evident from the order sheet, the counsel for the appellant had joined service. It was, therefore, appropriate that a notice should have been sent to the appellant. Secondly, Mr. Muhammad Latif produced the Vakalatnama in Court duly signed by the appellant Sahib Din and the irregularity was thus cured. The learned counsel for the respondents, on the other hand, maintained that Mr. Muhammad Latif had no Vakalatnama on behalf of the appellant or Mr. Samiullah Jan and was not competent in taw without such an authority to move the application for restoration of appeal. He added that in the memorandum of appearance Mr. Muhammad Latif had alleged to have been engaged .by the appellant but, in fact, he had not been so engaged as disclosed by Mr. Muhammad Latif during the course of his statement inasmuch as he had not been contacted by the appellant prior to the application for restoration of the appeal. It appears to me that Mr. Muhammad. Latif had some misunderstanding about the authority of Mr. Samiullah Jan who had since joined service. It may be pointed out that the Vakalatnama of Mr. Samiullah Jab came to an end on his joining the service and his licence stood suspended. Mr. Samiullah Jan could no longer act on the strength of the power‑of‑attorney (Wakalatnama) which stood suspended on his joining the service and he was not competent in law to instruct Mr. Mohammad Latif to file an application for restortaton of the appeal. The question that arises is whether Mr. Mohammad Latif could file the application without a proper Wakaltnama on behalf of the appellant. It is contemplated by Order III, rule 4 (1), C. P. C. that no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person or by his recognized agent or by some other person duly authorised by or under a power‑of‑attorney to make such appointment. The question of interpretation of the provision of Order III, rule 4, C, P. C. came up for consideration in Messrs Nabi Bakhsh and Sons v. Pakistan (P L D 1969 Kar. 210) and after a resume of the case‑law on the subject it was concluded that where an application is signed and presented by a pleader to whom authority has not been given in the manner prescribed under rule 4 of Order III, C. P. C. it is a mere irregularity which could be cured at a subsequent stage. The learned counsel for the respondents refererd to Nandamani Anamgabhima and another v. Modono Mohono Deo (A I R 1937 Mad. 239) wherein an execution application filed by a pleader without a written authority was held to be of no legal effect. This authority was, however, considered in Nadella Satyanarayana v. Yatnanoori Venkata Subiah (A I R 1957 Andh. Pra. 172) a Full Bench judgment, and was dissented from. The learned counsel alluded to The Thai Development Authority v. Nisar Ahmad Qureshi (P L D 1962 Lah. 830) wherein filing of objection by pleader without an authority in writing was held to be not maintainable under Order III, rule 1, C. P. C. This authority seems to have been set aside by the Supreme Court in Civil Appeal No. 85 of 1965 as is evident from para. 6 of the judgment reported in P L D 1969 Kar. 210 referred to above. In Hirabai Gendalal v. Bhagirath Ramchandra (A I R 1946 Born. 174) & Co. the presentation of a plaint by a person not properly authorised was held to be a defect which was tantamount to an irregularity. In the Hyderabad Import Export Co., Secunderabad v. The United Trading Co., Bhagathikot, Jodhpur (A I R 1958 Andh. Pra. 652) it was remarked that the relation between a pleader and his client is, in the final analysis, no more and no less than that of principal and agent. The client may, therefore, ratify the acts of his pleader. Where the party relief the act of the pleader, by means of written instrument as required by Order III, rule 4, C. P. C. the effect would be that the presentation of the application for restoration of suit had been made with proper authority. The fact that the appellant had ratified the act of Mr. Mohammad Latif by signing the A Wakaiatnania in his favour subsequently had cured the irregularity to presenatation of the application for restoration of the appeal. It transpires that Mr. Mohammad Latif had acted bona fide in believing that though Mr. Samsullah Jan had joined service he was still competent on account of his Vakalatnama to instruct him for filing an application for restoration of the appeal. In Kodi Lal v. Ch. Ahmad Hasan and others (A I R 1945 Oudh 200) the following observation was made:-- Ordinarily a power must be 'filed either antecedently or simultaneously with the acting but unless it so enjoined or any principle of law is violated or injustice is likely to occur, a statutory rule of practice should not normally be allowed to be used as a weapon of attack. If therefore there was an inadvertant technical violation of the rule in consequence of a bona fide mistake, and the mistake is subsequently remedied the defect need not necessarily be fatal. It was added that where circumstances disclose that the omission to file a power at the time of presentation of the appeal was accident, it would be inequitable to visit the penalty for the omission on the litigant by insisting that his appeal must fail. Since Mr. Mohammad Latif made a bona fide mistake under the instruction of Mr. Samiullah Jan it is a fit case where the irregularity may be condoned. The impugned order of the learned District Judge, in my view, is not maintainable in the eye of law. In the result, I would accept the appeal set aside the impugned order and send back the case to the learned District Judge with the direction that the appeal be restored and decided on merit. Since the matter is pending for quite some time, the appeal may be disposed of expeditiously. The parties in view of the legal question involved are left to bear their own costs. M. Y. H. Appeal accepted.