P L D 1962 (W (PLP)

"Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." It will be seen that this section applies to (i) appeals (ii) applications for review, (iii) applications for leave to appeal and (iv) applications to which it may be made applicable by or under any enactment in force. The case of the appellant falls under the fourth category. Learned counsel for the appellant has not been able to refer to any provision of law under which this section had been made applicable to such objections. In the absence of any provision of law or rule made by the High Court, section 5 has got no application to such objections and, therefore, the learned Senior Civil Judge was perfectly right when he did not condone the delay under this section. The objections being time‑barred, the learned Senior Civil Judge had no option but to reject them.

5. Learned counsel for the appellant has next contended that he being the legal advisor‑cum‑standing counsel of the Thal Development Authority could file the objections without a vakalatnama by the Chairman, Thal Development Authority. He has not been able to cite any authority in support of this proposition. On the other hand, it is quite clear that the filing of objections amounts to "acting" on behalf of his client within the meaning and scope of Order III of the Civil Procedure Code.' Order III, rule 1, Civil Procedure Code, is in the followings terms: ‑ " Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person." Sub‑rules (1) and (2,) of rule 4 of Order 111, Civil Procedure Code, are relevant for the purposes of the decision of this appeal and are reproduced below :‑ "(1) No Pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power‑of‑attorney to make such appointment. (2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client." This Order mentions only pleaders and not advocates, but in view of section 2 (15) of the Civil Procedure Code it does apply to advocates also, because as given in section 2 (15), Civil Pro cedure Code, "pleader" means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court. Before 1926, there was sub‑rule (3) of rule 4, of Order III, C. P. C. which was to the following effect: "No advocate of any High Court established under the Indian High Courts Act, 1861, or of any Chief Court and no advocate of any other High Court who is a barrister shall be required to present any document empowering him to act." This sub‑rule was omitted altogether by the Code of Civil Procedure (Second Amendment) Act (XXII of 1926) and the old rule 4 was substituted altogether. It is, therefore, clear that in view of the change brought about by the Code of Civil Procedure (Second Amendment) Act, 1926, referred to above, an advocate cannot act for any person in any Court unless he has been appointed for the purpose by such c person by a document in writing signed 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 and every such appointment shall be filed in Court. It does not require any further comments to hold that Sh. Shaukat All could not have filed the objections which he did file on the 3rd of February 1961, without a vakalatnama duly signed by the Chairman of the Thal Development Authority.

6. Learned counsel for the appellant has further contended that while the case was pending before the arbitrator he had full instructions to defend the Thal Development Authority before the arbitrator and at that time Mr. M. H. Soofi was the Chairman of the Thal Development Authority and he had signed the power‑of‑attorney which he had to present before the arbitrator, but as his junior had not filed it before the arbitrator, he had utilised the same for the purpose of filing the objections in the Court. Even if this, vakalatnama had been filed before the arbitrator, Sh. Shaukat All Advocate could not have filed the objections on the 3rd of February 1961, before the Court of the Senior Civil Judge without a fresh vakalatmama from the Chairman, Thai Development Authority. The matter had not been referred to the arbitrator through the intervention of the Court. In fact, the matter had been referred to the arbitrator in accordance with the terms of the agreement between the parties, but in any case It is obvious that this power‑of‑attorney was never filed before the arbitrator and, therefore, the argument has no substance that if this power‑of-attorney had been filed before the arbitrator then Sh. Shaukat Ali Advocate could have filed the objections in the Court without a fresh vakalatnama. The provisions of Order III are perfectly plain and unambiguous. So far as the Court of law is concerned, no pleader or advocate can act in a Court unless he has been appointed for the purpose by a document in writing.

7. It is conceded before me that Mr. M. H. Soofi had relinquished the charge of the Chairman, Thai Development Authority three or four months before the objections were filed in Court. It can, therefore, be reasonably inferred that this power‑of‑attorney was never signed by Mr. M. H. Soofi for the purpose of filing it in any Court of law, because at that tune no proceedings were actually pending in any Court of law and it could not have been presumed that the award would go against the appellant or that the appellant would have to raise any objections against the award In any Court of law.

8. Learned counsel for the appellant has cited some authorities before me in support of his contention that If the vakalatnama filed with the objections on the 3rd of February 1961, be held to be defective, then in that case the subsequent filing of the vakalatnama and the objections on the 10th of February 1961, by the proper authority would amount to ratifying the objec tions which had been filed earlier. He has drawn my attention to Laurentius Ekka and others v. Dukhi Koeri and another (A I R 1926 Pat. 73) wherein it was held that an advocate could be verbally appointed and could present an application on behalf of his clients without a vakalatnama. This decision was given on the 13th of March 1924, i.e., long before the Code of Civil Procedure (Second Amendment) Act; 1926, came Into force and is, therefore, not relevant for the purposes of decision of this appeal. Similarly, he has relied on Allah Bakhsh and another v. Municipal Committee of Rohtak (A I R 1926 Lah, 223) wherein it was held `that when a person on whose behalf an appeal is filed has accepted or ratified the action of the person who filed the appeal on his behalf, the person filing the appeal has authority to file the appeal.' This case was decided on the 23rd of November 1925, i.e., long before the Amendment Act came into force and as such, has no bearing on the facts of the present case. He has also placed reliance on certain observa tions in Kanhaiya Lal v. The Panchayati Akhara (A I R 1949 All, 367) where it was held that the physical act of filing or presentation of an applica tion for execution of a decree is an "act" within the meaning of Order III, rules 1 and 4, but the improper presentation of such an application is, however, not an illegality but a mere irregu larity which does not make the application "not made in accordance with law." This was an application for execution which was in order in all other respects, that is to say, it was duly signed by the person concerned, but it was presented to the Court by a pleader who had not got a vakalatnama from the decree‑holder. This case is, however, distinguishable from the facts of the present case, because in the cases referred to above the application was in order in all other respects and, therefore, it was held that it was only an irregularity and not an illegality. As against this, however, a Division Bench of the Lahore High Court held in Man Bashir Ahmad v. Mrs. Mary Minck (A I R 1938 Lah. 698) that a pleader who puts in an application on behalf of a litigant acts for him and cannot, therefore, do so, unless he is authorised in writing by him. I respectfully agree‑ with the rule laid down by the Division Bench of the Lahore High Court. Learned counsel for the appellant has also invited my attention to Machireddi Narappa v. Proddatur Subbarayadu and others (A I R 1951 Mad. 340) where it was held that presentation of an execution petition by a vakil who has no vakalatnama from the decree‑holder is a mere irregularity. While coming to this conclusion the learned Judges of the Madras High Court held that there was no con travention of any specific provision of law relating to the filing of the execution petition as there was nothing in Order XXI, rule 11 (2), C. P. C., which required the petition to be presented by a particular person or in a particular manner. As this case deals with an execution application, I do not think it advances the case of the appellant. Learned counsel for the appellant has also relied on Mst. Balqis Begam v. Shahzada Muhammad Hamdam and others (A I R 1934 Lah. 973) and Rasul Shah v. Diwan Chand (A I R 1936 Lah. 583) where It was held that an appeal Is a proceeding in a suit and, therefore, a pleader representing a party in the lower Court could file the memo. of appeal and prosecute it in the lower appellate Court without any fresh vakalatnama. No exception can be taken to this proposition of law in view of sub‑rule (3) of rule 4 of Order III, C. P. C., because it Is specifically laid down in this sub‑rule that any appeal from any decree or order in the suit shall be deemed to be proceedings in the suit. Learned counsel for the appellant has also drawn my attention to Sourendra Nath Mitra and others v. Tarubala Dasi (A I R 1930 P C 158), where it was held that an advocate who is briefed on behalf of his client had the implied authority of his client to settle the suit. I had occasion to deal with this ruling in Messrs S. M. Qasim & Co. v. Messrs Sh. Azimuddin (P L D 1962 Lah. 95) and on the basis of this authority I held in that case that an advocate authorised to act without any express authority to refer the case to arbitration had the implied authority to refer the case to arbitration. The Privy Council ruling, however, does not deal with the question specifically as to whether an advocate can act on behalf of his client without any vakalat nama. In all probability, the case which' went up before the Privy Council, had been decided in the lower Court long before 1926. In any case, as the point has not been specifically decided by their Lordships of the Privy Council in terms of Order III, rules 1 and 4, C. P. C., this ruling cannot be taken to be an authority for the view that an advocate can act on behalf of his client without filing any vakalatnama.

9. Learned counsel for the respondent, besides relying on the provisions of Order III, C. P. C., referred to above, has drawn my attention to rule 2, in Chapter 6‑B, Part B of the Rules and Orders of the High Court of Judicature at Lahore, Volume V, which provides that no Advocate or Vakil shall act for any person in any Court unless he has been appointed by an instru ment in writing as required by Order III, rule 4 of the Code of Civil Procedure, 1908, as amended by Act XXII of 1926. He has also drawn my attention to Chapter 16‑A, Part A, of the Rules and Orders of the High Court of Judicature at Lahore. Volume I, which also provides for the filing of the power‑of -attorney by a pleader who is required to act for any Court of law. Learned counsel for the respondent has also relied on a Division Bench judgment of the Bombay High Court reported as Hirabai Gendalal v. Bhagirath Ramchandra & Co. (A I R 1946 Bom. 174) where it was held that an advocate is required to file a document on behalf of his client in a Court in the Mofussil. There was a rule made by the High Court of Bombay by which an advocate was exempted to file the vakalatnama In the High Court, but as the rule did not exempt an advocate from filing a vakalatnama in a Court of the Mofussil, it was held that he could not act in the Mofussil Courts without filing the vakalatnama. He has also drawn my attention to my own observations in Messrs S. M. Qasim & Co. v. Messrs Sh. Azimuddin (supra) where I held as follows :‑ "It is, therefore, clear that even an advocate cannot act for his client in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person."

10. In view of the authorities referred to above and in view of the relevant law on the subject, I am clearly of the opinion that Sh. Shaukat Ali, Advocate could not have filed the objections which he did on the 3rd of February 1961, without a Vakalatnama signed by the Chairman of the Thal Development Authority. As the vakalatnama, which had been filed with these objections, had been signed by Mr. M. H. Soofi who had relinquished the charge of the Chairman, Thal Develop ment Authority some months before the case came before the Court, this vakalatnama cannot be taken to have been signed by the new Chairman of the Thal Development Authority who had been issued notice by the Court. As such it could not have been legally used by Sh. Shaukat All for filing the objections.

11. For the reasons stated above, I am clearly of the opinion that the learned Senior Civil Judge was justified in rejecting the objections filed on the 3rd of February 1961, and on the 10th of February 1961, 1, therefore, dismiss this appeal with costs. K. B. A. Appeal dismissed,