1999 PLP 2202 (MLD)
Messrs ADAMJEE CONSTRUCTION COMPANY LTD. through Chief Executive — Petitioner Versus GOVERNMENT OF PUNJAB through Director-General,
| Citation | 1999 PLP 2202 (MLD) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Messrs ADAMJEE CONSTRUCTION COMPANY LTD. through Chief Executive — Petitioner Versus GOVERNMENT OF PUNJAB through Director-General, |
| Primary Law | (a) Legal Practitioners and Bar Councils Act (XXXV of 1973), (e) Counsel and client, (d) Plaint |
Q1: What are the key laws and sections cited in 1999 PLP 2202 (MLD)?
This judgment primarily cites: (a) Legal Practitioners and Bar Councils Act (XXXV of 1973), (e) Counsel and client, (d) Plaint, (c) Civil Procedure Code (V of 1908), (b) High Court (Lahore) Rules and Orders as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1999 PLP 2202 (MLD)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1999 PLP 2202 (MLD) (Messrs ADAMJEE CONSTRUCTION COMPANY LTD. through Chief Executive — Petitioner Versus GOVERNMENT OF PUNJAB through Director-General,). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Wan Masud for Respondent.
- 2. The learned counsel of the petitioner contended that Order III, Rules, 1, 2 and 4, C.P.C. read with High Court Rules Volume 1 Chapter 16 deal with the appointments of the pleaders and Attorneys. He further stated that the petitioner has duly signed power of attorney in favour of Shahid Karim, Advocate. He further stated that the contents of the power of attorney revealed that Mr. Shahid Karim, Advocate is authorised by the petitioner to engage any other counsel. He further stated that power of attorney between the petitioner and the counsel is a contract, therefore, provisions of the Contract Act are attracted. He further urged that he authorised Mr. Aamar Sina, Advocate to file the application for restoration. He further urged that Aamar Sina, Advocate has been appearing in the case for the last two years and the respondent's counsel as well as respondent did not take any objection qua his appearance. He further urged that certain applications were also filed by Mr. Aamar Sina, Advocate. Neither the respondent nor his counsel raised any objection qua those applications. He further stated that if any irregularity is committed that is ratified by the petitioner by filing ratification in favour of Mr. Aamar Sina, Advocate before this Court. He relied upon the following judgments: --
- 3. The learned counsel of the respondent contended that application for restoration was filed on 20-6-1998 and reply was filed on 25-7-1998 by the respondent with the preliminary objection that the application is not filed in accordance with law. He further urged that subsequent to the filing of reply three different dates were fixed till the application was dismissed by the learned trial Court vide order, dated 25-7-1998 but the petitioner did not rectify the irregularity committed by the petitioner. He further stated that learned counsel of the petitioner failed to bring on record any document to show that Aamar Sina, Advocate was authorised to act or appear on behalf of the petitioner. He further stated that Aamar Sina, Advocate is not legally authorised to appear, file and sign the application by virtue of Order III, Rules 4, C.P.C. read with section 22(c) of Legal and Practitioner Bar Council Act, 1973 further stated that Aamar Sina, Advocate has filed application, therefore, he is acting on behalf of the petitioner which he could not do so unless and until is authorised by the petitioner. He further stated that by filing rectification in favour of Aamar Sina, Advocate before this Court tantamounts to admission of the illegality. He raised upon the following judgment: --
- He summed up his arguments that judgments cited by the learned counsel of the petitioner are distinguishable on facts and law as in all those cases irregularities were committed by the Advocates when the power of attorney was either not signed by the party or by the Advocate. In the present case application was filed by the Advocate but the provisions of the C.P.C. and Legal Practitioner Act do not permit him to do so, therefore, the order of the learned trial Court is in accordance with the law and application was filed in violation of the mandatory provisions of the aforesaid laws.
- (i) The petitioner engaged Shahid Karim, Advocate;
- (ii) Shahid Karim, Advocate filed application under section 20 of the Arbitration Act on 23-10-1996.
- (iii) Orders, dated 16-4-1998 and 21-5-1998 revealed that Aamar Sina. Advocate appeared for the petitioner;
- (v) On 20-6-1998 application for restoration was tiled by Mr. Aamar Stna, Advocate alongwith his own affidavit:
- (vii) Petitioner has not given power of attorney in favour of Aamar Sitta. Advocate;
- The aforesaid judgment was again followed by the Hon'ble Supreme Court in 1993 SCMR 363. It is settled proposition of law that the relationship of a client and a counsel is recognised in law at the level of relations of principal and an I agent. In such situation, when an agent acts on behalf of the principal, even p, though he is not authorised in the prescribed manner for acting as such at the re4evant time. The principal is vested with the authority to ratify the act of his agent with retrospectively. On this principle, it is permissible to hold that action of Aamar Sina, Advocate by signing and verifying the pleadings and institution of the suit, could be ratified by the petitioner/plaintiff with retrospective effect. I am fortified by Khiam Films case 1982 CLC 1275 and the relevant observation is as follows: --
- The principle was illustrated on the premises that when a counsel who instituted the suit and prosecuted it, throughout and his performance of function as counsel, was not questioned by the client, it was permissible to be presumed that the action of the counsel on behalf of his client, tantamount to ratification by the 8 client. Even otherwise the provision regarding the presentation of appeal/suit are procedural in nature and non-compliance thereof cannot be vitiated with the extreme penalty of dismissal of the cause. It is since long settled that any such defect is an irregularity and can be ratified by providing an opportunity to the concerned party to, do so. I am fortified by the judgment of this Court in Mst. Karam Nashin's case PLD 1959 Lah. 946. Both the defects qua presentation by Aamar Sina, Advocate without power of attorney and without signature of the petitioner were irregularity and not fatal to the cause and such a defect could be remediated at any time irrespective of limitation. It is also settled principle of law that the Rules framed in the Code of Civil Procedure/Rules made for the C advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice. I am fortified by the judgment of Muhammad Sarwar's case 1980 CLC 946. It is also settled proposition of law that a Judge must wear all the laws of the country on the sleeve of his robes and failure of the counsel to properly advised him is not a complete excuese in the matter. The learned trial Court was on obligation to allow an opportunity to the petitioner in the circumstances of the case to remedy the defect. I am supported by the judgment Shafiq Metal Work's case PLD 1973 Note 33 at p.41. The relevant observation is as follows: --
Headnotes / Summary
S. 22--Counsel and client, relationship of
Such relationship is recognised in law at the level of relations of principal and agent
If an agent acted on behalf of the principal, even though he was not authorised in the prescribed manner for acting as such at the relevant time, principal was vested with the authority to ratify the act of his agent with retrospective effect.
Vol. 1, Chap. 16
Civil Procedure Code (V of 1908), O. III Rr. 1, 2 & 4-- Counsel and client, relationship of
Application for restoration of proceedings was filed in Trial Court by counsel of petitioner, who was not appointed as attorney by the client
Counsel instituted the suit and prosecuted same throughout and his performance of functions as counsel was not questioned by the client
Presumption was that the action of counsel on behalf of his client, tantamounted to ratification by the client
Provisions regarding the presentation of appeal/suit were procedural in nature and non-compliance thereof could not be visited with the extreme penalty of dismissal of the cause
Any such defect was an irregularity and could be ratified by providing an opportunity to the concerned party to do so
Order of Trial Court was set aside in revision by High Court.
Rules framed in C.P.C. are rules made for the advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice.
Court can take notice of subsequent events for removal of defects in the plaint.
Such relationship is recognised in law at the level of relations of principal and agent
If an agent acted on behalf of the principal, even though he was not authorised in the prescribed manner for acting as such at the relevant time, principal was vested with the authority to ratify the act of his agent with retrospective effect.
Judgment & Decree
3. The learned counsel of the respondent contended that application for restoration was filed on 20-6-1998 and reply was filed on 25-7-1998 by the respondent with the preliminary objection that the application is not filed in accordance with law. He further urged that subsequent to the filing of reply three different dates were fixed till the application was dismissed by the learned trial Court vide order, dated 25-7-1998 but the petitioner did not rectify the irregularity committed by the petitioner. He further stated that learned counsel of the petitioner failed to bring on record any document to show that Aamar Sina, Advocate was authorised to act or appear on behalf of the petitioner. He further stated that Aamar Sina, Advocate is not legally authorised to appear, file and sign the application by virtue of Order III, Rules 4, C.P.C. read with section 22(c) of Legal and Practitioner Bar Council Act, 1973 further stated that Aamar Sina, Advocate has filed application, therefore, he is acting on behalf of the petitioner which he could not do so unless and until is authorised by the petitioner. He further stated that by filing rectification in favour of Aamar Sina, Advocate before this Court tantamounts to admission of the illegality. He raised upon the following judgment: -- 71 MLJ
604. AIR 1936 Lah. 500 AIR 1938 Lah. 698 1995 CLC 734 AIR 1976 Raj.
130. PLD 1984 SC (AJ&K) 13. 1981 MLD 1261 PLD 1962 Lah. 830 He summed up his arguments that judgments cited by the learned counsel of the petitioner are distinguishable on facts and law as in all those cases irregularities were committed by the Advocates when the power of attorney was either not signed by the party or by the Advocate. In the present case application was filed by the Advocate but the provisions of the C.P.C. and Legal Practitioner Act do not permit him to do so, therefore, the order of the learned trial Court is in accordance with the law and application was filed in violation of the mandatory provisions of the aforesaid laws.
4. I have given my anxious consideration to the contentions of the learned counsel-- for the parties and, perused the record myself. The admitted face between the parties in seriatim are as follows: -- (i) The petitioner engaged Shahid Karim, Advocate; (ii) Shahid Karim, Advocate filed application under section 20 of the Arbitration Act on 23-10-1996. (iii) Orders, dated 16-4-1998 and 21-5-1998 revealed that Aamar Sina. Advocate appeared for the petitioner; (iv) On 18-6-1998 the application was dismissed in default; (v) On 20-6-1998 application for restoration was tiled by Mr. Aamar Stna, Advocate alongwith his own affidavit: (vi) Application for restoration was not signed by the petitioner; (vii) Petitioner has not given power of attorney in favour of Aamar Sitta. Advocate; (viii) Respondent filed reply of application alongwith preliminary objective that the application has been filed by a lawyer who is not legall appointed attorney, hence he is not entitled to move this application. Application was dismissed on 5-9-1998. The Hon'ble Supreme Court has laid down a principle in Khuda Yar's case (PLD 1975 SC 678) that technicalities should not be hinderance in the way justice. The relevant observation is as follows: -- "Mere technicalities unless over the insurmountable hurdle should not be allowed to defeat the ends of justice. " and followed the principle laid down by the Hon'ble Supreme Court in Imtiaz Ahmad's case PLD 1963 SC
382. The judgments cited by the learned counsel of the respondents are distinguished on sole ground that the Hon'ble Supreme Court departure from the previous practice and insisted to avoid technicalities and cases must be decided on merits after addition of Article 2A. in the Constitution. I am fortified by the dictum laid down by the Hon'ble Supreme Court in PLD 1989 SC
532. The relevant observation is as follows: -- "A party should not be denied a relief on account of technicalities to the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it." The aforesaid judgment was again followed by the Hon'ble Supreme Court in 1993 SCMR
363. It is settled proposition of law that the relationship of a client and a counsel is recognised in law at the level of relations of principal and an I agent. In such situation, when an agent acts on behalf of the principal, even p, though he is not authorised in the prescribed manner for acting as such at the re4evant time. The principal is vested with the authority to ratify the act of his agent with retrospectively. On this principle, it is permissible to hold that action of Aamar Sina, Advocate by signing and verifying the pleadings and institution of the suit, could be ratified by the petitioner/plaintiff with retrospective effect. I am fortified by Khiam Films case 1982 CLC 1275 and the relevant observation is as follows: -- "It was held that the authority for institution of the suit by counsel, was questionable only by the client on whose behalf the suit was instituted and not by the opposite party.' The principle was illustrated on the premises that when a counsel who instituted the suit and prosecuted it, throughout and his performance of function as counsel, was not questioned by the client, it was permissible to be presumed that the action of the counsel on behalf of his client, tantamount to ratification by the 8 client. Even otherwise the provision regarding the presentation of appeal/suit are procedural in nature and non-compliance thereof cannot be vitiated with the extreme penalty of dismissal of the cause. It is since long settled that any such defect is an irregularity and can be ratified by providing an opportunity to the concerned party to, do so. I am fortified by the judgment of this Court in Mst. Karam Nashin's case PLD 1959 Lah.
946. Both the defects qua presentation by Aamar Sina, Advocate without power of attorney and without signature of the petitioner were irregularity and not fatal to the cause and such a defect could be remediated at any time irrespective of limitation. It is also settled principle of law that the Rules framed in the Code of Civil Procedure/Rules made for the C advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice. I am fortified by the judgment of Muhammad Sarwar's case 1980 CLC
946. It is also settled proposition of law that a Judge must wear all the laws of the country on the sleeve of his robes and failure of the counsel to properly advised him is not a complete excuese in the matter. The learned trial Court was on obligation to allow an opportunity to the petitioner in the circumstances of the case to remedy the defect. I am supported by the judgment Shafiq Metal Work's case PLD 1973 Note 33 at p.41. The relevant observation is as follows: -- "The defect if any, therefore, can certainly be cured either by the party amending the plaint on his own initiative or by the Court suo motu ordering for the removal of the defect." It is also settled principle of law that Court can take I notice of subsequent events. I am fortified by the judgment 1990 CLC 1069. The petitioner has filed ratification before this Court." In view of what has been dismissed above this revision petition is accepted. The order of the learned trial Court, dated 5-9-1998 is set aside with the result that the application filed by the petitioner shall be deemed to be still pending before him and shall be decided in accordance with law. The learned Civil Judge shall allow the petitioner/applicant to ratify the defect by either signing the application or presenting power of attorney in favour of counsel duly authorised in the interest of Justice and fair play to avoid multiplicity of litigation. The parties shall appear before the Civil Judge First Class Lahore on 11-11-1998. Q. M. H. /M. A. K./A-10/L Revision accepted.