P L D 1996 Karachi 567 (PLP)

WAJIHUDDIN AHMED, J.‑‑‑In the first place it was contended that the learned Single Judge passed the impugned order on C.M.A. No.2239/1995, dismissing the same, in a situation where an application for adjournment on the ground of sickness of Mr. A.D'Cruz had been submitted and the matter was adjourned for the purpose of arguments in the main case. Since somewhat ambiguous pleas to such effect have been taken in the memo. of appeal, we asked the appellant herself, who was present before the learned Single Judge when the impugned order was passed, as to what transpired on such date. She informed us that she submitted the adjournment application to which Mr. Ishaque Ahmed, learned counsel for the plaintiff‑respondent, objected, the learned Single Judge observing that the matter had to be adjourned. On our query as to whether she understands English the appellant answered that she did not and also admitted that the dialogue between the learned Judge and the learned counsel largely took place in English and the entire process involved a period of five to ten minutes. In such background, it is difficult to conclude that no hearing as regards C.M.A. No.2239/95 took place before the learned Single Judge. Be that as it may, we told the learned counsel that we ourselves would be inclined to give full hearing in the matter and, accordingly, heard him at some length. On merits C.M.A. No.2239/95 was an application seeking that Mr. Ishaque Ahmed, advocate, representing the plaintiff respondent, be debarred from conducting the suit as there was a conflict of interest between him and his client viz. the plaintiff, thereby attracting transgression of Rule 148 of the Legal Practitioners and Bar Councils Rules, 1976, which is this:‑‑‑‑ "An Advocate shall not represent conflicting interests." On the factual plane, the case of the appellant‑defendant seems to be that the property in dispute, a quarter in Liaquatabad, was in possession of the grandfather of the plaintiff‑respondent, one Hafiz Niaz Ahmed, who had been issued a chit by the relevant local authority, which chit was, in turn, to mature for conferment of rights in such property on the holder or on his successors‑in interest if‑the holder were to expire before the emergence of such rights. The plaintiff‑respondent is, allegedly, a I polio‑stricken young man and step-sun of the defendant‑appellant. The grandfather, spoken of above, was the maternal grandfather of the plaintiff‑respondent. Such maternal grandfather is stated to have been succeeded by sons and daughters of his own, one of them being the mother of plaintiff and another Mr. Ishaque Ahmed, plaintiff's uncle on his advocate in the suit before the learned Single Judge. Case of the plaintiff in the suit appears to be that the plaintiff was transferred the disputed property through a lease deed, directly issued by the K.D.A. in his favour, the deed coming to be executed in 1967. In his counter‑affidavit to the CMA under consideration, the plaintiff has maintained that upon the demise of his maternal grand‑father his uncle, Afaq Ahmed, acting through the plaintiff's paternal uncle, Maqsood Ali, gifted the quarter to the plaintiff and the K.D. A. lease deed followed thereupon. As against this, the position taken by the defendant‑appellant in the suit, as, maintained by Mr. A.D' Cruz, her learned counsel, is that the disputed property was transferred (sold) by the referred Mr. Ishaque Ahmed Advocate in favour of the late husband of the defendant‑appellant (father of the plaintiff) much prior to the emergence of the lease deed in question but there was no document executed between the parties because of the close nature of relationship. In course of time the husband of the defendant‑appellant and father of the plaintiff‑respondent died but before that happened, it is urged by Mr. A.D'Cruz that, Mr. Ishaque Ahmed, connived to have the above‑referred lease deed executed in favour of the plaintiff, who was till then a minor. How and why the said husband and father of the parties did not dispute such lease deed, if it emerged during lifetime, we do not know though Mr. A.D'Cruz says that a dispute was raised, not maturing for coming to Court at that time. Mr. A.D'Cruz clarifies that one of the reasons why the matter did not come to the Court was that it was agreed between the parties that the property shall be treated as Benami in the name of the plaintiff and all the legal heirs of the plaintiff's father and the defendant's husband would be entitled thereto. Even so, no document appears to have been executed in the context. At any event, issues Nos.5 and 11 in the suit apparently cover the subject. Bulk of the foregoing facts are based on the arguments of Mr. A.D'Cruz and if there be any error therein the fault must be placed at the door steps of the plaintiff‑appellant since no pleadings are placed on the record here. It is in the aforementioned background that the disbarment of Mr. Ishaque was sought before the learned Single Judge from the suit being tried at that level. The application was dismissed, as said, but the learned Single Judge left the defendant‑appellant to lay a complaint before the Sindh Bar Council if she insisted on her plea that Mr. Ishaque had misconducted. himself in obtaining the aforesaid lease deed in favour of his nephew (plaintiff), falsely representing him to be of the age of majority. We cannot disagree with the learned Single Judge that this was hardly a case of conflict of interest between counsel and client moreso because Mr. Ishaque was not claiming any interest adverse to that of the plaintiff, nor did the plaintiff allege any such interest. In fact, it was the defendant who had maintained that Mr. Ishaque was entitled to the disputed property as legal heir of Hafiz Niaz Ahmed and thus had an interest adverse to that of the plaintiff. Mr. Ishauqe never claimed that interest as subsisting. In our view, the conflicting interest, if any, in terms of Rule 148 of the Legal Practitioners and Bar Councils Rules, 1976, is to be invoked between counsel and client themselves and it hardly lies in the mouth of a third party, muchless an adversary, to allege such interest to the detriment either of the counsel or client. Furthermore, upon the facts of the case, the above version of the defendant‑appellant may constitute, if at all, a case of alleged collusion, between the plaintiff and his learned counsel but whether that precise case has been set up or not and if set up, with what consequences, is quite another matter and has to be dealt with otherwise than on the plane of conflict of interest between the counsel and his client. At this stage, Mr. A.D'Cruz says that the permission, which the learned Single Judge has allowed to the defendant‑appellant to approach the Sindh Bar Council in the context of the question, limited as above, is itself a serious matter and for that at least this appeal may be admitted. We do not feel called upon to comment on that aspect but if that be a serious matter it would be a serious matter for the plaintiff and his counsel and if, anyone, adversely 'affected, chooses he can surely agitate the same appropriately. Here again, it does not lie in the mouth of the defendant‑appellant to pursue another's purported cause. In view of the foregoing, the appeal as well as the listed application is dismissed. A.A./Q‑4/K Appeal dismissed.