1996 PLP 1998 (CLC)

(iii) Whether an Advocate can return the case file to his client prior to obtaining discharge from the Court?" I have heard Mr. Ali Murtaza Hussain, Advocate Mr. A.H. Mirza, Advocate and Mr. Abdul Rauf, Advocate. I have also heard Mr. Mirza Adil Baig, Advocate on behalf of Sindh Bar Council. It is contended by Mr. Mirza Adil Baig that in view of Order III, Rule 4, C.P.C. an Advocate is entitled to seek discharge of his Vakalatnama with the leave of the Court and not otherwise. He has referred to the following cases:‑‑ (1) Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultants (PLD 1990 Supreme Court 800); (2) Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan (1990 CLC 1473), and (3) Kama] Din and others v. Nazir Ahmad (1987 CLC 1208). It is now settled law that a Vakalatnama/Power/Memo. of appearance of an Advocate is deemed to exist on record until it is terminated with the leave of the Court. It is also settled law that an Advocate seeking discharge of his Vakalatnama should comply with the requirements of Rule 50 of Sindh Chief Court Rules (O.S.). (For further reference see the cases of Abdul Latif v. Jamal Din 1979 SCMR 183, Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another PLD 1982 Karachi 355 and Ex‑Hav. Mirza Mushtaq Baig v. General Court Martial 1994 SCMR 1948). In the last reported case, it was held by the Hon'ble Supreme Court that even in cases where the papers have been taken away by the client, it is the duty of the Advocate to appear on the date of hearing till such time he withdraws his power or it is cancelled according to the rules by his client. Before filing the instant application, Mr. Ali Murtaza, Advocate addressed a letter dated 25‑9‑1995 to the plaintiff informing him that he intends to withdraw his Vakalatnatfta from this suit and that he has enclosed the case file. The reasons given in the letter for returning file and for withdrawing Vakalatnama were that the plaintiff has engaged another Advocate before the Special Court, Banking, Karachi which was compromised without intimation to him and that the plaintiff has engaged another Advocate for which he has paid Rs.2,00,000 to the new advocate as professional fee. It was further stated in the said letter that the plaintiff had not paid the balance professional fee to him. Therefore, according to the learned counsel, he apprehending that the plaintiff may change another Advocate without clearing his balance fee, he had returned the case file. Now, reverting to the first question, whether in the circumstances, as narrated in the letter of Mr. Ali Murtaza Hussian, is he entitled to seek discharge of his Vakalatnama, it is suffice to observe that the grievance of the learned counsel is of serious nature. It is alleged by him that although his part professional fee was not paid by the plaintiff but in the same case, which was later on transferred from this Court to the Special Court (Banking), Karachi, the plaintiff has engaged an Advocate for the purpose of compromise after paying him huge professional charges. It is apparent from Order III of Civil Procedure Code, 1908 as well as Rules 49 and 50 of the Sindh Chief Court Rules (O. S. ) that these are silent as far as grounds or reasons on which an Advocate is entitled to seek his discharge from his professional responsibilities to conduct a case. However, in the Chapter XII of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, which describe in detail the Cannons of Professional Conducts and Etiquette of Advocates, Rule 139 lends support to some extent, to the present conduct of the learned counsel. It is reproduced as hereunder:‑‑ "

139. A client's proffer assistance of Additional Advocates should not be regarded as evidence of want of confidence but the matter should be left to the determination of the client. An Advocate should decline association as a colleague unless the dues of the advocate first retained are aid." (Underlining is mine) The lawyer client relationship is a most legitimate and sacred relationship based on the consent of mutual trust. It is also complex and complicated relationship depending .upon the background of the. clients involved in litigation as well as the prestige and competence of the lawyers processing the dispute. It is also based on implied contract. There may be several kinds of situation where a client tray become dissatisfied from the performance of his counsel and as a result may revoke authority of an Advocate to act on his behalf. Likewise, there may be several instances where an Advocate may be entitled to seek discharge of his Vakalatnama where his client. may have betrayed his confidence or failed to fulfil other obligations. It is very difficult to highlight such circumstances in detail in this order but for the present controversy it would be suffice to observe that the grounds mentioned by Mr. Ali Munaza Hussain, Advocate were sufficient to entitle him to seek discharge of his Vakalatnama. This observation may also be treated as an answer to the second question. Mr. Mirza Adil Baig, Member, Sindh Bar Council has referred to the case of S. T. K. Sundara Chettiar v. V. V. K.M: Kothandarama Chettiar and others (AIR 1958 Madras 122) to show that in India there exists two schools of thought on the question whether an Advocate is entitled to seek discharge of his Vakalatnama when, either he has received part payment or full payment. I do not see any reason to consider the rule laid down by a learned Single Judge of Madras High Court, as in my view Rule 139 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, entitles an Advocate to decline association with another Advocate as a colleague unless the dues of such Advocate are fully paid. This principle will be fully attracted where a client has engaged only one Advocate and whose professional charge, as agreed, has not been paid: Rule 154 further envisages several consideration for determining the quantum of fee. .I may observe here that the Bar Council Rules, 1976 have not limited the professional fee of an Advocate by fixing minimum or maximum scale. However, in para. 3 of Rule 147 a note of caution is made, which has become very relevant in the present day: "In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money‑making trade." Now coming to the third question, whether an Advocate is entitled to return the case file before seeking discharge from the Court, it is observed that an Advocate is not entitled to return the case file, whatever the grounds may be, prior to seeking discharge of his Vakalatnama from the Court. As I have already mentioned above that it is settled law that a Vakalatnama of an Advocate is deemed to exist on record unless an order of discharge is passed by the Court. Therefore, up to this extent the act of learned counsel was contrary to the provision of Order III, C.P.C. and rule 50 of the Sindh Chief Court Rules (O.S.). Mr. Abdul Rauf, Advocate who has now appeared on behalf of the plaintiff, has given his no objection to the grant of this application. In these circumstances, no further action is warranted, as far as the third question is concerned. In view of the above discussion, application of Mr. All Murraza Hussain, Advocate (CMA‑5227/1995) is granted and his Vakalatnama is discharged. Office is directed to replace his name from the case file with the name of Mr. Abdul Rauf, Advocate. A.A./M‑109/K Application accepted