P L D 1988 Karachi 154 (PLP)

MAMOON KAZI, J.‑The circumstances under which this appeal against the order passed by the learned Single Judge of this Court, dated 28‑9‑1987, has arisen are as follows:‑ The respondent No.1 had filed a suit (Suit No.386,/87) against the appellant and the respondents Nos. 2 and 3 for specific performance of a contract. Alongwith the suit an application. For stay (C.M.A. No:2564/87) under Order XXXIX, Rules 1 and 2, C.P.C. had also been filed which was fixed for hearing on 9‑8‑.1987 but on that date the respondent No.1 and his counsel, namely Mr. Muneeruddin Ahmed and Mr. Bashir Ahmed were called absent and the application was consequently dismissed for non‑prosecution. It may be pointed out that the respondent No. 1 had engaged two advocates to appear and act on his behalf. ‑One of them, namely, Mr. Bashir Ahmed was practicing at Lahore. It is also pertinent to point out that although Mr. Bashir Ahmed had been appointed by the respondent No. 1 as his counsel in the case in the beginning of the proceedings and had actually appeared in the Court on his behalf, but he had not filed his vakalatnama in the case till 19‑8‑1987. Be that as it may, but after the dismissal of the application, an application (C.M.A. No.3564/87) was filed on behalf of the respondent No.1 under section 151, C.P.C. for restoration of same which was supported by a personal affidavit of Mr. Muneerddin Ahmed, wherein it had been stated: "(1) That I am one of the Advocates in the above‑mentioned suit and the other Advocate who has filed power practices at Lahore. (2) That I had fallen ill and was suffering from eremitic fever falsity by the evening of 7‑8‑1987 and went for treatment on 8‑8‑1987 as 7‑8‑1987 was Friday so no private medical aid could be available. My illness continued even after 9‑8‑1987 and I was advised rest till 13‑8‑1987 (M.C. is enclosed)." It is the case of the appellant that, in the course of the arguments although it had been pointed out to the learned Single Judge by the learned counsel for the appellant, that it was also the duty of the learned counsel from Lahore to have appeared on behalf of the respondent No.1, but the learned Single Judge took the view that, it is a common practice that when besides a local Advocate, an Advocate from another place is engaged by a party, then the Advocate from outside is not required to attend the Court on every date of hearing, and consequently C.M.A.No.2564/87 was restored and hence this appeal. In view of the circumstances stated above, Mr. Mansoorul Arfin, learned counsel for the appellant has argued that, as the respondent No.1 was being represented in the case not by Mr.Muneeruddin Ahmed alone as his counsel, but he was also represented by Mr. Bashir Ahmed, Advocate, the respondent No.1 was under an obligation to explain Mr. Bashir Ahmed's absence as well on 9‑8‑1987, which was not done as only the respondents' and Mr. Muneeruddin Ahmed's absence had been explained in the affidavit filed in support of C.M.A. No.3564/87. An exception has also been taken to the observations made by the learned Single Judge to the effect that it was not obligatory for Mr.Bashir Ahmed to appear in the case on every date of hearing. This appeal has been resisted by Mr.Muneeruddin Ahmed, learned counsel appearing on behalf of the respondent No.1, mainly on the plea that Mr.Bashir Ahmed had not filed his vakalatnama in the Court on behalf of the respondent until 19‑8‑1987 as is evident from the vakalatnama itself filed by him in the Court and since C.M.A. No.2564/87 had been dismissed earlier, the respondent No.1 at that time would be deemed to be represented only by Mr. Muneeruddin Advocate and consequently, it was not necessary for him to explain the absence of Mr. Bashir Ahmed. To support his contention the learned counsel has relied upon the provisions of Order 111, Rule 4, C.P.C., clauses (1), (2) and (5) Whereof provide as follows: (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 recognized. Agent or by some other persons duly authorized 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. (3) (4) . (5) No ‑pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless, he has filed in Court a memorandum of appearance signed by himself and stating‑ (a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorised to appear: Provided that 'nothing in this sub‑rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to. act in Court on behalf of such party." A plain reading of the above provisions of the Code of Civil Procedure clearly indicates that a pleader (which term also includes an advocate) engaged by a party to appear or act on its behalf in the Court must file in the Court a document, commonly referred to as vakalatnama, which must be in writing and signed by such party or his recognized agent or by some other persons duly authorised by or under a power of attorney to make such an appointment. A question therefore arises, since admittedly, Mr. Bashir Ahmed had not filed his vakalatnama in the case at the crucial time, can his appearance in the case at the time be regarded as an appearance by a counsel and if not, was the respondent No.1 still under an obligation to explain his absence? Reference during the course of the arguments was made to the following cases. In the case of Mst. Azra Begum v.Piran Ditta (P L D 1967 Lah. 807) an appeal had been filed by an Advocate on verbal instructions of a counsel duly authorized to file such appeal. The appeal was dismissed as having been filed by an Advocate who had no power of attorney in his favour. The order of dismissal was held to be illegal. In another case reported as Raghunath Devi v. Administrator, Srinagar Municipality (A.I.R. 1962 J & K 83) a suit was dismissed under Order IX, Rule 3, C.P.C. An application to set aside the dismissal was signed and filed by the plaintiff's Advocate who had failed to file his vakalatnama at that time but the same was however, filed by him subsequently, It was held to be sufficient compliance with Order 111, Rule 4, C.P.C. and the application for setting aside of the dismissal of the suit was held to be competent. In Jhumarmull Sethia v. Champalal Bother (A.I.R. 1960 Cal 61) a petition to set aside an exprate decree had been signed by a person not legally authorised to do go. It was held that this formal defect can be cured by signature of the defendant himself at a later stage. However, in some cases different view was taken and one of them is reported as the Thai Development Authority v.Nisar Ahmed Qureshi (P.T..D. 1962 (W.P) Lah 830). In this case the objections filed by an Advocate to an application under section 14 of the Arbitration Act without a valid vakalatnama were held to be incompetent. Similarly in Punjab Livestock Dairy and Poultry Development Board v. Shaikh Muhammad Younus (1980 C.L.C.1932) similar views as held in P.L.D. 1962 Lahore were expressed. Reference may also be made to the case of Official Receiver, Aligarh v. Hira Lal (A.I.R. 1935 All 727). In this case an application for substitution and execution signed by a pleader which was accompanied by an unsigned vakalatanama was held to be incompetent. These thumb nail summaries of the cases just referred to by us, no doubt, indicate that the right of an advocate to appear and act on behalf of his client is subject to the provisions of Order III, Rule 4, C.P.C., but these cases although obliquely support the respective contention raised before us, the same can hardly be called in aid of resolving the real controversy in top case, because the basic question in the instant case is not whether Mr. Bashir Ahmed was competent to appear and act on behalf of the respondent No. 1, A but whether his appointment as a counsel by the respondent No.1 prior to 19‑8‑1987 could be regarded as non est. in the eyes of law. No doubt, we cannot be oblivious of the fact that the right to be represented by a counsel is not inherent in a suitor and the same has been conferred upon him by Rule 1 of Order 111, C.P.C. Rule 4(l) of Order 3, which has been reproduced above, also begins with the words "No pleader shall act for any person in any Court", which clearly makes it obligatory on the suitor or his counsel to file vakalatnama in the case duly signed as. required by Rule

4. But even if it is held that Rule 4 of Order III, has to be complied with in letter and spirit, can an omission made by the counsel to file a proper vakalatnama in the case render his appearance non‑existent in the eyes of law? Since admittedly, Mr. Bashir Ahmed had actually been engaged by the respondent No.1 and was allowed to appear in the case without any objection from the opposite parties in the case the court, before his filing of such vakalatnama in the case, thel question, in our opinion, requires examination from an altogether a different angle. As has been pointed out above, Mr. Bashir Ahmed had been appointed by the respondent No.1 as his counsel along with Mr. Muneeruddin Ahmed at the beginning of the proceedings before the learned Single Judge. Then it is not the case of the respondent No.1 that Mr. Bashir Ahmed had been appointed by him, only to represent him in the case on a particular date of hearing or only for some of them. We would like to make it clear that the provisos on Order 111, Rule 4 clearly refer to the procedure which must be followed by the parties but the object behind the above provisions of the Code of Civil Procedure, only appears to be, that the vakalatnama should evidence the fact of appointment of the counsel in the case. The requirement of filing a duly signed vakalatnama in the Court also guards against possible fraud which might be committed by the parties or the advocates. Under the circumstances, it is difficult to take a hypothetical view of the matter as canvassed by the learned counsel for the respondent No.l. To take such a view, in our opinion would tantamount to allowing fiction to take precedence over a reality. In any case, since Mr. Bashir Ahmed was permitted to appear in the case without filing his vakalatnama, we find it difficult to accept the argument that the appointment of Mr. Bashir Ahmed as a counsel by the respondent No.1 prior to 19‑8‑1987 could be overlooked. In view of the above circumstances, we are of the opinion that the point canvassed before the learned Single Judge by the appellant's counsel that if a party is represented by more than one advocate then the absence of each one of them must be properly explained by it has lot of merit in it. Since Mr. Bashir Ahmed had C actually been permitted to appear in the case, the same could not absolve the respondent No.1 of his obligation to explain the non‑appearance of Mr. Bashir Ahmed on 9‑.8‑1987. Reference in this) respect may be made to the case of Hafiz Ghulam Ahmed v. Mst. Shah Bibi PLD 1951 B.J 46 and M.A. Latif Faruqui v. National Bank of Pakistan P L D 1981 Kar

645. The second was decided by a Division Bench of this Court. In the two cases it was held that appearance of two Advocates for a party would make it obligatory for it to satisfactorily explain the absence by both of them. The question, therefore, cannot be determined by mere reference to the provisions of Order 111, Rule 4, C.P.C. Consequently, we are inclined to agree with Mr. Mansoorul Arfin that the absence of Mr. Bashir Ahmed should also have been explained by the respondent No.1 which admittedly has not been done by him. We are also unable to agree with the observations made by the learned Single Judge that if an Advocate has been engaged from another place, he is not required to attend the Court on every date of hearing, for the same reasons as stated by us above. The mere fact that one of the Advocates is from another place cannot absolve E him from such an obligation. It may also be pointed out that no reasons have been‑ given by the learned Single Judge to justify his observations. We have consequently reached the conclusion that it was obligatory on the respondent No.1 to explain the absence of Mr. Bashir Ahmed as well on 9‑8‑1987 and consequently, sufficient cause for non‑appearance had not been shown by the respondent No.l. The next question would be, whether the respondent No.1 should be penalized on account of this lapse on his part as pointed out above. It is an accepted principle that although a party can be made to suffer on account of a gross negligence, minor lapses are generally condoned. No doubt, the respondent No.1 failed to explain the absence of both of his counsel on the relevant date, but as was held in Wali etc. v. Manak Ali, etc. P L D 1965 S C 651, the law favors adjudication on merits and a failure to do so would tantamount to refusal to the parties of their rights and adjudication will not be refused unless there exists some insuperable practical obstacle preventing it. Such lapses, as in the instant case, on the part of F the parties or their counsel are not uncommon. However, if such lapses do occur, the same can be compounded by imposition of costs. Under the circumstances in our opinion the ends of justice can be, sufficiently met if costs are imposed upon the respondent No.1 for this lapse. Consequently although, we dismiss this appeal and maintain the impugned order passed by the learned Single Judge but modify the same to the extent that C.M.A. No.2564 of 1987 shall be restored subject to the payment of Rs.2,000 as costs to the learned counsel for the appellant. There will be no order as to costs in view of the questions raised. M.B.A./M‑349/K Appeal dismissed.