P L D 1954 Peshawar 57 (PLP)

MUHAMMAD SHAFI, J.‑Tbis is an application by R. A. Money of Abbottabad, under section 41 of the Legal Practitioners' Act, read with rule 9, framed by this Court., under the above Act, praying that disciplinary action may be taken against Kazi Asadul Haq B. Sc., L.L.B., an Advocate for this Court, practising at Abbottabad. The facts of the case, as alleged by Miss Money in her application, are that she had purchased certain property in March 1951, from the successors of one Mangat Rai. Immediately after she acquired this property, she gave one bungalow out of it on a rental of Rs. 70 per mensem to Kazi Asadul Haq, on the under standing that he would safeguard her interests, and conduct her case if any suit for pre‑emption is brought against the said sale. So far as the fee was concerned, it had to be reasonable, and was to be adjusted towards the rent of the said bungalow. It was further state in the application that Miss Money gave all the facts and instructions to Kazi Asadul Haq, who, to put it in her own language, "freely consulted all the relevant documents and papers in possession of the petitioner, regarding the said property." Kazi Asadul Haq also suggested to her to make a representation to the Local Municipal Committee against the expediency of the Pre emption Law in Abbottabad and for exemption of the town from the operation of the new Pre‑emption‑ Act. He prepared a draft in his own handwriting, but then the representation could not be made by Miss Money, because it had already been made by other persons to the relevant authorities. The. Provincial Government, however, subsequently by a Notification exempted the Municipal Area of Abbottabad, Mardan and all the Cantonments in the North. West Frontier Province, from the operation of the Pre‑emption Act. It was also alleged in the application that Kazi Asadul Haq conspired with Fazal Ahmad and Noor Ahmad of Salhad, and initiated through them a pre‑emption suit against the petitioner, and conducted that suit himself, in spite of the fact that he had already been engaged by her. This act of Kazi Asadul Haq, according to Miss Money, amounted to professional misconduct, making him liable to disciplinary action by this Court. This application was forwarded to the District judge Hazara, for enquiry, who has submitted a report to the effect that the charges levelled against Kazi Asadul Haq were fully established, and his license should, therefore, be suspended for a period of five years. The learned District judge Hazara recorded the evidence produced by the petitioner and the respondent, and he based his recommendations on that evidence. Certain pencil‑notes prepared by the respondent were also produced on the record, in order to prove that he had accepted the brief from Miss Money, and that his subsequent change of sides was against law and the profes sional conduct of a lawyer. The evidence produced by the petitioner consisted of the statements of Ahmad Khan, Muhammad Ayub, Sheikh Muhammad Ahmad Public Prosecutor, Faqira Khan and Dr. Miss Money herself. The respondent produced Seth Ghulam Hussain, Abdus Salam. Mirdad Khan, Fazal Ahmad, Muhammad Ashraf Khan. Muhammad Sadiq and Naseem Hijazi into the witness‑box. It may be mentioned here that Kazi Asadul Haq made an application before the District judge, summoning about 77 witnesses, including the District Judge Hazara, Hon'ble Khan Sardar Bahadur Khan, Hon'ble Khan Abdul Qayum Khan, Hon'ble R. S. Ram Lubhaya Mal, a judge of the Assam High Court, and the other of us. The learned District judge disallowed Kazi Asadul Haq to produce these witnesses, and to produce only those persons, who were' the residents of Abbottabad, because in his opinion such a long list of witnesses was meant to tire the petitioner out, who was a medical practitioner and was bound to suffer if the proceedings were delayed, and also because these witnesses were only meant to prove the good reputation of. Kazi Asadul Haq, which was‑not in issue at all. It is not necessary for us to go into the question, order of the learned District judge was right or wrong, but we must take this opportunity to condemn as most reprehensible the act of Kazi Asadul Haq to summon the other of us as a witness in the case. We asked him in Court as to why did he do so, and he said that it was to prove that no complaint had ever been made against his right from the date when he started his practice up to the time that the application was made by Miss Money. If that was the only fact which Kazi Asadul Haq wanted to prove, then he could have summoned the registrar, or the superintendent, or even a clerk of this Court to produce the relevant file in Court. He had absolutely no justification to summon the Senior judge of this Court for hat purpose. By his act the respondent has slighted this Court. An Advocate who is a responsible member of the legal set up of a country, must have utmost respect for the highest Court of law of his Province. He is expected not to be disrespectful to the dignity and authority of such Court by his insolent behaviour towards its judges. So far as the evidence produced by the parties is concerned, we must at the very outset say that barring the statement of Miss Money, it is all irrelevant and most unconnected with the point under investigation. Miss Money in her statement did not reiterate all the charges that she had made in her application. To put it briefly, all that she stated in her evidence was, that after she purchased the property from the successors of Mangat Rai, she started hearing rumours that a pre‑emption action was going to be brought against her. She consulted the respondent, because she was on visiting terms with him and his family. The respondent told her that there was a natural ravine in between the property, which she had purchased, and the one belonging to the prospective pre‑emptors, Fazal Ahmad and Noor Ahmad, and therefore, there was no likelihood of any pre‑emption suit. This part of the case was not mentioned in the application. After sometime the rumour: that a pre‑emption suit was being brought against her became very rife, and so she again approached the respondent, who told her that there was a provision in the Pre‑emption Act, under which the Governor could exempt certain acquisitions from the pre emption action, and he suggested that a representation to that effect should be made to His Excellency the Governor. Miss Money then asked the respondent to tell her how to make this representation, and so the latter jotted down a few lines in pencil on Exhibit P. W. 3/1, Exhibit P. W. 3/2, Exhibit P. W. 3/3, Exhibit P. W. 3/4, Exhibit P. W. 5/1, and Exhibit P. W. 5/2. Kazi Asadul Haq is further stated to have suggested to her to declare her property to be a charitable hospital, and in that case the property ipso facto would be saved from the pre‑emption suit. She, however, admitted that she did not make the above representation, because other people had done it and her object had been fulfilled. Subsequently Fazal Ahmad and Noor Ahmad did actually bring a suit for pre‑emption, in which Kazi Asadul Haq accepted the brief from the other side. Now according to law an Advocate is engaged either to act, or to plead. If the appointment of an Advocate is to act, then it must be in writing, and signed by the person authorizing him to do so‑ If, on the other hand, be is engaged to plead then he can do so by just putting in Court a memorandum of appearance. In this case there is no power of attorney produced, showing that Kazi Asadul Haq was appointed to act for Miss Money. All that is alleged is that he was consulted in certain matters before the action was actually brought, and on account of that consultation he was debarred to change sides and accept the brief from the other side. It is not every consultation, which debars a legal practitioner from accepting the brief of the other side. Only that consultation debars him, during the course of which an Advocate has received any information of a confidential nature, which can be of any use against that party in the litigation. The onus of proving that confidential information was conveyed lies very heavily upon the applicant. In this part of the country it is not uncommon fur the people to go to the lawyers and start talking to them, and take from them certain legal information. In fact a lawyer being a business man cannot very well insult the persons by telling them that he cannot give an opinion until and unless he is properly engaged. If such an opinion given in the course of conversation is held to debar that lawyer from appearing against them, then the position of the legal profession would become extremely hazardous and dangerous. It would in that case be not difficult for a person to walk up to about 10‑12 lawyers, and talk to them informally either about his case, or about the legal matters involved in the case and, thus, stop them from appearing in the case for the other side. This is exactly what was happened in this case. It is nowhere alleged by Miss Money in her statement that she showed the deed, by which she had purchased the property to Kazi Asadul Haq, or conveyed to him any other matter of confidential nature. All that is alleged by her is that she asked him about the legal position, and Kazi Asadul Haq told her that a representation could be made to the Provincial Government for exempting Abbotabad from the operation of the Pre‑emption Act, and for that purpose he jotted down some notes in pencil on the papers referred to above. Miss Money neither paid Kazi Asadul Haq any fee, nor extracted a promise from him in definite terms that he would appear for her if any action is at all brought in a Court of law. It is then clear from the statement of Miss Money herself, without going into any other evidence in the case, that there was no under standing whatsoever between Miss Money and Kazi Asadul Haq that the latter would not accept the brief against her, if any action for pre‑emption is brought against her on the basis of the sale referred to above. Even, however, if it be conceded that Kazi Asadul Haq gave an impression to Miss Money that he would be prepared to accept her brief, still in the present case we are of the opinion that Miss Money herself is to be blamed for not engaging Kazi Asadul Haq, and driving him into accepting a brief from the other side. The suit for pre‑emption by Fazal Ahmad and Noor Ahmad was instituted on the 27th of March 1952. This suit was not instituted through Kazi Asadul Haq, but by the plaintiffs themselves. Miss Money appeared as a defendant in the case on the 6th of May 1950. She put in her written statement not through Kazi Asadul Haq, but through two other gentlemen namely, Sheikh Sajjad Ahmad Jan and Sheikh Muhammad Ahmad. It was after this, that Kazi Asadul Haq came into the picture, and accepted the brief for the plaintiffs. Asked during the enquiry proceedings, why did she not engage Kazi Asadul Haq, she said that she did not do so, because she had been told that Fazal Ahmad had consulted him prior to the institution of the suit. This part of her statement is certainly not supported by any evidence on this record. Be that as it may, there is no satisfactory evidence produced on this record, indicating that Kazi Asadul Haq was engaged by Miss Money, nor is there any satisfactory proof, that Kazi Asadul Haq accepted the brief of the other side in spite of his having been conveyed some matter of confidential nature, which could be of any use to the other party in the litigation. The result is that we see no substance in the application, which is hereby dismissed with costs. Pleader's‑fee Rs.

50. Orders announced. A. H. Application dismissed