2002 PLP 8 (CLC)

Mst. Nawab Bibi and 3 others v. Ch. Allah Ditta and others 1998 SCMR 2381 and Karim Bakhsh and another v. Hussain1984 CLC 2154 ref. Mian Sarfraz‑ul‑Hassan for Appellant. Muhammad Hussain, appellant/plaintiff, through the filing of this appeal has called in question orders, dated 7‑7‑2001 and 19‑7‑2001, whereby the learned Civil Judge, Gujranwala, dismissed an application for the re‑calling of the order, dated 7‑7‑2001.

2. Brief facts, leading to the finding of the present appeal, are that the appellant filed a suit for specific performance of an agreement to sell with a consequential relief before the learned Civil Judge, Gujranwala, together with an application for the grant of interim relief and initially the learned trial Court issued the injunctive order. Respondents Nos.2 to 5 contested the suit by way of filing the written statement and reply to the application for the grant of interim relief. On 7‑7‑2001, Mr. Imran Saeed Bhatti, Advocate, who happens to be the son of the principal counsel, namely Mr. Muhammad Saeed Bhatti, Advocate, appeared before the learned Civil Judge and made a statement that the plaintiff is not interested to further pursue the stay application, hence, the same may be dismissed. In view of this categorical statement of the learned Advocate, the learned Civil Judge, vide order, dated 7‑7‑2001, dismissed the abovementioned application as withdrawn and adjourned the case for a further date for framing of issues. It appears from the record that later on, Mr. Muhammad Saeed Bhatti, the learned counsel for the appellant, filed an application for recalling of order, dated 7‑7‑2001 on the ground that Mr. Imran Saeed Bhatti, Advocate, was neither authorized nor instructed to withdraw the said application, therefore, the order passed in this regard is liable to be recalled, which application was also dismissed by the learned trial Court vide order dated 19‑7‑2001, hence the present first appeal.

3. Learned counsel for the appellant has contended that Mr. Imran Saeed Bhatti, Advocate, had no authority from the appellant for the withdrawal of the application for the grant of interim relief and, therefore, the said illegality was apparent on the face of the record which was liable to be corrected in exercise of powers of review conferred upon the trial Court and the learned trial Court while not exercising those powers had committed a grave illegality by dismissing the application, filed by the appellant, for the recalling of the earlier order.

4. On the asking of this Court, to produce the Wakalatnama executed by the appellant in favour of Mr. Muhammad Saeed Bhatti, Advocate, the learned counsel for the appellant produced a certified copy of said Wakalatnama in the Court, today, which has made part of the record. It is evident from the perusal of the said Wakalatnama that tht appellant has given an unequivocal authority to Mr. Muhammad Saeed Bhatti, Advocate, to engage any other counsel and such a counsel would have the same authority and powers as are conferred upon the principal counsel. It would be advantageous to reproduce the relevant portion of the Wakalatnama, which is as under:‑‑

5. In view of the above, it is comprehensively clear that the appellant has given unfettered powers to the learned counsel (Mr. Muhammad Saeed Bhatti, Advocate), who was engaged for the purpose of pleading the case, and the said counsel engaged another counsel, at his discretion, and the second counsel, who was engaged and authorized by the principal counsel, would have the same powers which are to be exercised by the principal counsel. Perusal of Wakalatnama further reveals that the appellant has given full authority to Mr. Muhammad Saeed Bhatti, Advocate, even to give any statement and to enter into any compromise/agreement. Needless to mention that all the ancillary. powers were also conferred upon Mr. Muhammad Saeed Bhatti, Advocate, as such, all the said powers could be exercised by the second counsel.

6. It is admitted fact that Mr. Imran Saeed Bhatti, Advocate, is the son of the learned counsel for the appellant and the factum of his statement has not been disputed by the appellant. It is also not denied that Mr. Imran Saeed Bhatti, Advocate, in fact, appeared on behalf of Mr. Muhammad Saeed Bhatti, Advocate. Meaning thereby that Mr. Muhammad Saeed Bhatti, Advocate, imparted full instructions to the second counsel and as a matter of fact, the withdrawal of the application would be deemed to be by the original counsel. Moreso, when Mr. Imran Saeed Bhatti, Advocate, under the terms of Wakalatnama, executed by the appellant in favour of Mr. Muhammad Saeed Bhatti, Advocate, had full authority to act on behalf of the appellant and, as such, he cannot take any exception to the withdrawal of the application and the acts done by the said second counsel.

7. Proviso to Order 3, rule 4(5), C.P.C. is a complete answer to the contention raised by the learned counsel. Under sub‑rule (5), it is provided that a pleader who has been engaged for the purposes of pleading shall only plead when he has filed in Court a memorandum of appearance signed by himself and stating the names of the parties, but under the proviso, to said sub‑rule, the filing of memorandum of appearance is not required if any pleader engaged to plead on behalf of any party by another pleader who has duly been appointed to act in Court on behalf of such party. So, under proviso to rule 4(5) of Order 3, C.P.C. Mr. Imran Saeed Bhatti, Advocate, who happens to be the son of Mr. Muhammad Saeed Bhatti, Advocate (who has been engaged to plead the case on behalf of the appellant), was appointed to act on behalf of the appellant in the trial Court without any authority in writing. Under the said implied authority, if Mr. Imran Saeed Bhatti, Advocate, has withdrawn the application for temporary injunction moved on behalf of the appellant, the presumption would be that he must have been authorized to do so on behalf of principal counsel/his father, Mr. Muhammad Saeed Bhatti, Advocate. In support of this proposition, a case reported as Mst. Nawab Bibi and 3 others v. Ch. Allah Ditta and others 1998 SCMR 2381, which is on all force applicable and apt to the facts and circumstances of the present case can be referred to in which similar proposition of law has been discussed. It has further been held in Karim Bakhsh and another v. Hussain 1984 CLC 2154 that an Advocate, engaged by the original counsel, holds the same position as that of the principal counsel and can exercise all those powers which had been conferred on the principal counsel.

8. In view of the aforesaid case‑law on the subject, findings and conclusions, the present appeal is misconceived and both the orders, dated 7‑7‑2001 and 19‑7‑2001 passed by the learned Civil Judge and impugned in this appeal are unexceptionable and do not call for any interference by this Court. The appeal is devoid of merits, thus, the same is hereby dismissed in limine Q.M.H./M.A.K./M‑794/L Appeal dismissed.