1990 PLP 1936 (CLC)

‑‑‑‑0.1X, R.9, Ss.11;5 & 151‑‑‑Restoration of revision application dismissed in default‑‑‑Application for restoration was put in beyond period of limitation‑‑ Effect‑‑‑Petitioner had not been able to make out sufficient cause, either for restoration of revision application or for condonation of delay‑‑‑Application for restoration of revision application was dismissed in circumstances. A.K. Dogar for Petitioner. Sh. Naveed Shahryar for Respondent. The petitioner, by moving these two C.M. petitions, sought restoration of the revision petition (which was dismissed for non‑prosecution on 13‑11‑1988) after condoning the delay, on the grounds that the present counsel (Mr. A.K. Dogar, Advocate) filed his power of attorney on 18‑8‑1987, which was entered in the diary at serial No.573 but the power of attorney was not attached with the file of the case with the result that the case was listed in the cause list but the name of the present counsel (Mr. A.K. Dogar, Advocate) did not appear in the cause list. It was added that Rana Abdul 1‑lamecd Khan, Advocate, who was earlier engaged as a counsel by the petitioner, was no longer the counsel as he had handed over the brief to the petitioner and the same had already been passed on to the present counsel. 1t was added that the statement made by the previous counsel (Rana Abdul Hameed Khan, Advocate), that he had no instructions in the matter, was not quite apt and even if that was the statement which could be made by the said counsel, even then a notice should have been sent to the petitioner and the revision petition could not be dismissed for non‑prosecution. As when a counsel reports no instructions, the Wakalatnama terminates automatically. It was asserted that the petitioner contacted the present counsel on 9‑5‑1989 after hearing rumours in the village during Eid holidays falling on 7th and 8th May, 1989, about the dismissal of his revision petition and thereafter applications were submitted promptly. An affidavit of Rana Abdul Hameed Khan, Advocate to the effect that "brief of the case had been taken away by the petitioner from which he guessed that the petitioner might have engaged another counsel but as his name (Rana Abdul Hameed Khan, Advocate) was listed, he had to appear in the Court, which he did and informed the learned Court accordingly" was also filed. Learned counsel for the petitioner, on the above premises argued that omission to note the case from the cause list was bona fide as the name did not appear in the cause list and in the circumstances the revision merits to be restored.

2. Sh. Naveed Shahryar, Advocate, learned counsel for the respondent, in reply, argued that the revision petition once dismissed in default cannot be restored. In support of the submission, reliance was placed on Messrs Ganisons Industries Ltd. Karachi v. Mir7a Akhlaque Ahmad (P L D 1974 Karachi 339). On merits, he argued that restoration is being sought on a false plea. It was pointed out that the learned counsel (Rana Abdul Hameed Khan, Advocate) did not inform the Court as is now claimed in his affidavit dated 15‑4‑1989, that the brief had been taken away from him and that he had informed the Court accordingly. He added that by making the statement that the counsel has no instructions, the power of attorney does not stand terminated automatically. "No instructions" means that the learned counsel is not in a position to assist the Court any further, but the power continues to vest and there is no automatic termination. Lastly, it was argued that mere non‑appearance of the name of one of the counsel in the cause list does not furnish sufficient cause for seeking restoration as other particulars of the case alongwith the name of one of the counsel admittedly were given, and as such the case could not be missed from the cause list had the learned counsel or his clerk examined the list vigilently.

3. I have considered the respective submissions of the parties. The plea of I the learned counsel for the respondent that the revisions petition dismissed in default, cannot be restored, is without merit. The judgment of the Karachi Bench in the case of Messrs Ganisons Industries Ltd. Karachi v. Mir7a Akhlaque Ahmad A (supra) was specifically dissented from by a learned Judge of this Court in the case of Babu v. Mst. Niaz Bibi (P L D 1982 Lahore 192). Again, this question stands settled by the judgment of the Supreme Court in the case of Jar Muhammad.v. Muhammad Asghar (P L D 1981 S C 513).

4. The question next requiring determination is, whether "sufficient cause" so as to justify restoration has been made out or not. In the instant case Rana Abdul Hameed Khan, Advocate, on the date fixed i.e. 13‑11‑1988, stated that he has no instructions and consequently, the revision petition was dismissed for non prosecution. In the affidavit dated 14‑5‑1989, he has stated that the brief of the case had been taken away from him and from this he guessed that the party might have engaged another counsel, but as the name of the counsel was listed he had to appear in the learned Court which he did and informed the learned Court accordingly. This version cannot be accepted. Had he made such a statement on 13‑11‑1988, when he appeared, the same would have been incorporated in the order passed on the said date: The only statement incorporated in the order dated 13‑11‑1988 is that he had no instructions. The statement "No instructions" does not amount to saying that the party engaging him has terminated his power of attorney or that the brief has been taken away from him. There cannot be any automatic termination of the power of attorney in view of the provisions contained in rule 4 of Order III of C.P.C. The relevant part of the rule reads as under: Appointment of pleader.‑‑(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 person duly authorised by or under a power‑of‑attorney to make such statement. (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." In view of aforesaid provisions, it was held by Bhide, J, in the case of Ilam Din v. Sher Muhammad and others (A I R 1930 Lahore 134), that rule 4 takes no notice of the termination of an appointment of a pleader by mutual consent unless and until the Court is apprised of the fact by writing in the manner stated in the rule and leave of the Court is obtained. Again in the case of Sant Singh and another v. Rattan Singh and others (A I R 1946 Lahore 266), it was observed, that the power of attorney can only be revoked either wholly or partially only by writing and with the leave of the Court. In view of the aforesaid provisions of rule 4 of Order III C.P.C., the observations made in Abdul Ghafoor v. Peerchand (AIR 1956 Bhopal 54) cannot be understood to have laid down that Wakalatnama terminates automatically when the counsel reports no instructions. I am, therefore, of the view that power of attorney of Rana Abdul Hameed Khan, Advocate did not terminate when he stated that he has no instructions in the matter. When seen in the aforesaid context; it will be noted that despite submission of power of attorney by Mr. A.K. Dogar, Advocate, power of attorney of Rana Abdul Hameed Khan, Advocate did not stand superseded or terminated.

5. Now the plea that on account of non‑appearance of the name of the counsel (Mr. A.K. Dogar, Advocate) the case was missed from the cause list and in the circumstances, case merits to be restored. At this stage, it will be appropriate to point out the guiding principle laid down by the Supreme Court in the case of Jan Muhammad v. Muhammad Asghar (P L D 1981 SC 513). 1t was observed: "It is not disputed that the view of the law with regard to sufficiency of cause so as to justify restoration taken by the learned single Judge, namely, that it has to be determined in the peculiar circumstances of every case, is unexceptionable. A fact considered in the context of one set of circumstances and background, might prove to be a sufficient cause but the same fact considered in different set of circumstances might not constitute a sufficient cause. Further it is not a disputed question that the Court concerned (and in this case the High Court) has to exercise discretion on due appreciation of the facts and circumstances of each case. The exercise of discretion undoubtedly has to be in accordance with accepted judicial principles." It will be pertinent to note that the cause list admittedly contained the number of the case, the particulars of the parties as well as the name of Rana Abdul Hameed Khan, Advocate, who was admittedly engaged by the petitioner and through whom the revision petition was instituted. It is also important to note that the plea that Rana Abdul Hameed Khan, Advocate, had informed the Court that the brief has been taken away from him, cannot be believed as no such statement was made on 13‑11‑1988 when he reported no instructions. Had the counsel for the petitioner (Mr. A.K. Dogar, Advocate) or his clerk been vigilent, they would not have missed the case from the cause list as all other particulars had correctly appeared in the cause list. The cases from the cause list are not noticed merely from the names of learned Advocates. In any case, the name of one of the counsel had appeared and it was also in the notice of the second counsel (Mr. A.K. Dogar, Advocate) the Rana Abdul Hameed Khan, Advocate was the other p counsel engaged in that very case. That fact was also sufficient to put the second counsel on guard and as such provided sufficient indication for noticing the case from the cause list. In another case in similar circumstances it was held by me that non‑appearance of the name of the counsel in the cause list does not provide sufficient basis for not noticing the case or justification for non‑appearance in Court. See Punjab Province v. Malik Muhammad A7am (1982 C L C Lahore 1475). 5‑A. For all these reasons, I am of the view that the petitioner has not been able to make out sufficient cause, either for restoration of the revision petition, or for condonation of delay. The petitions therefore> fail and are dismissed with cost. CM. No. 2148‑C/89 & CM. No. 2613‑C/89. These petitions have been rendered infructuous because of the dismissal of the main petition seeking restoration of the revision petition. C.M. petitions stand disposed accordingly. A.A./F‑209/L Petitions dismissed.