2001 PLP 1134 (CLC)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑ This appeal has been directed against an order passed by the Assistant Registrar of this Court on 13‑1‑2001, whereby the conditional power of attorney submitted by Mr. Umar Mehmood Kasuri, the learned counsel for the appellants, herein, was not entertained for reasons recorded in the order under appeal.

2. At the very outset it may be stated that while lodging an appeal before this Court, Mi. Umar Mehmood Kasuri, the learned counsel for Azad Government and others, incorrectly stated the title of appeal as "Messrs Kashmir Polytex Ltd. v. Azad Government of the State of Jammu and Kashmir and others". As a matter of fact the title should have been "Azad Government of the State of Jammu and Kashmir and others v. M/s. Kashmir Polytex. Ltd."" as it is the Azad Government and others, the appellants herein, who are stated to have been adversely affected by the order of the Assistant Registrar which is the subject of appeal before us. Thus, during the course of arguments it .was ordered by us that the office shall make the necessary correction in the title of appeal and the same will be read as "Azad Government of the State of Jammu and Kashmir and others v. M/s. Kashmir Polytex Ltd.".

3. The necessary facts, giving rise to the present appeal, are that in a case titled "M/s. Kashmir Polytex Ltd. v. Azad Government of the State of Jammu and Kashmir and others", Mr. Umar Mehmood Kasuri, the learned counsel for respondents Nos.2, 5 and 6 to 9, appeared before the Assistant Registrar on 21‑12‑2001 as their counsel and submitted a power of attorney on their behalf, wherein a condition was incorporated "accepted subject to terms of fee". The learned Assistant Registrar objected to the submission of such a conditional power of attorney on the ground that the same was not permissible under law or the Supreme Court Rules. The learned Assistant Registrar of this Court formed the view that an Advocate filing the power of attorney is personally liable to the Court for due payment of fees and charges payable to the Court. It was also observed that a counsel even cannot withdraw from the conduct of the case for the reason of non‑payment of fees or costs or other charges without the leave of the Court. The learned Assistant Registrar further observed that under Order IV of the Supreme Court Rules a counsel is under an obligation to observe and abide by all the rules, regulations and practice of the Supreme Court and the filing of a conditional power of attorney is neither visualised by rules nor the same is in consonance with the practice of the Supreme Court.

4. On the query made by Assistant Registrar the learned counsel for respondents therein, Mr. Umar Mehmood Kasuri, in the first instance agreed to delete the condition from the power of attorney executed by respondents but then he changed his mind and stated before the Assistant Registrar that he would not delete the condition "subject to terms of fee" from the power of attorney executed by respondents Nos.6 to

9. However, the learned counsel deleted the condition from the power of attorney executed by respondents Nos.2 and

5. So, the said power of attorney to the extent of respondents Nos.6 to 9 was not entertained by the Assistant Registrar vide his impugned order, dated 13‑1‑2001 for reasons recorded, therein. ‑It is the aforesaid order of the Assistant Registrar which is the subject of present appeal.

5. In support of appeal it was vehemently contended by Mr. Umar Mehmood Kasuri, the learned counsel for the appellants, that the submission of power of attorney 'wherein a condition is incorporated that the same is accepted subject to terms of fee, is a matter between him and his clients, the appellants. The incorporation of the aforesaid condition, according to the learned counsel for the appellants, has nothing to do with the conduct of the case before the Court, as such the order passed by the Assistant Registrar was violative of law and hence not sustainable. The learned counsel for the appellants contended that as the matter of fee has not been finally settled by the appellants therefore, he accepted the power of attorney executed on their behalf in a conditional manner and the same does not in any way hamper the functioning for the Supreme Court or the prosecution of the case by him on behalf of appellants.

6. On the other hand Ch. Muhammad Afzal, the learned counsel for the respondent, strenuously controverted the arguments raised by the learned counsel for the appellants. The learned counsel for respondent contended that the acceptance of conditional power of attorney is neither visualised by the Supreme Court Rules nor the same is the practice of this Court. The bare reading of Supreme Court Rules shows that a counsel for a party cannot even withdraw from the conduct of the case for reasons of non‑payment of fees or costs or other charges without the leave of the Court. The learned counsel pressed into service the submission that an Advocate filing power of attorney is personally liable to the Court for due payment of fees and charges payable to the Court. Thus, the learned counsel maintained that the impugned order passed by the Assistant Registrar suffered from no infirmity or any illegality as pointed out by the learned counsel for the appellants.

7. After hearing the respective contentions of the learned counsel for the parties, we are of the considered view that the impugned order passed by the Assistant Registrar of this Court suffers from no illegality or infirmity as contended by the learned counsel for the appellants. Rule 19 of Order IV of the Supreme Court Rules provides as follows:‑‑ "Every Advocate on record shall before acting on behalf of any person or party file in the Registry a power of attorney in the prescribed form authorising him to act." Rule 21 of the aforesaid Order reads as follows:‑‑‑ "No Advocate on record may without the leave of the Court, withdraw from the conduct of any case by reason only of the non payment of his client of fees, costs and other charges." . Similarly in Rule 22 of the aforesaid Order it has been recorded in a following manner:‑‑ . ".Every Advocate on record shall be personally liable to the Court for due payment of all fees and charges payable to the Court. "

8. Rule 19 of Order W, referred to above, clearly provides that every Advocate shall file in the registry a power of attorney in order .to act on behalf of any person or party in the prescribed form authorising him to act. Rule 21 prohibits an Advocate from withdrawal of conducting the case for reason of non‑payment of fee to him by his client, costs or other charges, except with the leave of the Court. If permission is not sought from the Court for withdrawal from the conduct of any case then under Rule 22, referred to above, every Advocate shall be personally liable to the Court for due payment of all fees and charges payable to the Court.

9. As provided under Rule 19 referred to above, the prescribed form of power of attorney to be filed by an Advocate in the Court has been mentioned in Item No. 3 of 6th Schedule of the Supreme Court Rules which may usefully be reproduced below:‑‑‑ "No.3 "Power of Attorney" to Advocate‑on‑record (ORDER IV) . In the Supreme Court of Azad Jammu and Kashmir (Appellate Jurisdiction) (Original Jurisdiction) Case No.

of (A.B.) .... (Appellant) (Petitioner)/(Plaintiff) (District of A.B.) versus (C.D.) (Respondent)/(Defendant)/Opposite‑Party) I/(We) A.B. of (residence and addition of place) Plaintiff(s)/Appellant(s)/Petitioner(s) Defendant(s)/Respondent(s)/Opposite‑Party in the above suit/appeal/petition/reference do hereby appoint and constitute Mr.

Advocate‑on‑Record. Supreme Court, the Advocate‑on‑Record for the aforesaid appellant or plaintiff(s) or respondent(s), defendant(s) or opposite‑party to commence and prosecute (or to appear and defend) this action, appeal/suit/petition/reference on my (our) behalf and all proceedings that may be taken in respect of airy application connected with the same including proceeding in taxation and application for review to draw and deposit money, to file and take back documents to accept the process of the Court, to appoint and instruct counsel to represent the aforesaid appellant or plaintiff(s) or petitioner(s) or respondent(s) or defendant(s) or opposite‑party in the above matter and to do all things incidental to such acting for the aforesaid appellant or plaintiff(s) or petitioner(s) respondent(s) or defendant(s) or opposite‑party. The aforesaid appellant or plaintiff(s) or petitioner(s) or respondent(s) or defendant(s) or opposite‑party agree(s) to ratify all acts done by the aforesaid Advocate‑on‑Record in pursuance of this authority. In witness whereof I (we) do hereunto set my (our) hand(s) this

day of (Signature) The address for service of the said Advocate on record is

. The aforesaid Schedule does not in any way visualise the acceptance of a conditional power or attorney. It is indeed correct that the matter of payment of fee is between the client and his counsel but in order, to avoid the further complications, which may arise in a particular case, such a conditional power of attorney is not permissible under law or, the Supreme Court Rules,

10. It has rightly been pointed out by the Assistant Registrar that at the time of enrolment of an Advocate before the Supreme Court he has to give an undertaking and an indemnity Bond has to be filed by him under 6th Schedule of Order VI of Supreme Court Rules. He is under an obligation to observe and abide by all the rules, regulations and practice of the Supreme Court. Thus, the filing of a conditional power of attorney in our view, would be in violation of the rules, regulations and not in consonance with the practice of the Supreme Court.

11. In the light of what has been stated above, finding no force in this appeal, the same, therefore, stands dismissed with costs. H.B.T./162/SC(AJ&K) Appeal dismissed.