P L D 1969 Karachi 239 (PLP)

Khalid Ishaq for Petitioner. Tufail Ali A. Rahman for Respondents Nos. 1‑

3. Date of hearing : 4th September 1968. Mr. Tufail Ali A. Rahman, an Advocate of this Court, who represents respondents Nos. 2, 3 and 4, in the above petition, has filed a statement, requesting that he may be permitted to withdraw from this case. The statement bears the endorsement of the respondent No. 2, on his own behalf and on behalf of respondents Nos. 3 and 4, that these respondents have no objection to the withdrawal of Mr. Tufail Ali A. Rahman from this petition.

2. The statement of Mr. Tufail Ali A. Rahman has been filed in the following circumstances.

3. In the year 1965, one Mr. Moizuddin, who is on the rolls of this Court as an Advocate, and who is the brother of the petitioner, Syed Azizuddin, approached Mr. Tufail Ali A. Rahman in connection with litigation concerning some proper ties. According to Mr. Rahman, Mr. Moizuddin contacted him in connection with the litigation in which Mr. Moizuddin's father, Syed Khairuddin, was a party. Mr. Moizuddin, in his statement filed before me, states that he contacted Mr. Rahman in connection with the present petition. Both, however, agreed that after preliminary discussion, Mr. Moizuddin took appointment from Mr. Rahman for another date, when he was expected to show all the relevant documents to Mr. Rahman. It appears that there was some misunderstanding with regard to the date of this appointment, with the result that Mr. Moizud din did not turn up at Mr. Rahman's office on the date he was expected to come with the relevant papers. There was no further contact between Mr. Rahman and Mr. Moizuddin, so that the petitioner, Syed Azizuddin, brought this petition through another Advocate, Mr. Khalid Ishaq. At one of the hearings of the present petition, Mr. Rahman noticed that Mr. Moizuddin was present in the Court, where upon, it appears, that there was some talk between them with regard to Mr. Rahman's appearance in the case on behalf of the respondents Nos. 2, 3 and

4. Mr. Rahman states that he told Mr. Moizuddin that Mr. Rahman was not debarred from appearing in the present petition on behalf of these respon dents as, according to his recollection, he was consulted in a case in which the petitioner was to be Syed Khairuddin, Mr. Moizuddin's father but that if Mr. Moizuddin objected to Mr. Rahman's appearance, the latter would prefer to withdraw from the case. According to Mr. Rahman, Mr. Moizuddin told him . that he would consult his father and brothers, and if they had no objection, he would inform Mr. Rahman, accordingly one day before the next hearing of the case. Mr. Rahman says that Mr. Moizuddin did not contact him again, so that he is now seeking permission to withdraw from the case.

3. Mr. Moizuddin also has filed his own statement in writing before me, from which two facts emerge, that is, (i) that Mr. Tufail Ali A. Rahman did not propose, to charge any fees in the case, as the case related to the father of Mr. Moizuddin, who himself is an Advocate of this Court and (ii) no such confidential information was passed by Mr. Moizuddin to Mr. Rahman which could be used by the latter on behalf of the respondents Nos. 2, 3 and 4 to the detriment of the petitioner. In these circumstances, I have been asked to decide whether Mr. Tufail Ali A. Rahman is debarred from appearing in the present case. From the facts, which have been stated both by Mr. Rahman and Mr. Moizuddin, I am of the view that no restriction is placed on Mr. Rahman from representing the respondents Nos. 2, 3 and 4 in the present petition. I would in this connection refer to some of the leading cases on the duties of a lawyer in this connection. The first of these cases is Earl Chol mondeley v. Lord Clinton ((1814‑1823) All E L R 528), wherein it was held that a solicitor if he has received confidential information from one party, cannot discharge himself from acting for that party and then act for the other party to the action. The High Court of Allababad held in Edna May Olivia Hardless v. Harold Richard Hardless (A I R 1932 All. 536) that in order to prevent a counsel from appearing for one party, he must have a definite retainer with a fee paid from the other, or he must have had from this other party such confidential information as would make it improper for him to appear for this party's opponent. This High Court held in another case reported as Saharanpur Grain Chamber Ltd. v. Maharaj Sing (A I R 1940 All. 233) that counsel consulted by one party is per fectly free to accept brief against him if no information of confidential nature was received by counsel which could be of use against such party. The learned Chief Justioe, who decided this case, placed reliance in this connection on two decisions, that is U Ko Ko Gyi v. U San Mya (A I R 1930 Rang. 355) and Pallonji Merwanji v. Kallabhai Lallubhaio (I L R 12 Born. 85) and on the English case to which reference has been made above. The same view was adopted by the Oudh Chief Court also in Baijnath v. "S" (an Advocate of Unao) (A I R 1934 Oudh 58) in which it was held that definite retainer with fee or confidential instructions are necessary to prevent an advocate from appearing for the other party.

4. It is the admitted position in this case that no retainer fee was paid to Mr. Tufail Ali A. Rehman, nor did Mr. Moizuddin pass to Mr. Rahman any confidential instructions of a nature which could be used against the present peti tioner. What happened was only this that there was a preliminary consultation between Mr. Rahman and Mr. Moizuddin and the latter had to contact Mr. Rahman again for further discussions with regard to the litigation in which Mr. Rahman was proposed to be engaged by Mr. Moizuddin. But this further discussion never took place, nor was Mr. Rahman engaged on the petitioner's behalf in the present proceedings. In these circumstances, I am of the view that legally Mr. Rahman is not debarred from appearing in this petition on behalf of the respondents Nos. 2, 3 and 4 However, notwithstanding this legal position, Mr. Rahman has earnestly expressed his desire for permission to withdraw from the present case, so as to avoid any further misunderstandings. His request is not opposed by the respondent; who have hitherto been represented by Mr. Rahman. Accor dingly, though I am of the view that Mr. Rahman is entitled to represent the respondents Nos. 2, 3 and 4 in the present proceedings, he is permitted to withdraw therefrom. A. E. Application granted.