Thursday, 18 February 2016

Powers of Wakalatnama

PLJ 2013 Lahore 620
[Multan Bench Multan]
Present: Shahid Waheed, J.
MUHAMMAD SHAHID--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, SAHIWAL and 6 others--Respondents
C.M. Nos. 2449 & 2450 of 2013 in W.P. No. 13696 of 2010, decided on 29.4.2013.
Civil Procedure Code, 1908 (V of 1908)--
----O. III, R. 4(5)--Appointment of pleader--Making an application or presentation of suit or appeal--Pleader was engaged for purpose of pleading only not plead unless he had filed in Court a memorandum of appearance signed by himself--Validity--If any pleader engaged to plead on behalf of any party by any other pleader who had been duly appointed to act in Court on behalf of such party.       [P. 624] A
PLJ 1999 SC 839 & AIR 1960 Mys 217, rel.
Document--
----Construction of document appointing an agent is different from construction of a wakalatnama appointing counsel.            [P. 625] C
Duty of Advocate--
----Nature of duty and relationship with public and Court--Tripartite relationship--One with public another with Court and third with client.    [P. 626] D
Civil Procedure Code, 1908 (V of 1908)--
----O. III, R. 4--Power given through wakalatnama--Bar of--Application while appointing as his counsel had authorized him to engage any other counsel to act in his place or in collaboration with him and had authorized such other counsel to exercise same authority which had been conferred on engaged counsel--Validity--There is no bar on pleader duly authorized by a party under wakalatnama to engage another pleader without any written instrument to plead case on his behalf--When a counsel had been authorized under a wakalatnama to represent his client, junior or associate of the counsel can be permitted with out any authority in writing to appear on behalf of counsel representing client as and when counsel himself is not in a position to appear--In instant case, a young Advocate had contested case on behalf of applicant and pleaded all the grounds which were available for assailing vires of ejectment order--Applicant in instant application had not urged any ground of mala fide or collusion or fraud.       [Pp. 625, 626 & 627] B, E & I
Power to plead--
----Scope--Pleader however would not had power to compromise a case, withdraw a case or do any other act which may compromise interest of his client.            [P. 626] F
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2) & O. III, R. 4--Appointment of pleader--Neither applicant nor counsel of applicant ever authorized or appointed on other counsel to argue case--Question of order passed by Court--Advocate of applicant had no authorized or appointed another counsel to plead cause of applicant yet to prove assertion he had not placed on record any affidavit--Validity--In absence of such affidavit of counsel plea cannot be believed--Since applicant had failed to bring on record affidavit of counsel denying his association, it will be presumed that in view of Order III, Rule 4, CPC and powered conferred on principal counsel through wakalatnama being authorized was competent to appear before High Court and plea the cause of applicant--Matter was not only expedient but in interest of speedy delivery of justice that young lawyers who work with pleaders duly authorized by clients were permitted to appear in matters--Necessary for speedy disposal of cases and as an encouragement to younger professionals who were in formative years of practice--Judges also have duty to ensure that interest of parties were not permitted to be compromised--Contentions raised for petitioner was not a case of misrepresentation within contemplation of S. 12(2), CPC--Application was dismissed.   [P. 627] G, H, J & K
Syed Muhammad Ali Gillani, Advocate for Applicant.
Date of hearing: 29.4.2013.
Order
This order shall govern C.M. Nos.  2449-13 and 2450-13 in W.P. No. 13696-10, C.M. Nos. 2451-13 and 2452-13 in W.P. No. 13697-10, C.M. Nos. 2453-13 and 2454-13 in W.P. No. 13698-10, C.M. No. 2455-13 and 2456-13 in W.P. No. 13699-10, C.M. Nos.  2457-13 and 2458-13 in W.P. No. 13700-10, C.M. Nos. 2459-13 and 2460 in W.P. No. 13701-10, CM. Nos. 2461-13 and 2462-13 in W.P. No. 13702-10, C.M. Nos. 2463-13 and 2464-13 in W.P. No. 13703-10 as common questions of law and facts are involved therein.
2.  This is an application under Section 12(2), CPC for recalling of order dated 10.12.2012 whereby petition filed by the applicant under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973 ("writ petition") against the ejectment order dated 14.1.2010 passed by the Rent Tribunal, Sahiwal and also against order dated 13.11.2010 passed by the learned Addl. District Judge, Sahiwal was dismissed.
3.  The Respondents No. 3 to 7 on 11.9.2009 filed an application under Section 19 of the Punjab Rented Premises Ordinance, 2007 (now Act, 2009) for the eviction of the applicant from the rented premises on the ground of default in making payment of rent. The learned Rent Tribunal vide order and decree dated 14.1.2010 declined the application for leave to contest and directed the applicant to vacate the rented premises. Being aggrieved, the applicant filed an appeal before the learned Addl. District Judge and the same was dismissed vide judgment and decree dated 13.11.2010. The applicant, being dissatisfied, filed writ petition before this Court and assailed theaforestated orders. The writ petition was dismissed in limine by this Court vide order dated 24.1.2011. The applicant assailed the order dated 24.1.2011 before the Hon'ble Supreme Court of Pakistan through Civil Appeal Nos.150 to 157 of 2011 which were allowed vide order dated 24.5.2011 and the matter was remanded to this Court for fresh decision after summoning the record of the Rent Tribunal as well as the Appellate Court. In compliance with the order dated 24.5.2011 passed by the Hon'ble Supreme Court of Pakistan the record of the Courts below was summoned. After hearing arguments canvassed by Mr. Muhammad Masood Bilal. Advocate, who appeared on behalf of the applicant, and learned counsel for the respondents the writ petition was dismissed by this Court vide judgment dated 10.12.2012.
4.  The applicant has filed the instant application under Section 12(2), CPC read with Section 151, CPC for recalling of judgment dated 10.12.2012 on the ground that the same was obtained through misrepresentation. Learned counsel for the applicant submits that the applicant had engaged Ch. Abdul Sattar Goraya, Advocate as his counsel and had never appointed Mr. Muhammad Masood Bilal, Advocate; that neither the applicant nor counsel of the applicant Ch. Abdul Sattar Goraya, Advocate ever authorized or appointed Mr. Muhammad Masood Bilal, Advocate to argue the case on 10.12.2012 before this Court; and, that no opportunity of hearing due to above misrepresentation was given to the applicant and, therefore, judgment dated 10.12.2012 is liable to be recalled.
5.  I have heard the learned counsel for the applicant and examined the record.
6.  The applicant through writ petition had called in question the orders passed by the learned Courts below whereby he was directed to vacate the rented premises. Perusal of record reveals that the applicant for pleading his cause before this Court had engaged Ch. Abdul Sattar Goraya, Advocate but on 10.12.2012, Mr. Muhammad Masood Bilal, Advocate appeared on behalf of the applicant and argued the case. This Court after affording opportunity of hearing to Mr. Muhammad Masood Bilal, Advocate and learned counsel for the respondents dismissed the writ petition. It is the ease of the applicant that he had engaged Ch. Abdul Sattar Goraya, Advocate, and not Mr. Muhammad Masood Bilal, Advocate and thus the judgment dated 10.12.2012 was obtained through misrepresentation and for this reason the same stands vitiated. The questions which arise for determination in this application are: (i) whether Mr. Muhammad Masood Bilal, Advocate could appear on behalf of the applicant and argue the matter; and, (ii) whether pleading the cause of applicant by Mr. Muhammad Masood Bilal, Advocate before this Court constitute misrepresentation within the contemplation of Section 12(2), CPC for setting aside judgment dated 10.12.2012 passed by this Court? In this context reference may be made to Order III, Rule 4, CPC which reads as under:--
"4. 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 authorized by or under a power-of-attorney to make such appointment.
(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 sit are ended so far as regards the client.
(3)  For purposes of sub-rule (2) an application for review of judgment, an application under Section 144 or Section 152 of this Code, any appeal from any decree or order in the suit any application or act, for the purpose of obtaining copies of documents or return of document produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.
(4)  The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5)  No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating--
(a)        the names of the parties to the suit,
(b)        the name of the party for whom he appears, and
(c)        the name of the person by whom he is authorized to appear:
                        Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.
The word "act" occurring in sub-rule (1) to Rule 4 ante refers to the taking of steps to lay the case before the Court, as for instance, making an application or presentation of a suit or appeal. However, under sub-Rule (5) of Rule 4 it is provided that a pleader who has been engaged for the purpose of pleading only shall not plead unless he has filed in Court a memorandum of appearance signed by himself and stating the names of the parties etc. but under the proviso the filing in the Court a memorandum of appearance is not required, if any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party. In this regard reliance may be placed on the case of MstNawaz Bibi and 3 others Vs. Ch. Allah Ditta and others (PLJ 1999 SC 839) and Sakrappa Neelappa VsShidramappa Gangappa Katti and others (AIR 1960 Mys, 217).
7.  In the case before me the applicant while appointing Mr. Abdul Sattar Goraya as his counsel had authorized him to engage any other counsel to act in his place or in collaboration with him and had authorized such other counsel to exercise the same authority which had been conferred on Mr. Abdul Sattar Goraya. Relevant recitals in the wakalatnama read as under:
Before proceeding further it is germane to state here that the construction of a document appointing an agent is different from the construction of a wakalatnama appointing counsel. In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication. In the case of counsel the rule is otherwise because there we are dealing with a profession where well-known rules have crystallized through usage. It is at par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement. In Matthews Vs. Munster (1887) 20 QB 141, Lord Esher M.R. said:
"This state of things raises the question of the relationship between counsel and his client, which is sometimes expressed as if it were that of agent and principal. For myself I do not adopt and have never adopted that phraseology, which seems to me to be misleading. No counsel can be advocate for any person against the will of such person, and as he cannot put himself in that position so he cannot continue in it after his authority is withdrawn. But when the client has requested counsel to act as his advocate he has done something more, for he thereby represents to the other side that counsel is to act for him in the usual course, and he must be bound by that representation so long as it continues, so that a secret withdrawal of authority undertaken to the other side would not affect the apparent authority of counsel. The request does not mean that counsel is to act in any other character than that of advocate or to do any other act than such as an advocate usually does. The duly of counsel is to advise his client out of Court and to act for him in Court, and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client."
It has been held in the case of Chendgan Souri Nayakam Vs. A.N. Menon (AIR 1968 Ker. 213) that counsel is not a mere agent of the client and it would be clear if we look at the nature of his duties and relationship with the public and the Court. The counsel has a tripartite relationship; one with the public; another with the Court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty. Counsel's duty to the public is unique in that he has to accept all work from all clients in Courts in which he holds himself out as practicing, however unattractive the case or the client. In Rondel's case (1967) 1 Q.B. 443 Lord Denning MR. stated:
"It is a mistake to suppose that he is the mouthpiece of his client to say what he wants or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly make a charge of fraud, that is without evidence to support it. He must produce all the relevant authorities, even though that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions for his client, if they conflict with his duty to the Court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline."
8.  On a perusal of the provisions of Order III, Rule 4, CPC, set out hereinabove, as also the power given through "Wakalatnama", this Court is of the opinion that there is no bar on a Pleader duly authorized by a party under "Wakalatnama" to engage another pleader without any written instrument to plead the case on his behalf. The power to "plead" would include within its scope and ambit, the right to examine witnesses, to conduct admission & denial, to seek adjournments and address arguments, etc. as may be authorized. Such Pleader however would not have the power to compromise a case, withdraw a case or do any other act which may compromise the interest of his client. Although it  has  been  asserted  in  the  instant  application  that Ch. Abdul Sattar Goraya, Advocate had not authorized or appointed Mr. Muhammad Masood Bilal, Advocate to plead cause of the applicant before this Court yet to prove this assertion he has not placed on record any affidavit or certificate of Ch. Abdul Sattar Goraya, Advocate. In the absence of such affidavit/certificate of Ch. Abdul Sattar Goraya, Advocate, plea raised in the application cannot be believed. Since the applicant has failed to bring on record the affidavit/certificate of Ch. Abdul Sattar Goraya, Advocate denying his association with Mr. MuhammadMasood Bilal, Advocate, it will be presumed that Mr. Muhammad Masood Bilal Advocate in view of Order III, Rule 4, CPC and power conferred on the principal counsel through "Wakalatmana" being authorized was competent to appear before this Court and plead the cause of the applicant. The bald assertions in the application cannot be accepted as otherwise it would jeopardize the system of administration of justice. In procedural matters it is not only expedient but also in the interest of speedy delivery of justice that young lawyers who work with pleaders duly authorized by clients are permitted to appear in matters. This is necessary for speedy disposal of cases and also as an encouragement to the younger professionals who are in the initial/formative years of practice. Judges also have a duty to ensure such young pleaders and lawyers who enter the portals of Courts are permitted to learn but at the same time to ensure that the interest of parties are not permitted to be compromised. In view of Order III, Rule 4, CPC. I am of the opinion that when a counsel has been authorized under a Wakalatnama to represent his client, the junior or associate of the said counsel can be permitted without any authority in writing to appear on behalf of the counsel representing the said client as and when the counsel himself is not in a position to appear. In the instant case. Mr. Muhammad Masood Bilal, a young Advocate had contested the case on behalf of the applicant and pleaded all the grounds which were available to him for assailing the vires of ejectment order. The applicant in the instant application has not urged any ground of mala fide or collusion or fraud against Mr. Muhammad Bilal Masood, Advocate. The applicant has also not questioned the legal acumen or competency of Mr. Muhammad Bilal Masood. Advocate in pleading his cause before this Court. In these attending circumstances. I am not pursuaded to agree with the contentions raised by the learned counsel for the petitioner as this is not a case of misrepresentation within the contemplation of Section 12(2), CPC. Before parting I am constrained to observe here that the application in hand lacks bona fide and it appears that the applicant has conceived this frivolous application so as to multiply the litigation and thereby to avoid or complicate the execution of ejectment order which is statedly pending in the Executing Court.
            9.  This application sans merit and is accordingly dismissed.
C.M.No. 2450-13
10.  This is an application for staying operation of the ejectment order. Since C.M.No. 2449-13 has been dismissed, this application has become infructuous and is accordingly disposed of.
(R.A.)  Application dismissed

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