2015 C L C 1315
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD ALI and 21 others ----Petitioners
versus
ABDUL JALIL ----Respondent
Civil Revision No.8 of 2006, decided on 27th April, 2015.
(a) Civil Procedure Code (V of 1908) ----
----Ss. 2 (15), & O. III, R. 4 ----High Court (Lahore) Rules & Orders, Vol.V, Ch. 6 -B, Part B ---
Appointment of pleader ---Requirement ---Power and duties of advocate ---Advocates not duly
authorized ---Effect ---Revision petition was filed and petitioners were r epresented by advocate
without authorization ---Maintainability ---Advocate filed present petition with an undertaking of
filing power to represent petitioners, which they never filed ---Validity ---Present petition was
filed by advocate with clear undertaking of filing instrument of authorization to represent
petitioners before court, but he failed to place on record written instrument to that effect, which
could entitle him to represent petitioners before court and to file petition with his own signatures -
--Advocate who made his appearance was not duly authorized to represent petitioners before
court and his presence was therefore of no legal effect ---Petitioners, in circumstances, were not
present before the court ---No pleader or advocate could act in court o f law unless duly appointed
by an instrument in writing ---Present petition having been filed by an incompetent person was
not maintainable ---Petition was dismissed in circumstance.
(b) Civil Procedure Code (V of 1908) ---
----O. III, R. 4 ---Scope ---Appo intment of pleader ---Procedure and requirement ---Order III, R. 4,
CPC is elaborate enough to deal with all possible situations but basic requirement of appointment
of pleader shall always be the same ---Appointment of pleader shall be in writing and duly si gned
by person who appoints the pleader and this instrument must be before the court ---No pleader or
advocate can act in court of law unless duly appointed by an instrument in writing.
(c) Civil Procedure Code (V of 1908) ---
----S. 2(15) ---"Pleader" ---Meaning ---Representation through pleader ---Legality ---Pleader means
any person entitled to appear and plead for another in court, and includes advocate, Vakil and
attorney ---Person is entitled to be represented before court through pleader instead of maki ng his
personal appearance.
Habib -ur-Rehman for Petitioners.
Zahir Muqim Ansari for Respondent.
Date of hearing: 17th April, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- This petition was filed by three ladies namely
Mehr Khatoon, Naz Bibi and Sharatoon to assail judgments dated 4th January 2004 of Qazi
Gawadar, whereby the suit filed by them was dismissed for want of merit, and 6th October, 2010
of Majlis -e-Shoora Mekran at Turbat, whereby the appeal filed by the petitioners was declined.
2. This petition was presented on 5th January 2006, and has yet to finalize. The facts
collected on perusal of the case file that the petition was filed by three ladies namely Mehr
Khatoon (petitioner No. 1), Naz Bibi (petitioner No.2) and Sharatoon (petitioner No.3). Mr.
Abdullah Baloch, Advocate, was making his appearance for the petitioners, who in fact replaced
the counsel who initially represented the petitioners, was directed to f ile his power as recorded in
order sheet maintained on 6th December 2010. His power was awaited when the petitioners
Mehr Khatoon and Naz Bibi were reported to be dead and the amended titles were filed to bring
on record their legal heirs. Despite clear di rections, repeated on addition of the petitioners, no
power was filed rather Mr. Abdullah Baloch, Advocate stated before the court that he only
represented petitioners Nos.1 to 12, and showed his inability to represent the newly impleaded
petitioners i.e. Nos.13 to 21, legal heirs of Naz Bibi, as he had no contact with them. Thus to
meet the ends of justice as the matter was quite old, notices were issued for the referred
petitioners in their names.
3. In response to the notices a person namely Abdul Lati f (petitioner No.14) appeared for
himself and as attorney for his brothers and sisters, petitioners Nos.13, and 15 to 21 on 12th July,
2013. He was with an application that no suit was ever filed by Naz Bibi nor any appeal or
revision before any court; rat her she was illegally arrayed as plaintiff. It was further asserted that
Sharatoon (plaintiff No. 3) had also not filed any suit or raised any claim in the property, subject
matter of the suit. It was prayed that their names might be deleted or they be tra nsposed as
respondents. The petitioners contested the application, and the reply was again with the signature
of the counsel.
4. It was the stage when the fact noted that the instant petition was filed by the petitioners
namely Mehr Khatoon, Naz Bibi and Sharatoon through a counsel, who not only signed the main
revision petition, but also the affidavit annexed with it. In addition a memo. of appearance was
also filed along with the main petition, with an undertaking for filing of Wakalat Nama later on,
for the petitioners. The petition was admitted for regular hearing on 24th April 2006, and notice
was served on the respondent, who was represented by Mr. Zahid Muqeem Ansari, Advocate,
whose power is available in the case file. There was representation on b ehalf of the petitioners,
therefore, the fact was over looked that the counsel who initially represented the petitioners was
before the court only with an undertaking. The matter only became evident when two of the
petitioners namely Mehr Khatoon and Naz B ibi died and their legal heirs were brought on the
record, thus needed fresh power to represent them. The direction was made, repeated number of
times, but never complied with. Consequent thereto intimation notices were issued for the
petitioners, but none appeared for petitioners Nos.1 to 12, while for petitioners Nos.13 to 21,
petitioner No.14 Abdul Latif appeared for the all, and also placed original power of attorney
before the court, which is available in the case file. An application was also filed fo r change of
their status as of plaintiffs to of defendants.
5. In view of the stated facts the instant petition was filed with the signatures of an
Advocate, who was with an undertaking for filing of his power later on, but the undertaking
never material ized. While number of counsel, whose names recorded in the order sheets,
appeared and represented the petitioners, but none of them ever filed any power on behalf of the
petitioners during all these years. Thus, the advocates who made their appearances wer e not duly
authorized to represent the petitioners before this court, therefore, their presence was of no legal
effect and in fact the petitioners were not before the court.
6. In cases, civil in nature, a person is entitled to be represented before a co urt through a
pleader instead of making his personal appearance. The term pleader defined in section 2(15),
Civil Procedure Code (C.P.C.), which reads as under: ---
"Section 2(15), C.P.C. "Pleader" means any person entitled to appear and plead for
anothe r in Court, and includes an advocate, a vakil and an attorney of a High Court."
Order III, Rule 4, C.P.C. deals with the appointment of pleader and proceedings on
appointment thereof. Rule 4 of Order III, C.P.C. is relevant for the issue in hand, which reads as
under: ---
"Order III, Rule 4, C.P.C. 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 recognize d agent or by some other person duly
authorized by or under a power of attorney to make such appointment.
(2) Even 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.
(3) For the purposes of sub -rule (2) an application for revi ew of judgment, an application,
under section 144 or section 152 of this Code, any appeal from any decree or order in the suit
and any application or act, for the purpose of obtaining copies of documents or return of
documents produced or, filed in the sui t 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 hi s 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, unles s 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:
Prov ided 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."
This Rule is elaborate enough to deal with all possible situ ations, but the basic
requirement of appointment of a pleader shall always be the same. It shall be in writing and duly
signed by a person who appointed the pleader and this instrument must be before the court. Thus
no pleader or advocate can act in a cour t of law unless duly appointed by an instrument in
writing. While High Court Rules and Orders Volume V, Chapter 6 B Part B further elaborate the
issue.
7. In case in hand the petition was filed by an advocate with a clear undertaking of filing an
instrum ent of authorization to represent the petitioners before the court, but he failed to place on
the record the written instrument to the effect, which could entitle him to represent the petitioners
before the court and to file the petition with his own signa tures. The advocates who replaced the
advocate, who initially filed the petition, also failed to obtain proper power from the petitioners
to represent them before the court. Even the legal heirs of the petitioners despite being served
failed to appear befo re the court to pursue with the matter.
8. As far application filed by petitioner Nos.13 to 21 is concerned, as the basic petition was
filed by an incompetent person, thus not maintainable. In view thereof there remains no need to
make an order to change the status of the applicants (petitioners Nos.13 to 21). Needless to say
that the right to approach a competent forum is always available to them if there is denial of their
right.
9. In view of the law, as referred, the instant petition was filed by an incompetent person,
therefore, not maintainable, hence dismissed.
Parties shall bear their own cost.
SL/63/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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