Filing of Application by Advocate without Power of Attorney

Filing of Application by Advocate without Power of Attorney Case Laws Civil Law Constitutional Law Knowledge - Civil Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Power of Attorney - Advocate Solutions - Civil Law Solutions - Constitutional Law Mr. Justice Shahid Bilal Hassan in his judgment has decided the issue regarding filing of application by advocate without power of attorney or memorandum of appearance in Writ Petition No. 4299 of 2016.

1. Facts necessary for disposal of the instant constitutional petition are as such that petitioner instituted a suit for possession through declaration alongwith permanent injunction against the respondents No.1 to 5 and Province of Punjab by pleading that Muhammad Siddique, predecessor in interest of the respondents No.1 to 5, declared the petitioner as owner of 1/3rd of the suit land through his will-deed/Wasiyatnama No.773 dated 18.04.1996 and that will-deed was entrusted to his real sister Mst. Habib Ashraf and her husband Muhammad Ashraf by the deceased Muhammad Siddique, who bound them that they would pay 1/3rd of total amount of said property to the petitioner or the petitioner would be considered as owner of 1/3rd property. Muhammad Siddique died on 22.12.2004, that will-deed was opened by his relatives after his death and nobody challenged the said deed; hence, the suit. The respondents No.1 to 5 were summoned but none appeared on their behalf, therefore, they were proceeded against ex parte while the Province of Punjab was deleted being unnecessary party.

After recording ex-parte evidence, when the suit was fixed for final arguments on 24.04.2015, Ch. Shabbir Hussain Khan, Advocate (without any power of attorney or authorization) filed an application under Order I, Rule 10 of the C.P.C. on behalf of the respondent No.6 (Muhammad Yaseen), which was resisted by the petitioner with the specific objection that the application was incompetent due to non-embellishing of power of attorney. The learned trial Court vide impugned order dated 08.07.2015 allowed application filed on behalf of the respondent No.6; against which a civil revision was filed by the petitioner, which was dismissed vide impugned judgment dated 02.03.2016.

2. Learned counsel for the petitioner has argued that the impugned order and judgment are illegal, unjust, void, unlawful, arbitrary, against facts and law as well as against the principle of natural justice. Argues that the respondent No.6 filed application under Order I, Rule 10 read with section 151 of the C.P.C., through counsel, without his Wakalatnama, without signatures and thumb impression of the respondent No.6 on the application as well as affidavit and no document was attached with the said application but the learned Courts below ignored all these facts and passed the impugned order and judgment. Submits that learned Addl. District Judge ignored the fact that the suit instituted by the respondent No.6 for specific performance was dismissed on 18.09.2015 and it is also noteworthy that the application under Order I, Rule 10 read with section 151 of the C.P.C. and suit for specific performance were filed on the same date i.e. 24.04.2015, which shows mala fide on the part of the respondent No.6 as in the application under Order I, Rule 10 of the C.P.C. true facts were not mentioned. Moreover, Muhammad Siddique died on 22.12.2004 while the alleged suit for specific performance was filed on 24.04.2015, which is nothing but an attempt to harm the rights of the petitioner, even the said suit was instituted without any power of attorney, signature or thumb impression on the plaint or affidavit of the respondent No.6 but the learned trial Court not only entertained the suit but also granted temporary injunction.

Maintains that the leaned Courts below have failed to consider and appreciate the provisions of Order III, Rule 4 of the C.P.C. which provides that 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. Contends that the impugned order and judgment are result of non-reading and misreading of record. Adds that both the learned Courts below failed to exercise vested jurisdiction and exercised that jurisdiction which was not vested in them; therefore, by committing material illegalities and irregularities, the impugned order and judgment have been passed, which resulted in miscarriage of justice. Therefore, by allowing the constitutional petition in hand, the impugned order and judgment may be set aside and application filed by the respondent No.6 under Order I, Rule 10 read with section 151 of the C.P.C. may be dismissed. Relies on Azad Jammu & Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ & K) 13, Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others PLD 2004 Karachi 17 and Muhammad Ali and 21 others v. Abdul Jalil 2015 CLC 1315-Balochistan.

3. Contrarily, the learned counsel appearing on behalf of the respondent No.6 has argued that the relationship inter se the counsel and client is that of Principal and Agent; if an agent acted on behalf of the principal, even though he was not authorized in the prescribed manner for acting as such at the relevant time, principal was vested with the authority to ratify the act of his agent with retrospective effect; therefore, the learned Courts below have exercised jurisdiction vested in them legally and there is no jurisdictional defect in the impugned order and judgment, calling for interference by this Court in exercise of constitutional jurisdiction; therefore, the instant constitution petition merits dismissal. Relies on Khayam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275-Lahore, Said Muhammad and others v. M. Sardar and others PLD 199 Supreme Court 532, Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363, Messrs Adamjee Construction Company Ltd. through Chief Executive v. Government of Punjab through Director-General, Punjab Sports Board, National Hockey Stadium, Lahore 1999 MLD 2202-Lahore and Fazal-Ur-Rehman and 2 others v. Begum Sughra Haque 2000 MLD 562-Lahore.

4. Heard. Considering the prevailing trend in our society germane to negating delegation of powers upon any person especially the lawyers by executing power of attorney to represent any litigant public before a legal forum, which culminates in filing of applications under section 12(2) of the C.P.C. by alleging commission of fraud and misrepresentation, it is mandated rather need of the time that for filing or instituting any application or suit or for putting-forth any claim, an advocate or counsel should have a duly executed power of attorney in his favour so as to represent any litigant before any legal forum, as enunciated in Part-A, Chapter 16, Volume-I of High Court Rules and Order, which runs:

‘Pleading and acting by pleaders:–Whereas by Order III, rule 4, of the Code of Civil Procedure, no pleader shall ‘act’, for any person in any Court unless he has been appointed by an instrument in writing, nor shall any pleader, who has been engaged for the purpose of pleading only, plead on behalf of any person unless he has filed in Court a memorandum-of-appearance or unless he has been engaged by another pleader duly appointed, and no such pleader can be recognized in the absence of a written authority or memorandum-of-appearance as aforesaid as empowered to plead or act for any person in any proceeding governed by the Code of Civil Procedure, and it is expedient to provide for ascertaining that every such pleader is duly authorized to appear, plead or act in any such proceeding before subordinate Courts, the following instructions have been issued by the High Court:

(1) Power of attorney to act to be executed by the principal:–Every appointment of a pleader to act shall contain in full the name of the person, or where there are more than one, of every person who thereby appoints the pleader to act on his behalf, and shall be executed by every such person.

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