' RAJA MUHAMMAD KHURSHID KHAN, AC G. C. J.-The above-captioned cause .Was converted into an appeal from a petition for leave to appeal. It was presented in this Court by Sardar Rafique Mahmood, Additional Advocate General, on behalf of the Government. The petition instituted on 14- 3-1979, was signed and verified by Sardar Rafique Mabmood.
2. The impugned order was made by the High Court in a writ petition (No, 20 of 1978), moved .By Habibullah Lone, respondent herein. By this Judgment the order of the Government No, 1105/11, dated A-6-1978, which cancelled an earlier order of the Government, made on 9-2-1976, was declared by the High Court as illegal and without lawful authority. A subsequent order No, 3191-94 dated 6-7-1978, passed by the Government was also declared to be void.
3. The dispute has arisen in the following way. The Government, appellant, on the representation, being made, accepted the claim of the respondent-contractor for the payment of escalated amount according to the revised rates, vide Government Order No, 265-269 dated 9-2-1976. By virtue of this order the respondent was paid Rs, 14,000 as part payment of the amount, which the respondent was entitled on account of enhanced rates. Later in time the Government felt advised to cancel the order by virtue of which the respondent had received the enhanced amount and issued a fresh order dated 21-6-1978, and another order dated 6-7-1978, calling upon the respondent to refund the amount of Rs, 14,000, which he had already received. The first mentioned order dated 9-2-1976, allowing increased rates to the respondent, it was held by the High Court, could not be recalled by the appellant.
4. Leave to appeal was granted to consider as to whether the controversy between the parties relates to the contractual obligations which cannot be made subject of writ petition.
5. During the progress of the appeals Kh. Muhammad Saeed, the learned counsel for the respondent, took exception to the maintainability of the petition for leave to appeal, inter alia, on the ground that the petition was instituted by Sardar Rafique Mahmood, Additional Advocate- General, who was not authorised to act on behalf of the Government. According to the learned counsel the vakalatnama authorising Sardar Rafique Mahmood to institute the petition for leave to appeal was signed by Sardar Aftab Ahmed Khan, the Law Secretary of the time, without any authority as he had no directions from the Government to file any appeal or petition for leave to appeal.
6. The point obviously goes to the very root of the case and we, therefore, propose to dispose it of as a preliminary issue. To ascertain the correct position the learned Additional Advocate-General was directed to produce the relevant file for our inspection. The file was submitted and we examined it on 15-6-1983. The note on the file showed that on 11-3-1979. Sardar Aftab Ahmed Khan, the Law Secretary, without any direction or sanction of the Government to file an appeal/petition for leave to appeal before the Supreme Court asked the Additional Advocate-General to file the petition for leave to appeal and also executed a vakalatnama on his behalf. The note also enters that his act shall later on be sot approved by the Government. But it was strange to observe that no approval of the Government was available on the file on the date we examined the file. However, it appears from the contents of the Government Order No, 2448-81, later on .Placed on file, that the Government had approved the institution of the appeal,. King after the period, of limitation, on 27- 6.1983, to impeach the order of the High Court dated 15-1-1979. The direction of the Law Secretary to the Additional Advocate General to move an appeal before the Supreme Court on 11-3-1979, was also approved. The vakalatnama executed by Sardar Aftab Ahmed Man, it may be noted, still remains unapproved,
7. The questions which are of importance, are ; as to whether the petition for leave to appeal was validly instituted and if the answer is in negative can the aforesaid approval, now made after the period of limitation, validate incompetent institution of the petition for leave to appeal.
8. An appeal or petition for leave to appeal can validly be instituted if it is presented by a person competent to institute it. Here in this case Sardar Rafique Mahmood had no authority from a competent person, i.e, the Government to institute the petition. No laboured argument is required to trace out the reason. Sardar Aftab Ahmed Khan, who had signed the vakalatnama to institute the appeal or petition for leave to appeal in the Supreme Court, had no direction from the Government to move an appeal or a petition for leave to appeal and, therefore, he was incompetent to authorise Sardar Rafique Mabmood to move the petition for leave to appeal in the Supreme Court.
9. Can the approval order now made by the Government validate the appeal, we may here record our appreciation for Sardar Rafique Mahmood who bad, very rightly, conceded that the approval order referred to above would not validate his act in filing the petition for leave to appeal because, after the period of limitation a right had accrued to the respondent which cannot now be snatched away from him.
10. It admits of no exception that any appearance, application or act in or to any Court required or authorised by law to be made or done by a party may, except in such Court where expressly provided by law for the time being in force, be made or done by the party himself or by his recognised agent or by a pleader on his behalf. Power to act on behalf of a party must have been conferred on an Advocate and the power of attorney must have been filed in the Court.
11. Order III, rule 4, subsection (1) of the Code of Civil Procedure provides the conditions .That are necessary in order to enable an advocate to act on behalf of a party in a cause which reads :- "(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 authorised . By or under a power of attorney to make such appointment."
Order III, rule 4 does not lay down any absolute rule but is subject to the Rules of the Court regulating the procedure. After a judgment is given in a case and a decree is passed, a right of appeal can be exercised only by the persons in whom the power is vested expressly or impliedly by the statute A right of appeal is given to an aggrieved party and here in this case to Government, being an aggrieved party, could present an appeal either per sonally or through its advocate duly appointee. Of. Course, leave to appeal can be granted to a person who is not a party to a suit if his interest is C involved in the case which interest is being adversely affected by the judgment, decree or sentence. But a person not aggrieved by an order (Sardar Arta Ahmed Kban, who executed the power of attorney in this case in favour on Sardar Rafique Mabmocal, not being. Affected by the order cannot be said to be an aggrieved party), -cannot file a petition for leave to appeal. In Secretary to the: Government of Psoefab and others v. Ch. Hanseed-ud- Din and others (1) where the services of the respondent were terminated by Lahore {{FOOT NOTE}}
(I) 1972 SC M K 301 {{FOOT NOTE}} Municipal Corporation, while the appeal was filed by the Government, it was observed "If that is so, it is for the Lahore Municipal Corporation to challenge the order of the High Court. The petitioner cannot challenge the judgment of the High Court on behalf of Lahore Municipal Corporation. It has no locus stand! To do so."
Consequently the appeal was dismissed.
12. The present case is identical with the case referred to above. The petition was signed by Mr. Rafique Mahmood, Additional Advocate-General who was authorised by Sardar Aftab Ahmed Khan, Law Secretary, whose personel interest in the case is not at all involved and he was and is not a party to the proceedings. Mr. Rafique Mahmood could file the petition only on behalf of the Government who is an aggrieved party and Sardar Aftab Ahmed Khan could only validly authorise Sardar Rafique Mahmood to file the petition for leave to appeal if the Government would have directed him to do so.
13. Besides, rule 19 of Order IV of the Azad Jammu & Kashmir Supreme Court Rules, 1978, regulates the procedure in this behalf which lays down the conditions that are necessary for investing an Advocate with the authority to act on behalf of a person. The relevant provision is : "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."
This provision would clearly show that before an Advocate can act for a party he must firstly have an authority by him to do so and secondly the authority must be in writing by the party. Unless these two conditions are complied with an action taken by an Advocate on behalf of a person would not be deemed to be a valid performance of his function. In the absence of a duly executed power of attorney it would be said that such an Advocate had no authority to act on behalf of that person. A pleader who files a petition for leave to appeal cannot do so except when he is authorised in writing by such a person. Therefore, filing of a petition on behalf of Government by Sardar Rafique Mahmood who had not been duly appointed by the Government in writing, as required under rules, is not only an irregularity which may be cured at a subsequent stage but it is also completely devoid of validity.
14. Sardar Rafique Mahmood, however, submitted that the Law Secretary by virtue of a Government Order No, Admin. 12410-125000-SS-70, dated 23/24-6-1970, without the direction of the Government, is competent to engage a counsel. We regret we cannot agree with him. The order to which the reference has been made, reads as under :- "The Azad Government of the State of Jammu & Kashmir is pleased to order the constitution of a panel of lawyers for contesting cases of civil nature on behalf of the Government for each District of Azad Jammu & Kashmir as follows :
1. Muzaffarabad District :
(1) Sh. Abdul Haiy, Advocate.
(2) Syed Tassadiq Hussain Shah, Advocate.
(3) Kb. Bashir Ahmed Farooqi, Advocate. (41 Sardar Muhammad Yasin Khan, Advocate,
2. Poonch District :
(1) Sardar Said Muhammad, Advocate.
(2) Sardar Siyab Khan, Advocate.
(3) Raja Khurshid Ahmad Khan, Advocate.
(4) Mr. Sadiq Farooqi, Advocate.
3. Mirpur District :
(1) Kh. Muhammad Shafi, Advocate.
(2) Ch. Muhammad Yahya Cheema, Advocate.
(3) Qazi Abdul Ghafoor, Advocate.
(4) Mr. Majid Malik, Advocate.
(5) Sardar Aftab Ahmed, Advocate.
(6) Ch. Muhammad Hussain, Advocate.
2. The Law Secretary would be the competent authority to determine whether a case should be contested by the Government Advocate/ Government Pleader or by a lawyer included in the panel of lawyers.
3. The counsel fee to be paid to a private lawyer shall be fixed by the Law Secretary having regard to the Jules prescribed in this behalf by the High Court."
15. The bare reading of the order would show that document constitutes a panel of lawyers for contesting cases of civil nature on behalf of the Government. It further gives competence to the Law Secretary to exercise his discretion as to whether a ase should be contested by the Government Advocate, Government Pleader or by a lawyer on the panel. Obviously it does not give any power to the Law Secretary to direct proceedings in a cause without the direction of the Government. We asked the learned Additional Advocate-General to produce any document which gives power to the Law Secretary to exercise his choice either to file or not to file appeals against the orders of the High Court, but he frankly conceded that there is no such document. The aforesaid order, therefore, as conceded by the learned Additional Advocate-General, would not validate the petition for leave to appeal which is otherwise incompetent.
16. Sardar Rafique Mahmood then made a reference to Order rule 5 of the Azad Jammu & Kashmir Supreme Court Rules, 1978, and submitted that this Court should use inherent powers to rectify the wrong, Order XLIII, rule 5, which reads :- "Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." does not stipulate the situation available in this case. The order aims at to pass order to advance ends of justice or to prevent abuse of the process of the Court. But in the instant case we fail to note any abuse of the process of the Court and ends of justice also do not attract inherent powers.
Th Law Secretary has performed an illegal act which has not even been disowned by the Government. The Government, therefore, is to suffer for its act. Law lulls a party who sleeps over his right,
17. Sardar Rafique Mahmood has cited the following cases during the course of his arguments :- ' Pakistan v. Waliullah Sufyan (1), Government of Pakistan v. Syed Akhlague Hussain and another (2), Hakim Muhammad Sakem v. Government of Azad Jammu & Kashmir and others (3) and Messrs Nabi Bakhsh & Sons v. Pakistan (4).
' We have examined these authorities. They are beyond the controversial issue and have nothing common with the facts of the present case.
In view of the above there is no escape but to hold that the petition for leave to appeal has been filed by the counsel who was not authorised to file it. If As the appeal flows from the petition for leave to appeal, the appeal also becomes incompetent and stands rejected with costs.
Appeal dismissed. {{FOOT NOTE}}
(1) PLD 1965 SC 310 (2) PLD 1965 SC 527
(3) PLD 1968 Azad J& K 48 (4) PLD 1969 Kar. 566 {{FOOT NOTE}}