MUHAMMAD MAZAR ALI, J.---This appeal is directed against the order of a learned Single Judge of this Court dated 20-1-1985 passed on the interlocutory application of the appellant, C.MA. No. 148/84, made under section 151 read with Order 47 rule 1 C.P.C dismissing the same.
2. The facts giving rise t9 this appeal are these. The respondent filed an application under Section 20 of the Arbitration Act, 1940, against the appellant, which was registered as Suit No. 394/76 in this Court on 19-5-1976.
3. The parties had nominated their respective Arbitrators, namely, Mr. M. A. Qureshi and Mr. Abu Saeed Khan as per terms of the arbitration clause contained in the Contract. However, later on upon the application of the respondent, Mr. M. A. Qureshi was replaced by Mr. Shamsul Arfin Qureshi to be the Arbitrator of the respondent side.
4. The Arbitrators held a preliminary meeting but could not agree to the nomination of an umpire in the event of any difference of opinion between them. The case was accordingly referred to this Court by one of the Arbitrators with the request to appoint an umpire. On 23-5-82 the said application viz. CMA-611/82, came up for hearing before Mr. Justice Saleem Akhtar when the respondent was represented by his Advocate Mr. A. K. Lakhan whereas none appeared for the appellants. Mr. Justice Saleem Akhtar appointed Mr. Justice (Retd.) Dorab Patel as umpire in the matter.
5. It, was on 1-10-87 that an application under sections 11 and 12 of the Arbitration Act was presented on behalf of the appellants. (CMA-3332/83) by Mr. Syed Ahmed Farooqi, Advocate, Special Government Counsel for the appellants, praying for recalling of the Court's above noted order dated 23-5-82 and thereby revoking the authority of Mr. Justice (Retd.) Dorab Patel as umpire and to allow the Government of Sind, Adiministrative Department (C & W)'to appoint an umpire in case of dissenting awards of the two Arbitrators. The respondent riled objections to the said application. On 25-3-1984 this application, came up for hearing before Mr. Justice K. A. Ghani when Mr. Abul Khair Ansari, Advocate, appeared on behalf of the appellant and stated that he did not wish to press the application. It was accordingly dismissed with the following short order: -- "Mr. Abul Khair Advocate does not press CMA-3332/1983 which is accordingly dismissed as such."
It may be noted here that on three earlier dates viz, 9-10-1983, 11-12-83 and 9-1-1984, Mr. Syed Ahmed Farooqi, advocate had appeared for the appellant.
6. On 12-4-1984' an application (CMA-1448/84) under section 151 CPC read with order 47 rule (I)CPC was presented on behalf of the appellant under the signatures of Mr. Syed Ahmad Farooqi, Special Government Counsel, supported- by an affidavit of Mr. Bashir Ahmed Ansari, Executive Engineer (Buildings), Karachi Division No. 1, praying for recalling of the order dated 25-3--1984 and restoration of CMA-3332/83 to its original number for disposal on merits. In the affidavit of Mr. Bashir Ahmed Ansari it was averred that on 28-9--1983 the Government of Sind, Communication & Works Department had appointed Mr. Syed Ahmed Farooqi, Advocate, as Special Government Counsel in the above case to defend the suit and that CMA-3332/83 was presented by him under the specific instructions of the appellant No. 1. On 25-3-1984 when the said application came up for hearing one. Mr. Abdul Majeed, Accounts Clerk, appeared and submitted that Mr. Syed Ahmed Farooqi was ill and had gone to take medicine and hence requested that the matter be kept aside for a short while. However, 14ter-on Mr. Abdul Khair, Advocate, and Assistant Government Pleader appeared on behalf of the appellant and made the statement which led to the dismissal of the said application. The deponent Mr. Bashir Ahmed Ansari further deposed that Mr. Abdul Khair Advocate and Assistant Government Pleader was not authorised to make compromise in the matter nor he had any specific information from the Communication and Works Department or solicitor's Department of the respondent No.1 as he was not given any appointment order from either of the two department of respondent No.1. On that very date Biz. 25-3-1984, after-the tea break, it was further averred therein, Mr. Syed Ahmed Farooqi, Special Counsel, appeared and infirmed the 'Court that the Government had been represented by an unauthorised Advocate, Mr. Abdul Khan who had no instructions to withdraw the application. The order dated 25-3-1984 was thus claimed to be of no legal effect and not binding on the appellant. Mr. Syed Ahmad Farooqi also filed his own affidavit in support of the application and corroborated the statement made Mr. Bashir Ahmed Ansari in his affidavit. This, application was opposed by the respondent. Mr. Abdul Khair, Advocate, also filed has own counter-affidavit on 24-5-1984 wherein he, inter alia, deposed that he was fully instructed by the Department to appear and conduct the case before the Court.
He further stated that at the time when the case was taken up on 25-5-198,2 one Abdul Majeed, Accounts Clerk, was also present but he neither informed the Court about the alleged illness of Mr. Syed Ahmed Farooqi nor requested the Court to wait -for a while. He also deposed "it is further submitted that when the case was called out Mr. Syed Ahmed Farooqi was standing outside the Court room in verandah and he had a talk with the plaintiffs representative." Mr. Abdul Khair in his counter affidavit further stated that since the previous application was not legally maintainable and as no legal remedy had been sought within time against the appointment of umpire, the appellant had been ill-advised to move an application for recalling the said order. This application came up for hearing before Mr. Justice K. A. Ghani on 20-1-1985 who held that when the above application came up, for hearing on 25-3-1984 Mr. Abdul --Khair, Advocate" for the Department, frankly stated before the Court that in view of the fact that .The application No. 3332/83 was filed after, a period of more than 1-1/2 years for revoking the authority of Mr. Justice Dorab Patel, a former Judge of this Court was not maintainable and thus not pressed by him. After going through the correspondence produced by the parties, the learned Judge further felt satisfied that Mr. Abdul Khair was properly appointed Advocate of the Department when he appeared in Court on 25-3- 1984 and made the statement whereupon the CMA-3332/83 was dismissed: The learned Single Judge further held that Mr. Abdul Khair acted fairly in performance of his duty as a responsible Advocate owing duty not only to the Department but also to the Court. The application (CMA- 1448/84) was further held to be not maintainable. Consequently, the above-noted application (CMA-1448/84) was dismissed.
7. Aggrieved by the said order, as stated above, the appellants have filed this appeal.
8. We have heard the learned counsel for the parties. Mr. Syed Ahmad Farooqi learned counsel for the appellants, contended that the appellants had not appointed Mr. Abdul Khair Advocate as their Advocate to appear and act for them in suit No.394/76 inasmuch as no appointment letter was issued to him, as required under the Rules for the conduct of legal affairs of Government. He then urged that a letter to that effect appointing him (Mr. Syed Ahmed Farooqi, Advocate) as Special Government Counsel was duly issued by the Secretary to Government of Sind, Communication & Works` on 28th September, 1983 to appear on behalf of the Government in suits Nos.4 and 395 of 1976 filed by the respondents against the Government particularly to pursue the application for the revocation of the authority of Mr. Justice (Retd.) Dorab Patel as umpire. The counsel urged that it was pursuant to this letter that he had presented the application under sections 11 and 12 of the Arbitration Act (CMA-1332/83) for 1-10-1983. The learned counsel for the appellants submitted that after the filing of the above application and his power in the suit there was no justification, whatsoever for Mr. Abdul Khair to appear in Court on 25-3-1984 and to consent for the dismissal of the above application (CMA- 3332/83). The learned counsel further submitted that the learned Single Judge should not have, while passing the impugned order on the application of appellants for recalling the order dated 25-3-1984 and resting the Misc. Application No 333''; 83 to its original number for disposal on merits, touched upon or dealt with the merits of the application for recalling the order of appointment of Mr. Justice (Retd.) Dorab fate as an umpire. .
9. Mr. A. K. Lakhan, the learned counsel for the respondent, on the other hand, submitted that Mr. Abdul Khair had duly tiled leis power in the suit and he was, therefore, duly empowered to make the statement before the learned Single Judge on 25-4-1984. He urged that the mere filing of the power by Mr. Syed Ahmad Farooqi, Advocate, on behalf of the appellants in addition to that of Mr. Abdul Khair did not operate as the termination of the authority of Mr. Abdul Khair The counsel then contended that there is a procedure laid down for change of an Advocate in the Sin& Chief Court Rules and since the appellants did not terminate the authority of Mr. Abdul Khair by complying with the said Rules, they cannot now be heard saying that Mr. Abdul Khair was either not appointed by them or that by appointing Mr. Syed Ahmed Farooqui as a Special Government Counsel, the power of Mr. Abdul Khair automatically stood terminated. In support of his contention he placed reliance on an authority reported in 1982 Cl-C 767 in which it has been held as under :- .
"In order to change the Advocate it is incumbent upon the party to first give notice of his intention for change of that Advocate and after the notice has been served an application should be filed duly supported by an affidavit. Likewise if an Advocate wants to withdraw his power he has to serve a notice on his client thereafter he has to file an application supported by his affidavit stating that such notice has been served and then he may be allowed to withdraw. The rules provide a procedure for determination and withdrawal. It is well settled that if the rules provide an act to be done in a particular manner then compliance of such mandatory provision is essential to the validity of the act or proceedings."
10. Having heard the arguments of the parties representatives and upon perusal of the record we are convinced that the, appellants have no case on merits learned Single Judge has after appreciation, of all the relevant facts of the case, if we may say so, correctly held that Mr. Abdul Khair was a properly, appointed Advocate by the Government when he appeared in the Court on 25-3-1985 and made the statement whereby he did not press the application CNIA-3332/83 l which is now sought, to be restored.
11. We would like to point out that the statement made by Mr. Abdul Khair a in his counter-affidavit dated 24th May, 1984 to the effect that in response to the letter of the Solicitor to Government of Sind dated 13-12-1983 he had discussed p the matter with him and had agreed to conduct the case on behalf of Government on payment of reasonable fee as it may be fixed by the Solicitor, has not been controverted by the Solicitor or any other Officer of the appellants upon the instructions of the Solicitor. The fact as borne out by the, record is thaw Mr. Abdul Khair has been representing the appellants in the said suit and that it was in the normal performance of his duties as counsel that he put in appearance before the Court on 25-3-1985as well. Mere engaging another counsel by the appellants did not result in the term,,aai6on of the authority of Mr. Abdul Khair who had already filed his memo of appearance in the suit on 1-11-1983. Had Mr. Abdul Khair been not appointed by the Solicitor to conduct the said suit on behalf of the appellants he would not have filed the memo of appearance on their behalf.
12. We do not also find any substance in the contention of Mr. Syed Ahmad j Farooqi, the learned counsel for the appellants, that the learned Single Judge should not have discussed the merits of the case in his impugned order inasmuch as the application was also purported to have been made under section 151, CPC j and it was necessary for the learned Single Judge to have looked into the merits of the matter, in order to ascertain if it was a fit case for the exercise of inherent jurisdiction for effective dispensation of justice.
13. For the foregoing reasons we do not find any substance in this appeal and dismiss it accordingly with no order as to costs.
M.Y.H./P-94/K