1. ' This order shall also cover the connected Civil Revision No, 316-D of 1990. Facts are common as also the legal question requiring determination.
2. ' On 27-1-1986, Rehmat Ali plaintiff sued Mian Maqsood Ahmad defendant for recovery of Rs, 10,000.
3. Suit was based on an alleged breach of an agreement dated 1-4-1985. Upon being served, defendant appeared in the Court, hut despite opportunity, failed to submit his written statement.
4. The trial Court applied Order VIII, rule 10, Civil Procedure Code against him, struck off his defence and without recording evidence, decreed the suit for the amount claimed in it, on 4-10-1986.
5. ' Defendant preferred an appeal to learned District Judge, Lahore on 3-11-1986. It was marked for hearing to learned Additional District Judge, Lahore. Appeal was admitted to hearing on 17-11-1986.
6. Meanwhile, status quo was ordered to be maintained. Thereafter, appeal suffered some adjournments for securing service upon respondent. On 22-9-1987, Muhammad Suleman Oureshi Advocate, learned counsel for the defendant-appellant, reported that the appellant had expired a day earlier, and, requested for time for substitution of his legal representatives. Upon this request, appeal was adjourned to 20-10-1987. On this date, learned Judge happened to be on leave and the case was further adjourned to 25-11-1987 for filing of the application for substitution of the legal representatives of the deceased appellant. On the adjourned date, learned counsel again requested for time to put in amended memorandum of appeal. Learned Court entertained the request and adjourned the case to 11-1-1988. On this date, though the respondents appeared through their counsel but none appeared for the appellant. The Court recorded that neither anybody on behalf of the appellant had appeared nor the amended memorandum of appeal was filed and dismissed the appeal on the above two counts. On 9-3-1988, the widow, the son, and, the daughter of the deceased appellant, Mst. Iffat Maqsood, Imran Maqsood and Mst. Naveed Izhar applied under Order XLI, rule 19, Civil Procedure Code, for restoration of the appeal. It was averred that widow observed Iddat and, subsequently, fell ill, son was abroad and the daughter was pardah-observing. Therefore, they could not maintain contact with their counsel. It was further stated that they were also not aware of the counsel who prosecuted the appeal. Upon the above statement of facts, appeal was sought to be restored to file for its hearing on merits. Averments in the restoration petition were supported by the sworn affidavit of the widow. Respondent controverted the averments in the restoration petition. It was pleaded that it was barred by limitation and suffered from want of good faith. By order passed on 19-12-1988, learned Judge below dismissed the petition and declined to restore the appeal for the reasons stated below:- "I have considered the arguments. The reasons stated by the petitioner have got no valid ground.
7. They had full knowledge about the death and institution of appeal, therefore, under the law they were obliged to appear in the Court and to pursue the appeal within 30 days. Three adjournments were given but none appeared on 11-1-1988, therefore, the appeal was dismissed accordingly. No proof is brought about the reasons stated in the petition. Moreover, the facts mentioned are not such which were beyond the control of the petitioners. As far as the question of limitation is concerned in such like cases there was a period of one month to file the application. There are no valid reasons stated in the petition, hence the petition is rejected."
8. ' It is against this order that an appeal has been filed by the legal representatives of the deceased appellant. They have also filed a petition for revision against decision of the trial Court dated 4-10- 1986 decreeing the suit without recording evidence and the order passed on 11-1-1988, by the learned Judge below. If appeal succeeds, it shall not be necessary for me to advert to the petition for civil revision and examine its merits. Therefore, I shall first take up the appeal.
9. ' Upon hearing the learned counsel for the parties and examination of the original records, the contention of the learned counsel for the appellants that appeal could not have been dismissed in default of appearance on the date when A the appellant was already dead is quite forceful, which factor alone is sufficient for the appeal to succeed. Mian Maqsood Ahmad had preferred appeal through Muhammad Suleman Qureshi, Advocate who also acted as his counsel in the trial Court.
10. Mian Maqsood Ahmad died on 8-7-1987, and, there is no dispute that the present appellants are his only legal representatives. It is common ground that the defendant neither gave written statement nor submitted list of his legal representatives who in the event of his death could pursue the defence as was required by Order VIII, rule 13, Civil Procedure Code. With the death of the appellant, life of power given by him to his counsel for prosecution of the appeal terminated and the counsel ceased to represent him any more. Rule 4(2) of Order III, Civil Procedre Code states that the appointment remains in force "until B 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" (emphasis has been supplied by me). Observations in Rashid Ahmad and 8 others v. Muhammad Arshad PLD 1975 Lah. 1195 by Sardar Muhammad Iqbal, C.J. (as his Lordship then was) holding that "in a case where the petitioner is represented by an Advocate, the position becomes all the more simple. An Advocate enters into a contract with the suitor to conduct the proceedings. He may be obliged, according to the terms of the power of attorney, to conduct the case till it concludes. On the death of a party, the contract between the counsel and a client in such a case and where the right to sue survives does not come to an end. He, in such a situation, has the contractual rights and the obligations towards the legal representatives" despite immense reverence for the erudition of the Hon'ble Judge, do not take adequate notice of the expressions in the above sub-rule. Rather, it runs contrary to its plain language. Therefore, the statement that power survives the death of the client may not be a correct enunciation of law. True position as I understand is that with the death of the client, power of attorney comes to an end and unless a fresh power is given to the counsel by the legal representatives of the deceased party, he cannot appear, plead or act for them. In terms of Order IX, rule 8, Civil Procedure Code, when the suit is called on for hearing, in the event of defendant's appearance and the plaintiffs nonappearance, the Court is obliged to dismiss the suit unless the defendant admits the claim in the suit either whole or in part in which case the Court is required to pass a decree on such admission. Above provision applies to first hearing of the suit only whereas its adjourned hearings are covered by Order XVII, rule 2, Civil Procedure Code. Rule 8 is imperative. It leaves no discretion to the Court. At the first hearing, if the defendant appears but the plaintiff absents, the Court is obliged to dismiss the suit in default. Contrasted with rule 8, Order XVII, rule 2, Civil Procedure Code gave discretion to the Court either to dispose of the suit in one of the modes prescribed in Order IX or make such other order as it might think fit which includes an order of further adjournment. A parallel provision in case of appeals exists in Rule 17 of Order XLI, C.P.C. Under this rule, the Court is not hound to dismiss the appeal for default but it may do so. 'May' imports discretion. Therefore, the powers under Rule 17, unlike under Order IX, Rule 8, are discretionary. When the two provisions of law are looked at together, it is clear that where the defendant appears but the plaintiff does not appear on the first hearing, there is no discretion in the trial Court as is given to the appellate Court. While the trial Court is hound to dismiss the suit for default, the appellate Court is not so hound. Despite default, it has discretion to adjourn the appeal.
11. Expression 'does not appear' substantially means the same thing as 'fails to appear'. Could a dead man be termed as defaulter and the rules or orders dealing with the case of non-appearance of a suitor he applied to him? The answer, obviously, is in the negative, both in case of suit and appeal.
12. In Debi Bakhsh Singh v. Habib Shah (1913) ILR XXXV Allahabad 331, their Lordships of the Privy Council observed:-- "It requires no words of their Lordships to show the inapplicability of rules or orders dealing with the case of the non-appearance of a suitor to the situation which arises when the suitor is dead. The principle of forfeiture of rights in consequence of a default in procedure by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead, or the ranking of death under the category of default, does not seem to be very statcable."
13. ' In the later part of the judgment, dealing with the remedy, it was observed:- "Quite apart from section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But section 151 could never be invoked in a case clearer than the present, and their Lordships arc at a loss to understand why, apart from points of procedure and otherwise, it was not taken advantage of."
14. ' This rule of law was followed in Daulat Rai v. Jagat Ram and another AIR 1919 Lah 447(1) observing that dead man is not a defaulter. The point again fell for examination before Oudh High Court in Trilochan Prasad Singh and others v. Bhagwati and others AIR 1924 Oudh 114 wherein, relying upon Debi Bakhsh Singh's ease, it was held that an order dismissing a suit for default at a time when the plaintiff was dead was a nullity. In Laxminarayan and another v. Laxmibai AIR 1935 Nagpur 189, it was ruled that rule of default in appearance did not apply to a dead man and an order of dismissal for default in appearance recorded in ignorance of death of the plaintiff was a nullity. It was further observed that in such an eventuality there is no need for a formal application under Order IX, Rule 9 of Civil Procedure Code to set aside the order of dismissal passed against the deceased appellant and the proper remedy lay in section 151 read with Order XXII, Rule 3, C.P.C.
15. Similar views were expressed in Padmacharan Mohanty and another v. Moti Dei and others AIR 1963 Orissa 88 and P.M.M. Pillayathiri Amma v. K. Lakshmi Amma and others AIR 1967 Kerala 135.
16. Thus there is consensus of opinion among the Courts that an order dismissing the suit or appeal for default in appearance on a date or a time when the plaintiff or appellant was dead was a total nullity. Factum of death was reported to the Court by the counsel who formerly represented the deceased appellant. Upon death of the client, life of authority to represent came to an end. There is no evidence to show that the counsel had any liaison with the legal representatives of the deceased appellant. Similarly, there was no evidence that the legal representatives knew about the counsel conducting the appeal. By Ordinance XII of 1972, substantial changes were made in Order XXII. Concept of abatement, which hitherto held the field, was abolished. It is agreed that to the facts of the case, Order XXII rule 3 applied. Neither an application for substitution of legal representatives was made nor any intimation was given to the Court about the legal representatives of the deceased appellant. In this circumstance, the Court was empowered to proceed further with the adjudication and the result had the same force and effect as if the adjudication was made before the death had taken place. Remedy provided for the legal representatives against whom the adjudication was made in their absence was to apply to have it set aside under the substituted sub-rule (2) of rule 9, Order XXII, Civil Procedure Code. It was not denied that the application submitted in this behalf was in time. In default of evidence, it could not be held that the appellants had knowledge of the appeal filed by their predecessor or the counsel who conducted it. Facts stated in the petition showed sufficient cause. To the facts of the case, Order XLI, rule 17, Civil Procedure Code did not apply. Apart from a remedy provided in substituted sub-rule (2) of rule 9, Order XXII, Civil Procedure Code, the Court could invoke its inherent powers to rectify the error to undo the wrong caused by its own act to the appellants.
17. ' Having due regard to the above, order dismissing the appeal for default on 11-1-1988 when the appellant was already dead alongwith the subsequent order passed on 19-12-1988 declining to restore the appeal on the application of legal representatives were null and void. I would, accordingly, accept the appeal, set aside order dismissing the appeal in default for appearance along with the order refusing to restore the appeal and direct its decision on merits by the learned Judge below. As the appeal succeeds, it is unnecessary to examine the merits of the Civil Revision which is, accordingly, disposed of. Costs to be borne as incurred.