' IMAM ALI G. KAZI, J.---This appeal under section 100 of the Civil Procedure Code has been filed to impugn the order dated 26-3-1984 passed by the Had Additional District Judge, Nawabshah in Civil Appeal No, 64 of 1978 (Mst. Sardaran Bibi and another v. Allandino) whereby application filed by the appellant under Order XLI, Rule 19, Civil Procedure Code seeking restoration of their appeal dismissed for default was rejected on the ground of limitation.
2. On 12-12-1981 the appeal filed by the appellant herein was fixed for hearing before the appellate Court. On that date their Advocate reported no instructions and the appeal was dismissed for non- prosecution. About five months after the dismissal of the said appeal an application for restoration of the appeal was filed on 13-5-1982 on the ground that Ghulam Mohammad, the attorney of the appellants was pursuing the appeal and he died on 15-4-1981. The appellants were unware of his death till April, 1982 and as they learnt of his death they filed their application for restoration of the appeal within prescribed time. The respondents opposed the application on the ground that the restoration application was filed beyond thirty days of the date of dismissal and was barred under Article 168 of the Limitation Act, The find Additional District Judge, Dadu heard the application and rejected it as according to him, Article 168 of the Limitation Act was attracted and the application was barred by that provision of law. It is against this order that the present appeal has been filed.
3. Mr. Jhamat Jethanand, the Advocate for the appellants contended that the appellants are the residents of Punjab and were pursuing their appeal through their duly constituted attorney who expired on 15-4-1981 while the appeal was dismissed about eight months after his death on 12-12- 1981. The appellants were not aware of his death till April, 1982. Under the circumstances the appellant cannot be burdened with the knowledge that the appeal was fixed for hearing on 12-12- 1981. According to him, residuary Article 181 and not Article 168 of the Limitation Act will apply and application for restoration of appeal in the circumstances of the present case although dismissal in default will lie under section 151 of the Code of Civil Procedure. In support of his such contentions, he has relied on cases reported in 1982 CLC 264; PLD 1981 SC 21 and 1986 CLC 2643.
4. Alternatively, he contended that Order III of Civil Procedure Code prescribes a particular procedure for the appointment of recognized agents and pleaders, who can pursue civil litigation under the Code. Order III, Rule 4(2) of the Code Civil Procedure lays down the procedure for termination of such powers. The power of the Advocate in the present case was not terminated in accordance with law and as he was present in Court on 12-12-1981 the appeal could not have been so dismissed. The Advocate for the appellant had to follow the procedure for termination of his power as laid down in Order III, Rule 4, C.P.C. And as provided by Rule 43 of the Sindh Civil Court Rules. As the order dismissing the appeal was void it could be restored under section 151 of Civil Procedure Code and Article 181 of the Limitation Act will be attracted in the case.
5. Mr. Imam Ali Memon, the Advocate appearing for the respondent contended that the appeal in this case was dismissed for default of appearance by the appellant in Court under Order XLI, rule 17, of Civil Procedure Code. The appeal dismissed in default under Order XLI, rule 17, of Code of Civil Procedure can only be re-admitted under Order XLI rule 19 of Civil Procedure Code and in such cases Article 168 of the Limitation Act would apply. The application for readmission of the appeal in the present case was grossly barred by time under Article 168 and, therefore, it does not call for any interference by this Court by way of this appeal. In support of his contentions, he relied on cases reported in 1975 SCM R 179, 1982 SCM R 201, 1985 SCMR 1067 and 1985 SCM R 1305.
6. The appeal in this case was dismissed on 12-12-1981 as the Advocate for the appellant reported no instructions in the matter and the appellant was taken to be absent on that date. The short question that needs consideration in the present case is whether the appeal could be dismissed for default under Order XLI, Rule 17 of Civil Procedure Code in a case where Advocate appearing for the appellant reports no instructions. Appearance on behalf of the parties in a Civil litigation can be made by recognized agents and pleaders appointed by them. Their appointment is regulated by provision of law specially made for the purpose in Order III of the Code of Civil Procedure. Rules appearing in the Order regulate both their appointment and termination thereof. The relevant rules of Order III, Civil Procedure Code are reproduced hereinbelow:--
1. Appearances etc, may be in person, by recognized agent or by pleader.-Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf; ' Provided that any such appearance shall, if the Court so directs, be made by the party in person.
4. 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 recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every 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 of 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.
' For the purposes of sub-rule (2) an application for review 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 suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit. No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless 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 authorised to appear: ' Provided 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."
' It will be seen from the above provisions of law that once a pleader is appointed to act on behalf of a client in a Civil Court under Rule 4(1) of the said Order, his appointment continues till all proceedings in the suit come to an end as provided by sub-rule (2) of rule 4. For the purpose of this sub-rule, sub-rule (3) further provides that among other things an appeal arising out of a judgment and decree in a suit shall be deemed to be proceedings in the suit and power filed in the suit will be considered to be valid in the appeal. The appointment of a pleader once made in a suit can only be determined by the leave of that Court. The Sindh Civil Court Rules also regulate the filing of Vakalatnama and the discharge of an Advocate. Rule 42 of the said Rules will apply when the client terminates his authority given to a pleader to appear and act on his behalf. Similarly, rule 43 of the Sindh Civil Court Rules makes it incumbent on a pleader to give notice of his intention to withdraw his power to his client and thereafter file an application for the leave of the Court. Such applications need be supported by an affidavit stating that compliance of the provisions of the said rule has been duly made. It is only after such leave is granted by a Court that an Advocate can seek his discharge from the responsibilities of appearing in matter before a Civil Court. Rule 4(2) of Order III of Civil Procedure Code and Rules 42 and 43 of the Sindh Civil Court Rules are mandatory rules and an Advocate duly appointed by his client to appear and act on his behalf is charged with a duty to continue to act in that matter till he actually obtains leave of the Court as laid down by law. An Advocate once appointed by a party in a suit will not be released from his duties to act and appear in such capacity merely by reporting no instructions. Such a view of the matter gets full support in the cases mentioned herein below. In the case of Alice Civil Engineers & Contractor v. Syed Mushtari Atiq Ahmed and another 1980 CLC 466 it was held that a counsel could not revoke his power of attorney merely by making a statement in Court that he has no instructions from his client. Even though such a statement is made in Court it will be deemed that the client was duly represented by that Advocate. In the case of Mst. Qamar Sultana alias Qamarun-Nisa v. Abdul Hussain and another 1982 CLC 767 it was 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 of Vakalatnama. 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 fact or proceedings. A statement made by an Advocate particularly in the absence of his client reporting no instructions will not in effect amount to withdrawal of Vakalatnama. It has become a practice that the Courts usually accept the statement of the Advbcates for withdrawal of Vakalatnama and do not insist on compliance with the rules. This may perhaps he permissible provided such statement is made in the presence of his client so that he may have notice of such withdrawal and make necessary arrangements. It is, therefore, necessary that before Vakalatnama is withdrawn or the party is allowed to terminate his Vakalatnama of his Advocate it should be seen that proper procedure has been followed. In the absence of compliance with .The prescribed procedure, the Vakalatnama existing on the file shall be deemed to be valid and for all intents and purposes the Advocate shall be deemed to represent his client in the proceedings."
' Similarly in the case of Kamaluddin and others v. Nazir Ahmed 1987 CLC 1208 it was held that once a counsel is engaged his authority cannot be revoked except by the permission of the Court.
' In the present case no such effort was made by the Advocate for the appellant appearing before the lower appellate Court to obtain his discharge by the leave of the Court as required of him by law. He was indeed present on 12-12-1981 and the appeal could not have been dismissed for default in appearance, on behalf of the appellant. The order dismissing the appeal in default of appearance was, therefore, void and inoperative in law.
7. Normally provisions of Order XLI, rule 19 of Civil Procedure Code would be attracted in a case where the appeal is dismissed for default in appearance of the appellant. Such a rule can be departed from in certain cases particularly when an order passed is a void order. Since in the present case no such order could have been passed under Order XLI, rule 17 of Civil Procedure Code as the Advocate for the appellant shall be taken to be present as his power was not determined by the Court, an application for restoration of the appeal can only be dealt with under section 151 of Civil Procedure Code. In a case where the order sought to be set aside is a void order Article 181 of the Limitation Act providing for a period of three years will be applicable and not Article 168 of the Limitation Act. In coming to such conclusions, I am supported by the cases reported in 1982 CLC 264, 1986 CLC 2643 and PLD 1981 SC 21.
8. In view of the foregoing reasons, I allow this appeal and set aside the orders impugned herein and restore the appeal to its original number to be decided on merits by the lower appellate Court.
There will be, however, no order as to costs.