' The Constitutional petition filed by the applicant was dismissed for non-prosecution on 5-6-1991, when his learned counsel stated that he had no instructions. This application seeks restoration of that petition.
2. The only ground urged by learned counsel for the applicant in support of this application is that the applicant had no notice of the date of hearing and his counsel was not correct in stating that he had no instructions in the matter. On the strength of Mst. Sardaran Bibi and another v. Allah Dino (PLD 1990 Karachi 227), it was argued that as learned counsel for the writ petitoner had appeared and had not withdrawn his power of attorney, the Constitutional petition could not have been dismissed for non-prosecution.
3. It is since long well-settled that by mere engaging a counsel, a party is not released of its duty to prosecute the matter with due diligence. Reference in this behalf may be made to Rafique Ahmad Khawaja v. Abdul Haleem (1982 SCMR 1229), Chiragh Din and 4 others v. Mst. Jannat Bibi and 6 others (1976 SCMR 399) and Zulfiqar Ali v. Lal Din and another (1974 SCMR 162). In the present case, the applicant was under an obligation to impart full instructions to his counsel and having failed to do so, he acted in most negligent manner, which cannot be countenanced.
4. The proposition advanced by learned counsel for the applicant that where a counsel appears before the Court and states that he has no instructions, the cause cannot be dismissed for non- prosecution, is not correct and goes against the weight of authority on the subject.
5. Under Order II, rule 1 of the C.P.C., appearance in a Court may be made, in the absence of any specific order to the contrary, by a party personally, by his pleader or by his recognized agent.
Order V, rule 1 of the C.P.C. Provides that a defendant, to whom a summons has been issued, may appear by a pleader duly instructed and able to anwer all material questions relating to the suit.
Although this provision in terms applies to the defendant but, as held by Madras High Court in Arunachalla Goundan v. Katha Goundan and others (AIR 1924 Madras 842), the same rule applies to the plaintiff also. Consequently, if the pleader reports no instructions, the appearance by him cannot be considered to be an appearance on behalf of a party merely on account of his physical presence in Court. The appearance as contemplated by the Civil Procedure Code must be of the nature, which would enable the Court to proceed with the matter.
6. The above view finds support from the judgments of the various High Court in the sub-continent.
In V. Manicham Pillai v. Mahudam Bathummal and others (AIR 1925 Madras 21), a Full Bench of the Madras High Court observed that: "The exact question put to us is, whether when a pleader reports no instructions, whether after he has asked for an adjournment, and been refused or not the Court is correct in holding that the party for whom the pleader was appearing has not appeared. We think that the only answer can be that, at any rate, in the circumstanes of this case, the pleader cannot be deemed to have appeared."
' Similarly, in Basalingappa Kushappa Kumbhar and others v. Shidramappa Irappa Shivanagi and another (AIR 1943 Bombay 321), again a case decided by a Full Bench, the Bombay High Court took the view that appearance of a counsel having no instructions, is not an appearance within the meaning of Order IX of the C.P.C. Reference may also be made to Bainjath Bothra and others v.
Kedar Nath Bothra and others (AIR 1938 Calcautta 74) and Sm Ruprani Devi v. Christopher Southern Lewis and others (AIR 1949 East Punjab 86).
7. In Ram Awater and another v. Hubrajee (AIR 1935 Rangoon 123), a distinction was drawn between appearance by a party and by a pleader. In that context, it was observed: "All that appears to be necessary for a party to 'appear' is for the party to be present in Court. If the appearance is by a pleader, unless he is able to answer all material questions or is accompanied by some one who can, there is no appearance, and for this reason, when the only representative of the party in Court is a pleader who is only instructed to ask for an adjournment, there is no appearance in the case itself, because directly the Court leaves the question of adjournment aside and goes on to deal with the main question, there is no appearance by the party or by a properly instructed pleader. But where both the pleader and party appear and the pleader withdraws from the case on the refusal of the Court to grant adjournment, the party must be deemed to have appeared. The purpose for which he appears or the action which he takes on appearance is immaterial."
8. In view of the above authoritative pronouncements, it cannot be argued with any success that a cause canot be dismissed for non-prosecution, when a counsel appears but, states that he has no instructions.
9. So far as the judgment cited by learned counsel for the applicant, namely, Mst. Sardaran Bibi and another v. Allah Dino (PLD 1990 Karachi 227) is concerned, it is distinguishable, for it proceeds upon the interpretation of Sindh Civil Court Rules, which have no application to the Province of Punjab. The same is true with respect to the earlier judgment of the Karachi High Court in Mst. Qamar Sultana alias Qamar-un-Nisa v. Abdul Hussain and another (1982 CLC 767), which has been relied upon in the above-cited case. It may also be respectfully pointed out that in Mst. Sardaran Bibi's case attention of the Court was not drawn to Order V. Rule 1 of the C.P.C. Or the cases mentioned in the preceding paragraph.
10. It is also to be noticed that while the Constitutional petition was dismissed for non-prosecution, the application for its restoration was filed on ,1-10-1992, that is after a delay of one year and six months. Even today learned counsel is unable to offer any planation as to why the applicant had not imparted instructions to his counsel.