' This revision petition is directed against the order of the learned Additional Sub-Judge, Mirpur dated November 12, 1992, whereby the suit of the petitioner has been dismissed in default on non- appearance.
2. The succinct facts forming the background of this revision petition are, that the petitioner brought a suit for declaration stating therein, that the petitioner and the non-petitioners had exchange the land and reserved some land for way, which was the common way of the plaintiff and pro forma defendants. Now the defendant has raised the construction of boundary wall around the way, so the defendant should demolish the boundary wall and also remove the debris.
3. The defendant filed the written statement and the case was fixed for framing of the issues for 12- 11-1992. On 12-11-1992, the case was dismissed for non-prosecution. Now this order has been impugned through the instant revision petition.
4. The learned counsel for the petitioner argued that his Clerk and Junior Ch. Muhammad Azam Advocate were present in the Court. He had directed them to appear in the Court on his behalf and seek an adjournment because due to some unavoidable circumstances he had to go to Gujranwala, but despite of their presence, the learned. Additional Sub-Judge, Mirpur has wrongly marked the absence of the plaintiff and the learned counsel for the plaintiff and dismissed the suit in default of non-appearance without any reason.
5. While contraverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioners argued, that as the suit of the petitioner was dismissed in default of non- appearance, so the petitioner can apply for the restoration of the suit and alternative remedy is available to the petitioner, hence the revision is incompetent. He referred PLD 1966 AJK 10 and PLD 1970 AJK 7(8) in support of his contention. He further contended that neither the Clerk of the learned counsel for the petitioner nor his junior was authorized to appear before the Court.
6. I have heard the learned counsel for the parties and perused the record of the case.
7. Firstly, I would like to deal with the point, that whether the revision petition is competent or not. It is quite interesting to be noted that the report PLD 1966 AJ&K 10, cited by the learned counsel for the non-petitioners is counter to the version adopted by the learned counsel for the non- petitioners. It contains that and order of dismissal in default of appearance is revisable by the High Court. I think that the learned counsel for the non-petitioners has not gone through the judgment and simply after reading the caption, he cited this judgment. In this case, it was held by the High Court of the Azad Jammu and kashmir, that the remedy of the revision is available to the plaintiff, whose case has been dismissed for non-prosecution. But in the report, the High Court has not exercised the reVisional powers because in that case the appeal was dismissed by the High Court and it was an inter-Court appeal. The High Court held that the High Court has power to revise the order of the lower Courts, but not in an inter-Court appeal which reads as under: "He has no remedy by way of an appeal. Of course the remedy of revision is available to the plaintiff but not in the present case before us because this is an inter-Court Appeal. The High Court has the power of revision against the orders passed by the Courts subordinate to it but not inter se."
8. As the other report PLD 1970 AJ&K 7(8) is concerned, even in this case it was held that in cases in which section 115 applies, the High Court has a discretion to interfere or not, the discretion can be exercised according to the circumstances of each case. So it is entirely the discretion of the High Court to interfere or not. In the aforesaid report, the remedy in the shape of separate suit was available to the petitioner and the petitioner had actually filed the suit to challenge the compromise decree, so the learned Chief Justice of the time, has rightly rejected revision which reads as under:--- "In cases in which section 115, C.P.C. applies the High Court has a discretion to interfere or not according to the circumstances of the case. The general rule, however, is that the special and extraordinary powers 'under this section will not be exercised in favour of interference where the applicant has another remedy open to him. Where the aggrieved party could bring a separate suit to challenge the orders sought to be revised, the High Court will not, as a rule, interfere in revision.
There is a long string of case-law in support of this proposition. Mst. Taj Begum the aggrieved party, not only could bring a separate suit but has already brought a separate suit to challenge the compromise decree, therefore, I don't want to prejudice the trial of her suit by giving any opinion in the revision petition."
' The aforesaid case has no bearing on the facts of the present case.
9. Now the next question requiring the determination is that whether in the presence of Ch. Muhamamd Azam, Advocate and the Clerk of Ch. Muhammad Sharif Tariq Advocate, the learned Additional Sub-Judge, Mirpur has rightly marked the absence of the plaintiff or not? The learned Additional Sub-Judge held that no authority has been given to Ch. Muhammad Azam Advocate and the Clerk of the learned Advocate for appearing before the Court, nor any power of attorney is on the file, so they have no authority to appear, therefore, the suit was dismissed.
10. Here the question arises that whether in the absence of the counsel any other counsel or the Clerk of the Advocate can appear on his behalf or not? Order 3, Rule 4 of the C.P.C. suggests that no pleader shall act for any person in any Court, unless he has been appointed for that purpose by such person, by a document in writing and signed by such person or by his recognized agent or by some person duly authorized under a power of attorney to make such appointment. Every such appointment shall be filed in the Court.
11. It is quite clear that according to Order 3. Rule 4 of the C.P.C., a pleader cannot act unless he has been appointed for pleading the case and a document in writing signed by such person has been executed and produced before the Court. This condition is only for the acting on behalf of a party.
There is a difference between acting and appearance. To appear for a client is to present and to represent him in various stages of the litigation at which it is required, that. the client should be present before the Court. and to act for a client in a Court is to take certain steps for the progress of the suit, or for laying it properly before the Court.
12. In the instant case, Ch. Muhammad Azam, Advocate and the Clerk of the Advocate were not acting for the plaintiff, but they appeared on behalf of the learned counsel for the plaintiff and sought an adjournment on the ground that the learned counsel for the plaintiff has gone to Gujranwala. It was not necessary for a person to have written authority for appearing on behalf of a party, so that learned Additional Sub-Judge should have not marked the absence of the plaintiff in the presence of Ch. Muhammad Azam, Advocate and the Clerk of Ch. Muhammad Sharif Tariq Advocate. If at all, the learned Additional Sub-Judge was not satisfied about their entitlement for appearance on behalf of the plaintiff, even then the learned Additional Sub-Judge was not competent to dismiss the suit for the fault of the non-appearance, but the learned Additional Sub- Judge should have enquired from the plaintiff or from the learned counsel for the plaintiff, that whether he has authorized them to appear on his behalf or not? because a counsel can authorize the other person to appear on his behalf as contemplated in the power of attorney executed in favour of Ch. Muhammad Sharif Tariq, Advocate. This view finds support from AIR 1952 Kutch 91.
13. Now the next question arises that whether a counsel or a pleader is prohibited from delegating some of his functions to any other. Order 3. Rule 4 of the C.P.C., nowhete prohibits a pleader from delegating some of his ministerial functions. It is well-established principle of law, that certain functions of ministerial nature can be delegated. A ministerial act is an act in which the personal skill or attention of the pleader is not required and which can he done without considering the farts or circumstances. This view finds support from AIR 1939 Rang. 1, relevant page 5, which reads as under:--- "but in my opinion, there is nothing in Order 3, Rule 4, which prohibits a pleader from delegating some of his functions, and the Code plainly contemplates that certain functions of a ministerial nature may be delegated. A ministerial act, in relation to this matter, is an act which does not require the personal skill or attention of the pleader and which can be done without consideration of facts or circumstances. To hold otherwise would result in complete chaos in the administration of justice and would, within a short time, bring about a state of affairs which would render it impossible for the Courts of law to carry on their work."
14. In the instant case. Ch. Muhammad Azam and the Clerk of the learned counsel for the petitioner only appeared for seeking an adjournment on behalf of the learned counsel for the plaintiff, for which no skill or attention of the pleader was required. Even otherwise, the case was fixed for framing of the issues and it was the duty of the Court to frame the issues.
15. If it is strictly followed that only the Advocate who has a written authority can appear nor the Clerk of the counsel or Junior of the counsel can appear, then it will be impossible for the Advocates and Courts of law to carry out their works.
15-A. The nutshell of the above discussion is that this revision petition is accepted and the order of the learned Additional Sub-Judge, Mirpur dated November 12, 1992 is set aside. The file stands restored on its original number.