MAHBOOB AHMAD, C.J.---The following question framed by one of us sitting singly has been referred to this Division Bench for answer: "Whether intimation to the counsel about the fixation of the case raises a valid presumption under Order 111, rule 5, C.P.C. of service on the party?"'
2. The circumstances giving rise to this reference are that the predecessor-in-interest of the respondents had filed a suit for specific performance of an agreement to sell, which was dismissed by the learned trial Court on 7-5-1971. Their appeal before the District Court, however, succeeded and the judgment and decree of the trial Court were reversed. by the learned Additional District Judge, Gujranwala, Camp ....Sialkot on 29-7-1972. The petitioners thereupon filed Regular Second Appeal No. 576/72, which was admitted to regular hearing on 10-7-1973 but was dismissed for non- --prosecution on 7-12-1988 as no one had appeared for the appellants. The learned Single Judge noted that an application has been sent by Sh. Iyaseem Hassan, Advocate, learned counsel for the appellants, informing of the Court that the appellants had taken away the brief and, therefore, the notice be sent directly to them. The learned Single Judge, however, declined to do so, as power of attorney in favour of Sh. Naseem Hassan, Advocate, had not been cancelled or withdrawn.
3. On 17-7-1989, this application (Civil Miscellaneous No. 4039-C/89) was filed by the appellants, seeking re-admission of the appeal. As this application was barred by time, the petitioners moved another application (Civil Miscellaneus No. 4041-C/89) under section 5 of the Limitation Act for condonation of delay.
4. The re-admission of the appeal is sought on the ground that Sh. Naseem Hassan, Advocate, remained to be the counsel for the appellants, who had taken away the brief only for a short period in connection with the defence of another suit. Both these applications were contested by the respondents by filing replies. On 14-9-1991, when the applications came up for hearing before one of us (Mahboob Ahmad Chief Justice), learned counsel for the petitioner relying upon Mir Mukhtar Ali v. Muhammad Amjad and 3 others (1985 CLC 641), urged that once a counsel informs the Court that he has ceased to represent his client, it is the obligation of the Court to serve a personal notice on the party concerned and the cause cannot be dismissed for non-prosecution. As there appeared to be divergence of opinion on this question, the matter was referred to a Larger Bench.
5. Mr. Taki Ahmad Khan, Advocate for the petitioners has referred to Order III, rule 5 of the C.P.C. to contend that in law only a rebuttable presumption arises that the service of a notice on the counsel amounts to notice to the party whom he represents and that presumption can be rebutted by showing that the party did not have notice. He further argued that once a counsel informs the Court that he had ceased to be the counsel, to presumption stands rebutted and the service of notice upon the party concerned is essential before taking any penal action. Reliance in this respect has been placed by learned counsel upon Mir Mukhtar Ali v. Muhammad Amjad and 3 others (1985 CLC 641), Jhanda v. Maqbool Hussain etc. (1981 SCM R 126), Abdul Latif v. Jamal Din (1979 SCM R 183), Satya Pal and others v. Sant Ram and others (AIR 1934 Lahore 91) and Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. (PLD 1965 SC 669).
6. Mr. Abid Hassan Minto, Advocate, learned counsel for the respondents has, however, maintained that service, of notice on the counsel is in law service on the party whom he represents and so long as the counsel does not withdraw from the case with the permission of the Court or his power of attorney is not terminated, he remains to be the counsel and is obliged to appear before the Court when called upon to do so.
7. Although the contentions of learned counsel for the petitioners are to some extent supported by the decisions in Satya Pal's case and Mir Mukhtar Ali's case (supra) but we find ourselves unable to subscribe to the view taken in these two cases for many reasons, which, however, need not to be dilated upon as Mr. Abid Hassan Minto, Advocate, learned counsel for the respondents, has brought to our notice the pronoucement of the Supreme Court in Abdul Latif's case (supra), wherein while examining the provisions of Order 111, rule 4 and Order 111, rule 5 of the C.P.C., it was ruled that: "Mr. Ahmad Saeed Kirmani was duly served for 7-12-1960 and it was his duty to have informed the appellant of the date of hearing. The only way he could have avoided communicating with the appellant was to have filed a document in writing under Order III, rule 4, sub-clause (2) of the C.P.C. showing that his authority was determined in which case the Court would have granted him leave to withdraw. Not having done that the legal consequence provided by rule 5 of Order III, C.P.C. would follow, i.e., it shall be presumed that the notice was duly communicated and made known to the party. But for the presumption which arises under rule 5, a counsel if he were empowered would decline to accept notice and thus the work of the Court would be impossible. It is for this reason that the Legislature has provided for the consequence of service on the counsel. In the absence of anything to rebut it, the trial Court was justified in holding that the notice was duly communicated to the appellant as the appointment of the counsel had remained in force. Therefore, the appellant was duly served on 7-12-1960."
The law declared by the Supreme Court is not only entitled to greatest respect but is also binding upon this Court in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. It is unfortunate that this authority was not brought to the notice of the learned Judge who decided the case of Mir Mukhtar Ali's case (supra), in which reliance has been placed upon Sh. Abdul Majid v.
Habib Ahmad (1979 SCM R 309), which has, however, no applicability, for in that case the learned counsel, on whom the notice had been served, was found to have been engaged only for the Court at Gujjar Khan and not for the Court at Rawalpindi, where the suit was subsequently transferred.
8. Reliance of the learned counsel on Mst. Mariam Bai and another v. Mst. Mehrunnisa Begum (1985 SCM R 2064) is not of any benefit for that case apart from being distinguishable on facts, runs counter to his arguments. In that case; the High Court had refused to restore the appeal, observing that though there was sufficient cause for absence of the counsel but as the non-appearance of the party itself had not been explained, the appeal could not be restored. The Supreme Court was, however, pleased to rule that.as in an appeal the arguments were to be addressed by the counsel, the presence of the party was not essential and if there was sufficient cause for non-appearance of the counsel on the date of hearing, the case ought to have been restored. The other precedent relied upon by the learned counsel for the petitioners, namely, Seth Shivrattan G. Mohatta and another v. Messrs Muhammad Steamship Co. Ltd. (PLD 1965 SC 669), too has no application to the present case. There may be no cavil with the proposition that the Court should generally be lenient in such matters and if the counsel for a party deliberately fails to enter appearance, there would hardly be any justification for restoring the cause or condoning the delay in filing an application for re-admission for which not only sufficient cause should be made out but also each and every delay needs to be explained.
9.It emerges from the above discussion that a notice served upon the counsel duly appointed is deemed to be a notice upon the party in the absence of any permission by the Court to the counsel to withdraw his power of attorney as provided by Order III, rule 4 (2) of the CY.C. Our answer to the question referred to us is, therefore, in the affirmative. We do not find any justification either for condening the delay or re-admitting the appeal. Both the applications are, therefore, dismissed, leaving the parties to bear their own. costs.