' ZIA MAHMOOD MIRZA, J.---This petition for leave to appeal arises from an order of a Division Bench of the Lahore High Court dated 64-1994 passed on the following question:- "Whether intimation to the counsel about the fixation of the case raises a valid presumption under Order III, rule 5, C.P.C. Of service on the party?"
' The question was mooted on an application filed by the petitioners for re-admission of their appeal (R.S.A. No, 576/1972) dismissed for non-prosecution on 7-12-1988 for the reason that no one had appeared for them. The learned Single Judge had noted in his order that the counsel for the appellants had sent an application informing the Court that the petitioners/appellants hat135(1 taken away the brief from him and, therefore, the notice be sent to then directly. This request was declined by the Court as power of attorney in favela of the counsel, Sh. Nasim Hasan, Advocate, had not been cancelled 1i/flop . Withdrawn. The application for re- admission of their appeal was moved by the petitioners on 17-7-1989, which was barred by time and, therefore, they alscifiri moved an application under section '5 of the Limitation Act seeking condo nation of delay. The plea taken by the petitioners was "that Sh. Nasim 'Hasan, Advoakbug continued to be their counsel and they had taken away the brief from short period in connection with the defense of another suit.
2. Contention of the petitioners before the learned Division Bench of the High Court was that Order III, rule 5, C:P.C. Raises only a rebuttable presumption that the service of a notice on the counsel amounted to notice to the party whom he represents and that once a counsel informs the Court that he had ceased to be the counsel, the presumption stands rebutted and it becomes essential for the Court to effect personal service on the party before taking any penal action. The learned Judges of the Division Bench, relying upon a judgment of this Court reported in 1979 SCMR 183, held that unless a counsel seeks permission to withdraw and he is granted such a permission by the Court, the legal consequence provided in 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. The learned Judges then after reviewing the case-law cited by the petitioners' counsel came to the conclusion "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), C.P.C." The answer to the question mooted before them was, therefore, found in the affirmative with the result that the applications for re- admission of the appeal as also for coadunation of delay, were dismissed vide the impugned order sought to be challenged in this petition.
3. We have heard the learned counsel for the petitioners as also Mr. Hamid Khan, A.S.C. For the caveats. The former reiterated the. Contention which was raised by the petitioners in the High Court and submitted that the failure/refusal of the petitioners' counsel to appear at the hearing of the appeal on the plea that the petitioners had taken away the brief from him amounted to his withdrawal from the appeal and as such the Court should have issued notices to the appellants/petitioners in person. We find no merit in this contention as admittedly neither the petitioners nor their counsel (Sheikh Naseem Hasan, Advocate) had filed any document in writing/application in Court in terms of Order III, rule 4 (2), C.P.C. Seeking leave of the Court to determine the counsel's power/authority. That being so, the notice/process served on the counsel would be presumed to have been duly communicated and made known to the petitioners and "shall be as effectual for all purposes as if the same had been given to or served on the party in person". Refer rule 5 of Order III, C.P.C., import/legal effect whereof was examined by this Court in Abdul Latif v. Jamal Din (1979 SCMR 183) relied upon by the learned Judges of the High Court. It was held in that case that the counsel having been served, it was his duty to have informed his client 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 this view of the matter and on the admitted factual position that the appointment of the petitioners' counsel was still in force and he had the notice of the date of hearing and yet he did not turn up at the hearing, the learned Judge hearing the appeal was under no obligation to issue notice to the petitioners who, in the circumstances, would be presumed to have been duly served. The learned Judge, therefore, rightly proceeded to dismiss the petitioners' appeal for non-prosecution.
4. In the aforesaid view of the matter, the judgment of the learned Division Bench of the High Court is unexceptionable. This petition has no merit and the same is accordingly dismissed.