MUHAMMAD BASHIR JEHANGIRI, J.---This is a petition for leave to appeal from the order passed by the learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, on 20-3-1998 in Writ Petition No,541 of 1998 filed to challenge the order of the learned Additional District Judge, Rawalpindi, in Civil Revision No,15 of 1996 whereby the order of the trial Court following withdrawal of an application for amendment of the plaint was maintained.
2. The background of the case, briefly stated, is that the respondents had filed a suit for partition in the year 1983 in which a preliminary decree had been passed on 26-1-1988. The petitioners preferred an appeal against the said preliminary decree which was accepted by a learned Additional District Judge on 27-1-1991 and the case was remanded to the trial Court. In consequence of the remand order, some evidence was recorded and then the petitioners moved an application for amendment in their written statement and consequential framing of an additional issue, During the pendency of this application, one Mr. Abdul Aleem Qureshi, Advocate, "who happened to be the son of Mr. Gul Muhammad Qureshi, Advocate, the original counsel for the petitioners, appeared in Court and made, a statement for withdrawal of the application for amendment of the written statement". Thereupon the learned trial Judge dismissed the application for amendment as withdrawn and adjourned the case for evidence of the petitioners for 12-10- 1994. On 1-9-1994, the petitioners moved an application through Mr. Gul Muhammad Qureshi, Advocate, for the review of order dated 25-7-1994 pleading that Mr. Abdul Aleem Qureshi, Advocate, was not possessed of any power of attorney in his favour and, therefore, his statement could not bind the petitioners. The application was resisted by the respondents. The learned trial Judge by his order dated 5-6-1995 dismissed the review petition.
3. The petitioners feeling dissatisfied challenged the order of the learned trial Judge dated 5-6- 1995 in a revision petition moved before the District Judge, Rawalpindi.
4. The learned revisional Court invoked the proviso to Order III, Rule 4(5) of the C.P.C. And held that if a pleader is appointed by another pleader to act on behalf of the party, then the written document is not required. It was observed by the learned revisional Court that "the only determining factor is as to whether, Abdul Aleem Qureshi, Advocate had the authority to-act on behalf of the other pleader namely Gul Muhammad Qureshi" Advocate for the petitioners. In this context the revisional Court noted that the contents of the application for review were not verified by filing an affidavit of Gul Muhammad Qureshi, Advocate, to show that he had not authorised his son namely, Abdul Aleem Qureshi, to act on his behalf. Similarly Abdul Aleem Qureshi, Advocate, has also not filed another affidavit to controvert the assertion that Abdul Aleem Qureshi, Advocate, was not instructed or authorised by Gul Muhammad Qureshi, Advocate. In this view of the matter, the learned trial Court was held to have committed no illegality while dismissing the review petition.
5. Ultimately, the petitioners challenged the legality or propriety of the impugned revisional order in the constitutional jurisdiction of the High Court at Rawalpindi Bench. The learned Single Judge also relied upon the proviso to Order III Rule 4 C.P.C. And observed that Mr. Abdul Aleem Qureshi is not only an Advocate but also the son of the original counsel, namely, Gul Muhammad Qureshi whose statement had not been disputed. It was further observed that the original counsel had the authority on the basis of the power of attorney executed by the petitioners in his favour to instruct any other counsel to appear on behalf of the petitioners, and that, therefore, the son of the original counsel "had appeared on the instructions of his father who was duly engaged counsel for the petitioners and as such his statement was binding on them." The learned Single Judge then proceeded to dispose of the writ petition in the paragraph reproduced hereunder:-- The original counsel has not placed on record any affidavit to the effect that he had not authorised Mr. Abdul Aleem Qureshi, Advocate to appear on his behalf and make statement before the court withdrawing the application for amendment. Similarly Abdul Aleem Qureshi had not submitted any affidavit that he had no authority or instructions from his father for withdrawal of the petition for amendment. In the absence of any material on record, the Courts below were justified to hold that the statement of Mr. Abdul Aleem Qureshi, Advocate is binding on the petitioners. Judgments of both the Courts below are supported by evidence on record. Reassessment of evidence on record is not permissible under the constitutional jurisdiction in a matter which has been finally decided after appraisal of the evidence by the Courts below. This writ petition has no force and is hereby dismissed in limine.
6. Mr. Ibadur Rehman Lodhi, learned ASC, in support of this petition contends that the learned Judge in Chambers of the High Court had erred to take the impression that Abdul Aleem Qureshi was not required to be properly engaged and that he had authority to make any statement on behalf of the petitioners. According to the learned counsel, even in the proviso to Order III Rule 4, C.P.C. Proper engagement of another counsel by the original counsel is mandatory and for that purpose the procedure has been prescribed in Order III Rule (1), C.P.C. Whereunder an authority in writing signed by a party or by its recognized agent or by some other person duly authorised to such appointment is required. According to the learned counsel, in order to bind, the petitioners to the statement made by Abdul Aleem Qureshi an authority in writing to Gul Muhammad Qureshi, Advocate, in favour of his son, who happened to be an advocate, was sine qua non.
7. The appointment of a pleader is regulated by Order III rule 4. As the controversy revolves around the interpretation of Rule 4 ibid it would be appropriate to reproduce it hereunder:--
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 recognised 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 or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in such are ended so far as regards the client.
(3) 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.
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) 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.
8. The right of a pleader to appear in Court is now subject to the rules of admission in different High Courts under the Legal Practitioners and Bar Councils Act, 1973 and rules framed thereunder. The word ' act' occurring in A sub rule (1) to rule 4 ante refers to the taking of steps to lay the case before the Court, as for instance, making an application or presentation of a suit or appeal. It is settled law that proper 'function of a proviso is to accept and deal with a case which would otherwise fall within the general language of the main section, and its effect is confined to the rule or section to which a proviso has been added. The proper way to regard the proviso is as a limitation upon the effect of principal section or rule. A proviso, which is in fact and in substance a proviso, can only operate to deal with a case which, but for it, would have fallen within the ambit of the section to which the proviso is a proviso. To put it in another way the section deals with a particular field while proviso excepts or takes or carries out from the field a particular portion and therefore, it is perfectly true that before a proviso can have any application the section itself must apply. (See Jagdatt Singh and others v. State of Uttar Pradesh and another (AIR 1962 Allahabad 606).
9. Under sub-rule (5) of Rule 4 ibid, it is provided that a pleader who has been engaged for the purpose of pleading only shall not plead unless he has filed in Court a memorandum of appearance signed by himself and stating the names of the parties etc. But under the proviso the filing in the Court a memorandum of appeal or lis is not required, if any pleader engaged to plead on behalf of any party by another pleader who has been duly appointed to act in Court on behalf of such party. In consequence under the proviso to Rule 4 of Order III C.P.C., Mr. Abdul Aleem Qureshi, Advocate, who happened to be the son of Mr. Gul Muhammad Qureshi and who had been engaged to plead on behalf of the petitioners could appoint to act on behalf of the petitioners in the Court without any authority in writing. In consequence if Mr. Abdul Aleem Qureshi has sought to withdraw the application for amendment moved on behalf of the petitioners, the presumption is that he must have been authorized to do so on behalf of his father Mr. Gul Muhammad Qureshi, Advocate.
10. The interpretation of the proviso to Rule 4 of Order III, C.P.C. Both by the revisional Court and the High Court in the writ jurisdiction appears to be legally sound and in accord with the principle of known cannons of interpretation of statue.
11. In the circumstances of the case, we find no infirmity of the kind in the impugned order to warrant our interference by way of this petition. We, therefore, decline to grant leave to appeal and dismiss the petition accordingly.