' The brief facts out of which the present revision petition arises are that the petitioners filed application under section 20 of the Arbitration Act and the respondent filed reply controverted the allegations levelled in the application. The application was dismissed for non-prosecution by the trial Court vide order, dated 18-6-1998. The petitioner filed application for restoration on 20-6-1998 and the respondent filed reply of the application and raised specific preliminary objection No,5 that the application has been filed by a lawyer who is not legally appointed as Attorney, hence he is not entitled to move this application, therefore, application merits to be dismissed. The learned trial Court dismissed the application vide order, dated 5-9-1998. Hence the present revision petition.
2. The learned counsel of the petitioner contended that Order III, Rules, 1, 2 and 4, C.P.C. Read with High Court Rules Volume 1 Chapter 16 deal with the appointments of the pleaders and Attorneys. He further stated that the petitioner has duly signed power of attorney in favour of Shahid Karim, Advocate. He further stated that the contents of the power of attorney revealed that Mr. Shahid Karim, Advocate is authorised by the petitioner to engage any other counsel. He further stated that power of attorney between the petitioner and the counsel is a contract, therefore, provisions of the Contract Act are attracted. He further urged that he authorised Mr. Aamar Sina, Advocate to file the application for restoration. He further urged that Aamar Sina, Advocate has been appearing in the case for the last two years and the respondent's counsel as well as respondent did not take any objection qua his appearance. He further urged that certain applications were also filed by Mr. Aamar Sina, Advocate. Neither the respondent nor his counsel raised any objection qua those applications. He further stated that if any irregularity is committed that is ratified by the petitioner by filing ratification in favour of Mr. Aamar Sina, Advocate before this Court. He relied upon the following judgments:-- ' 1983 CLC 2923. PLD 1984 SC 12.
' PLD 1969 Kar.
210. 1998 CLC 1383. 1990 MLD 2161.
3. The learned counsel of the respondent contended that application for restoration was filed on 20-6-1998 and reply was filed on 25-7-1998 by the respondent with the preliminary objection that the application is not filed in accordance with law. He further urged that subsequent to the filing of reply three different dates were fixed till the application was dismissed by the learned trial Court vide order, dated 25-7-1998 but the petitioner did not rectify the irregularity committed by the petitioner. He further stated that learned counsel of the petitioner failed to bring on record any document to show that Aamar Sina, Advocate was authorised to act or appear on behalf of the petitioner. He further stated that Aamar Sina, Advocate is not legally authorised to appear, file and sign the appl4tion by virtue of Order III, Rules 4, C.P.C. Read with section 22(c) of Legal and Practitioner Bar Council Act, 1973 further stated that Aamar Sina, Advocate has filed application, therefore, he is acting on behalf of the petitioner which he could not do so unless and until is authorised by the petitioner. He further stated that by filing rectification in favour of Aamar Sina, Advocate before this Court tantamounts to admission of the illegality. He raised upon the following judgment:-- 71 MLJ 604.
AIR 1936 Lah.
500.
AIR 1938 Lah.
698.
1995 CLC 734.
AIR 1976 Raj.
130.
PLD 1984 SC (AJ&K) 13.
1981 MLD 1261.
PLD 1962 Lah.
830.
' He summed up his arguments that judgments cited by the learned counsel of the petitioner are distinguishable on facts and law as in all those cases irregularities were committed by the Advocates when the power of attorney was either not signed by the party or by the Advocate. In the present case application was filed by the Advocate but the provisions of the C.P.C. And Legal Practitioner Act do not permit him to do so, therefore, the order of the learned trial Court is in accordance with the law and application was filed in violation of the mandatory provisions of the aforesaid laws.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. The admitted facts between the parties in seriatim are as.
(i) The petitioner engaged Shahid Karim, Advocate;
(ii) Shahid Karim, Advocate filed application under section 20 of the Arbitration Act on 23-10-1996.
(iii) Orders, dated 16-4-1998 and 21-5-1998 revealed that Aamar Sina, Advocate appeared for the petitioner; (iv). On 18-6-1998 the application was dismissed in default;
(v) On 20-6-1998 application for restoration was filed by Mr. Aamar Sina, Advocate alongwith his own affidavit:
(vi) Application for restoration was not signed by the petitioner;
(vii) Petitioner has not given power of attorney in favour of Aamar Sina, Advocate; (viii)Respondent filed reply of application alongwith preliminary objection that the application has been filed by a lawyer' who is not legally appointed attorney, hence he is not entitled to move this application. Application was dismissed on 5-9-1998.
' The Hon'ble Supreme Court has laid down a principle in Khuda Yar's case (PLD 1975 SC 678) that technicalities should not be hinderance in the way of justice. The relevant observation is as follows:-- ' "Mere technicalities unless over the insurmountable hurdle should not be allowed to defeat the ends of justice." and followed the principle laid down by the Hon'ble Supreme Court in Imtiaz Ahmad's case PLD 1963 SC 382. The judgments cited by the learned counsel. Of the respondents are distinguished on sole ground that the Hon'ble Supreme Court departure from the previous practice and insisted to avoid technicalities and cases must be decided on merits after addition of Article 2A in the Constitution. I am fortified by the dictum laid down by the Hon'ble Supreme Court in PLD 1989 SC 532. The relevant observation is as follows:-- ' "A party should not be denied a relief on account of technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it."
The aforesaid judgment was again followed by the Hon'ble Supreme Court in 1993 SCM R 363. It is settled proposition of law that the relationship of a client and a counsel is recognised in law at the level of relations of principal and an agent. In such situation, when an agent acts on behalf of the principal, even though he is not authorised in the prescribed manner for acting as such at the relevant time. The principal is vested with the authority to ratify the act of his agent with retrospectively. On this principle, it is permissible to hold that action of Aamar Sina, Advocate by signing and verifying the pleadings and institution 'of the suit, could be ratified by the petitioner/plaintiff with retrospective effect. I am fortified by Khiam Film's case 1982 CLC 1275 and the relevant observation is as follows:-- ' "It was held that the authority for institution of the suit by counsel, was questionable only by the client on whose behalf the suit was instituted and not by the opposite party.'
The principle was illustrated on the premises that when a counsel who instituted the suit and prosecuted it, throughout and his performance of function as counsel, was not questioned by the client, it was permissible to be presumed that the action of the counsel on behalf of his client, tantamount to ratification by the client. Even otherwise the provision regarding the presentation of appeal/suit are procedural in nature and non-compliance thereof cannot he 'vitiated with the extreme penalty of dismissal of the cause. It is since long settled that any such, defect is an irregularity and can be ratified by providing an opportunity to the concerned party to do so. I am fortified by the judgment of this Court in Mst. Karam Nashin's case PLD 1959 Lah.
946. Both the defects qua presentation by Aamar Sina, Advocate without power of attorney and without signature of the petitioner were irregularity and not fatal to the cause and such a defect could be remediated at any time irrespective of limitation. It is also settled principle of law that the Rules framed in the Code of Civil Procedure/Rules made for the advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice. I am fortified by the judgment of Muhammad Sarwar's case 1980 CLC 946. It is also settled proposition of law that a Judge must wear all the laws of the country on the sleeve of his robes and failure of the counsel to properly advised him is not a complete excuese in the matter. The learned trial Court was on obligation to allow an opportunity to the petitioner in the circumstances of the case to remedy the defect. I am supported by the judgment Shafiq Metal Work's case PLD 1973 Note 33 at p.41. The relevant observation is as follows:-- ' "The defect if any, therefore, can certainly be cured either by the party amending the plaint on his own initiative or by the Court suo motu ordering for the removal of the defect." It is also settled principle of law that Court can take notice of subsequent events. I am fortified by the judgment 1990 CLC 1069. The petitioner has filed ratification before this Court."
' In view of what has been dismissed above this revision petition is accepted. The order of the learned trial Court, dated 5-9-1998 is set aside with E the result that the application filed by the petitioner shall be deemed to be still pending before him and shall be decided in accordance with law. The learned Civil Judge shall allow the petitioner/applicant to ratify the defect by either signing the application or presenting power of attorney in favour of counsel duly authorised in the interest of Justice and fair play to avoid multiplicity of litigation. The parties shall appear before the Civil Judge First Class Lahore on 11-11-1998.