Through this common order, I intend to dispose of both these proceedings namely Judicial Miscellaneous No,4 of 1997 and Execution Application No,21 of 1996 as they are inter connected and arise from the same judgment and decree, dated 29-5-1995, in Suit No,490 of 1979.
2. Initially, plaintiff filed a suit for recovery of Rs,6,92,156 against two defendants namely, Pakistan National Shipping Corporation (hereinafter referred to as P.N.S.C.) and the Trustees of the Karachi Port Trust (hereinafter referred to as K.P.T.). In that suit, both defendants filed their separate written statements and consent issues were also framed on 27th September, 1980 by the Court. For the first time, the suit came up for evidence on 21st December, 1994 when it was adjourned by consent; on 10th April, 1995, it was adjourned as Mr. Muhammad Naeem counsel for the defendant P.N.S.C. did not appear. Thereafter, the suit came up on three dates of hearings which are the bone of contention of these two instant proceedings. On 23rd May, 1995 Mr. Khalid Rehman, Advocate holding brief for Mr. Muhammad Naeem for P.N.S.C. made a statement that they have no instructions from their client to proceed with the suit. On the same day Mr. Imtiaz Lari, Advocate requested for time to file an ex parte proof as well as some appropriate application in respect of defendant K.P.T. As such the case was adjourned for 25-5-1995 but it was not proceeded and was again adjourned to 29-5-1995 when the suit was decreed in the following terms:-- .... Learned counsel has filed an application under Order XXIII, Rule 1 read with section 151, C.P.C. and Order I, Rule 10, C.P.C. stating therein that he does not want to proceed against defendant No,2 and the said defendant may be dropped and the same be deleted. He has also filed an affidavit-in-ex parte proof signed by an officer of the plaintiffs' company the same is on oath. Since the counsel appearing for defendant No,1 had already stated no instructions, this affidavit-in-ex parte proof is admitted, the suit is decreed against defendant No, 1 as prayed."
3. On 10th January, 1996 plaintiff/D.H. namely Habib Insurance Company Limited (hereinafter referred to as H.I.C.L.) filed Execution Application No,21 of 1996 for recovery of a total sum of Rs,24,28,893. Notice of the execution application issued to. the J.D./P.N.S.C. wag served and Mr. Muhammad Iqbal Siddiqui, Advocate put his appearance on behalf of the J.D. Counter-affidavits and rejoinders were filed. However, during the proceedings of the execution application the J.D./P.N.S.C. also filed an application under section 12(2), C.P.C. on 16th February, 1997 (Judicial Miscellaneous No,4 of 1997) challenging the decree on the ground of fraud and misrepresentation.
The nature of alleged fraud and or misappropriation are incorporated in para. No,7 of the petition filed under section 12(2), C.P.C. which reads as follows:-- "(7) .... That the plaintiffs with mala fide intention and with ulterior motive acted fraudulently and mislead the Court in this manner. The counsel for defendant No,2, the Karachi Port Trust was in attendance on the date of 23-5-1995 and also on the adjourned date of hearing that is 25-5-1995.
In the presence of counsel for defendant No,2 the plaintiff had to prove their allegations made in the plaint for which they had no evidence, therefore, they with design and ulterior motive to harm the defendant No,1 after 16 years made an application under Order 23, Rule 1 read with section 151, C.P.C. stating therein that plaintiffs do not want to proceed against defendant No,2 and the said defendant No,2 may be dropped and their name be deleted. The said application for deletion of defendant No,2 was made after expiry of about 16 years. This was made simply to take advantage of the incorrect and illegal statement filed by the counsel for defendant No,1 withdrawing from the suit representing defendant No,1, when they were in possession of all the documentary record and instructions. No further instructions were ever sought by them. The said application for deleting defendant No,2 was made for the simple reason that the plaintiffs were unable to prove the allegation made in the plaint to substantiate their claim."
4. I have heard Mr. Imtiaz Lari, Advocate for H.I.C.L. and Mr. Shafi Muhammadi, Advocate for P.N.S.C. It was argued by Mr. Shafi Muhammadi that the conduct of the previous counsel of P.N.S.C. in pleading "no instructions" has no legal support and is violative of Rule 50 of the Sindh Chief Court Rules (O.S.). He has further highlighted the fact that the instant decree was passed within a period of seven days which is clear proof of fraud and misrepresentation. He has also argued that the conduct of plaintiff for withdrawing suit against K.P.T. and seeking decree against P.N.S.C. is not above board and is sufficient to prove fraud and misrepresentation on their behalf. However, he has not cited any case-law in support of his submissions. On the other hand it was argued by Mr. Imtiaz Lari, Advocate that it is a well-established practice that the Courts consider the statements of Advocates to the extent of pleading "no instructions" and that in no manner such practice deviates from any rule and regulation. He has also objected to the maintainability of the petition under section 12(2), C.P.C. on the ground that the remedy, if any, available to P.N.S.C. was to file an application for setting aside the decree and not through proceedings under section 12(2), C.P.C. He has stated the same to be improper, misconceived and mala fide and with the sole intention to protract the proceedings in the execution application. He has placed reliance on the provisions of Order IX, Rule 6 and Order XVII, Rules 2 and 3, C.P.C. He has placed further reliance on the following cases:--
(i) Nazir Ahmed v. Collector, Lahore District, Lahore 1993 CLC 241,
(ii) Mir Abbas Khan and another v. Mrs. Dianat Fatima and 9 others 1989 MLD 3410,
(iii) Arunachella Goundan v. Katha Goundan and others 1924 Mad. 842,
(iv) Basalingap a. Kushappa Kumbhar and others v. Shidramappa Irappa Shivanagi and another AIR (30) 1943 Bom. 321,
(v) Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366,
(vi) Sabzal and others v. Bingo and others PLD 1989 Kar. 1.
5. The first question which requires consideration is whether an. Advocate appearing for the either side is competent to plead "no instructions" without first resorting to the, provisions of Rule 50 of Sindh Chief Court Rules (O.S.). The second question that arises is what procedure the Court should adopt after the statement of an Advocate is brought on record when he has pleaded "no instructions". The practice of pleading "no instruction" by the Advocates was considered by the Indian Courts in the cases Arunachella Goundan (cited at Serial No,iii above) and in Basatingap (cited at Serial No, iv above), but these are of no help, as in Sindh, we have Chief Court Rules (O.S.), which deal with the practice and procedure for conducting a suit and other allied litigations of civil nature. The most relevant case on the point in discussion is the case of Mir Abbas Khan (cited at Serial No,ii above) where similar question came up for consideration before a Division Bench of this Court comprising Tanzil-ur-Rehman and Allandino G. Memon, JJ. (as they then were) where reference was made to Rules 49 and 50 of the Sindh Chief Court Rules (0.S.) as well as to Order HI, Rules 1 to 5 of the C.P.C. and thereafter, it was held as follows:-- "(3) ... On plain reading of the above rules, it is manifest that the duty is cast on the party and the Advocate and not the Court unless and application is moved to the Court and order of discharge of the Advocate whose Vakalatnama is on record is discharged by the Court. In that case too, the Advocate is duty bound to first intimate the date of hearing, if already fixed. However, as long as the Valcalatnama of the counsel appearing in the case remains on record and is not discharged by the Court, the counsel will be deemed to be briefed on behalf of the party. It is apparent in the present case that no such application was made to the Court by the party for change of .his Advocate or for discharge by the Advocate appearing in this case. The provisions of Rules 49 and 50 of the Sindh Chief Court having not been complied with, the first plea of the counsel, is unfounded...."
6. This case of Mr. Abbas Khan (ibid) was decided on 8th February, 1989 and was reported earlier to the case of Mst. Sardaran Bibi and another v. Allandino PLD 1990 Kar. 227 which was also decided by a Division Bench of this Court comprising Imam Ali. G. Kazi and Wajihuddin Ahmed, B. (as they then were), which has taken a different view. Again, reference was made to the provisions of Order HI of the C.P.C. and Rules 42 and 43 of the Sindh Civil Court Rules which are identical to the provisions of Rules 49 and 50 of the Sindh Chief Court Rules (O.S.). In that case appeal was dismissed by the appellate Court as the counsel appearing for the appellant pleaded "no instruction". Restoration application filed subsequently was also dismissed by the appellate Court against which appeal was filed under section 100, C.P.C. which ended in a decision as reported in the case of Mst. Sardaran Bibi (ibid). The appeal filed before the High Court was allowed and the appeal which was dismissed by the IInd Additional District Judge, Nawabshah was restored to its original number with the direction to decide the same on merits. Following is the relevant observations of the learned Division Bench in the case of Sardaran Bibi:-- ".... It will be seen from the above provisions of law that once a pleader is appointed to act on behalf of a client in a Civil Court under Rule 4(1) of the said Order, his appointment continues till all proceedings in the suit come to an end as provided by sub-Rule (2) of Rule 4. For the purpose of this sub-Rule, sub-Rule (3), further provides that among other things an appeal arising out of a judgment and decree in a suit shall be deemed to be proceedings in the suit and power of attorney filed in the suit will be considered to be valid in the appeal. The appointment of a pleader once made in a suit can only be determined by the leave of that Court. The Sindh Civil Court. Rules also regulate the filing of Vakalatnama and the discharge of an Advocate. Rule 42 of the said Rules will apply when the client terminates his authority given to a pleader to appear and act on his behalf. Similarly, Rule 43 of the Sindh Civil Court Rules makes it incumbent on a pleader to give notice of his intention to withdraw his power to his client and thereafter file an application for the leave of the Court. Such applications need be supported by an affidavit stating that compliance of the provisions of the said rule has been duly made. It is only after such leave is granted by a Court that an Advocate can seek his discharge from the responsibilities of appearing in matter before a Civil Court. Rule 4(2) of Order HI of Civil Procedure Code and Rules 42 and 43 of the Sindh Civil Court Rules are mandatory rules and an Advocate duly appointed by his client to appear and act on his behalf with a duty to continue to act in that matter till he actually obtains leave of the Court as laid down by law. An Advocate once appointed by a party in a suit will not be released from his duties to act and appear in such capacity merely by reporting no instructions..."
"... In the present case no such effort was made by the Advocate for the appellant appearing before the lower appellate Court to obtain his discharge by the leave of the Court as required of him by law. He was indeed present on 12-12-1981 and the appeal could not have been dismissed for default in appearance, on behalf of the appellant. The order dismissing the appeal in default of appearance was, therefore, void and inoperative in law..."
7. In the above reported case, the view of a learned Single Judge of this Court Saleem Akhtar, J. (as his Lordship then was) in the cases of Mst. Qamar Sultana alias Qamarun Nisa v. Abdul Hussain and another 1982 CLC 767 was cited with approval that "before Vakalatnama is withdrawn or the party is allowed to terminate his Vakalatnama of his Advocate it should be seen that proper procedure has been followed. "Further reliance was placed on the cases Alice Civil Engineers and Contractor v. Syed Mushtari Atiq Ahmad and another 1980 CLC 466, Kamaluddin and others v. Nazir Ahmad 1987 CLC 1208. I have also followed the rule laid down in the cases of Mst. Sardaran Bibi PLD 1990 Kar. 227 in the case United Bank Ltd. v. Mian Tajammul Hussain 1998 CLC 179 = PLJ 1998 Kar. 747 where ex parte order was set aside on the grounds, inter alia, that Vakalatnama of an Advocate, who was from Lahore, was not discharged and this Court on the statement of an Advocate from Karachi that he has no instructions from the defendant passed an ex parte decree. It was further held in the case Mian Tajammul Hussain (ibid) that the appointment of an Advocate remains in force until determined with leave of the Court or until the party or the pleader dies or until all proceedings in regard to his client are ended. Reliance was placed on the case Pakistan through General Manager, Pakistan Railway v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 and Aziz Flour Mills and 2 others v. I.D.B.P. 1990 CLC 1473. The rule laid down by a learned Single Judge Malik Muhammad Qayoom, J. of the Lahore High Court in the case of Nazir Ahmed (supra) is of no help to Mr. Imtiaz Lari. In that case the rule laid down by a Division Bench of this Court, in Mst. Sardaran Bibi (supra) was made distinguishable on the ground that the Sindh Civil Court Rules are not applicable to the Province of Punjab. In Ex. Hay. Mirza Mushtaq Baig v. General Court Martial 1994 SCM R 1948, it was held inter alia, by the Honourable Supreme Court that "even in cases where the papers have been taken away by the client, it is the duty of the Advocate to appear on the date of hearing till such time he withdraw his power or it is cancelled according to rules by the client.
8. Now, there are two views in the field pertaining to the same provision of law by the two different Division Benches of this Court. The earlier view of Mir Abbas Khan's case was not cited before the Bench dealing with the case of Mst. Sardaran Bibi which has resulted in the present controversy. As a matter of judicial discipline the decision of a Division Bench of the same Court is binding on other Division Bench. Reference is made to the cases Bashir Ahmed and others v. The State PLD 1960 Lah.
687, Sindheshwar Gangoli v. State of West Bengal PLD 1958 SC 337, The Province of East Pakistan v.
Dr. Azizul Islam PLD 1963 SC 296, Noor Muhammad v. Province of Sindh and others 1995 CLC 952 and Muhammad Ashfaq v. Government of Sindh and others PLD 1996 Kar. 236. A Full Bench of this Court in the case of Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 Kar. 280 laid down three principles for maintaining judicial decorum in respect of decisions of the Supreme Court and observed that if such principles are not followed it is bound to create not only uncertainty but confusion in the minds of the litigant public and subordinate Courts about the judicial decision of the Courts of law, and that such things will not enhance the prestige of the Courts. Following are the three principles:-- "(1) ... That in the order to maintain the judicial decorum and propriety the decision of a Division Bench on a question of law should be followed by other Bench. If they differ from it the proper course to adopt would be to refer the question for the decision of a Full Bench.
(2) The decision of one Division Bench on a question of fact is not binding on the other Division Bench.
(3) If the decision of one Division Bench has not come to the notice of the other Division Bench and a different view is taken in the subsequent Division Bench case, when such two conflicting decisions are placed before the Bench proper procedure to follow in such case would be, for the Bench hearing the case, to refer the matter to a Full Bench in view of the conflicting authorities without deciding the question itself..,."
9. Now to meet the above situation, the Honourable Supreme Court has laid down the procedure in the case of Multiline Association v. Redshirt Cowasjee and others PLD 1995 SC 423 also reported in 1995 SCM R 362. It was observed, inter alia that the legal position is that the second Division Bench of the High Court should not give finding contrary to the findings of the earlier Division Bench of the same Court and if a contrary view is to be taken then the proper course is to make a request to the learned Chief Justice for constitution of a larger Bench. Reference was made to the cases Dr. Aziz- ul-Islam (supra) and Sundeshwar Gangoli (supra). This being the situation, it will not be just and proper for this Court to follow the rule laid down either in the case of Mir Abbas Khan or Mst.
Sardaran Bibi as at present both these decisions are in field and unless there is an authoritative pronouncement by a larger Bench of this Court interpreting the provisions of Rules 49 and 50 of the Sindh Chief Court Rules (O.S.) read with Order III, Civil Procedure Code, it will not be just on my part to give any finding on the submissions made by both the Advocates in this behalf.
10. As a result of above discussion, I direct the office to place this matter before the Honourable Chief Justice for constitution of a larger Bench to consider the above points. Since the original suit pertains to the year 1979, I direct the office to act expeditiously. Till further orders, proceedings in both the above matters, shall remain suspended.