1. This order will dispose of the application moved by defendant Lt.- Col.(R) Muhammad Saeed Malik, under Order 3, Rule 4(2) of C.P.C. read with Rule 49 (OS) Rules of Sindh Chief Court Rules for leave to withdraw power (Vakalatnama) of Maj. (Rtd.) Abdur Rauf Khan, Advocate (C.M.A. 8538 of 1998), as well as application moved by Major (Retd) Abdul Rauf, Advocate under Order Hi, Rule 4(2), C.P.C. read with section 151, C.P.C. for action against the defendant against Lt.-Col. (Rtd.) Muhammad Saeed Malik under sections and of the Contempt of Court Act and direction for payment of his unpaid legal fee of Rs, :4,500.
2. Under the provisions of sub-rule (2) of rule 4 of Order III, C.P.C. a power of an Advocate is deemed to exist on record unless it is determined with the leave of the Court, the provisions referred to above read as follows:-- "(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 written request by the client or the pleader, as the case may be. and filed in Court or until client or the pleader dies, or until all proceedings in the suit ended so far as regards the client."
3. The client or the counsel, as the case may be seeking discharge of authority has to comply with the requirement of Rule 49 (in case of client) and Rule 50 (in case of counsel) of Sindh Chief Court (OS)
4. Rules, which are as follows in terms of Rule 49:--
(i) Notice of his intended application for change to that Advocate or for discharge to client.
(ii) an application with an affidavit to the Court, stating the fact of service of such notice.
5. Before filing the instant application, Lt.-Col. (R) Saeed Malik has addressed a letter, dated 12th April 1994 to his Advocate, namely, Major (R) Abdur Rauf Khan intimating him, his intention for withdrawal of power given to him in the suit. The application is also supported by an affidavit to this effect.
6. Major (R) Abdur Rauf has vehemently opposed the application and contended that his fee has not been paid, he should not be discharged and the client be punished for contempt and he be directed to pay the outstanding legal fee. In support of his contention, he referred the case of Muhammad Hafiz Azmai Shaikh v. National General Insurance Co. Ltd. 1996 CLC 1998. wherein my learned brother Rasheed A. Razvi, J. formulated the following three questions and were answered in alternative, with reference to the provisions of Order III, Rule 4(2) and Rule 50 of Sindh Chief Court Rules:--
(i) Whether an Advocate is entitled to seek discharge of his Vakalatnama on the grounds mentioned in the present application?
(ii) Whether an Advocate who has received full or part fee from his client is entitled to seek discharge of his Vakalatnama?
(iii) Whether an Advocate can return the case file to his client prior to obtaining discharge from the Court?
7. While addressing the above questions, the Rule 139 of the Pakistan Legal. Practitioner and Bar Council Act was also considered. Emphasis was given to the phrase "An Advocate should decline association as a colleague unless the dues of the Advocate first retained are paid".
8. The case referred by Major (R) Abdur Rauf, Advocate does not advance his contentions so far as the direction for payment of fee is concerned. The provisions of sections 3 and 4 of Contempt of Court Act are also not attracted in the circumstances narrated above. The application moved by him against his client has no merits, the same (C.M.A. No,8094 of 1997) is dismissed.
9. The application for leave to withdraw the power given to Maj. (R) Abdur Rauf, moved by his client, fulfils the requirement of Rule 49 as stated above. The said rule is silent as far as ground or reasons on which client can seek the leave of the Court for withdrawal of the power given to counsel.
10. Consequently, the application (C.M.A. No,8538 of 1998) moved by Lt. (R) Saeed Malik is granted as prayed.