1. Through this application, Mr. Abdul Rauf, Advocate for defendants has prayed that other counsel namely Mr. Feroz Khan engaged by the defendants be relieved from the legal services in this suit.
2. The reasons mentioned in this application are that Mr. Abdul Rauf Khan was engaged by the defendants in March, 1992, who had filed written statement of the defendants, that in the month of February, 1996 he was in Punjab attending funeral ceremony of his mother during which period Mr. Feroz Shah filed his Vakalatnama on behalf of the defendants.
3. I have heard Mr. Abdul Monim Khan, Advocate for plaintiff, Mr. Abdul Rauf Khan, Advocate in support of this application filed under Order III Rule 4, C.P.C. and Mr. Feroz Shah and Mr. M. Zia Kiani, Advocates who were Subsequently, appointed by the defendants. It was argued by Mr. Abdul Rauf Khan that since his Vakalatnama still subsists on record, another Advocate was not competent to file Vakalatnama on behalf of the same party. He has also argued that a party cannot engage more than one Advocate. It was stated by him that the defendant No,2 had expired during the month of November, 1993 which resulted in the termination of the authority/Vakalatnama of Mr. Feroz Shah and Mr. M. Zia Kiani. He has referred to Order III, Rule 4, C.P.C. and also relied upon the following cases:--
(i) Ex. Hay. Mirza Mushtaq Baig v. General Court Martial 1994 SCM R 1948,
(ii) Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800,
(iii) Alico Civil Engineering and Contractors, Lahore v. Syeda Mushtri Rafiq Ahmad and another 1980 CLC 466,
(iv) Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another PLD 1982 Kar. 355 and
(v) Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another 1982 CLC 767, Mr. Feroz Shah and Mr. M. Zia Kiani, Advocates have opposed this applications by arguing that all parties are entitled to engage as many Advocates as they wish and since it has not been denied that they have been engaged by the defendants, Mr. Abdul Rauf Khan has no authority to seek cancellation or termination of their Vakalatnama. However, they have stated that in the event Mr. Abdul Rauf Khan insists to defend the defendants and to peruse this case on their behalf, they have no objection. I am in full agreement with the view of Mr. Feroz Shah that a party is entitled to engage more than one Advocate in case. But I would like to observe that as a rule of professional conduct, the right to lead the case rests with the senior counsel unless he voluntarily retires from such right. In this connection, I would like to refer to Rule 144 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976 which reads as under:-- "144. Where more than one Advocates are engaged on any side it is the right of the senior member to lead the case and the junior members should assist him, unless the senior so wants."
4. The case of Pakistan v. Messrs Q.M.R. Expert Consultants (supra) goes against the submissions of Mr. Abdul R.auf Khan as in the reported case, it was held by the Honourable Supreme Court of Pakistan that the conclusion of learned trial Court that Mr. Said Ali Shah, Advocate had ceased to be an Advocate was of no consequence as the termination of his Vakalatnama was not done in terms of sub-rule (2) of Rule 4 to Order III, C.P.C. It was further held that since the memo. of appearance was neither withdrawn by the appellant nor by Mr. Said Ali Shah himself, with the permission of this Court, therefore, any termination outside the Court by the appellant is of no legal effect. In the present suit, the instant application has neither been filed by the defendants themselves nor by the counsel who desires or intends to seek discharge/termination of his Vakalatnama. In all other reported cases, as mentioned above, namely Mst. Qamarunnisa and Alico Civil Engineering the ratio is the same as of the above Supreme Court case.
5. There is no cavil to the proposition of law as held in the cases cited by Mr. Abdul Rauf Khan but the same is of no help to him as in the instant case the question to be considered is whether an Advocate is competent to file an application for seeking discharge or termination of Vakalatnama of another counsel. None of the parties have addressed the Court on this aspect. Rule 4(2) to Order III provides that all appointments made in favour of an Advocate or Pleader shall be deemed to be in force until either of the following condition is met.
(a) On an application filed either by the party/client or his pleader in the Court and leave is obtained from the Court for discharge/termination of Vakalatnama.
(b) In case of death of client/party or his pleader/Advocate.
(c) On the termination of the proceedings in the suit.
6. I may also refer to Rule 50 of the Sindh Chief Court Rules (0.S.) which provides that an Advocate engaged in a suit or a matter if desires to obtain an order for his discharge, he is required to give notice of his such intention to his client and after such notice has been served, shall disclose this fact in his affidavit filed in support of such application. A joint reading of Rule 4 to Order III, C.P.C. with Rule 50 of the Sindh Chief Court Rules (O.S.) shows that the word "Advocate" or "Pleader" used in both these provisions refers to an Advocate engaged by such party who intends or desires to seek his discharge and that no other Advocate is competent or authorized to move such application. There is further requirement of Law which provides that an application as of the instant case, must be accompanied by a copy of notice issued by such Advocate to his party and supporting affidavit of the Advocate seeking discharge or termination of his Vakalatnama. In the present case, it is not claimed by Mr. Abdul Rauf Khan, Advocate that the instant application is filed under the instructions or advice of the defendants. Since the instant application has not been filed by Messrs Feroz Shah and/or M. Zia Kiani nor by their party, it is incompetent and liable to be dismissed. Through a short order on 12-8-1996 this application (C.M.A. No,1400 of 1996) was dismissed. Above are the reasons for the said short order.
7. It was also argued by Mr. Abdul Rauf Khan that defendant No,2 namely Lieutenant Colonel (Retired)
8. Chiraghuddin had expired. During scrutiny of the case file, I have found two applications on pages 77 to 82 of Part II sent by the widow of defendant No,2 disclosing that her husband had died on 13- 11-1993. Both these letter and application were received in the office on 18-10-1994. However, she has not disclosed the name of legal heirs nor there appears any list of legal heirs of defendant No,2 alongwith his written statement. Office is required to submit its explanation within two weeks as to how the said written statement was accepted and brought on record without compliance of Rule
(13) to Order VIII, C.P.C. I, therefore, direct the office to fix in Court both the letter and application, dated 17-10-1994 of the widow of defendant No,1 on the next date of hearing.