1. MUHAMMAD GUL, J.-By a short order dated 29-11-1976, we dismissed with costs C. M. No. 175-8 of 1976 in C. P. S. L. A. No. 122 of 1973. By the same order we also suspended with immediate effect, Khawaja Wali Mohammad an A. O. R. Of this Court from practice and issued him notice why his name should not be permanently struck off the rolls of the Advocate-on-Record of this Court and why he be not prosecuted fog certain criminal offences which ex facie were committed by him in the course of proceedings in the Civil Miscellaneous.
2. The following are the reasons in support of the short order.
3. In a dispute between the petitioner herein and Rao Mohammad Abdus Sattar (since deceased and predecessor-in-interest of respondents 1 to 5) relating to the allotment of a bungalow situated in Qila Tara Singh, Tehsil, Depalpur, District Sahiwal, the matter was brought to the High Court in W. P.
4. No. 592-8 of 1965, by the petitioner. During the pendency of the writ petition Rao Abdus Sattar died on 7-6-71. On 18-11-1971, the petitioner, applied for impleading the legal representatives of the deceased respondent. The application being beyond limitation, the petitioner also applied on 23- 10-1971 under section 5 of the Limitation Act, 1903 for condonation of delay. This was refused by a learned Judge by order dated 23-10-1971, who by the same order also dismissed the writ petition as having abated.
5. Against the above order of the High Court, the petitioner moved in this Court C. P. S. L. A. No. 122 of 1573 through Khawaja Wali Mohammad, A. O. R. And on 22-5-73 this Court granted leave to consider whether the High Court was right to record abatement of Writ Petition No. 592-R, notwithstanding the coming into force of Ordinance XU of 1972 The Court also directed maintenance of statue quo ante.
6. Subsequent to the grant of leave, a number of notices were issued to Khawaja Wali Muhammad for the preparation of the appeal. The notices also required him to appear before the Assistant Registrar. He remained insensitive, to all these notices, and did not take any step for the preparation of the appeal either. Ultimately on 5-7-76 the case was laid before the Court on notice to Khawaja Wali Mohammad with a copy to the petitioner to show cause why leave to appeal granted on 22-5-1973 should not be revoked ?
7. On 5-7-1976, the case was called twice, neither the petitioner nor his A. O. R. Khawaja Wali Mohammad appeared and consequently leave to special was rescinded and petition for leave dismissed.
8. The petitioner has now moved this miscellaneous application for the recall of the order dated 5-7- 1976 on the ground that the shows-cause notice "never reached" Khawaja Wali Mohammad and as such he could not appear before this Court on 5-7-1976 to explain his default. It was also averred that the copy of the notice sent to the petitioner at his home address reached him on the 8th July, 1976, when the date for appearance had already expired. In support of the first allegation Khawaja Wali Muhammad, A. O. R. Filed his affidavit wherein he stated Inter alia: "(1) That I never received any notice from this Honourable Court requiring me to appear before this Honourable Court on 5th July, 1976 to show cause as to why the special leave to appeal should not be rescinded.
(2) That what I have stated above 1s true and correct to the beat of my knowledge and belief, and that nothing has been concealed."
9. The correctness of the above statement was strongly contested by respondent Nos. 1 to 5. Khawaja Wali Mohammad was, therefore, summoned for examination with reference to above statement in affidavit.
10. Notice to Khawaja Wali Mohammad A. O. R. For appearance on 5-7-1976 is dated 30-6-76. It was actually issued by the Sub-Registrar at Lahore under registered cover acknowledgement due.
11. According to the evidence of Postman Mohammad this was delivered to Khawaja Wali Mohammad, A. O. R. On 2-7-1976 who in token thereof signed the acknowledgement receipt and the postal receipt. Apart from the direct evidence of the postman, the signatures on the two receipts bear striking similarity with the specimen signatures of Khawaja Wali Mohammad.
12. Finding himself in the above awkward situation, Khawaja Wali Mohammad while in the witness-box prevaricated in an obvious attempt to shift from his previous uncompromising denial. He stated that he swore his affidavit after "searching" his papers but did not find the notice in question having reached him. But in the next breath he qualified his statement by saying that if he has received such notice "it must have been passed to Mr. Zakaria". He also admitted that during the enquiry by the Postal Department he was shown acknowledgement receipt Exh: P. Bearing his signature.
13. Having admitted his signature he turned round to say that "upon a careful consideration from all points of view" he found that the final four letters of his signature on the disputed receipt were "exact copy" of his signature but that the last four letters were "not written in the way" he usually writes. To a question by the Court, he replied in the affirmative as under- "The earlier portion of the signature must be mine.
14. Towards the close of his statement to a question by 'tie petitioner's counsel and perhaps as a face- saver, Khawaja Wali Mohammad stated that he was 84 years of age and is completely blind from one eye and can see with the other with difficulty with the aid of reading glass. In his crow examination he also admitted that besides the crucial notice for his appearance on 5-7-1976 he had earlier received a number of notices for the completion of record but took no step to that end except that he passed on the notices to counsel for doing the needful. This indeed is an hollow excuse foe under the rules of this Court, it is the sole duty of the A. O. R. To complete the record of proceeding in which he is engaged. He cannot shift this responsibility to his counsel.
15. To accept this hotchpotch of lies and half 'truths would be straining one's credulity to a breaking point. Even Shaikh Ghias Muhammad, learned counsel for the petitioner frankly stated that he did not feel happy about the statement of this witness and therefore he did not rely on the statement of the witness in his argument.
16. Learned counsel however, in the course of his somewhat ingenious argument referred to rules 4 and 5 of Order XIV, of the Rules of this Court and stressed that it is a condition precedent for the rescission of leave granted by this Court as a measure of penalty for any default by the A. O. R that the original record has been received from the High Court and this was followed by notices to the parties to submit lists of documents they require to be printed. Learned counsel also referred to certain noting in the Registry and urged that the record not having been received the condition precedent remained unsatisfied and, therefore there was no default by the petitioner. But as rightly pointed out by Mr. A. R. Shaikh learned counsel for the respondents the rules have reference to the original record of the High Court referred to in rule 3 ibid. In the instant case, the High Court record comprised the writ petition, the departmental report and the order of the High Court declaring the writ petition as, having abated this record had already been received in the Registry about which notice was given and received by the parties. The noting in the Registry related to the summoning of the settlement record, which is not covered by the expression "record" as defined in rule 2 of the Rules, which for the purpose of Part II of the Rules, voters to the record of the High Court only.
17. Learned counsel for the petitioner further argued that rule 5 Order XIV of the Rules envisages notice to the appellant personally before leave is rescinded. It was pointed out that notice for 5-7-76 reached the petitioner at Depalpur on 8-7-76, three days after leave was rescinded for non- prosecution. Accordingly it was stressed that no proper notice to 5-7-76 having been nerved upon the petitioner personally until three days after that date, ex parte order of rescission of leave and dismissal of the petition is liable to be recalled. But the argument overlooks the definition of "party" with reference to proceedings in the Court, in rule 2 of the Rules of the Court. According to the definition when a patty is represents in any proceedings by an Advocate-on-Record, then "in respect of all acts proper to be done by an Advocate-on-Record of the party in question' the party is Identified with its Advocate-on-Record. That being so, service of notice on 2-7-76 for appearance on 5-7-76 mint be deemed to be as effective as upon the petitioner himself.
18. It also appears that the notice to the petitioner was initially addressed to him on his original address at Qila Tara Singh, where there is a post office, at no stage of the proceedings did the petitioner notify to the Registry change in his address. Therefore, the registered letter containing notice to the petitioner had to be re-directed from Qila Tara Singh to Dipalpur, where the petitioner had shifted in the meantime. However, that may be as observed already served on the petitioner's Advocate-on-Record, under Rules of the Court is as good as service on the petitioner himself.
19. Finally Sh. Ghias Mohammad submitted that the petitioner should not be penalized on the basis of constructive notice issued to his A. O. R., more--so when there is no evidence, that the latter had transmitted the notice to the petitioner. In any event, according to learned counsel, the appeal could effectively by disposed of on law point referred to in the leave granting order and for that the paper-book prepared at the petition stage was sufficient. This aspect of the matter, according to learned counsel, was missed by the Court and therefore order dated 5-7-76 is liable to be recalled.
20. In support of this part of the argument, reliance was placed on Manager,J & K State Property In Pakistan v. Khuda Yar and another (PLD1975SC678).
21. The facts of the precedent case were entirely different and so were the law points. In that case, it was Inter alia found that there was no proper service of the appellant in this Court for the hearing of the fiat appeal before an Additional District Judge to whose Court that appeal was transferred from the Court of another Additional District Judge. The appeal was set down for hearing in the transferee Court on 11-1-1971. On that date the Presiding Officer proceeded to dismiss the appeal "for the default of the appellant" without caring to ascertain whether the appellant had been served.
22. In the instant case, on the other band, we have found that the petitioner was properly served for 5- 7-1975, through his A. O. R. On that date neither of the two appeared. Then, at least on three previous occasion notices to the petitioner's Advocate-on-Record for his appearance in the Registry went unheeded. He was content with passing on these notice of petitioner's counsel, which if true was certainly not the purpose of these notice. This was a clear dereliction of duty.
23. To recall the order of 5-7-1976 in the above circumstances, would amount to Placing a premium on the gross negligence of the petitioner's Advocate on-Record (Khawaja Wali Mohammad) in the original civil petition.
24. These are the reasons for our short order dated 29-11-76.