' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal, by leave of the Court, has been directed against the judgment passed by the High Court on 5-10-2002, whereby an application for restoration of the appeal dismissed in default was rejected.
2. The facts are that appellants appeal was dismissed in default due to failure of the appellants or their counsel to appear at the time when the case was called. An application filed on behalf of the appellants for restoration of the appeal was dismissed vide impugned order.
3. Raja Muhammad Hanif Khan, the learned counsel for the appellants, contended that the order passed by the High Court was illegal as such was not maintainable. It was argued that the application filed for restoration did not require any fresh "Vakalatnama" or sanction by the Government as, according to him, the counsel for the appellants was empowered to file appeal and prosecute the same after the sanction under law, therefore, in the event of dismissal in default under the same power the application could be filed. It was asserted that the counsel for the appellants was engaged in the Supreme Court as such could not appear at the time when the case was called therefore, there was a sufficient cause for non-appearance. The learned counsel referred to the following authorities in support of his assertions:--
(1) Order III, rule 4, C.P.C.
(2) Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800,
(3) Mt. Boro Vai, w/o Khubchand Mahajan v. Ramsunder Prayagdutt Brahmin AIR 1938 Nag. 272,
(4) Abdul Aziz v. Punjab National Bank Ltd. AIR 1929 Lah. 96,
(5) Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216 and
(6) Ghulam Qasim v. Ghulam Hussain PLD 1992 SC 577;
4. Mr. Farooq Hussain Kashmiri, the learned counsel representing the respondent, opposed the contentions of the learned counsel for the appellants on the ground that the appellants have failed to show sufficient. Cause for their non-appearance as, according to him, the appellants did not file any affidavit in support of the application for restoration of the appeal. The only document filed with the application, a photo copy of the cause list of the Supreme Court cases fixed on the relevant date, was not a certified copy as such could not be relied upon for any purpose. The learned counsel further argued that after dismissal of the appeal in default the counsel was left with no authority to file application for restoration without sanction of the Government. The learned counsel referred to the following authorities in support of his assertions:--
(1) Abdul Karim v. Maqbool Hussain and another PLD 1978 SC (AJ&K) 140 and
(2) Sub. (Rtd.) Behram Khan v. Custodian of Evacuee Property and 5 others 2000 YLR 2326.
5. We have heard the learned counsel for the parties and also gone through the record. The appeal was dismissed in default on 6-6-2002. An application for restoration of the same was moved on 4- 7-2002. The application was dismissed by the learned Single Judge in the High Court on the grounds that the application filed for restoration is not accompanied by any document which may show that the counsel for the appellants was appointed by the Government. It was also held that it was imperative for the Government counsel to obtain fresh authority from the Government. The learned Judge further made observations that the appellants could not prove "sufficient cause" as they failed to file any affidavit or any certified copy of a document as such the "sufficient cause" was not shown.
6. It is firstly to be seen as to how a pleader or a counsel is appointed. It may be mentioned that under Order III, rule 4, C.P.C. The appointment of a pleader is made. The relevant rule is usefully reproduced:- "4. Appointment of pleader.--- (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power of attorney to make such appointment.
(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 writing signed 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 are ended so far as regards the client.
(3) For the purposes of sub-rule (2) an application for review of judgment, an application under section 144 or section 152 of this Code, any appeal from any decree or order in the suit and any application or act, for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating---
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorized to appear: ' Provided that nothing. In this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party."
7. A perusal of the aforesaid provisions of law reveals that (i) an Advocate once appointed continues till it is terminated in writing by either side with the leave of the Court; (ii) all the proceedings have ended insofar as the client is concerned, provided the Advocate is authorized to appear before such other forums and (iii) upon the death of either of the Advocate or the client.
8. The important question required to be resolved is whether an Advocate appointed in appeal was again required to be newly engaged for an application filed for restoration of the appeal dismissed in default. The law by now stands settled that an appointment made under Order III, rule 4, C.P.C.
Would not require a fresh "Vakalatnama" for filing an application under Order IX, rule 9, C.P.C. Or Order IX, rule 13, C.P.C. The proposition finds support from a case titled Mt. Boro Vai w/o Khubchand Mahajan v. Ramsunder Prayagdhutt Brahmin AIR 1938 Nag. 272 where it was resolved as under:-- ' Sub-rule (3) of rule 4 of Order III, Civil Procedure Code, specifies certain proceedings wherein the appointment of a pleader shall be deemed to be in force. That sub-rule does not impose any restraint on the generality of the meaning of the expression all proceedings in the suit' occurring at the end of sub-rule (2) of rule 4, and cannot be regarded as exhaustive. The maxim expressio uniusest exclusion alterius cannot be applied in the interpretation of the terms of sub-rule (3) of rule 4, as rule 1 of Order III, authorizes a pleader to make any application on behalf of the party he represents: As a suit terminates only by a decree, an application for restoration of a suit dismissed for default must be regarded as a proceeding in the suit. Consequently, a pleader is entitled to present such an application without fresh appointment."
9. Similar proposition was also debated before the Allahabad High Court in a *case reported as Mt.
Jwala Devi v. Bhrigunath Sahai AIR 1941 All. 238 where it was resolved in the following words:-- ' "Civil Procedure Code (1908), 0.9, R.13---Application to set aside ex parte decree---Fresh Vakalatnama if necessary.
' Where the Vakalatnama filed by the Vakil for the defendant in a suit is in the usual terms giving the Vakil the power to apply for execution of the decree which would necessarily be a stage after the decision of the case it is in the absence of any expression indicating limitation on his powers necessarily implied that the Vakil would have the right to do everything that was necessary for the proper conduct of the case and if the case had been decided ex parte it must be held that there was an implied authority given to the Vakil to have that order set aside and the case heard on the merits. Accordingly it would not be necessary for the Vakil for defendant to file a fresh Vakalatnama with the application for setting aside the ex parte decree passed against the defendant."
10. Now, the next question arises whether a Government Advocate or a pleader who was engaged for filing and prosecuting the appeal would be required to have filed a fresh 'Vakalatnama' or memo of appearance in case the appeal is dismissed in default for restoration of the same. It may be mentioned that there is no difference between an Advocate who represents the Government or any other private party. The advocate appearing for a private party has to file Vakalatnama' whereas the Advocate appearing on behalf of the Government has to put in memo of appearance but it does not alter the status of an Advocate. Rule 4 of Order III, C.P.C. Contemplates filing of a document signed by the party appointing the pleader i.e, Vakalatnama' or memo of appearance in terms of order XXVII, C.P.C. Therefore, we can safely arrive at a conclusion that the principle discussed above in respect of a private party would also be attracted in case of an Advocate appearing on behalf of the Government. Therefore, fresh appointment on behalf of the Government is not necessary for the purpose. Therefore, the question of fresh sanction does not arise. Reference may be made to a case reported as Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 where the following observations were made:-- "6. From the above provisions of the Code, it is evident that a Government pleader or anybody appearing on behalf of the Government or even on behalf of a private party can receive the process on behalf of his client. There seems to be no distinction between an Advocate appearing on behalf of a Government or on behalf of a private party as to the acceptance of the process.
Even in above rule 4 of Order XXVII it has been expressly provided that the Government pleader shall be the agent for the Government for the purpose of receiving process against the Government issued by the Court. In this view of the matter, even if we were to hold that the provisions of Order XXVII were applicable to the present case, it would not make any difference as to the authority of Mr. Said Ali Shah, Advocate, to receive the notice from the Court on behalf of the appellant. The factum that an Advocate appearing for a private party has to file a Vakalatnama, whereas an Advocate appearing on behalf of a Government has to put in memo. Of appearance, in our view does not alter the status of the Advocate as being agent for accepting the process or for continuing to appear in the case till the time under sub-rule (2) of rule 4 of Order III of the Code, the Vakalatnama or the memo. Of appearance is withdrawn with the permission of the Court. We may again observe that sub-rule (1) of rule 4 of Order III speaks of filing of a document in writing signed by the person appointing an Advocate. It does not refer to a Vakalatnama. The word 'document' is of vide connotation and will include a Vakalatnama as well as memo. Of appearance which is filed by an Advocate on behalf of a Government. In the present case, the learned Civil Judge overlooked the above provisions of the Code while concluding that Mr. Said Ali Shah, Advocate, had ceased to be an Advocate acting on behalf of the appellant. The fact that the appellant had terminated the appointment of Mr. Said Ali Shah, Advocate, by a letter dated 10-10- 1982 was of no consequence as far as the Court was concerned. He continued to be the Advocate for the appellant notwithstanding the above termination as admittedly in terms of sub-rule (2) of rule 4 of Order III of the Code, the memo. Of appearance was not withdrawn either by the appellant or by Mr. Said Ali Shah with the permission of the Court. The finding recorded by the High Court on the above question, seems to be in consonance with law. If any authority is needed in support of the above conclusion, reference may be made to the case of Abdul Latif v. Jamal Din 1979 SCM R 183 and the case of Mst. Qamar Sultana alias Qamarunnisa v. Abdul Hussain and another PLD 1982 Kar.
355."
11. Whether there was a 'sufficient cause' for restoration of the appeal, the appellants filed an application supported by a photocopy of the cause list of Supreme Court cases of the relevant date when the appeal was dismissed in default. The opposite, party while filing the objections did not dispute the fact of cases shown on the cause list prosecuted by the counsel representing the Government. Therefore, observation of the High Court for appellants failing to have filed a certified copy of the cause list and thus have failed to constitute 'sufficient cause' would be against law. This could be regarded a 'sufficient cause' as the counsel was shown to be busy before the Supreme Court. The aforesaid ground has always been considered a sufficient cause' for setting aside the dismissal. The case titled Prince Sheikh Abdul Qadir v. Nawab Sheikh Nasiruddin and 7 others PLD 1993 Kar. 216 can be cited in support of the proposition where the same was resolved as under:- ' "Mr. Abul Khair vehemently contended that he was before the above Honourable Supreme Court in 54-K of 1989 on 30-3-1992. This fact was not denied by the learned counsel appearing for the respondents 1 to 6.
' It was not disputed that the circumstance set out above would constitute sufficient ground for the non-appearance of the appellant when the appeal was called for hearing.
' In the result, the application succeeds. The judgment of this Court made on March 30, 1992 in H.C.A. No,126 of 1986 is set aside and the appeal of the appellant is restored to be dealt with according to law."
12. In view of above discussion, the order passed by the High Court is not maintainable which is set aside by accepting the appeal with no order as to costs. Consequently, the appeal in the High Court stands restored to its original number.