Hafiz FAIZ AHMAD and 24 others vs Mst. GHULAM ZOHRAN and 14 others
This matter concerns a petition for leave to appeal against a High Court order that dismissed an appeal for want of instructions from the petitioners' advocate and included adverse remarks against the petitioners. The core legal questions were whether the court was obligated to issue notice to the petitioners before dismissing the appeal when their counsel reported no instructions, and whether the court was justified in making adverse remarks against the petitioners without providing them an opportunity to explain their conduct. The Supreme Court held that when an advocate reports no instructions, the court is justified in dismissing the appeal without issuing further notice, as the report signifies a lack of interest in prosecution. However, the Court held that adverse remarks against a party should not be recorded without first affording that party an opportunity to explain their conduct. Consequently, leave to appeal was refused regarding the dismissal of the appeal but granted specifically to consider whether the adverse remarks were justified and whether they should be expunged from the record.
- Is a court required to issue notice to a party when their advocate reports no instructions in an appeal?
- Can a court record adverse remarks against a party without providing them an opportunity to explain their conduct?
- Does an advocate reporting 'no instructions' justify the immediate dismissal of an appeal?
- Order III Rule 2, Code of Civil Procedure 1908
- Order III Rule 3, Code of Civil Procedure 1908
- Order III Rule 5, Code of Civil Procedure 1908
ORDER
' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the order of the learned Judge in Chamber dated 11-4-1994 whereby the appeal was dismissed for want of instructions as stated by the Advocate for the petitioners. The learned Judge also recorded a note making adverse remarks against the petitioners.
2. The petitioners had filed suit for declaration in which application for grant of temporary injunction was filed which was dismissed by the learned Trial Court. The petitioners then filed an appeal before the High Court. On 11-4-1994 the Advocate for the petitioners reported no instructions and the appeal was accordingly dismissed.
3. The learned counsel for the petitioners contended that after the Advocate for the petitioners had reported no instructions, the Court ought to A have issued notice to the petitioners and in this regard reference was made to Order III, Rules 2, 3 and 5, C.P.C. The contention has no merit. The Advocate reported no instructions which means that the party was not interested in prosecuting the matter and in that view the Court was justified in dismissing the appeal. The question of notice will arise only if an Advocate seeks permission to withdraw from the case and follows the prescribed procedure. In such a case if withdrawal is granted normally notice is issued to the party if it is not present at the time when the order permitting the Advocate to withdraw is passed.
4. The learned counsel then contended that the note appended to the main order which adversely comments upon the conduct of the petitioner should not have been passed as it is based on mere presumption and without hearing the petitioner. It is true that there was no occasion to make adverse remarks in the absence of a party who should have been given an opportunity to explain his conduct before being subjected to such strict observations. In the circumstances so far the first part of the order is concerned whereby the appeal has been dismissed leave is refused. However, leave is granted against the note appended to the main order to consider whether in the given facts and circumstances such remarks could be passed against the petitioners and whether they are liable to be expunged.
5. The learned counsel for the petitioners has prayed for stay of the proceedings which is refused.
By consent early hearing is granted and the appeal shall be heard within a period of two months.
Cited by 1 case
- ABDUL GHAFOOR vs C.B.R. 1999 P.C.T.L.R. 393