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Petitioner: Abrar Hussain VS Respondent: VIIth A.D.J. South at Karachi & Ors
Court Name: Sindh High Court Judge(s): Nazar Akbar Title: Abrar Hussain vs VIIth A.D.J. South at Karachi & Ors Case No.: C.P No.S-639 of 2010 Date of Judgment:2017-11-24 Reported As: 2017 SHC 358 Result: Petition dismissed
Judgment NAZAR AKBAR,J:- By this order , I intend to dispose of an application under Section 153 CPC read with Section 151 CPC [CMA No.6398/2017] filed by the advocate for the petitioner on 10.06.2017 , wherein the petitioner has prayed for recalling the order dated 27.3.2017 , whereby the instant petition was dismissed as not pressed by the learned counsel for the petitioner . However , it was placed in Court for orders on 03.7.2017 . 2. This application is not supported by an affidavit of the petitioner , though in the second line of the application it is stated that it is "prayed on behalf of the petitioner" . The counsel for the petitioner has filed his own affidavit in support of the application. Therefore, learned counsel was directed to satisfy the Court that how this application is maintainable since it was not supported with an affidavit of the petitioner . He contended that since this is an issue between him (the counsel) and the Court that he has not made statement for not pressing this petition and the Court, instead of passing an order on the argument advanced by him, has wrongly ordered that this petition is dismissed as not pressed. However, when directed to call his client in Court, he informed the Court that his client is already dead. It simply mean that the application was not filed on "behalf of the petitioner" as falsely stated by him and supported by his own affidavit on oath. Consequently, he was directed to produce death certificate and details of legal heirs of deceased Mansoor Hussain, who had filed the instant petition against the dismissal of FRA No.747/2001. On 12.7.2017 the learned counsel without realizing his own past conduct and legal position, filed the following documents:- i. Death certificate of petitioner Mansoor Hussain issued by National Institute of Cardiovasc ular Diseases (NICD) showing 24.11.2012 the date of his death. ii. Photocopy of page from register of Paposhnagar Graveyard. iii. Paper book of CPLA filed by him. iv. He has also filed family tree registration certificate of deceased Mehmood Hussain who died in 2006.
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He informed the Court that Mansoor Hussain' s death certificate from KMC is not available with his widow and he introduced four strangers claiming to be sons of deceased Zahid Hussain and one of them has filed a formal affidavit stating therein that Mr. Khaleeq Ahmed, advocate had informed him (Mr. Raheel, though he was never client of Mr. Khaleeq Ahmed Advocate) sometime in April, 2017 through his cousin Mr. Mohsin Mobin, advocate that this petition has been dismissed. 3. I have heard learned counsel for the petitioner . In his arguments he has only reiterated the contents of his application. He has neither referred to any provision of Law nor relied on any case-law in support of his contentions and the application. In his personal affidavit in support of application, learned counsel has stated in para-5 that he has argued three constitution petitions on 27.3.2017 and the order of dismissal was announced in open Court and as such neither the deponent (Mr. Khaleeq Ahmed, advocate) made statement nor any order for dismissal being not pressed was announced on 27.3.2017. In para-6 of his affidavit, he has stated that on 11.4.2017 he obtained certified copy of the order and in all petitions same order was issued, therefore, a civil petition was filed before the Hon'ble Supreme Court of Pakistan. 4. Mr. Khaleeq Ahmed, Advocate has further stated in para-7 of his affidavit that he was shocked when the Judicial Assistant of Hon'ble Supreme Court of Pakistan returned the paper books with the objection dated 30.5.2017 that "no order of instant petition was filed" and therefore, on 01.6.2017 the learned counsel again obtained certified copy of the order in the instant petition and he was again shocked when he read over the orders wherein it was mentioned that he did not press instant petition. He has also stated in his affidavit that it was either due to some error or otherwise he has not made this statement for not pressing this petition and "due to omission my reputation as on stake" . Learned counsel in para 9 has declared that there is no need of filing affidavit of petitioner and his legal heirs. The counsel himself has become litigant as neither his client was alive nor his legal heirs had ever engaged him to prosecute C.P No.S-639/2010 since 2012 when the petitioner had died. Therefore, in para-9, learned counsel again made a deceptive statement on oath as the petitioner and legal haries were before the Court and capable to file af fidavit but they are not required under the Law to file the same. 5. The Issues raised by Mr. Khaleeq Ahme d, advocate in the application and his personal affidavit which need to be addressed by the Court can be summarized in the following three propositions:- 1. That his reputation is at stake on account of error of the Court in dismissing the petition as "not pressed", though according to the learned counsel he had argued this petition, too. 2. That on 27.3.2017 he had argued the case in C.P Nos.S- C.P No.453/2010 and 454/2010 and same order was required to be passed by the Court, which was passed in C.P No.453/2010 and 454/2010 as it was so mentioned in previous diaries of C.P No.S-639/2010 that "same order as in C.P No.453/2010" . 3. That it was mistake of copying branch which issued him certified copy showing first title page of C.P No.639/2010 (instant petition) and supplied copy of order passed in C.P Nos.453 & 454/2010. 6. My findings on the above propositions are as follows:- 7. Learned counsel neither in his affidavit, nor at the bar has thrown any light on his (Mr. Khaleeq Ahmed' s) reputation. Nor this Court, in the absence of any credential of his reputation on record, is in a position to comment on the class/quality of his reputation in general and as a lawyer in particular to assess his stake as a result of the order dated 27.3.2017 . However , it is a matter of common knowledge that a lawyer earns a reputation worthy of some value by demonstrating his sinceri ty and honest conduct both towards his client and towards the Court in administration of justice. An upright lawyer is supposed to be an officer of the Court fairly assisting the Court in dispensing justice and not slave of his client nor greedy to serve him against the Law and facts. He has to contest cases on merit and merit alone. He should adhere to minimum standards of duties of a lawyer explained in Chapter XII (Canon of Professional Conduct and Etiquette of Advocates ) of the Legal Practitioners and Bar Councils Rules 1976 framed by the Pakistan Bar Council in exercise of powers conferred by Section 55 of the Legal Practitioners and Bar Councils Act, 1973. 8. In view of the above facts and the augm ents advanced as well as written synopsis filed by the learned counsel, I will examine the record & proceedings of the present case to first appreciate what is the possible stake of Mr. Khaleeq Ahmed, Advocate in terms of his reputation which he has earned/build/established in the eyes of his
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client by his sheer hard work, performance and unprecedented conduct in discharge of his duties toward the Court in the case in hand. In this context following facts from the record are worthy of appreciation for an answer to all the three propositions:- (a) On 29.5.2010 when the instant constitution petition was filed by Mr. Khaleeq Ahmed, Advocate on behalf of one Mansoor Hussain , following of fice objection was raised by writ branch of High Court. "The petitioner has to satisfy the Court about his locus standi." Mr. Khaleeq Ahmed, Advocate rightly replied the objection that "Mansoor Hussain (is) statutory tenant being surviving legal heir hence signed petition and its affidavit" . In fact in his reply he has demonstrated his knowledge of Rent Laws and referred to Section 2(i) of Sindh Rented Premises Ordinance, 1979 (SRPO, 1979) which is reproduced below:- "Tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:- (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of tenant in possession or occupation of the premises after the death of the tenant; (Emphasise supplied). (b) In view of the above, one can safely conclude that Mr. Khaleeq Ahmed, Advocat e knew the provision of Section 2(i) SRPO, 1979 when he filed the instant petition and on 17.12.2012 he confirmed that he is fully aware of the provisions of Order III Rule 4 of CPC , which are as follows:- 1. 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 by some other person duly authorized by or under a power-or-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 of the pleader as the case may be, and filed in Court, or until the client or the pleader dies , or until all proceedings in the suit are ended so far as regards the client. In obedience to the above provision of Law when Mr. Khaleeq Ahmed, Advocate came to know that on 24.11.2012 his client has died, he realized that with the death of the petitioner , Mansoor Huss ain, he ceased to be his lawyer . Therefore, on 17.12.2012 he very rightly requested the Court for time to file proper application. Court order dated 17.12.2012 is reproduced below:- 1. For Katcha Peshi. 2. For hearing of CMA No.2926/2010 17th December , 2012 Mr. Khaleeq Ahmed, advocate for the petitioner . Counsel for the Petitioner requests for grant of sometime as according to him, the Petitioner has since expired, therefore, he needs some time to file proper application in this regard . Interim order passed earlier to continue till the next date of hearing. However , till date he has not filed such an application and without filing power on behalf of "any person" in the instant petition Mr. Khaleeq Ahmed, Advocate continued to represent a dead person by himself or through his associate for seeking adjournment. (c) Not only this, on 28.1.2013 in presence of Mr. Khaleeq Ahmed, Advocate this Court has been pleased to order to repeat notice to respondents No.2 to 14, but he deliberately failed to get the notice issued as he could not pay nominal process fee. Again on 24.7.2013 , in his presence the Court has ordered to "issue notice through courier service as well as by pasting" . But the said order was also not complied as the subsequent orders dated 13.8.2013 and 10.11.2014 reflect of fice note that "notice could not be issued, cost not paid" . (d) Mr. Khaleeq Ahmed, Advocate even earlier on 22.6.2010 himself has assured the Court that he will ensure service of notices on the respondents and his undertaking was noted by the Court in the Order dated 22.6.2010 reproduced below:- 1. For Katcha Peshi
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2. For hearing of CMA No.2926/2010 22.6.2010 Mr. Khaleeq Ahmed for petitioner The learned counsel submits that he will ensure the service of notice by asking his associate or a representative of the petitioner to accompany the bailif f. The office is directed to repeat the notice for 29.6.2010. However, as the later diaries of Court confirm, learned counsel instead of sending his associate or representative even stopped paying nominal process fee so notice to the respondents could not be issued. (e) Then on 29.8.2013 Mr. Khaleeq Ahmed, advocate superseded another Advocate in C.P Nos.S-453 and 454 of 2010 and after six months on 23.4.2014, while appearing in C.P Nos. S-453 and 454 of 2010 and C.P No.639/2010 was not even listed before the Court, Mr. Khaleeq Ahmed, advocate misguided the Court and obtained an order about the instant petition that it may be tagged alongwith the said petitions. The order dated 23.4.2014 from C.P No.453/2010 is reproduced below:- 1. For Katcha Peshi 2. For hearing of CMA No.2094/2010 23.4.2014 Mr. Khaleeq Ahmed, advocate for the petitioner Mr . Arif Khan, Advocate for respondent. Learned counsel for the petitioner submits that C.P No.639/2010 pending before this Court in which same subject property is involved. Office is directed to tag C.P No.639/2010 alongwith this petition. Interim order , if any , passed earlier to continue till the next date of hearing. Adjourned. (f) Mr. Khaleeq Ahmed, Advocate on 23.4.2014 while appearing in C.P No.S-453/2010, misguided the Court since on the said date he was not representing "anyone" in C.P No.S-639/2010 as his client (Mansoor Hussain) had already died. Till today neither Mr. Khaleeq Ahmed, Advocate has filed power on behalf of legal heirs of deceased Mansoor Hussain nor anyone has approached him to claim that as tenant he is "bound to pay rent" and he is "heir of tenant in possession" after the death of tenant Mansoor Hussain (Section 2(i) of SRPO, 1979 quoted in para-8 above). Moreover, since 28.01.2013 despite Court's repeated orders notices to the respondents by courier as well as by pasting have not been issued as cost has not been paid by him. (g) Mr. Khaleeq Ahmed, Advocate on 23.4.2014 made a mis statement before the Court in Rent Petition No.453 and 454 of 2010 that in the instant petition "same subject property is involved ", though it was not legally and practically possible. In all the three petitions, three different "tenements" were involved. In all the three petitions even rate of rents was different and in all the three petitions tenants and landlords were also different. And after the death of his client in the instant petition the facts and circumstances of the instant petition were altogether changed as his client had stopped depositing rent in Court from February , 2012 almost 9 months before he died in November , 2012 and nobody has tendered rent after his death. And yet Mr. Khaleeq Ahmed, Advoca te claims that he had also argued the instant petition. Or otherwise same orders should have been passed in the instant petition which were passed in the contested petitions, merely because last few diaries of Court on adjournment were that "same order as order in C.P No.453/2010" . 9. The facts in para 8(a) to 8(g) above floating on the Court record highlight the honest and dedicated performance of Mr. Khaleeq Ahmed, Advocate both toward the Court and towards his client Mansoor Hussain right from 29.5.2010 when he filed the instant petition on beha lf of Mansoor Hussain till his death on 24.11.2012 . And thereafter Mr. Khaleeq Ahmed, Advo cate is performing his duty as pleader towards an unknown person as he has not yet been appointed pleader by "anyone " in writing to act as pleader in Court in terms of Order III Rule 4 CPC quoted in para-8(b) above). Therefore, on 27.3.2017 he had no options except "not to press" the instant petition which otherwise should have been dismissed for non-prosecution in 2013 on account of non-payment of cost when the petition was repeatedly listed with office note that "Notices could not be issued process fee not paid" on 24.9.2013 , 13.8.2014 and 10.11.2014 .
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10. Now I will examine extraordinary hard work and dedication of Mr. Khaleeq Ahmed, Advocate as respected lawyer from 27.3.2017 onwards since his enviable reputation is on stake because of the said orders. In this context following acts and deeds from the record would throw some light on his efforts to protect his hard earned reputation at the bar . (i) Reply of Mr. Khaleeq Ahmed, Advocate dated 31.5.2010 to the office objection about locus-standi of petitioner Mansoor Hussain confirms in unequivocal terms that Mr. Khaleeq Ahmed, Advocate knew that except Mansoor Hussain nobody else was "tenant" of the tenement in question in accordance with Section 2(i) of SRPO, 1979. Zahid Hussain had died on 27.2.2006 and Mr. Khaleeq Ahmed, Advocate himself has placed his death certificate on record and that is why his legal heirs namely Mr. Raheel and others have never approached him to be impleaded in the instant petition. Zahid Hussain's legal heirs have not filed any application to be impleaded in the FRA No.747/2001 nor in instant petition even after the death of Mansoor Hussain who was a "statutory tenant", therefore, they were not aggrieved by the orders dated 27.3.2017 passed in Rent proceedings after 12 years of death of their father. But for this reason despite his own request to the Court as incorporated in Order dated 17.12.2012 quoted in para 8(b) above, Mr. Khaleeq Ahmed, Advocate has not filed power in the instant petition on behalf of Mr. Raheel and others. Nor he has moved any application to implead them in the instant case till today when I am writing this order. However, Mr. Khaleeq Ahmed, Advocate has the courage to file Civil Petition for Leave to Appeal to the Hon'ble Supreme Court through these strangers namely Mr. Raheel and others, who never claimed to be statutory tenant nor tendered rent in M.R.C No.1133/2000 in the Court of IX-Rent Controller South, Karachi in which deceased Mansoor Hussain has deposited rent till February 2012. (ii) Mr. Khaleeq Ahmed, Advocate on 11.4.2017 received certified copies of orders in all the three petitions. Admittedly he was fully aware of death of his client Mansoor Hussain since 17.12.2012 who alone has filed C.P No.S 639/2010 . His other two clients on whose petitions (C.P Nos.S-453 and 454 of 2010) detailed common judgment was passed on 27.3.2017 had instantly taken away their files and certified copies of judgments from Mr. Khaleeq Ahmed, Advocate and engaged another Senior Counsel to file Civil Appeals before the Hon'ble Supreme Court. (iii) In view of the above fact Mr. Khaleeq Ahmed, Advocate was left with only one certified copy of the order in constitution petition No.639/2010 in his hands but he had no client to approach Hon'ble Supreme Court. Therefore, Mr. Khaleeq Ahmed, Advocate after five years of death of his client tried to fetch legal heirs of deceased Mansoor Hussain through his friend Mohsin Mobin, Advocate . His friend introduced him to one Mr. Raheel and after persuading him, he designed his strategy to first innocently approach the Hon'ble Supreme Court. He had knowingly filed an order as impugned order in CP No.S-639/2010 by replacing title page on the certified copy of orders in which neither CP No.S-639/2010 was mentioned anywhere nor the basic facts of the case of his client such as rate of rent, defence of his client that rent for alleged defaulted period was deposited in M.R.C No.1 133/2000 were mentioned. (iv) The timing of filing of petition for leave to appeal in Hon'ble Supreme Court reveals his modus operandi. His new clients Mr. Raheel and others have signed vakalatnama of AOR in April, 2017 but Mr. A.S.K Ghori, Advocate on Record filed/ presented CPLA on 29.5.2017 whereas in the other two constitution petitions first CPLA No.287-K was filed on 02.5.2017 and second CPLA No.293-K of 2017 was filed on 06.5.2017 by another counsel Mr. Shahenshah Hussain, ASC through Mr. A. Aziz Khan, Advocate on Record. Mr. Khaleeq Ahmed, Advocate presented his petition on 29.5.2017 with a view to get it tagged with the other two CPLAs in the same fashion in which he got the instant petition tagged with the two other petitions on 23.4.2014 in the High Court. (Order of tagging of CPs is quoted in para 8(e) above). But he was caught on the first step. His Paper Book of CPLA in C.P No.639/2010 was instantly returned to his AOR on 30.5.2017 by the Hon'ble Supreme Court office with the following memo:- I am directed to inform you that the subject petition filed by you is suffering from the following deficiency(s). 1. The impugned order passed on C.P No.S 639/2010 has not been filed with the instant petition. You are, therefore, required to do the needful, hence, the original file alongwith three Paper Books is retuned herewith to you for removing the aforesaid deficiency(s) and thereafter the same may be re-filed within seven days
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from the date of receipt of this memo, failing which the subsequent/fresh date of submission will be treated its filing date. (v) Mr. Khaleeq Ahmed, Advocate from his own showing has obtained certified copy on 11.4.2017 and he had only one certified copy of order in C.P No.S-639/2010 with him by the time he filed an appeal on 29.5.2017 before the Hon'ble Supreme Court. Therefore, it cannot be believed that he and his AOR had not read anything in the body of certified copy of the order beyond the title page and he had innocently filed the petition for leave to appeal before Hon'ble Supreme Court mistakenly with the incorrect/wrong certified copy of order supplied to him by the copying branch. He must have thoroughly read the contents of the order supplied to him on 11.4.2017 by the copying branch. How is it possible that he failed to appreciate on reading of the order impugned that it did not contain findings on C.P No.S-639/2010 . Mr. Khaleeq Ahmed, Advocate, Suprem e Court and his Advocate on Record had the certified copy of the order with them for 48 days from 11.4.2017 to 29.5.2017 while preparing appeal and what they could not find in the body of the order impugned was instantly noticed by judicial assistance within no time and he instantly issued memo dated 30.5.2017 that the impugned judgment passed in C.P No.S 639/2010 has not been filed with the CPLA. In view of the memo of Hon'ble Supreme Court, the frivolous contention of learned counsel that on the three applications for certified copies same orders were supplied to him is a childish excuse to shift the responsibility on Court staff when caught on the doorstep of the Hon'ble Supreme Court. (vi) Then to further add insult to the injury he filed the instant application on his own without permission of and impleading legal heirs of his deceased client Mansoor Hussain or on behalf of "anyone" interested in claiming to be the "tenant" in terms of Section 2(i) of SRPO, 1979. This is patently an illegal act on his part. In the application in hand he has made two insinuating allegations. One against the copying branch of Court and the other against the Court itself that he had argued all the three petitions and the Court has erroneously dismissed it as "not pressed". He wants the Court to "recall order" under Section 153 CPC as if the order dated 27.3.2017 was "error in any proceeding in a suit". His demand is that same order should have been passed in the instant petition which was passed on the two other petitions. I quote relevant part of para-3 of his affidavit "and since 19.12.2014 the order in C.P No.453/2010 considered same order in the instant petition as my instant always same in all three petition." In fact Mr. Khaleeq Ahmed, Advocate wants to capitalize on orders dated 23.4.2014 which he has fraudulently obtained with ulterior motive by mis-statement/mis-representation during hearing of C.P No.S-453/2010. His wilful misrepresentation and ulterior motive can easily be gathered from the facts incorporated in para-8(d) to 8(f) above and further is unfolded in the following part of this order. (vii) On 7.7.2017 during the hearing of instant application Mr. Khaleeq Ahmed, Advocate was directed to file affidavit of legal heir of his deceased client (Mr. Mansoor Hussain) who alone had filed the instant petition and who had died on 24.11.2012. But instead of legal heir of Mansoor Hussain, Mr. Khaleeq Ahmed, Advocate had filed affidavit of one Raheel who was neither legal heir of Mansoor Hussain nor the said Mr. Raheel has deposited rent in M.R.C No.1133/2000 in the Court of IX-Rent Controller, South, Karachi where the said deceased Mansoor Hussain has been depositing rent till 8.2.2012. On an enquiry from the Court of Rent Controller through District and Sessions Judge, South Karachi, it has been transpired that since February, 2012 nobody has deposited rent in MRC No.1133/2000 though the tenant Mansoor Hussain, (the petitioner) had died in November, 2012. The learned Rent Controller has sent copy of ledger No.309/2000 under his signature and seal dated 15.7.2017 showing non-deposit of Rent in Court since February 2012. Mr. Khaleeq Ahmed, Advocate has taken said Mr. Raheel to the Hon'ble Supreme Court knowing well that said Mr. Raheel has never claimed to be in possession and he has never paid rent and it can easily be gathered from the af fidavit of Mr . Raheel. (viii) The perusal of affidavit of Mr. Raheel son of Zahid Hussain filed by Mr. Khaleeq Ahmed, Advocate at his own with a…
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