2/19/25, 7:10 AM Messrs HABIB INSURANCE CO. LTD.

vs PAKISTAN NATIONAL SHIPPING CORPORATION

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judgment or any consequences resulting from its use.

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Court Name: Sindh High Court

Judge(s): Rasheed A. Rizvi

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Messrs HABIB INSURANCE CO. LTD. vs PAKISTAN NATIONAL SHIPPING
Title:
CORPORATION

Suit No,490 of 1979, Judicial Miscellaneous No,4 of 1997 and Execution

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Date of Judgment:

Reported As:
Application No,21 of 1996

1998-12-24

1999 C L C 1727

Result: Order accordingly

Through this common order, I intend to dispose of both these proceedings namely Judicial
Miscellaneous No,4 of 1997 and Execution Application No,21 of 1996 as they are inter connected and
arise from the same judgment and decree, dated 29-5-1995, in Suit No,490 of 1979.
2. Initially, plaintiff filed a suit for recovery of Rs,6,92,156 against two defendants namely, Pakistan
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National Shipping Corporation (hereinafter referred to as P.N.S.C.) and the Trustees of the Karachi
Port Trust (hereinafter referred to as K.P.T.). In that suit, both defendants filed their separate written
statements and consent issues were also framed on 27th September, 1980 by the Court. For the first
time, the suit came up for evidence on 21st December, 1994 when it was adjourned by consent; on
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10th April, 1995, it was adjourned as Mr. Muhammad Naeem counsel for the defendant P.N.S.C. did
not appear. Thereafter, the suit came up on three dates of hearings which are the bone of
contention of these two instant proceedings. On 23rd May, 1995 Mr. Khalid Rehman, Advocate
holding brief for Mr. Muhammad Naeem for P.N.S.C. made a statement that they have no
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instructions from their client to proceed with the suit. On the same day Mr. Imtiaz Lari, Advocate
requested for time to file an ex parte proof as well as some appropriate application in respect of
defendant K.P.T. As such the case was adjourned for 25-5-1995 but it was not proceeded and was
again adjourned to 29-5-1995 when the suit was decreed in the following terms:—
.... Learned counsel has filed an application under Order XXIII, Rule 1 read with section 151, C.P.C. and
Order I, Rule 10, C.P.C. stating therein that he does not want to proceed against defendant No,2 and
the said defendant may be dropped and the same be deleted. He has also filed an affidavit-in-ex

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parte proof signed by an officer of the plaintiffs' company the same is on oath. Since the counsel
appearing for defendant No,1 had already stated no instructions, this affidavit-in-ex parte proof is
admitted, the suit is decreed against defendant No, 1 as prayed."
3. On 10th January, 1996 plaintiff/D.H. namely Habib Insurance Company Limited (hereinafter
referred to as H.I.C.L.) filed Execution Application No,21 of 1996 for recovery of a total sum of
Rs,24,28,893. Notice of the execution application issued to. the J.D./P.N.S.C. wag served and Mr.
Muhammad Iqbal Siddiqui, Advocate put his appearance on behalf of the J.D. Counter-affidavits
and rejoinders were filed. However, during the proceedings of the execution application the

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J.D./P.N.S.C. also filed an application under section 12(2), C.P.C. on 16th February, 1997 (Judicial
Miscellaneous No,4 of 1997) challenging the decree on the ground of fraud and misrepresentation.

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The nature of alleged fraud and or misappropriation are incorporated in para. No,7 of the petition
filed under section 12(2), C.P.C. which reads as follows:--
"(7) .... That the plaintiffs with mala fide intention and with ulterior motive acted fraudulently and
mislead the Court in this manner. The counsel for defendant No,2, the Karachi Port Trust was in

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attendance on the date of 23-5-1995 and also on the adjourned date of hearing that is 25-5-1995.
In the presence of counsel for defendant No,2 the plaintiff had to prove their allegations made in
the plaint for which they had no evidence, therefore, they with design and ulterior motive to harm
the defendant No,1 after 16 years made an application under Order 23, Rule 1 read with section 151,

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C.P.C. stating therein that plaintiffs do not want to proceed against defendant No,2 and the said
defendant No,2 may be dropped and their name be deleted. The said application for deletion of
defendant No,2 was made after expiry of about 16 years. This was made simply to take advantage
of the incorrect and illegal statement filed by the counsel for defendant No,1 withdrawing from the
suit representing defendant No,1, when they were in possession of all the documentary record and
instructions. No further instructions were ever sought by them. The said application for deleting
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defendant No,2 was made for the simple reason that the plaintiffs were unable to prove the
allegation made in the plaint to substantiate their claim."
4. I have heard Mr. Imtiaz Lari, Advocate for H.I.C.L. and Mr. Shafi Muhammadi, Advocate for P.N.S.C. It
was argued by Mr. Shafi Muhammadi that the conduct of the previous counsel of P.N.S.C. in
pleading "no instructions" has no legal support and is violative of Rule 50 of the Sindh Chief Court
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Rules (O.S.). He has further highlighted the fact that the instant decree was passed within a period
of seven days which is clear proof of fraud and misrepresentation. He has also argued that the
conduct of plaintiff for withdrawing suit against K.P.T. and seeking decree against P.N.S.C. is not
above board and is sufficient to prove fraud and misrepresentation on their behalf. However, he
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has not cited any case-law in support of his submissions. On the other hand it was argued by Mr.
Imtiaz Lari, Advocate that it is a well-established practice that the Courts consider the statements
of Advocates to the extent of pleading "no instructions" and that in no manner such practice
deviates from any rule and regulation. He has also objected to the maintainability of the petition
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under section 12(2), C.P.C. on the ground that the remedy, if any, available to P.N.S.C. was to file an
application for setting aside the decree and not through proceedings under section 12(2), C.P.C. He
has stated the same to be improper, misconceived and mala fide and with the sole intention to
protract the proceedings in the execution application. He has placed reliance on the provisions of
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Order IX, Rule 6 and Order XVII, Rules 2 and 3, C.P.C. He has placed further reliance on the following
cases:--
(i) Nazir Ahmed v. Collector, Lahore District, Lahore 1993 CLC 241,
(ii) Mir Abbas Khan and another v. Mrs. Dianat Fatima and 9 others 1989 MLD 3410,
(iii) Arunachella Goundan v. Katha Goundan and others 1924 Mad. 842,
(iv) Basalingap a. Kushappa Kumbhar and others v. Shidramappa Irappa Shivanagi and another
AIR (30) 1943 Bom. 321,

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(v) Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366,
(vi) Sabzal and others v. Bingo and others PLD 1989 Kar. 1.
5. The first question which requires consideration is whether an. Advocate appearing for the either
side is competent to plead "no instructions" without first resorting to the, provisions of Rule 50 of
Sindh Chief Court Rules (O.S.). The second question that arises is what procedure the Court should
adopt after the statement of an Advocate is brought on record when he has pleaded "no
instructions". The practice of pleading "no instruction" by the Advocates was considered by the
Indian Courts in the cases Arunachella Goundan (cited at Serial No,iii above) and in Basatingap

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(cited at Serial No, iv above), but these are of no help, as in Sindh, we have Chief Court Rules (O.S.),
which deal with the practice and procedure for conducting a suit and other allied litigations of civil

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nature. The most relevant case on the point in discussion is the case of Mir Abbas Khan (cited at
Serial No,ii above) where similar question came up for consideration before a Division Bench of this
Court comprising Tanzil-ur-Rehman and Allandino G. Memon, JJ. (as they then were) where
reference was made to Rules 49 and 50 of the Sindh Chief Court Rules (0.S.) as well as to Order HI,

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Rules 1 to 5 of the C.P.C. and thereafter, it was held as follows:--
"(3) ... On plain reading of the above rules, it is manifest that the duty is cast on the party and the
Advocate and not the Court unless and application is moved to the Court and order of discharge
of the Advocate whose Vakalatnama is on record is discharged by the Court. In that case too, the

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Advocate is duty bound to first intimate the date of hearing, if already fixed. However, as long as
the Valcalatnama of the counsel appearing in the case remains on record and is not discharged
by the Court, the counsel will be deemed to be briefed on behalf of the party. It is apparent in the
present case that no such application was made to the Court by the party for change of .his
Advocate or for discharge by the Advocate appearing in this case. The provisions of Rules 49 and
50 of the Sindh Chief Court having not been complied with, the first plea of the counsel, is
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unfounded...."
6. This case of Mr. Abbas Khan (ibid) was decided on 8th February, 1989 and was reported earlier to
the case of Mst. Sardaran Bibi and another v. Allandino PLD 1990 Kar. 227 which was also decided
by a Division Bench of this Court comprising Imam Ali. G. Kazi and Wajihuddin Ahmed, B. (as they
then were), which has taken a different view. Again, reference was made to the provisions of Order
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HI of the C.P.C. and Rules 42 and 43 of the Sindh Civil Court Rules which are identical to the
provisions of Rules 49 and 50 of the Sindh Chief Court Rules (O.S.). In that case appeal was
dismissed by the appellate Court as the counsel appearing for the appellant pleaded "no
instruction". Restoration application filed subsequently was also dismissed by the appellate Court
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against which appeal was filed under section 100, C.P.C. which ended in a decision as reported in
the case of Mst. Sardaran Bibi (ibid). The appeal filed before the High Court was allowed and the
appeal which was dismissed by the IInd Additional District Judge, Nawabshah was restored to its
original number with the direction to decide the same on merits. Following is the relevant
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observations of the learned Division Bench in the case of Sardaran Bibi:--

this sub-Rule, sub-Rule (3), further provides that among other things an appeal arising out of a
judgment and decree in a suit shall be deemed to be proceedings in the suit and power of
attorney filed in the suit will be considered to be valid in the appeal. The appointment of a pleader
once made in a suit can only be determined by the leave of that Court. The Sindh Civil Court. Rules
also regulate the filing of Vakalatnama and the discharge of an Advocate. Rule 42 of the said Rules
will apply when the client terminates his authority given to a pleader to appear and act on his
behalf. Similarly, Rule 43 of the Sindh Civil Court Rules makes it incumbent on a pleader to give

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notice of his intention to withdraw his power to his client and thereafter file an application for the
leave of the Court. Such applications need be supported by an affidavit stating that compliance of
the provisions of the said rule has been duly made. It is only after such leave is granted by a Court
that an Advocate can seek his discharge from the responsibilities of appearing in matter before a
Civil Court. Rule 4(2) of Order HI of Civil Procedure Code and Rules 42 and 43 of the Sindh Civil Court
Rules are mandatory rules and an Advocate duly appointed by his client to appear and act on his
behalf with a duty to continue to act in that matter till he actually obtains leave of the Court as laid
down by law. An Advocate once appointed by a party in a suit will not be released from his duties

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to act and appear in such capacity merely by reporting no instructions..."
"... In the present case no such effort was made by the Advocate for the appellant appearing before

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the lower appellate Court to obtain his discharge by the leave of the Court as required of him by
law. He was indeed present on 12-12-1981 and the appeal could not have been dismissed for default
in appearance, on behalf of the appellant. The order dismissing the appeal in default of
appearance was, therefore, void and inoperative in law..."

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7. In the above reported case, the view of a learned Single Judge of this Court Saleem Akhtar, J. (as
his Lordship then was) in the cases of Mst. Qamar Sultana alias Qamarun Nisa v. Abdul Hussain
and another 1982 CLC 767 was cited with approval that "before Vakalatnama is withdrawn or the
party is allowed to terminate his Vakalatnama of his Advocate it should be seen that proper

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procedure has been followed. "Further reliance was placed on the cases Alice Civil Engineers and
Contractor v. Syed Mushtari Atiq Ahmad and another 1980 CLC 466, Kamaluddin and others v. Nazir
Ahmad 1987 CLC 1208. I have also followed the rule laid down in the cases of Mst. Sardaran Bibi PLD
1990 Kar. 227 in the case United Bank Ltd. v. Mian Tajammul Hussain 1998 CLC 179 = PLJ 1998 Kar. 747
where ex parte order was set aside on the grounds, inter alia, that Vakalatnama of an Advocate,
who was from Lahore, was not discharged and this Court on the statement of an Advocate from
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Karachi that he has no instructions from the defendant passed an ex parte decree. It was further
held in the case Mian Tajammul Hussain (ibid) that the appointment of an Advocate remains in
force until determined with leave of the Court or until the party or the pleader dies or until all
proceedings in regard to his client are ended. Reliance was placed on the case Pakistan through
General Manager, Pakistan Railway v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800 and Aziz
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Flour Mills and 2 others v. I.D.B.P. 1990 CLC 1473. The rule laid down by a learned Single Judge Malik
Muhammad Qayoom, J. of the Lahore High Court in the case of Nazir Ahmed (supra) is of no help
to Mr. Imtiaz Lari. In that case the rule laid down by a Division Bench of this Court, in Mst. Sardaran
Bibi (supra) was made distinguishable on the ground that the Sindh Civil Court Rules are not
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applicable to the Province of Punjab. In Ex. Hay. Mirza Mushtaq Baig v. General Court Martial 1994
SCMR 1948, it was held inter alia, by the Honourable Supreme Court that "even in cases where the
papers have been taken away by the client, it is the duty of the Advocate to appear on the date of
hearing till such time he withdraw his power or it is cancelled according to rules by the client.
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8. Now, there are two views in the field pertaining to the same provision of law by the two different
Division Benches of this Court. The earlier view of Mir Abbas Khan's case was not cited before the
Bench dealing with the case of Mst. Sardaran Bibi which has resulted in the present controversy. As
a matter of judicial discipline the decision of a Division Bench of the same Court is binding on other
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Division Bench. Reference is made to the cases Bashir Ahmed and others v. The State PLD 1960 Lah.
687, Sindheshwar Gangoli v. State of West Bengal PLD 1958 SC 337, The Province of East Pakistan v.
Dr. Azizul Islam PLD 1963 SC 296, Noor Muhammad v. Province of Sindh and others 1995 CLC 952 and
Muhammad Ashfaq v. Government of Sindh and others PLD 1996 Kar. 236. A Full Bench of this Court
in the case of Murad Ali v. Collector of Central Excise and Land Customs PLD 1963 Kar. 280 laid
down three principles for maintaining judicial decorum in respect of decisions of the Supreme
Court and observed that if such principles are not followed it is bound to create not only

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uncertainty but confusion in the minds of the litigant public and subordinate Courts about the
judicial decision of the Courts of law, and that such things will not enhance the prestige of the
Courts. Following are the three principles:--
"(1) ... That in the order to maintain the judicial decorum and propriety the decision of a Division
Bench on a question of law should be followed by other Bench. If they differ from it the proper
course to adopt would be to refer the question for the decision of a Full Bench.
(2) The decision of one Division Bench on a question of fact is not binding on the other Division
Bench.

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(3) If the decision of one Division Bench has not come to the notice of the other Division Bench and
a different view is taken in the subsequent Division Bench case, when such two conflicting

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decisions are placed before the Bench proper procedure to follow in such case would be, for the
Bench hearing the case, to refer the matter to a Full Bench in view of the conflicting authorities
without deciding the question itself..,."
9. Now to meet the above situation, the Honourable Supreme Court has laid down the procedure in

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the case of Multiline Association v. Redshirt Cowasjee and others PLD 1995 SC 423 also reported in
1995 SCMR 362. It was observed, inter alia that the legal position is that the second Division Bench
of the High Court should not give finding contrary to the findings of the earlier Division Bench of the
same Court and if a contrary view is to be taken then the proper course is to make a request to the

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learned Chief Justice for constitution of a larger Bench. Reference was made to the cases Dr. Aziz-
ul-Islam (supra) and Sundeshwar Gangoli (supra). This being the situation, it will not be just and
proper for this Court to follow the rule laid down either in the case of Mir Abbas Khan or Mst.
Sardaran Bibi as at present both these decisions are in field and unless there is an authoritative
pronouncement by a larger Bench of this Court interpreting the provisions of Rules 49 and 50 of the
Sindh Chief Court Rules (O.S.) read with Order III, Civil Procedure Code, it will not be just on my part
as
to give any finding on the submissions made by both the Advocates in this behalf.
10. As a result of above discussion, I direct the office to place this matter before the Honourable
Chief Justice for constitution of a larger Bench to consider the above points. Since the original suit
pertains to the year 1979, I direct the office to act expeditiously. Till further orders, proceedings in
both the above matters, shall remain suspended.
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Disclaimer: While every effort has been made to ensure the accuracy and currency, we do not guarantee completeness, correctness, or
applicability to specific cases of court judgments available on this website. The court judgment may be subject to updates, modifications, or
revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and
w

accurate information.

The court judgments available on this website are not official publications of the Government of Pakistan. It may not reflect the most recent or
authoritative version of the judgment. For official and legally binding versions, please refer to the official sources/authorized
publications/certified copies of court orders.
w

The use of the documents available on this website is at your own risk. We shall not be held liable for any loss, damage, or inconvenience arising
from the use or reliance on the information contained in the data. We disclaim any responsibility for errors, omissions, or inaccuracies in the court
judgment or any consequences resulting from its use.

Printed On: 2025-02-19 Printed By: Fouzia Saif

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