ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 1480 of 2007

Date                    Order with signature of Judge

1.  For hearing of CMA No. 8320/2011 (U/S 5 of the Limitation Act).

2.  For hearing of CMA No. 8321/2011 (U/O IX Rule 9 r/w Sec. 151 CPC).

19-11-2012 :

Mr. Badarul Alam, advocate for the plaintiff.

-.-.-.-.-.-.-.-.

1 & 2.             C.M.A. No. 8321/2011 has been filed by the plaintiff for recalling of the Order passed by this Court on 11.01.2011, whereby this Suit was dismissed for non prosecution. C.M.A. No. 8320/2011 has been filed by the plaintiff under Section 5 of the Limitation Act, 1908, for condonation of the delay in filing the listed application       for restoration. The Suit was dismissed for non-prosecution on 11.01.2011 when it was fixed for the evidence of the plaintiff, whereas the listed application for its restoration was presented on 08.06.2011.  The learned counsel for the plaintiff has submitted that on 13.12.2010, the suit was ordered to be fixed for evidence out        of turn by this Court on the application  (C.M.A. No. 4953/2010)  filed by the defendants praying for issuance of commission for examination of witnesses. He has further submitted that he was not aware that the Suit was fixed for plaintiff's evidence on 11.01.2011 as no notice was issued for this purpose, and that due to his absence as well as the absence of the plaintiff, the Suit was dismissed for non-prosecution. 

            The record shows that the notice of defendants’ C.M.A. No. 4953/2010 was issued to the plaintiff as well as to his learned counsel, but no one was present on behalf of the plaintiff on 13.12.2010.  The Order passed on 13.12.2010 shows that, as a matter of indulgence, it was ordered by this Court on defendants'  aforementioned application that this matter may be fixed for evidence on 11.01.2011 (date by Court) after issuance of an intimation notice to the plaintiff.  In compliance of the said Order, an intimation notice was issued to the plaintiff as well as to his learned counsel for 11.01.2011. The record reveals that the notice was duly received by the learned counsel for the plaintiff, but he was not present on 11.01.2011. This fact was recorded specifically in the Order dated 11.01.2011. However, the learned counsel for the plaintiff denies that he ever received any such notice from this Court.  

As no one was present on behalf of the plaintiff on 11.01.2011 despite service of the notice on the learned counsel for the plaintiff, the Suit was dismissed for non-prosecution at 1:30 p.m. The explanation given by the plaintiff in the affidavit filed by him in support of the application for condonation of delay is that he suffered an attack of paralysis in June 2009, whereafter he was confined to bed for more than six months.  He has also stated in his affidavit that he again became indisposed in December 2010 and remained under treatment from 01.12.2010 till 01.06.2011. The plaintiff has attempted to justify that in the above background he was unable to contact his counsel,  and as soon as he was able to contact his counsel, he went to the office with his counsel to enquire about the status of this Suit.  He has further stated that it was only after making such enquiries that he and his counsel came to know about the dismissal of this Suit, whereafter he filed the listed applications without any further delay.

            The explanation / justification given by the plaintiff cannot be accepted. Similarly, the submissions made by his learned counsel also cannot be accepted. When a party engages a counsel to represent him in a case before the Court, the matter becomes the responsibility of the counsel.  After engaging a counsel, it is not the duty of the client to follow-up his case in order to apprise the counsel.  In fact, it is the other way round, that is, the counsel is duty-bound to keep track of the case vigilantly and to keep the client duly informed about the progress of the case, and/or to require his attendance in Court whenever necessary.  In the instant case, if the explanation given by the plaintiff is accepted, even then it was the duty of his learned counsel to attend this case on every date of hearing, especially after receiving notice from this Court. No explanation whatsoever has been disclosed in any of the listed applications regarding the absence of the learned counsel on the relevant date. The delay in filing the application for restoration has not been properly explained, and the exact date of knowledge of the Order of dismissal has also not been disclosed by the plaintiff or by his counsel.  Moreover, the counsel had remained absent on a number of previous dates.  Such conduct of the parties and their counsel disentitles them from discretionary relief by the Courts. 

            It is a settled principle of law, which has been consistently held and followed by the Superior Courts, that the parties are bound by the acts and omissions of their counsel, and that in case of any negligence on the part of the counsel, the parties cannot claim that they are not to be held responsible. Another well established principle of law is that when a matter is dismissed or any adverse order is passed, valuable rights accrue in favour of the other side which cannot be taken away unless a justifiable, strong or sufficient cause is shown. The above views expressed by me are fortified by the following authorities :

1974   SCMR   223 :

Muhammad Nawaz and 3 others V/S Mst. Sakina Bibi and 3 others.

Paragraph 3 at pages 223 & 224.

“3. Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case.  The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence.  Even if it be assumed that their counsel neglected to inform them that  per se  would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents 1 to 3.  We are not satisfied that the petitioners were diligent or took due care in the matter.”

PLD  2006  Kar.  252  (Sindh High Court – Division Bench)

Zahid Ahmed V/S Deputy Director Adjudication and 2 others.

Paragraph 19 at page 258.      

“19.  From the careful examination of the authorities, it is unanimous opinion of the Hon’ble Supreme Court of Pakistan that any negligence on the part of the advocate of the party is binding upon him and if he engages a counsel who is lacking sense of responsibility to the Court, it is he who should suffer and not the other side…………..”

1984  CLC  182   (Sindh High Court – Division Bench)

Khalid Saigal V/S National Investment Trust Ltd and 2 others.

‘B’ at page 185  :   “…….. in our view this is a case of gross negligence. In any case, it was initially appellant’s duty to find out the date of passing of the order and his negligence can not be condoned for he has not acted with due care and attention and he therefore lacks good faith.”

In view of the foregoing, both the listed applications are dismissed. 

J U D G E

Abdul Salam/P.A