THE HIGH COURT OF SINDH AT KARACHI
H. C. A. No.229 of 2000
Present: MR. JUSTICE SYED HASAN AZHAR RIZVI
MR. JUSTICE MUHAMMAD JUNAID GHAFFAR
Muhammad FerozPunjani …………… Appellant
Versus
Syed BadshahHussain& others ……… Respondents
Date of Hearing: 29.10.2013
Appellant: Through Mr. S. M. AkhtarRizvi, Advocate.
Respondents: Through M/s. Syed Zaki Muhammad & Syed Wajahat Abbas, Advocates.
MUHAMMAD JUNAID GHAFFAR J. Through this order, we intend to dispose of C.M.A.No.2149/2012 filed under Order 41 Rule 19 Read with Section 151 CPCfor restoration of the High Court Appeal, which was dismissed for non-prosecution vide order dated 24.10.2012 in the following terms;
“ It is now 1:15 p.m. There is no intimation. On 15.09.2011, when also none appeared for the appellant, the hearing was adjourned with a warning that in case none appears for the appellant on the next date, the matter will face its logical consequences. In fact, on 14.12.2010 also none appeared for the appellant. The appeal is dismissed for non-prosecution.”
2. Subsequently, learned counsel for the appellant has filed the instant application on 26.11.2012 supported by his personal affidavit. No counter-affidavit has been filed by the respondents, who chose to argue the instant application on the basis of available record.
3. It has been contended by the learned counsel for the appellant in the affidavit filed in support of the instant application that on 24.10.2012 he attended this court and was present till 1.05 p.m. when this Court was busy in hearing of Katcha-Peshi matters, whereas this appeal was fixed for regular hearing. It is further contended that there was another case bearing IIndAppeal No.70 of 2010, which was being called before another learned Single Judge of this court and he went to attend the same. It is further contended that when he came back to this Court at 1.22 p.m. he found out that his appeal was dismissed for non-prosecution. Finally, it is contended that his absence was neither willful nor deliberate but due to the circumstances as stated above, which were beyond his control and as such is liable to be condoned. On the basis of these averments in the affidavit, the learned counsel for the appellant has prayed for restoration of the instant High Court Appeal to its original position.
4. The only ground urged by Mr. S. M. AkhtarRizvi, the learned counsel for the appellant is,that since he has filed his personal affidavit in support of the restoration application, as such the same is liable to be granted on the basis of various judgments of the Honorable Supreme Court reported in P L D 1966 Supreme Court 461 (Babu Jan Muhammad and others Vs. Dr. Abdul Ghafoor and others), 2. P L D 1966 Supreme Court 467 (SalamatBibi and others Vs. Settlement and Rehabilitation Commissioner, Multan), 3.P L D 1965 Supreme Court 651 (Wali and others Vs. Manak Ali and others), 4.P L D 1969 Supreme Court 270 (Muhammad Haleem and others Vs. H. H. Muhammad Naim and others), 5. 1989 S C M R 1202 (Mst. Fatima and another Vs. Mst. Rehmat Mai), 6. 1990 S C M R 1025 (Mst. ZubaidaMumtaz Begum and others Vs. Mst. Ikram Jan and another), 7.P L D 1996 Karachi 365 (Abdul LatifVs. Muhammad Yousuf and 2 others), 8. 1983 S C M R 1092 (Nowsheri Khan Vs. Said Ahmad Shah) and 9. 1995 S C M R 218 (Muhammad Qasim and others Vs. Moujuddin and others).
5. Conversely, Mr. Zaki Muhammad, the learned counsel for the respondents has vehemently opposed the grant of the instant application as according to him a vested right has accrued to the respondents after dismissal of the appeal. It was contented by the learned counsel for the respondents that the conduct of the appellant all along has not been fair and on several occasions either adjournmenthas been sought or no body has appeared on behalf of the appellant, therefore, the instant application is liable to be dismissed. In support of his arguments, he has relied upon the judgments reported inP L D 1986 Supreme Court 129 (Haji Muhammad RamzanSaifiVs. Mian Abdul Majid and others), 2. P L D 1971 Supreme Court 434 (Maulvi Abdul Aziz Khan Vs. Mst. Shah Jahan Begum and 2 others.
6. We have heard both the learned counsels for the parties and have perused the record as well as the case law relied upon by them.
7. From the perusal of the order sheets, we have noted that the learned counsel for the appellant after admission of the High Court Appeal on 15.11.2000has either sought adjournments on one reason or the other or has been called absent. From the perusal of order sheets of various dates, the following position has emerged:
1. 03.02.2003 : Called absent.
2. 17.03.2003 : Adjournment sought.
3. 26.05.2006 : Called absent.
4. 22.11.2006 : Called absent.
5. 31.10.2007 : Adjournment sought.
6. 04.03.2009 : Adjournment sought.
7. 07.10.2010 : Called absent.
8. On 27.10.2010 this Court had passed an order with regard to the contentions of the learned counsel for the appellant as well as the respondents, and both the parties were directed to perform certain acts and it was observed that the appeal will proceed thereafter. The order dated 27.10.2010 is hereby reproduced:
“ The appellant have impugned the order dated 18.10.1999 through instant High Court Appeal. It appears that the respondent filed a suit for the recovery of sum of Rs.57,55,000/- which was admittedly paid towards booking of four flats. However, dispute arose and the suit was filed for the recovery of amount, being suit No.1729/1997. From the record of the trial Court, it appears that on an application bearing CMA No.9160/1997 under Order 38 Rule 5 CPC, the appellant/defendant was directed to deposit the amount with the Nazir of this Court, the amount was not deposited on the pretext that appeal has been preferred against the order. From the record, it further appears that the appeal was also dismissed and consequently the Court in terms of Order 17 Rule 3 CPC, decreed the suit on the premise that the appellant failed to perform any other act necessary to further progress of the suit for which time has been allowed nd the Court notwithstanding such default,proceed to decide the suit forthwith.
The contention of the learned counsel that the amount was to be deposited consequent upon surrendering all original allotment in relation to the all four flats which has not been deposited. Mr. Syed Zaki Muhammad, learned counsel for the respondent states that he shall surrender all the original documents in Court on the next date.
To come up on 10.11.2010 on which date the appellant is also required to bring a Pay Order together with markup prevailing from the date of impugned order dated 18.10.1999.”
9. Once again on 14.12.2010 learned counsel for the appellant was called absent, whereas the learned counsel for the respondents was present and submitted before the Court that as per orders passed earlier, the counsel for the appellant has failed to deposit the Pay Order, whereas the documents were available with the learned counsel for the respondents. On this statement, learned counsel for the respondent was directed to deposit the documents with theNazir of this Court within seven days and it was also observed that if the appellant failsto come up alongwith Pay Order with up-to-date mark-up, the Court may proceed to pass orders as may be appropriate. It was further observed by this Court that no further adjournment would be granted to any of the learned counsels except by imposition of the substantial cost. Again on 01.02.2011 an adjournment was sought on behalf of the learned counsel for the appellant and, moreover, the orderdated 27.10.2010 was still not complied with. This Court reluctantly adjourned the matter for ten days and also observed and directed the appellant to make alternate arrangement otherwise the matter will proceedon its own merits. Again on 15.09.2011 learned counsel for the appellant was called absent (though there was none for the respondents as well) and no intimation was received on his behalf. On this date the Court had observed that in case no body appears from the side of the appellant on the next date, the matter will face its logical consequences. Finally on 24.10.2012 the learned Counsel for the appellant was again called absent and also failed to intimate the Court regarding his absence and the Court was left with no other choice but to dismiss the appeal through an order which has already been reproduced above.
10. The main thrust of the arguments put forward by the learned counsel for the appellant is based on only one premise, and that is, since a personal affidavit has been filed in support of the restoration application, no further deliberation was required in the matter. Although, barring exceptional circumstances, it is a settled law that a restoration application supported by a personal affidavit of an Advocate has attached to it, its own credence, but again this is not, and could not be the only reason to grant each and every application for restoration. It is to be seen as well as examined, by the court that whether the conduct of the counsel who has submitted his personal affidavit has been fair, and, or whether the counsel has been vigilant enough to pursue its case in a manner, as is required before this Court. As would be noticed from the discussion above and perusal of the order sheets, the learned counsel for the appellant in this matter, has not taken due care and has not been vigilant enough to pursue this appeal after its admission on the first date of hearing. It has also been noticed that the directions of this Court dated 27.10.2010have not been complied with and the appellant has failed to deposit the decretal amount as directed, whereas the respondent has complied with such directions by depositing requisite documents. During the hearing of the instant application, we had asked the learned counsel for the appellant, that as to whether he was still willing to comply with the orders passed on 27.10.2010, to which learned counsel for the appellant replied in the negative. This shows that the appellant, in any case is not willing to proceed further with the matter, as such, this appeal, even if restored to its original position, cannot proceed any further if the order dated 27.10.2010 is not complied with by the appellant. The grant of restoration application is always a matter of discretionary relief and such discretion has to be exercised by the Court only in favor of a party who has been vigilant and has accorded due respect to the orders of the Court. However, learned counsel for the appellant, has though stated in the affidavit filed in support of the restoration application that he was present before the Court at 1.05 p.m. but neither did he informed the learned counsel for the respondents nor left any intimation with the Reader of this Courtfor his nonappearance when the case was called, therefore even otherwise, such conduct of the learned counsel for the appellant does not merits any discretionary relief in his favor.
11. Although a question of limitation in filing of the restoration application was not raised by the learned counsel for the respondent, but we have noticed on our own, that the High Court Appeal was dismissed on 24.10.2012 and according to the affidavit of the learned counsel, it was in his knowledge on the same date that the appeal has been dismissed for non-prosecution; whereas the restoration application has been presented before this Court on 26.11.2012, which in fact is beyond the period of limitation of thirty days as stipulated under Article 168 of the Limitation Act,and further, neither any application for condonation of limitation as required under Section 5 of the Limitation Act has been filed, nor such fact has been disclosed or prayed for, in the application for restoration and the affidavit filed thereof. For period of limitation and applicability of Article 168 of the Limitation Act, one may refer to the case ofLal Dino Vs. Deputy Collector and others reported as 1982 S C M R 209. Apparently, the restoration application filed on 26.11.2012 was three days beyond the limitation period of thirty days and as such even otherwise the same is liable to dismissed on this ground alone. In so far as the case law relied upon by the learned counsel for the appellant in support of his contention regarding filing of personal affidavit of an advocate is concerned, with utmost respect the facts and circumstances of the cases relied upon by the learned counsel for the appellant are distinguishable with that of the facts of the present case and as such do not help the appellant’s case
12. However, we have been able to lay our hands on a judgment of a Learned Division Bench of this Court authored by Justice Gulzar Ahmed, as his lordship then was, (and now a judge of the Honorable Supreme Court) in the case reported as 2010 M L D 554 (Mst. Halima Tahir and 5 others Vs. Mst. Naheed Ejaz and 3 others)wherein their Lordships in a more or less similar situation had dismissed the restoration application because of the conduct of the appellant and his Advocate and so also on the ground of limitation. Relevant paragraphs are reproduced hereunder:
“ It may be noted that while the matter was adjourned to 24-3-2009, the Court had categorically ordered that on the next date further adjournment will not be granted and if for any reason Mr. Maqbool-ur-Rehman, Advocate did not appear in Court on 24-3-2009 nor any alternate arrangement was made by the appellants rather again a request for adjournment was made on behalf of appellants which was not accepted by the Court and the counsel holding brief for the appellants’ counsel, who being his associate, was asked to argue the matter but he expressed his inability to proceed with the matter, therefore, the appeal was dismissed for non-prosecution. It may be noted from the above quoted order, dated 24-3-2009 that the appeal has previous history of dismissal for non-prosecution and restoration.
Despite Court order, dated 05.03.2009, where it was categorically noted that it will not grant any further adjournment and in case Mr. Maqbool-ur-Rehman is not available, the appellants should make alternate arrangement, Mr. Maqbool-ur-Rehmanremained absent and appellants also did not make any alternate arrangement for proceeding with the appeal on 24-3-2009. The conduct of the appellants and counsel apparently left no choice with the Court but to dismiss the appeal for non-prosecution.
The appellants’ counsel during the course of hearing has admitted that he came to know of dismissal of his appeal for non-prosecution on the very next date that is 25-3-2009. The application for restoration of the appeal was, however, filed by him on 24-4-2009, under Article 168 of Limitation Act the application for restoration of the appeal, dismissed for non-prosecution, has to be filed within thirty days from the date of dismissal and not from the date of knowledge.
Though by Sub-Rule (2) of Rule 19 of Order XLI C.P.C., section 5 of Limitation Act was made applicable to the application for restoration of the appeal, dismissed. For non-prosecution, but the appellants had not filed any such application nor any explanation whatsoever given by the counsel for the appellants for the delay in filing of the application. It is established law that when the application is filed out of time, the party filing such application has to explain each day or delay; more-so, when valuable rights by efflux of time accrue to the opposite party. The conduct of the appellants and their counsel has altogether been casual and of serve negligence to which no premium can be given. There being no explanation whatsoever for not making application in time or for delay in making application, we also find this application to be time-barred. For the foregoing reasons the application is rejected.”
13. Since, the learned counsel for the appellant has failed to make out any case so as to exercise any discretionary relief for the grant of the instant application for the restoration of the appeal to its original position, as such, the instant application for restoration of High Court Appeal was dismissed vide our short order dated 29.10.2013 and these are the reasons for such short order.
Judge
Judge
Riaz/P.A*