ORDER SHEET
Suit No. 804 of 1996
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DATE ORDER WITH SIGNATURE OF JUDGE
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Before: Mr. Justice Muhammad Shafi Siddiqui
1. For hearing of CMA No. 5443/2013
2. For hearing of CMA No. 5444/2013
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Date of hearing 21.10.2013
Khawaja Shamsul Islam Advocate for the plaintiff
Mr. Arshad Tayyebaly Advocate for the defendant
.x.x.x..x.
1 & 2. These are applications filed by the plaintiff one for the restoration of the suit, which was dismissed for non-prosecution on 08.11.2012, and the other for condonation of delay in filing application for restoration.
Brief facts of the case are that the plaintiff filed the suit for recovery of US $1.26 million. The defendant was granted leave to defend in the suit unconditionally in terms of the orders passed in HCA No.132/2002 and the defendant was directed to contest the suit. Accordingly the issues were framed and the parties were allowed to lead evidence. It is the case of the plaintiff that the examination-in-chief and partial cross examination of the plaintiff was recorded and for further cross examination the matter was adjourned to 04.9.2007.
Learned Counsel for the plaintiff submits that it is a contested suit and the plaintiff being resident of Canada was pursuing his case despite the fact that he is a cardiac patient and has undergone surgery in 2008. Learned Counsel submits that he was under observation of doctors since he was operated. Learned Counsel submits that the examination-in-chief of the plaintiff was recorded on 04.9.2007 and the matter was adjourned to 07.11.2007 on which date the matter was adjourned as it was inadvertently fixed for hearing of the application. Learned Counsel further submits that the matter was adjourned on a number of occasions on the ground that parties are negotiating to settle their dispute outside the Court. Learned Counsel further submits that pursuant to the orders dated 14.4.1999 the observations were made by this Court that liability in respect of the promissory note upon which the suit has been field was that of defendant No.1 himself and since it is observed that it is a personal liability of defendant No.1 he could not be allowed to take advantage of technicalities and on account of this observation, which is passed on the application under section 34 of the Arbitration Act the defendant could not be allowed to get out of the clutches on account of the fact that the plaintiff failed to appear. Learned Counsel submits that there is no serious denial of this amount being received and as such in terms of this admission the learned signal Judge should not have dismissed the suit for non-prosecution. Learned Counsel further submits that after sad demise of defendant No.1 no vakaltnama has been filed on behalf of the legal heirs although throughout Mr. Arshad Tayyebaly and other Advocates of M/s. Mohsin Tayyebaly & Company have been appearing without any vakalatnama. Learned Counsel further submits that the counter affidavits to the applications under consideration filed by one Muhammad Yousuf are also of no significance as he being an Advocate of the firms of M/s. Mohsin Tayyebaly & Company cannot be allowed to file affidavits on behalf of the defendant No.1 or legal heirs of defendant No.1. Learned Counsel submits that for the six years leave to defend application remained pending in respect of the suit which was filed under summary chapter and the delay was caused by the defendant himself.
Learned Counsel submits that at the most the side of the plaintiff could have been closed instead of dismissing of the suit. Learned Counsel submits that in view of Order 17 Rule 3 CPC the learned single Judge should have passed the judgment on the pleadings and material available on record and in the shape of examination-in-chief and partly cross examination. He submitted that all these Counsels who were altogether appearing for legal heirs of defendant No.1,impersonated and mislead the Court to believe that plaintiff is not pursuing instant case. He submitted that the suit was ordered to be fixed along with other Suit No.624 of 1998 and when he discovered on 25.04.2013 that this suit is not fixed along with other suits he enquired and found that this suit was already dismissed on 08.11.2012 and hence he filed application within time as he gained knowledge on 25.04.2013. Learned Counsel has relied upon the cases of Jangoo vs. Fasahatullah Khan & others (2012 CLC 556), Al-Waqar Corporation vs. Rice Export Corporation & others (2011 MLD 266), Qaim Ali Khan vs. Muhammad Siddique (1987 SCMR 733) and Messrs United Bank Limited vs. Messers Plastic Pack (Pvt.) Ltd. (2012 CLC 229).
On the other hand learned Counsel for the defendant has vehemently opposed this restoration application and submits that defendant No.1 is consistently avoiding to appear. Learned Counsel for the defendant has taken me to order sheet dated 10.2.2006 on which date the suit was once dismissed for non-prosecution. Learned Counsel submits that instant suit was restored vide order dated 08.5.2006.The operative part of the order dated 08.5.2006 in terms whereof the suit was restored is reproduced below.
“----Be that as it may, the dismissal of the suit had occurred when it was fixed for evidence of the plaintiff, valuable rights of the parties are involved in the suit as leave to defend was earlier granted in favour of the defendant on merits, which requires adjudication of the issues involved in the suit on the basis of the evidence to be led by the parties. In this view of the matter, the impugned order dated 10.2.2006 is hereby recalled, suit is restored to its original position with the specific direction to the plaintiff to appear and give his evidence on 24.8.2006.”
Learned Counsel for the defendant submits that despite restoration the plaintiff was seeking adjournments consistently. Learned Counsel for the defendant submits that even on 11.1.2007 the plaintiff’s Counsel got the adjournment on the same ground that plaintiff’s surgery was postponed and on 09.8.2007 another adjournment was allowed subject to cost of Rs.10,000/-. Learned Counsel further submits that his examination-in-chief and part of his cross examination was recorded on 04.9.2007 thereafter he never appeared in the witness box and adjournment was obtained on flimsy ground that parties are negotiating settlement outside the Court. Learned Counsel submits that on 12.10.2010 the matter was adjourned as a last chance and again a further last chance was given to the plaintiff on 11.11.2010 and further a third last and final chance was also given to the plaintiff on 30.10.2010 on which date it was observed that in case the plaintiff does not appear, the suit will be dismissed for non-prosecution.
Subsequently on 08.11.2010 one Sibat Hussain Advocate appeared and held brief for Mr. Qutubuzaman Advocate (appearing for plaintiff) who was stated to be on his way. Learned Counsel submits that he never appeared subsequently at 12:05 p.m. when the suit was called on 2nd round and was dismissed. No affidavit was filed by Mr. Qutubuzaman as to why he did not appear at 12:05 p.m when the matter was called in the second round and ultimately the Court had no option but to dismiss the suit for non-prosecution.
Learned Counsel submits that even otherwise there is no explanation or sufficient ground shown in the affidavit of the plaintiff. The only explanation provided is that he had no knowledge of the dismissal of the suit as he remained out of the country. Learned Counsel for the defendant submits that in para-3 of the affidavit filed in support of the restoration application, it is stated that instant suit was ordered to be fixed along with Suit No. 967/1996 and that on 25.4.2013 he was surprized and shocked to see that instant suit was not fixed along with Suits No. 254/2012, 967/1996 and 624/1998 whereas the fact is that it was never ordered to be fixed along with the aforesaid suits and prior to 25.4.2013 (when plaintiff allegedly got knowledge of dismissal), the other three suits were fixed on many other dates after dismissal of the aforesaid suit on 08.11.2012 therefore, the instant application was filed belatedly and being time barred cannot be considered on the ground that he has acquired knowledge on 25.4.2013 when this suit was not fixed with other suits. Learned Counsel for the defendant submits that no sufficient cause is shown in the entire affidavit as the alleged angioplasty was done in the year 2008 which is not a sufficient cause as after lapse of 4½ years the said surgery cannot be considered as sufficient ground for the restoration of the suit which was dismissed in the year 2012. Learned Counsel has relied upon the cases of Shaikh Muhammad Saleem vs. Faiz Ahmad (PLD 2003 SC 628), Muhammad Ramzan vs. Zulfiqar Ahmad 2003 SCMR 785), Mst. Khalida Khatoon & another vs. Askari Bank Limited & others (2012 CLD 194), Northern Plythene Ltd. Vs. National Bank of Pakistan & others (2013 MLD 782). He also relied upon unreported order dated 10.10.2005 passed in Suit No. 825/2003.
Heard the learned Counsels and perused the record.
Substantially following five points have been raised by the Counsel for the plaintiff in support of his application for restoration.
1. That he was not present at Karachi when the suit was dismissed for non-prosecution and as such he has no knowledge of such dismissal.
2. The order was harsh as at the most his side could have been closed.
3. That there are sufficient ground shown in the affidavit for the restoration of the suit.
4. There is no reply to the affidavit in support of application available as the counter affidavits were filed by some unknown person.
5. The defendant Counsel impersonated the Court as they were never engaged by the legal hires of defendant No.1.
As far as the knowledge and fixation of this matter along with other suits are concerned the Counsel for the defendants has taken me to the order sheets of Suit No.624/1998. It shows that prior to 25.4.2013, the suit was fixed on 07.3.2013, 13.2.2013, 06.2.2013, 16.1.2013 and 08.12.2012. This shows that after dismissal of this suit on08.11.2012, , the other suits were fixed on five occasions and only last occasion i.e. 25.4.2013 was considered by plaintiff’s Counsel to gain knowledge without any explanation as to why he did not enquired from office when other suits were fixed on aforesaid dates without this suit. Purposely he chose 25.4.2013 so that the application could be considered within time. Be that as it may, Article 163 of the Limitation Act does not provide any room for “knowledge” when the plaintiff was contesting the matter, unlike other articles which provides limitation from the date of knowledge. Even the explanation provided by plaintiff’s Counsel is not confidence inspiring. I do not find any reason to believe that the instant suit was ordered and required to be fixed along other suits, as there is no order which has been shown by the learned Counsel for the plaintiff and hence on point No.1 the restoration of the suit cannot be granted. Even otherwise the main object in the sufficient cause which I would discuss while dealing with other points
As far as Point No.2 is concerned the arguments that the order was harsh and at the most side could have been closed is also not justifiable as the history reflects that earlier the suit was once dismissed for non-prosecution and it was restored. Secondly, at another occasion a cost of Rs.10,000/- was imposed. Despite all this the plaintiff did not pursue his case diligently. With this history, the plaintiff should have been more cautious. He was given three last and final opportunities besides several adjournments which went unnoticed. He could have appointed an Attorney which he did not despite order dated 09.8.2007 passed by this Court. Under the circumstances and in view of the provisions of Order IX CPC, the order does not seem to be harsh.
The 3rd point of consideration as raised is as to whether a sufficient cause has been shown by the plaintiff in support of their application for restoration as well as in support of application under section 5 of the limitation Act and that there is no counter-affidavit to these applications.
I have perused the affidavit filed in support of the application being CMA No. 5443/2013 which is meant for restoration of the suit. In para-3 of the affidavit it is asserted that the suit was coming up along with other Suits No. 254/2012, 967/1996 and 624/1998 and that in para-8 the plaintiff stated that he was not in Pakistan on the crucial date when the suit was dismissed and that he was operated for the angioplasty in 2008 as being chronic heart patient. The reliance of the learned Counsel for the plaintiff on the strength that the plaintiff has undergone surgery in the year 2008 is to be seen in terms of the definition and explanation of sufficient cause. No doubt sufficient cause has not been described by way of any formula in the Civil Procedure Code as it has to be seen in view of the facts and circumstances of each case. Certificates or correspondence of the doctor have not suggested that the plaintiff has undergone any surgery since 2008. The correspondence as attached along with the application under section 5 of the Limitation Act provides a history of the plaintiff that he is a cardiac patient. In fact annexure A-6 attached to the application provides explanation that the plaintiff is stable since his last visit and this letter dated 01.8.2012 does not contain any advice that the plaintiff should not travel in fact he was available in Pakistan between February 2012 to May 2012. The only letter which provides that he should not travel is letter dated 20.11.2012 by which date the suit was already dismissed. In order to understand meaning of sufficient cause, it is to be seen as to whether throughout ever since the matter was fixed for evidence the plaintiff is vigilant and honestly intended to be in Court and made his best efforts but for intervention of some inevitable cause he failed to appear which cause is sufficient for the restoration of the suit. Once the suit was dismissed in the year 2007 and cost of Rs.10,000/- was imposed, after imposition of cost a diligent litigant should have been more careful. No doubt it is the present cause which is to be considered independently, without considering the earlier default but the sufficient cause in the present affidavit is only surgery in the year 2008. The entire affidavit in support of application for restoration does not speak of any legitimate and sufficient cause which could be considered for restoration of this suit.
A perusal of the affidavit reveals that no substantial cause sufficient for restoration of the suit has been shown for the absence of the plaintiff and also as to why pursuant to an order of this Court dated 09.8.2007 an Attorney was not appointed when he was consistently claimed to be ill in Canada. It has been vaguely asserted in the affidavit that at the relevant time he was out of country but no explanation is provided as to why the Attorney was not appointed. On a query that the plaintiff claimed to have been present in Pakistan w.e.f 06.2.2012 until 28.5.2012 then why efforts were not made by moving an urgent application for recording evidence, no explanation was provided. Plaintiff’s contention that he was unable to travel also losses strength when plaintiff claimed to have been present in Pakistan w.e.f 06.2.2012 until 28.5.2012 and took no steps to record evidence. The passports of the plaintiff which are available with the application provides that he was available at Karachi in the aforesaid dates. Even otherwise, in addition to the above, no ground has been provided in the application under section 5 of the Limitation Act for condoning the delay in filing the application for restoration. When it does not provide any sufficient cause for the restoration, the application for condonation of limitation would be of no consideration. In the case of Muhammad Asif v. Fahad reported in 2009 SCMR 1030 the Hon’ble Supreme Court held as under:
“Additionally, no ground has been made out for condoning the delay in filing of the application for restoration of the suit. Even otherwise, the issue of limitation lost its importance when the appellant failed to show any cause for his absence and the absence of his counsel on the relevant date. In this background, the Court was competent to dismiss the suit for non-prosecution and competently and correctly refused to restore the suit. Even otherwise, the Court is not bound to restore the suit merely because the registration application is within time.”
The contention of the learned Counsel for the plaintiff that the plaintiff has filed a case wherein no sufficient defense was provided by the defendant is immaterial as no plea of injustice, hardship or ignorance could be of any avail unless delay of each day is explained and accounted for. Even old age was not considered as a good ground for condonation of delay under section 5 of the Limitation Act. Reliance is placed on the case of Khalid Khatoon vs. Askari Bank (2012 CLD 194).
As far as the 4th and 5th points are concerned that the Counsel for the defendant has impersonated the Court in reaching to this alleged unfair conclusion and no proper counter-affidavit is filed is also not supported by any material from record since the burden to establish sufficient cause is on the plaintiff. No doubt the Vakalatnama of the defendant Counsel on behalf of the legal heirs of the defendant No.1 is not available on record which is claimed to have been misplaced, such alleged default would not entail grant of restoration application. Be that as it may, all that has been argued and assisted on behalf of the defendant before and at the time of dismissal of suit is on the strength of the order sheets since the matter was fixed for evidence and there is no cavil to this proposition that the order sheets reflect the history of the case so the question of impersonation is not the correct arguments of plaintiff’s Counsel. All along this period the plaintiff raised no objection as far as appearance of Mr. Shahid Advocate and Mr. Arshad Tayyabally Advocate are concerned. It is pertinent to point out that one of the Advocate Muhammad Yousuf was given Power of Attorney on behalf of the legal heirs of the defendant No.1 who has filed the counter affidavits in respect of the two under considered applications. Hence the question of impersonation in the instant case does not arise as the burden to this “sufficient cause” is on the plaintiff who has to establish on its own strength. The plaintiff cannot succeed for the restoration of his suit on the weaknesses of defendant Counsel. He had to show why he was prevented from appearing which was to be measured on the touch stone of the “sufficient cause” independently and not viz-a-viz defendant’s Counsel appearance or non-appearance.
The case law cited by learned counsel for the plaintiff are not applicable to facts and circumstances of the case.
In the case of United Bank Limited (Supra) sufficient cause was made out hence the referred case does not apply to the present case where no sufficient cause has been made out.
In the case of Qaim Ali Khan (Supra) the facts of the case were that the suit was dismissed for non-appearance of the plaintiff on a date which was fixed for filing of replication and not for hearing. In fact this case supports the case of the defendant, the relevant observation is reproduced as under:-
“2. Respondent filed civil revision in the Lahore High Court challenging the order of the learned District Judge, which was allowed by a learned Single Judge vide the impugned order, dated 11.12.1979 on the ground that the date fixed for the filing of replication is not a date of hearing of the suit, and, therefore, the suit cannot be dismissed in default as it was not intended that there should be hearing of the suit in the ordinary sense of the word i.e. at which either evidence is to be taken or arguments heard, or questions relating to the determination of the suit, considered but is merely for some interlocutory matter to be decided.
3. We have gone through the impugned judgment of the learned High Court and agree with the observation that if there is a date fixed in a suit which is not for its hearing, the plaintiff cannot be penalized for his absence on that date. This observation is according to the settled principles of law.”
Similarly in the case of Al-Waqar Corporation (Supra) it was restored on the ground that the evidence had already been recorded and instead of dismissal the suit could have been disposed of on merits since the material was available on record. In the instant case the plaintiff did not appear for the purpose of cross-examination and as such it cannot be considered that the evidence in the shape of examination-in-chief is available which could have been considered by the Court for disposal of the suit on merits. Hence, this case law is also not applicable to the case in hand.
In the last case relied upon by the learned counsel for the plaintiff Jangoo (Supra) the notices were issued to the plaintiff for the purpose of interlocutory matter and as such the referred case is also distinguishable from the facts and circumstances of the present case as the present case was fixed for evidence when it was dismissed for non-prosecution.
In view of above, I find no merits in the application for restoration, the same is hereby dismissed along with CMA No.5444 of 2013.
Dated: Judge