Order Sheet

 

IN  THE  HIGH  COURT  OF  SINDH  KARACHI

 

Suit No. 1230 of 2006

 

Date

Order with signature of Judge

 

 

Plaintiff                      :           Muhammad Talib through

                                                Mr. Muhammad Irfan, Advocate.

 

Defendant No.1       :           Muhammad Sarwar Naz called absent.

 

Defendant No.2       :           Mrs. Fauzia Nazir through

                                                Mr. Saleemuzzaman, Advocate.

 

Date of hearing        :           04.11.2013.

 

 

ORDER  ON  C.M.A.  Nos.  9462/2009  AND  9463/2009

 

 

Nadeem Akhtar, J. – This Suit was dismissed on 11.05.2009 for non-prosecution. On 27.08.2009, that is, after about three (03) months and sixteen (16) days, CMA No.9462/2009 was filed on behalf of the plaintiff under Order IX Rule 9 CPC for restoration of the Suit. As the said application was barred by about 76 days, CMA No.9463/2009 was also filed on behalf of the plaintiff under Section 5 of the Limitation Act, 1908, praying that the delay in filing the application for restoration of the Suit, be condoned. A detailed counter affidavit was filed by defendant No.2 in reply to both the said applications, strongly opposing the same. An affidavit-in-rejoinder was filed on behalf of the plaintiff in reply to the said counter affidavit.

 

2.         Both these applications are supported by the affidavits of Syeda Sarah Kanwal advocate, the counsel who was previously appearing for the plaintiff. In her affidavit, the counsel has stated that she inquired about the date of hearing in this matter in the first week of May 2009, and till the beginning of the summer vacations, but she was informed by the office that no date had been fixed. She has further stated that she came to know on 25.08.2009 that this Suit was dismissed on 11.05.2009 for non-prosecution. She has also stated that she is not a member of the Sindh High Court Bar Association, and as such the daily cause list is not supplied to her. According to the learned counsel, the circumstances in which the Suit was dismissed, were beyond her control, and the delay on her part in filing the application for restoration was not willful.

 

3.         Mr. Muhammad Irfan, the learned counsel for the plaintiff, submitted that he has been recently engaged by the plaintiff to pursue these applications. He further submitted that the plaintiff was not aware about the dismissal of the Suit, as the previous counsel did not inform him about this fact. He contended that as soon as the plaintiff came to know about the negligence of the counsel, he instructed her not to appear in this matter on his behalf, and immediately engaged him in order to safeguard his valuable rights in the Suit property. The learned counsel submitted that the plaintiff should not be held responsible for the negligence of his previous counsel, and in the larger interest of justice, the Suit should be restored for decision on merits. Mr. Saleemuzzaman, the learned counsel for defendant No.2, opposed the applications by reiterating the contents of the counter affidavit filed by defendant No.2.

 

4.         It is to be noted that the date on which the plaintiff came to know about the dismissal of the Suit, is not disclosed anywhere ; and, the delay of each and every day has not been explained either in the application or in the affidavit filed in support thereof. It is also to be noted that the affidavits filed in support of these applications, and even the affidavit-in-rejoinder, were not sworn by the plaintiff ; and, he also did not file his personal affidavit as soon as he came to know about the dismissal of the Suit.

 

5.         The explanation / justification given on behalf of the plaintiff and the submissions made by his learned counsel, cannot be accepted. It is a well established 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 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- settled 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 :

 

i.          In the case of Muhammad Sharif Khan and 4 others V/S Board of Revenue, West Pakistan, Lahore, 1970 SCMR 76, it was held by the Hon'ble Supreme Court  that even if counsel was at fault, the other side could not be deprived of valuable right accrued to him by lapse of time.

 

ii.         In the case of Zulfiqar Ali V/S Lal Din and another, 1974 SCMR 162, the Hon'ble Supreme Court was pleased to hold that mere fact that a litigant engaged a counsel on his behalf did not absolve him of all responsibilities ; it was as much his duty as that of the counsel engaged by him to see that the case was properly and diligently prosecuted ; and, if he engaged a counsel who was lacking in his sense of responsibility to the Court, it was he who should suffer and not the other side.

 

iii.        In Muhammad Nawaz and 3 others V/S Mst. Sakina Bibi and 3 others, 1974  SCMR  223, it was held inter alia by the Hon’ble Supreme Court that 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 ; and, 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. 

 

iv.        In the case of Khalid Saigal V/S National Investment Trust Ltd and 2 others, 1984 CLC 182, it was held by a learned Division Bench of this Court that in any case, it was initially the appellant’s duty to find out the date of passing of the order, and his negligence could not be condoned for he had not acted with due care and attention, and he therefore lacked good faith.

 

v.         In Zahid Ahmed V/S Deputy Director Adjudication and 2 others, PLD 2006 Karachi 252, a learned Division Bench of this Court was pleased to hold 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.

6.         In the instant case, no explanation whatsoever has been disclosed in any of the listed applications regarding the absence of the learned counsel on the relevant date. The long delay of about 76 days in filing the application for restoration has not been explained at all, and the exact date of knowledge of the order of dismissal has also not been disclosed by the plaintiff or by his counsel. CMA No.9463/2009 for condonation of the delay is, therefore, liable to be dismissed. Resultantly, CMA No.9462/2009 for restoration of the Suit, is also liable to be dismissed.

            Foregoing are the reasons of the short order announced by me on 04.11.2013, whereby both these applications were dismissed with no order as to costs.

 

 

                                                                            J U D G E