IN THE
HIGH COURT OF SINDH AT KARACHI
C. P. NO.3213/2012
MR. JUSTICE SALAHUDDIN PANHWAR
Petitioner : Muhammad Mustafa,
through Mr. Yasin Ali, Advocate.
Respondent
s : Syed
Azfar Ali and others
Mr. Umer Hayat Sandhu, Advocate
for respondent No.1.
Date
of hearing : 17.09.2013.
SALAHUDDIN
PANHWAR, J. By
the dint of this order we intend to dispose of the instant petition, whereby the
petitioner has called in question the judgment and decree and order (s),
recorded by the learned lower court (s) in relation to a suit filed by
respondent No.1 for recovery of Rs.1500,000/- against the petitioner.
2.
The brief facts, leading
to instant petition, are that respondent No.1 filed a suit bearing No.29/2009
against the petitioner for recovery of Rs.15,00,000/- for damages wherein he
pleaded that he was appointed as Naib Qasid in Port Qasim Authority as a
permanent employee and served honestly as he received certificates of
excellence from head of the department. Petitioner with malafide intention and
to harass respondent No.1 moved an application on 08.4.2000 to D.G
Administration leveling false and frivolous allegations against respondent
No.1. It is further pleaded that in consequence of inquiry he was compulsory
retired by authority which he challenged departmentally but same was dismissed.
He then filed appeal before Federal Services Tribunal Karachi which was allowed
with order to reinstate the respondent No.1 and to conduct de-novo disciplinary
proceeding against the respondent No.1. In de-novo proceedings the statement of
the petitioner was also recorded and consequent to such de-novo inquiry the
respondent No.1 was found innocent.
3.
Thus the respondent No.1,
claimed Rs.15,00,000/- as damages by classifying same in following manner :-
Rs.
5,62,000/- for mental torture, agony, stress and loss of health;
Rs.198,000/-
as loss of unnecessary litigation expenditure; and
Rs.740,000/- for loss towards his
prestige, name, fame and reputation.
4.
Record reveals that just
after institution of the suit the petitioner / defendant filed an application
before the learned trial Court; wherein
it was mentioned that:
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On such
application the respondent No.1 did not agree to forgive the petitioner and
prayed to the trial court for ex-parte order. On such endorsement the
petitioner filed his written statement denying the assertions and claims of the
respondent No.1. Later, the respondent No.1 filed an application U/O XII Rule 6
CPC for recording decree on admission of the petitioner which was objected by
the petitioner, however, on 28.01.2010, the learned trial court decreed the
suit of the respondent No.1 under Order 12 R 6 CPC.
5.
The petitioner filed
appeal against such decree but same was dismissed on non-compliance of office
objections and non-prosecution vide order dated 04.04.2010. The respondent No.1
then filed an Execution application No.139 of 2010 whereas petitioner filed
application U/s 12(2) CPC. The learned
6.
As per petitioner, after
total deductions on said account nothing is left to his credit for his family
so he has filed the instant petition with following prayer :-
(a)
Set aside the impugned judgment and decree both dated January 28,
2009 (Annexure P/12 & P/12(a)) passed by the learned respondent No.3;
(b)
Set aside all subsequent impugned order dated 19.12.2011 (Annexure
P/17), 08.11.2010(Annexure P/18), 23.11.2011 (Annexure P/19), 28.11.2011
(Annexure P/20) and 05.04.2010 (Annexure P/14).
(c)
Pass orders for refund of entire amount to the petitioner already
recovered from him in compliance of impugned orders.
(d)
Grant stay order in respect of further recovery from the
petitioner till the final disposal of the present petition.
7.
Learned counsel for the petitioner has
argued that very basic decree recorded by the learned Trial Court Judge is
illegal, void, and not sustainable under the law hence whole structure raised,
thereon is of no substance; the Rule-6 of Order-XII of the Code has not been
understood properly by the learned trial Court Judge hence such failure on part
of learned trial court has resulted in serious miscarriage of justice; the
petitioner was never read out and explained the contents of allegedly moved
application of admission; he submitted that mistake of court should not be
allowed to continue causing prejudice to one. He concluded his arguments with
prayer for allowing petition.
8.
On the other hand, learned counsel for
the respondent No.1 has argued that since it is a matter of record that the
petitioner did not challenge the order of executing court in time and allowed
deduction of amount in satisfaction of the decree therefore, at such belated
stage he is not legally justified from questioning the legality of the judgment
/ order, particularly when such stand is hit by laches. In the end he prayed
that petition, being not maintainable, be dismissed.
9.
We would like to take the objection,
so raised by the learned counsel for the respondent No.1, that the petition is
not maintainable as this is a question which goes to the root of the case. To
attend this objection properly we would like to add here that there is a marked
distinction between limitation and laches. In the former case the delay of
each day has to be explained by furnishing sufficient cause for enlargement of
time and condonation of delay within the contemplation of Section 5 of the
Limitation Act, whereas in the later case lapse of time or the question of
laches has to be examined on equitable principles. On this proposition, it will
be conducive to refer the case of Jawad Mir Mohammadi V Haroon Mirza (PLD 2007
SC 472) wherein full Bench of Honourable Supreme Court has held that:-
Laches per-se
is not a bar to the constitutional jurisdiction and question of delay in filing
would have to be examined with reference to the facts of each case..
. and it is
further held that no party should be
made to suffer on account of the act of the public functionaries or of a Court.
We
may also add here that the writ jurisdiction, being discretionary and
extraordinary, has not been restricted by time factor hence issue of limitation
is not attracted in the issues involved in writ jurisdiction however question
of laches has to be examined but this does not deny the grant of right or the
remedy unless the grant of relief in
addition to being delayed, must also
perpetuate injustice to another party. (under lining is added for
emphasis). In the instant case the petitioner has called in question the very
legality of the very procedure, adopted by the learned trial court, in
recording the judgment under order XII R 6 CPC and its subsequent consequences
while asserting that consequences of impugned judgment / order is continuing
upon the petitioner in shape of deduction of the amount therefore, suffice to
say cause is continuing to the petitioner. Moreover the petitioner has
questioned the legality of procedure, so adopted by learned trial court, in
recording the judgment under order XII R 6 CPC, which falls within meaning of
writ of Certiorari and needless to mention that on an application to such
complaint, this court can legally examine the order / judgment of inferior
court being the court of supervisory jurisdiction.
10.
Having attended to the above question
of maintainability of the petition, now, we would revert to merits of the case.
There can be no denial to the well settled principle of law that if the law and procedure requires a thing
to be done in a particular manner then that has to be done in that manner and
not otherwise. What we find from perusal of the application of the
petitioner (which he denies to have made voluntarily) that in such application
the petitioner has nowhere admitted the claim of the respondent No.1 but only
stated to have made a mistake and sought pardon. The petitioner did not admit
to have caused any damage to the respondent No.1 nor admitted to be ready to
pay the claimed compensation but he was seeking only pardon. Moreover, the
quantum of the claim for damages was not admitted. The perusal of the Rule-6 of
the Order-XII of the Code shows that it speaks about admissions of the fact
which should also be clear, unambiguous, unqualified and unequivocal else the
same shall not qualify for grant of a decree under order XII rule 6 of the Code,
else the court is required to frame issue(s). Reference if any, can be made to
the case of Col. Javed Iqbal Lodhi V. Lt. Col. Nadeem Ahmar & others
reported in 2007 CLS 831.
11.
The requirement for an admission to be
clear, unambiguous, unqualified and unequivocal, apparently are not available
in this case. It is pertinent to mention that an admission is likely to bring
penal consequences which cannot be inflicted on ambiguous and unclear things.
The contents of the application no where speaks that petitioner admitted claim
of respondent No.1 regarding his entitlement to recover an amount of
Rs.1500,000/- hence in such eventuality the application cannot be legally
termed to have qualified for grant of a decree in favour of the respondent No.1
more particularly when the petitioner has denied to have made an admission in
his counter affidavit to application U/O XII Rule 6 CPC.
12.
Hence, the failure of the learned
trial court judge to have itself satisfied about genuineness of such an
application or contents thereof within parameter of settled norms is sufficient
to bring it out of the scope of Rule-6 of Order-XII CPC. From very inception the
concept of fair trial and due process has always been the golden principles of
administration of justice and after incorporation of Article 10-A in the
Constitution of the Islamic Republic of Pakistan, 1973 vide 18th
Amendment, it has become more important that due process should be adopted for
conducting a fair trial and order passed in violation of due process may be
considered to be void. It is significant
to add there that where things have not been done in the manner, as required by
the law and procedure, the same cannot be given legal sanctity particularly
when the same are resulting in penal consequences or causing rights of an
individual, therefore, we safely hold that basic judgment of the learned trial
Court judge has not been in accordance with meaning and objective of Order XII
Rule 6 CPC hence the same cannot sustain.
13.
Needless to add here that absence of
the defendant (s) or their admission (s) towards claims of the plaintiff shall
not absolve the court (s) from their legal obligation (s) to examine the claim
of the plaintiff and his / her entitlement for relief, claimed far. Let this
case be examined on this touch stone. There can also be no denial to well
settled principle of law that to succeed in a case for damages the plaintiff is
legally required to establish two different facts i.e:-
i) that
proceeding, if any, launched against him / her were causeless and malafide;
ii) His /
Her entitlement for General and Special damages in consequence of first part;
14.
Thus, even if the plaintiff succeeds
in establishing first part yet before insisting the decree he has to establish
his / her entitlement for recovery of damages. In the instant case even if it
is believed for a minute that there was an admission yet the plaintiff (respondent
No.1) was required to prove his entitlement for recovery of claimed amount as
damages which is prima facie lacking in the instant case yet the learned trial
court recorded the impugned judgment which is a patent mistake on part of the
learned trial court judge. Needless to refer to well settled principle of law
that none
should suffer for an act or mistake of a court.
15.
The perusal of the impugned judgment
of the learned trial court, recorded under order XII rule 6 CPC further speaks
that the learned trial court considered the application of the petitioner as an
admission equal to allegation / claim of the respondent No.1 to the effect that
petitioner moved a false application
against him. However, contents of the application of the petitioner nowhere
speaks that petitioner admitted that his application was false. In such a
situation the application of the petitioner, if any, was not sufficient to
qualify for a decree in a case for recovery of damages.
16.
In result of what has been discussed
above, we are of the considered view that basic judgment of the learned trial
court is not sustainable under the law, thus petition in hand was allowed by
short order dated 17.09.2013, which is :-
For reasons to be recorded later
on this petition is allowed. The decision of the Appellate Court and the
judgment passed by the civil Court are set aside. The case is remanded to the
trial Court to decide the case of defamation afresh after affording full
opportunity to parties to adduce evidence. The amount that has been recovered
by private respondent shall remain with him and shall be subject to the
decision in the suit.
J U D G E