2016 PLP 130 (YLRN)

O. IX, R. 13

Limitation Act (IX of 1908), S. 5

Sindh Chief Court Rules (O. S.), R. 74

Ex parte decree, setting aside of

Condonation of delay

Date of knowledge

Proof

Applicant was aggrieved of ex parte decree passed against him and filed an affidavit of clerk of his counsel in proof of delay in getting knowledge of ex parte decree

Validity

Facts alleged in application about date of knowledge of ex parte decree could be stated, reiterated or confirmed only by the person who had personal knowledge of such facts, and he was the defendant only

Court clerk of the counsel of applicant or even counsel for that matter could not be deemed to have personal knowledge of such facts

Affidavit filed along with application for condonation of delay could neither be accepted nor relied upon

In absence of affidavit, application for condonation of delay was not maintainable under R.74 of Sindh Chief Court Rules (O.S.) as there was no explanation or justification by defendant regarding admitted delay, the same was not condoned

Application was dismissed in circumstances. [Paras. 7 and 12 of the judgment] Muhammad Asghar and others v. Qamar Din PLD 2005 Lah. 240; Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. 1988 CLC 654; Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another 2006 CLC 92; Amin Khan v. University of Sindh PLD 1968 Kar. 899; Abdul Waheed Khan and another v. Aleemuddin Khan 2001 CLC 333; Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University, Islamabad and another v. Ms. Farah Zahra PLD 2005 SC 153 and Habib Bank Limited v. Pak Poly Products (Pvt.) Ltd. and 3 others 2013 CLD 1661 ref.

Principle

In absence of specific authority any person appearing on behalf of any party cannot be deemed to be an attorney or authorized representative of that party. [Para. 9 of the judgment] Muhammad Sarfaraz Ali Metlo for Plaintiff. Neel Keshav for Defendant. ORDER NADEEM AKHTAR, J.

CMA No.4700/2014 has been filed by the defendant under Order IX, Rule 13, C.P.C. praying that the ex-parte order, judgment and decree passed against him in the instant Suit be set aside. Through C.M.A. No.13561/2015 filed under section 5 of the Limitation Act, 1908, he has prayed that the delay in filing the aforementioned application be condoned.

2. The relevant facts for the purposes of the applications in hand are that the plaintiff filed the present Suit on 17.06.2004 against the defendant for recovery of Rs.5,615,120.00 with markup thereon from the date of breach of the agreement between the parties. Since the defendant was carrying on business at Lahore as per the title of the plaint, summonses were issued to him through the learned District Judge Lahore and OCS Courier. Vide order dated 13.01.2005, service upon the defendant was held good by the Additional Registrar (O.S.) and he was directed to file his written statement within four (04) weeks. As he did not file his written statement within the stipulated period, further time of two weeks and one week was granted to him on 22.02.2005 and 24.03.2005, respectively. Despite the above, he did not file the written statement, and accordingly, it was ordered on 06.05.2005 by the Additional Registrar that the Suit be placed before the Court for ex-parte orders against him. On 23.05.2005, it was ordered by this Court that this Suit shall proceed ex-parte against the defendant by observing that he had been served through the District Judge Lahore as per the bailiff's report. Thereafter, the matter was listed for final disposal on 27.10.2005 when it was heard and reserved. Vide judgment delivered on 28.11.2005 and the decree drawn in pursuance thereof on 14.12.2005, the Suit was decreed against the defendant in the sum of Rs.5,615,120.00 with costs.

3. On 08.04.2014, two applications were filed by the alleged attorney of the defendant; namely, C.M.A. No.4700/2014 for setting aside the ex-parte order, judgment and decree, and C.M.A. No.4701/2013 for suspension of the ex-parte judgment and decree and stay of the execution proceedings. After more than seventeen (17) months of filing the above applications, C.M.A. No.13561/2015 under section 5 of the Limitation Act, 1908, was filed on 21.09.2015 purportedly on behalf of the defendant for condoning the delay in filing C.M.A. No.4700/2014 for setting aside the ex parte order, judgment and decree. Counter affidavits were filed by the plaintiff in reply to C.M.A. Nos.4700/2014 and 13561/2015, and rejoinder was filed by the defendant's son only in respect of C.M.A. No.4700/2014.

4. Mr. Neel Keshav, learned counsel for the defendant, strongly criticized the order passed by the Additional Registrar whereby service was held good upon the defendant on the ground that notice was received by the defendant's son. He contended that there was no date on the bailiff's report, and as per the said report, summonses were received by one Khurram, who is not the son of the defendant; and, the summonses issued by OCS Courier were purportedly received by one Imran, who is also not the son of the defendant. He submitted that in his rejoinder to C.M.A. No.4700/2014, the defendant's son Asim Khurshid has confirmed the above position. It was urged that the bailiff ought to have obtained signatures of witnesses when summonses were not received by the defendant personally. He relied upon Rule 18 of Order V, C.P.C. in support of his above contention.

5. Learned counsel for the defendant, further contended that the ex parte decree came to the knowledge of the defendant for the first time on 06.03.2014 when he was arrested in pursuance of warrant of arrest issued in execution proceedings, and due to this reason he could not arrange a counsel for filing an application within time; and, after seeking professional advice and making arrangements, the application for setting aside the ex parte decree was filed by him on 08.04.2014 through his attorney. He also contended that the defendant is still behind bars. He submitted that in this background and also in view of the grounds urged in the applications for condoning the delay and setting aside the ex parte decree, the delay of two days is liable to be condoned and the ex-parte decree is liable to be set aside. In support of his submissions, the learned counsel relied upon (1) Muhammad Ashgar and others v. Qamar Din, PLD 2005 Lahore 240, (2) Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries Pvt. Ltd., 1988 CLC 654, (3) Water and Power Development Authority through Chairman and 3 others v. Mir Khan Muhammad Khan Jamali and another, 2006 CLC 92, (4) Amin Khan v. University of Sindh, PLD 1968 Karachi 899, (5) Abdul Waheed Khan and another v. Aleemuddin Khan, 2001 CLC 333, and (6) Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University. Islamabad and another v. Ms. Farah Zahra, PLD 2005 SC 153.

6. Mr. Muhammad Sarfaraz Ali Metlo, learned counsel for the plaintiff, strongly opposed the application for condoning the delay by raising a preliminary objection that the same is not- supported by the affidavit of the defendant, but is supported by the affidavit of the court clerk of the defendant's counsel. He submitted that the so-called explanation for the delay by the court clerk cannot be accepted and the admitted delay cannot be condoned in such circumstances. It was urged that personal knowledge of the defendant about the facts stated in the application and his explanation justifying the delay of each and every day were necessary, however, as the defendant was behind bars and was being admittedly represented by an attorney, his attorney ought to have filed his personal affidavit. He contended that the defendant was all along aware of these proceedings and the decree passed herein, and his assertions to the contrary have been specifically denied by the plaintiff. In support of this contention, he referred to the letter addressed by the defendant to the plaintiff in August 2010 regarding the disputed amount, copy whereof has been filed as annexure DH-8 to the plaintiff's counter affidavit. By referring to annexure DH-9 to the plaintiff's counter affidavit, which is a letter dated 24.08.2010 by the plaintiff's Chairman, confirming that the defendant had called on him on 24.08.2010 to resolve this issue through an out-of-court settlement, he contended that the defendant became fully aware of these proceedings at least on 24.08.2010, if not earlier. He also referred to annexures DH-10 and DH-11 to the counter affidavit, which are (a) letter dated 19.10.2010 by the plaintiff asking the defendant to appear before the committee for out-of-court settlement, and (b) the defendant's letter dated 20.10.2010 in reply thereto. The learned counsel submitted that till date no affidavit-in-rejoinder to the application for condoning the delay has been filed by the defendant or his attorney, therefore, the entire contents of the plaintiff's counter affidavit and the documents filed therewith have remained un-rebutted. In the end, learned counsel for the plaintiff submitted that the defendant has miserably failed in making a case for condoning the delay, and therefore, both these applications are liable to be dismissed. He relied upon Habib Bank Limited v. Pak Poly Products (Pvt.) Ltd. and 3 others, 2013 CLD 1661, in support of his submission that the executing Court cannot go behind the decree.

7. I have heard the learned counsel for the parties at length and have also examined the material available on record with their able assistance. It is a matter of record that C.M.A. No.13561/2015 for condoning the delay in filing the application for setting aside the ex-parte order, judgment and decree, is not supported by the affidavit of the defendant or even his alleged attorney. The affidavit filed along with the said application has been sworn by one Muhammad Hanif, by admitting in paragraph 1 thereof that he is the registered court clerk of the learned counsel for the defendant, and yet claiming that he is well conversant with the facts of the case. In paragraphs 2 and 3 of his affidavit, the court clerk has stated that the application has been filed by him at the instructions of the learned counsel for the defendant. The facts alleged in the application about the date of knowledge of the ex-parte decree could be stated, reiterated or confirmed only by the person who had personal knowledge of such facts, who was the defendant in the present case. The court clerk of his counsel, or even his learned counsel for that matter, cannot be deemed to have personal knowledge of such facts. Therefore, the affidavit filed along with the application for condoning the delay can neither be accepted nor can it be relied upon. In the -absence of affidavit, the said application is not maintainable under Rule 74 of the Sindh Chief Court Rules (O.S.). Moreover, as there is no explanation or justification by the defendant regarding the admitted delay, C.M.A. No.13561/2015 for condoning the delay is liable to be dismissed.

8. During the course of hearing on 04.11.2015, it was noticed by me that Mr. Usman Tufail Sheikh Advocate had filed power in this matter on 27.02.2012. Since it was stated by the learned counsel for the defendant on my query that he had no knowledge about the said power, notice was ordered to be issued to Mr. Usman Tufail Sheikh Advocate to appear on the next date in order to assist the Court. In pursuance of the said notice, Mr. Usman Tufail Shaikh Advocate appeared on 25.11.2015 before this Court and after examining the Court file and the aforementioned power, he confirmed that the said power was filed by him in this Suit on 27.02.2012 on behalf of the defendant. He also identified and confirmed his signature thereon, and stated that after filing power he obtained certified copies of some orders and the ex-parte judgment and decree. In view of the above, the sole ground on which condonation of delay is being sought that the ex-parte judgment and decree came to the knowledge of the defendant on 06.04.2014, appears to be baseless and incorrect. C.M.A. No.13561/2015 for condoning the delay is liable to be dismissed on this ground also.

9. I have already held that C.M.A. No.13561/2015 for condoning the delay in filing C.M.A. No.4700/2014 is liable to be dismissed. Therefore, C.M.A. No.4700/2014 is also liable to be dismissed. However, it may be noted that C.M.A. No.4700/2014 for setting aside the ex parte order, judgment and decree has been filed purportedly on behalf of the defendant by his alleged attorney Asif Hameed. It is surprising to note that no power of attorney or authorization in any other form is available on record to substantiate that the said Asif Hameed was authorized by the defendant to file the said application or to represent him in the present case. In the absence of specific authority, the said Asif Hameed cannot be deemed to be the attorney or authorized representative of the defendant. Resultantly, C.M.A. No. 4700/2014, having been filed by an unauthorized and incompetent person, is liable to be dismissed on this ground also. The rejoinder to C.M.A. No.4700/2014 filed by the defendant's son is meaningless as the application itself is unauthorized, and further as the said son has also not filed any power of attorney or authorization in his favour from the defendant. The cases relied upon by the learned counsel for the parties have no bearing to the facts and circumstances of this case in view of the above discussion.

10. While examining the record, I could not help noticing that the power of the learned counsel for the defendant bears the left thumb impression of the defendant which was obtained while he was detained in civil prison. The power, which was attested on 07.08.2015 by the Deputy Superintendent D.I. Lahore, specifically bears an endorsement that it was granted "only for bail purpose". Since the said power was not meant to be used for the instant Suit, the learned counsel who has argued these applications on behalf of the defendant had no authority to represent the defendant in this Suit, it is said so with profound respect to the learned counsel.

11. Before parting with this case, I may take this opportunity to say with all humility that the practice of filing personal affidavits by advocates, their junior associates or court clerks in support of applications containing facts based on personal knowledge of their clients, should be avoided and discouraged. There could be situations where a personal affidavit of the advocate or his court clerk may be necessary, such as for restoration of a case dismissed in default due to the absence of the counsel or reopening of side in a similar situation, etc. but certainly is not in cases like the one in hand. Unfortunately, it has become a common practice that affidavits even in support of applications for urgent hearing are sworn by advocates or their court clerks. This must also be discouraged as reasons and grounds of urgency are peculiar and different in every case, which should be pleaded by the party himself and by none else.

12. Foregoing are the reasons of the short order announced by me on 25.11.2015, whereby C.M.As. Nos.4700 of 2014 and 13561 of 2015 were dismissed with no order as to costs. MH/T-8/Sindh Applications dismissed.