1989 PLP 656 (CLC)

(c) Award cost of this petition. (d) Any other equitable and efficacious remedy as deemed fit. The facts leading to this petition, briefly stated, are that respondent No.l filed a First Class Suit being No.33 of 1965 which was decreed on 1‑5‑1975 by the learned Senior Civil Judge, Khairpur against the petitioner. After about seven years, the petitioner filed a Suit No. 346 of 1982 against the respondents for setting aside the judgment and decree passed against him in the earlier Suit No.33 of 1965, on the ground that it was obtained by fraud. The suit was pending in the Court of the learned Senior Civil Judge, Khairpur when the suit was fixed for regular hearing, probably for producing witnesses by the petitioner plaintiff on 6‑3‑1984. The counsel for the petitioner, appearing in the suit, sent an application for adjournment on the ground that he was sick and that his witnesses have also not come. The learned Senior Civil Judge rejected the said application and dismissed the suit for non‑prosecution. (It is noticeable that the learned counsel for the petitioner before us has neither filed a copy of the said order dated 6‑3‑1984 nor is able to produce it before us during the hearing). The petitioner, after more than a year of the dismissal of his suit, on 10‑4‑1985 filed an application for restoration of the said suit. He also filed an application under section 5 of the Limitation Act, 1908. The learned Senior Civil Judge, after hearing the parties, passed the following order on 30th June. 1985, which is reproduced below: "Heard advocates for the parties. In order to decide the suit on merits the suit is restored to the stage when it was at the time of dismissal subject to payment of cost of Rs.200. Being aggrieved by the said order the respondent No.l, filed heard by the District Judge, Khairpur. The learned Judge, after stating some facts of the case, observed as under:‑ I have heard the learned Advocate for the petitioner/ defendants and the learned Advocate for respondent /plaintiffs. It is contended that the suit was dismissed for non‑prosecution on 6‑3‑1984 though it was filed and admitted on 21‑12‑1982. The restoration application under Order IX, C.P.C. was filed on 10‑4‑1985. The time for filing such application as prescribed by the Law of Limitation Act is only 30 days. Explanation furnished by the plaintiffs respondents in their affidavit does not appear to be reasonable and no reason for the restoration of the suit after the lapse of above one year is given by the learned Senior Civil Judge. The impugned order is, therefore, against the law which is set aside and the revision application filed by the defendants/ petitioner is allowed but with no order as to costs." Thereupon, the petitioner chose to file the above petition in this Court. Mr. Muhammad Hanif Mangi, learned counsel for the petitioner submits, firstly, that the application for restoration was within time and that the impugned order passed by the learned District Judge is based on mere surmise and conjecture. The counsel next submits that the non‑appearance of the petitioner's counsel on the crucial date i.e. 6‑3‑1984 was not intentional and that sufficient cause was shown for restoration of the suit which found favour with the learned Senior Civil Judge, who restored the suit. It is further submitted by him that even otherwise law favours adjudication of a case on merits and thus the restoration order was proper and legal. In support of the first submission, learned counsel submits that the provisions of Article 181 of Limitation Act, 1908 are attracted to the facts of the case and not Article

163. Reliance is placed by him on a decision of the Hon'ble Supreme Court reported as Messrs Rehman Weaving Factory (Regd.) Bahawalnagar. v. Industrial Development Bank of Pakistan (P L D 1981 SC 21). In is noticed that the facts and law discussed in the said judgment of the Hon'ble Supreme Court are quite different. It was a case in which an ex parte decree was passed and the question was which of the two Articles whether 164 or 181 of the Limitation Act was applicable. It seems advantageous to quote herein below the said Articles: "

164. By a defendant Thirty days. The date of the decree or for an order to set asidewhere the summons was not a decree passed ex parte. duly served, when the applicant has knowlege of the decree.

181. Application for which Three years When the right ‑to apply no period of limitation is accrues provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908. It also seems proper to quote Article 163 which according to the learned counsel is not applicable to the facts of the present cases:‑ "

163. By a plaintiff for an order Thirty days. The date of the to set aside a dismissal for default dismissal. of appearance or for failure to pay costs of service of process or to furnish security for costs. A bare reading of the above provisions will show that Article; 181, as relied on by the learned counsel, is not at all applicable to the facts of the case inasmuch as that Article 181 contemplates al A situation where no period of limitation is prescribed in the Schedule of the Limitation Act or section 48 of the Code of Civil Procedure The observations made by the Hon'ble Supreme Court relate to a situation where no period of limitation was prescribed in the Limitation Act for setting aside an ex parte order which was found ab initio for lack of jurisdiction on the part of the Court passing the decree. It is not at all contended by the learned counsel that Court had no jurisdiction to try the suit or pass the order of dismissal for non‑prosecution. It would also appear from reading the above‑quoted Articles 163 and 164 that the incidence of Article 163 for making application for restoration of a suit under Order IX Rule 9, C.P.C. dismissed for non prosecution and making an application under Order IX Rule 13 for setting aside an ex parte decree passed against the defendant are different. In a case of restoration of suit article 163 applies B whereas in the case of setting aside decree Article 164 is applicable. It is, therefore, apparent that Article 163 applies to the facts of the present case i.e. the application ought to have been filed within.30 days from the date of the dismissal of suit which was not done in the case. When the learned counsel was pointed out the correct legal position, as enunciated above, he stated unceremoniously that he drops this plea. Learned counsel in support of his second submission placed his reliance on Jan Muhammad v. Abdul Ghafoor (P L D 1966 SC 461). wherein it was observed that: "Weight should be given to the difficulties of counsel who have to appear in more than one case in different Courts on the same day A reason had been given, why counsel had thought that it would be early enough for him to appear at the time when he did appear, this being that he had obtained from counsel in the case before his own an estimate of the time that case was likely to take, and had relied on the estimate." Referring to an earlier decision of Federal Court in Mumtaz Ahmed v. Mst. Umtul Habib (P L D 1955 F C 178), the Honourable Supreme Court went on to say that: "The Federal Court observed that there was no reason to think that the estimate given by the other counsel "was wholly wrong or extremely exaggerated". In the present case we see no reason to think that in proceeding to fetch Mr. Shah Muhammad Mohsin (Advocate) when there were still six cases on the list of the Senior Civil Judge to be dealt with before the present case was called, the clerk left the matter until too late." The Honourable Supreme Court, in the cited case, allowed the appeal and set aside the order made by the High Court and directed that the suit be restored to its original place. In the said case the plaintiff's suit was fixed for 2nd October, 1959. On the 2nd October, 1959 when the case was called in the Court of Senior Civil Judge, none of the plaintiffs were present, nor was counsel for the plaintiffs present and thereupon the Court made an order dismissing the suit under Order IX, Rule

8. This was at comparatively earlier hour of the day, for it is contended that counsel for the plaintiffs appeared at 11‑00 a.m. and explained that he had been appearing before ., Judge in the High Court. In the enquiry which followed an application. for restoration of the suit, Advocate's clerk deposed that as soon he found that it was time for him to fetch the lawyer, according to his estimate of the time the intervening cases were likely to take, he left the Court of the Senior Civil Judge and went with speed to the High Court to fetch the counsel. By the time they returned, the suit had been dismissed. The application for restoration of the suit was filed on the same day. It was however, dismissed by the learned Senior Civil Judge. The plaintiffs went up in appeal before the District Judge. Having met with failure there and so in the High Court, a petition for Special Leave to Appeal was moved in the Supreme Court which was granted and ultimately the appeal was allowed. It is noticeable that the facts of this case are entirely different from the facts of the case ‑before us, wherein the application for restoration was filed after one year, one month and 4 days, with no explanation for making the said application after the lapse of that long period. Reliance is also placed by the counsel or decision in Ahmed Hassan v. Aziz Ahmad (1979 C L C 629) by a learned Single Judge (as he then was) of the Lahore High Court. It Was an appeal which was dismissed for non‑prosecution on 5‑10‑1976. Application for re‑admission of the appeal under Order XLI Rule 19, C.P.C. was moved on the other 'day i.e. 6‑10‑1976, supported by an affidavit of the clerk wherein it was averred "That the non‑appearance of the appellant or his counsel on the date when the case was fixed for 5‑10‑1976 was not due to his. negligence or intentional. Unfortunately, the clerk of the counsel of the appellant omitted the case in regular list as he was ill and could not check the list properly due to which the appellant or his counsel could not appear at the time when the case was called for on the a date fixed". It was, however, not explained as to why the counsel did not make alternate arrangement of getting the list checked or himself checking, in case his clerk was incapacited fully or partially. Following the dictum laid down by the Supreme Court in Zulfikar Ali's case (1974 S C M R 162) the petition for restoration of appeal was dismissed in the circumstances. It is apparent that this case too does not at all help the petitioner before us, on facts and the law laid down therein. Lastly, the learned. counsel submitted that law favours adjudication and. therefore, the learned District Judge ought not have interfered with the order passed by the Senior Civil Judge restoring the suit. In support, he cited a passage from Manager Jammu and Kashmir State Property v. Khuda Yar (P L D 1975 S C 678) which reads as under:‑ "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called "Jurisprudence Conception" a system of logical education from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precept and conferment of judicial discretion on the Courts as envisages by Order XLI, rule 33 of the C P.C. in regard to Constitutional power of this Court to do complete justice in all matters These two provisions read together lead to the irresistible conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice." We fail to understand the relevance or logic in citing the above passage by the learned counsel. The impugned order passed in revision by the learned District Judge was not on a technical ground. It is neither arbitrary nor capricious. Making an application for restoration after a lapse of more than a year and the learned Senior Civil Judge passing an order for restoration without giving any reason for allowing the said application and restoring the suit without adverting to or taking into consideration the point of limitation; was in negation of the settled principles of justice and law, because a vested right had accrued to the respondent by lapse of a period of more than one year, and no order restoring the suit could be passed by the Senior Civil Judge without condoning the delay in filing application for restoration, which remained unexplained, and, perhaps, unattended to At the last moment, learned counsel tried to persuade us that the matter may be remanded to the Trial Court for considering the application under section 5 of the Limitation Act and then pass a fresh order on petitioner's application under Order IX Rule 9, C.P.C. The request appears to be highly unreasonable as it will only further prolong the matter which has already taken two decades before it could be finally disposed of. This Court in exercise of its Constitutional jurisdiction, which is equitable in nature cannot be a party to it. Moreover, the petitioner's applications under section 5 of Limitation Act and Order IX Rule 9, C.P.C. have not been placed on record, so as to enable this Court to look into them. However, we feel great injustice will be done to the respondents both in law and equity, if such request is granted by us in our Constitutional jurisdiction. We are, therefore, clear in our mind that the impugned order passed by the learned District Judge is perfectly legal and has been) passed in the lawful exercise of his authority and jurisdiction and suffers from. no infirmity either in law or equity We therefore, dismiss the Constitutional Petition with costs. Before parting with the case, we would like to reproduce an extract from the judgment of the Hon'ble Supreme Court in Noor Mohammad v. Sarwar Khan and 2 others (P L D 1985 SC 131), which reads as under:‑ "there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, We are of the view that the tendency to file such Constitutional petitions tends to clog the Superior Courts with frivolous litigation and causes unnecessary delays in the disposal of other cases and this tendency should, therefore, be curbed with a strong hand." We feel that the above observation of the Hon'ble Supreme Court is fully applicable to the facts of the present case. There was hardly any justification for the petitioner for invoking the Constitutional Jurisdiction of this Court. A . A . /B‑103/ K Petition dismissed.