1988 PLP 984 (MLD)

This is an application under Order IX, Rule 4, C.P.C. for setting aside the order dated 24-11-1985 dismissing Application No.1989 of 1983 of defendant No.2 filed under Order XXXVII, Rule 3, C.P.C. The defendants Nos.1 and 3 aye not filed any application for leave to appear and defend the suit. This application has been filed of the ground that on 23-2-1985 the Advocate for the defendant No.1 had gone to Gambat for attending a case fixed before the Senior Civil Judge. He had instructed his clerk to check the daily cause. list for 2:1-11-1985 and obtain adjournment as he would not be available at Karachi on 24-11-1985. It is alleged that the clerk of the learned counsel checked the cause list but he could not trace out the case and no one appeared in Court on 24-11-1985. It is also stated that name of the Advocate was typed as 'Mumtaz Ahjed' instead of Mumtaz Ahmed. The learned counsel for the defendant has stated that he had employed the clerk recently and he was not aware about his cases. On his return he came to know about the order passed by the Court and filed the application. Mr. Mansoorul Arfin the learned counsel for the plaintiff has stated that copy of this application was received by him on 3J-3-1986 in the evening and he wants to file counter-affidavit but in the facts and circumstances of the case I have called upon him to argue the matter without filing counter affidavit. Mr. Mumtaz, the learned counsel for the defendant No.2 has contended "that the counsel was busy outside Karachi and therefore, he could not attend the Court and due to negligence of his clerk and typing mistake in the cause list no appearance could be made in the Court. The cases for hearing of applications are fixed by the Additional Registrar (O u.) at least two weeks before the hearing, in open Court, and on that day parties and Advocates are expected to be present to note down the date fixed by him. This opportunity does not seem to have been availed by the defendant's Advocate. Instead he relied on his recently employed clerk who was not aware of his cases. If proper care would have been taken to find out the date of hearing and implicit reliance would not have been placed on such an inexperienced and newly-appointed clerk, the default would not have occurred. In my view there is a clear negligence in conducting the case. The learned counsel was aware of the fact that matter was likely to be fixed on 24-11 1985 and he had gone to Gambat. The particulars of the case pending in that Court have not been given nor it has been explained that the urgency in that case was so pressing that he had to give precedence to a case pending before a subordinate Court. The facts and circumstances do not justify to set aside the order dated 24-11-1985. The next contention of the learned counsel for the defendant is that his name was wrongly typed in the list. The first name was clearly and correctly typed. The mistake is that instead of 'Ahmed' `Ahjed' was typed. This mistake cannot preclude any person who is looking at the cause list to properly locate the name of the counsel. The affidavit in support of the application clearly admits that the clerk was unable to trace out because he was inexperienced and was not aware of the cases. The affidavit of the clerk has not been filed to show that he had checked the cause list and due to typing mistake he could not find the case in the cause list. Mr.Mansoorul Arfin the learned counsel for the Plaintiff has pointed out that earlier this application was dismissed but the order was recalled. This shows the conduct and manner in which the proceedings have been conducted but in my view the previous default cannot be taken into consideration for deciding this application. In order to ensure that the defendant No.2 is not unduly prejudiced due to his Advocate's failure to attend the case, I purposely enquired from Mr.Mumtaz Ahmed Advocate about the defence which has been raised by the defendant No.2. According to him the suit is barred by time. From a scrutiny of the documents this plea is not tenable. The learned counsel for the defendant No.2 has not denied his signature on the letter of guarantee, and the balance confirmation slip executed in respect of outstanding balance on 1-12-1979. This document has been executed by defendant No.2 on behalf of defendant No.1. The registered mortgage dated 27-6-1979 has also not been denied. The learned counsel for the defendant No.2 further contended that after the suit was filed objections were raised by the office which were to be complied within 15 days from 22-3-1983 but they were not completed and an application dated 27-2-1982 was filed for condoning the delay or extending the time for compliance. It is pointed out that without passing any order plaint was admitted on 7-8-1982. From the objections that have been noted on the plaint itself it seems that objections Nos.1, 4 and 5 were complied with on 12-4-1982 and 29-2-1982. Rest of the objections were complied with afterwards. These objections were procedural and technical like supplying six sets of plaint and original power of attorney and papers of publications charges and postal charges. When the plaint was admitted all these objections had been complied with. Therefore, by admitting the plaint the delay had been impliedly condoned subject to the objection by the other side which can be raised if due to d, lay any right has accrued to the defendants. No such vested right seems to have accrued to the defendant No.2 hence no prejudice has been caused to him. In these circumstances the application is dismissed. As I have rejected the application for setting aside the order dismissing application under Order XXXVII, Rule 3, C.P.C., the consequences as provided by law must follow. The plaintiff has filed the original documents in the Court. The suit is for recovery of Rs.40,73,671.42 against the defendants. It is alleged that on 29-5-1968 at the request of defendants Nod.l, 2, and Lt. Col. (Recd.) M.Jaffer who is the father of defendant No.2 cash credit facility was granted to defendant No.1 which was utilized by it from the account maintained with Bahawalpur Bank Ltd. which after nationalisation has been merged with the National Bank of Pakistan. The defendant No.2 was the guarantor of defendant No-1 and heir of Lt.Col. M.Jaffer. The defendant No.3 is the first mortgagee of the assets of defendant No.1 and the plaintiff claims to be subsequent mortgagee in respect of the said assets. The defendant No.3 has obtained a decree against the defendant No.1 and the plaintiff do not claim any relief against defendant No.3. Its claim is subject to the claim of defendant No.3. The defendant No.1 was allowed limit of Rs.11 lacs and as a security for the repayment of the loan the defendants Nos.1 and 2 executed promissory note dated 24-5-1968 original copy of which has been filed. On 27-6-1978 by a registered mortgage the plot bearing No.55-56 situated in Korangi Karachi together with building and construction factory and machinery installed thereon was mortgaged. The defendant No.1 acknowledged its liability by executing balance confirmation slips dated 27 11-1970 and 1-1-1979. The defendant No.2 guaranteed the repayment of loan to the plaintiff in terms of guarantee executed by him. According to the plaintiff notices were sent to the guarantor on 17-12-1978 and 19-12-1978. According to the statement of account filed by the plaintiff which is duly certified under the Bankers' Books Evidence Act, Rs.40,73,671.42 is due and payable. The plaintiff seeks remedy for recovery of this amount from the defendants jointly or severally as well as from the mortgaged property. The averments made in the plaint are supported by the documents which have been filed and have been referred earlier. Even otherwise as application under Order XXXVII, Rule 3 has been dismissed and leave to defend has not been granted the averments made in the plaint are to be taken to be admitted. In these circumstances I decree the suit against the defendants jointly and severally for Rs.40,73,671.42 with interest at the rate of 14% per annum from the date of suit till recovery and costs of the suit. A preliminary decree for the aforestated sum is passed against the defendants which shall first be prepared in terms of Order XXXIV, Rule 4, C.P.C. AA./N-100/K Suit decreed.