1990 PLP 1874 (MLD)

MUHAMMAD ISHAQ KHAN, J.--I have had the advantage of going through the judgment proposed to be delivered by my learned brother (Mohammad Azam Khan,J) in F.A.O. No. 6/86 but would like to differ for the following reasons:-- Facts have already been given by my learned brother in the proposed judgment and I would like to add a few words to the same. The suit was originally instituted by Khadim Ali on 18th November, 1984 and an ex-parte decree was passed on 27-2-1986. An application for setting aside the ex-parte decree was submitted by the counsel for the defendants on 19-3-1986 which application was rejected on 1.-12-1987. Certified copies were applied for on 3-12-1987 which were delivered on 8-12-1987, i.e. 6 days were consumed in obtaining the copies. The period of limitation for filing of appeal is 90 days plus 6 days spent in obtaining the copies. Thus the last date for Filing the appeal was 23rd January, 1988. 1t is important to note that Khadim Ali, plaintiff-respondent had already died on 6th of January, 1987 i.e. during the pendency of the application for setting aside the ex parte decree. On the basis of an application dated 22-2-1987 filed by the present appellants legal representatives of the deceased-plaintiff Khadim Ali were ordered to be brought on file and this fact was quite within the knowledge of the appellants but still they filed an appeal in this Court against a dead person. This fact is clearly proved from paragraph-1 of memorandum of appeal wherein it has been stated that Khadim Ali is the predecessor-in-interest of the respondents. But strangely enough in the column meant for respondents only the name of Khadim Ali has been given as the respondent and no Khadim Ali through his legal heirs. Again in the memo of addresses only the name of Khadim Ali son of Mohammad Jan is mentioned. All this goes a long way to prove that the appeal was admittedly filed against a dead person despite the knowledge that Khadim Ali had died on 6th of January, 1988.

2. It is on record that for the first time an application for bringing the LRs of deceased Khadim Ali on record was submitted in this Court on 4-10-1988 which is CM No. 45/88. This application is therefore barred by 34 days, reckoned from 6th of March, 1988, the last date for tiling of appeal. The second application viz. CM No. 135/88 under sections 151 and 152 CPC was submitted on 23rd November, 1988. Thus I am of the view that the appeal has been filed against a dead person which fact was within the knowledge of the appellant. The reason which the appellants had given in CM No. 135/88 would show that they are telling a lie on oath before this Court (paragraph 4 of the application speaks itself). As the reasons advanced are not plausible and no explanation for delay of each day has been given, therefore, in view of the following authority the learned trial Judge was legally correct in rejecting the application for setting aside the ex parte decree. In The Deputy Director Food, Lahore Region, Lahore etc. v. Syed Safdar Hussain Shah 1979 S C M R 45 the following observations have been made:-- "Condonation of delay--Petition for leave to appeal to Supreme Court barred by 45 days but condonation of delay sought on sole ground of matter having ramained under examination of Government at various levels and hence it got delayed in such process-Held: Mere fact of matter having got delayed because of its having remained under examination at different departmental levels not a valid ground for extension of period of limitation--Each day of limitation also not properly and sufficiently explained--Condonation-of delay refused and petitions for special leave rejected."

3. As observed earlier the application for setting aside the ex parte decree was moved on 19-3-1986 but this application is not signed by the appellant or his authorised officer. Only the Advocate has signed the said application and at the back of this application an affidavit has been given by a `Munshi'. No cause for l the absence of the appellants is given. Neither any reason for the absence of the appellants has been given, nor the Reader of the Court was produced by the appellants in support of their contention that the counsel for the appellants had informed him through his agent that he will be busy somewhere else and will not be in a position to attend the Court on the date fixed. A look at Para.2 of the Wakalat Nama for filing the present appeal will show that only the words "to present" are there and the words "to sign" are not there. Order 9 Rule 13 is the law on the point and I would like to reproduce the same as under:-- "

13. Setting aside decree ex parte against defendant.--(1) In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim."

4. Once again I would like to say that this is an admitted fact that the defendants-appellants have not applied to the Court for setting aside the ex parte decree and further have not themselves appeared in the witness-box to support their contention that what has been ,stated in the application is correct. Although their counsel has stated that he asked the appellants not to appear but under the law the appellants were legally bound to appear on each and every date to persue their case. It is also important to note that the above fact has not been stated in his application by the counsel for the appellants that he had asked the appellants not to attend the Court but for the first time this was stated by the learned counsel in his statement. It may also be kept in mind that nothing has been brought on file on behalf of the appellants to support the contention of their counsel that he had instructed them not to attend the Court. In Abdul Shahid and another v. Sh.Azim Bakhsh P L D 1981 Supreme Court 200, similar matter was placed before their Lordships who were pleased to observe the following:-- "S.151--Restoration of appeal--Appellants applicants not submitting any explanation whatsoever of their own absence on adjourned date of hearing but their counsel attempting to justify their absence on ground of his clerk having not informed him of appeal being fixed on such date for hearing before Judge dismissing restoration application for non -prosecution on such date--Application dismissed by Judge concerned not merely for reason of absence of appellants but also because of previous history of case, i.e., appellants obtaining stay order to protect their possession and having obtained such order they and their counsel failing to appear on date fixed for hearing of appeal but Judge not dismissing appeal or recall stay order--Appellants and their counsel having not been vigilant, lower Court, held, perfectly justified in circumstances in dismissing their restoration application." No doubt an application for setting aside of the ex parte decree could be made within 30 days and the present application by the appellants was submitted within 20 days but even these 20 days are sufficient to show that the appellants were not only negligent but also disrespectful to the Court in not attending the Court on D the date fixed.

5. On the view of the matter that I take, I hold that as per legal position firstly the appeal is time-barred which is admittedly against a dead person, and secondly the application which was submitted for setting aside the ex parte decree was incompetent, with the result that I would dismiss this appeal with no order as to costs. NAZIR AHMED BHATTI, J.

The facts of the matter have been very elaborately given in paragraphs 1 to 10 of the preceding judgment of my learned brother Mohammad Azam Khan, J. and I need not repeat them here. Before me the learned counsel for the parties had addressed arguments respectively for attack on the ex parte decree and with regard to the competency of the appeal. The learned counsel for the appellants contended that the application for setting aside the ex parte decree was moved after twenty days and well within thirty days of the statutory period of limitation provided, for setting aside ex parte decree. Although the learned counsel, who represented the defendants (now appellants) before the learned trial Court, had appeared as a witness and had corroborated the contents of the application submitted for setting aside the ex parte decree and had deposed that he had to suddenly leave Peshawar and go to Swabi in connection with a domestic affair and his agent had informed the Reader about this situation but the counsel could not come back in time on that day and so the suit was decreed ex parte, yet the learned trial Judge has over-emphasised the point as why the party was not present. The application for setting aside the ex parte decree under Order IX Rule 13.C.P.C. could be moved within thirty days under Article 164 of the First Schedule to the Limitation Act and the application had actually been made after twenty days and reason for non-appearance was not only mentioned in the application but also evidence was produced to prove the same and there was no rebuttal from the side of the decree holder either, so in my opinion sufficient cause had been shown for non-appearance on the date when the suit was decreed ex parte. When a party is represented by a counsel in a civil matter it is not necessary that the party should also attend on every date as a counsel is there to represent it. The over-emphasis given by the learned trial Judge to the absence of the party on the said date was entirely unwarranted. The learned trial Judge should have accepted the evidence produced in support of the application for setting aside the ex parte decree and especially when it also remained unrebutted and should have set aside the ex parte decree.

2. In so far as the competency of the appeal is concerned, no doubt Khadim Ali plaintiff had died during the pendency of the suit and the learned trial Judge had ordered the office to enter his legal representatives in the heading of the plaint but that order was not complied with by the office with the result that although application for appointing his legal representatives had been submitted but no follow-up action had been taken and the name of Khadim Ali continued to exist in the plaint. It is also noteworthy that the same name appeared in the copies of the decree sheet and the judgment supplied to the appellants. It is also a fact that at the appellate stage the appellants had changed the counsel and the entire record was not before the new counsel when he drafted the appeal. It is also a fact that the appeal was well within time when it was originally riled showing Khadim Ali as the respondent. Subsequently the fact of his death came to the knowledge of the learned counsel for the appellants and then application was submitted for correction of name and appointment of legal representatives but this exercise was initiated after the expiry of the period of limitation. The appeal as originally filed was against a dead person and it was incompetent. The learned counsel for the respondents has contended that the appeal was incompetent because originally it was filed against a dead person and when his legal representatives were impleaded as respondents then the period of limitation for fling the appeal had already expired and has requested that the appeal be thrown out on this ground. In support of this contention he has cited the case of Labhu Ram v. Ram Partap A I R 1944 Lah. 76, wherein it has been held, "When once time for an appeal has run out, it is not possible for an appellant subsequently to implead those defendants who were not originally impleaded as respondents in the appeal. In a case in which a necessary party to an appeal has been omitted, the Court cannot exercise any power vested in it under 0.41.8.20 to cover the omission. An appellate Court could not exercise its power under 0.41,8.20, if limitation had already expired. No question of S.5, Limitation Act, arises in such cases. No right vests in any appellant to make an application under 0.41 R.20." The learned counsel has also brought to my notice the case of Mehtab Beg v. Chiragh Ali 1975 S C M R

54. In this case the legal representatives were not appointed within the period of limitation and permission was sought to bring them on record of the appeal at the appellate stage but permission was declined on the point of limitation. In the case of Mehr Muhammad v. Deputy Settlement Commissioner 1979 S C M R 182, suit/petition brought against a dead person was held to be a nullity in law. Same dictum was laid down in the case of Evacuee Trust Property Board v. Farkhanda Akhtar 1989 S C M R 1589. The learned counsel for the respondent thereafter concluded that the appeal was not only incompetent as having been filed against a dead person but was also time-barred for the reason that his legal representatives were brought on record after the expiry of the period of limitation. On the contrary the learned counsel for the appellants contended that since the officials of the learned Senior Civil .Judge had riot 'complied with the order made for impleading the legal representatives of Khadim Ali in the heading of the plaint and copies of the ex parte judgment and decree sheet still were in his name, he had no knowledge that Khadim Ali had died and no sooner did he come to know of this fact than he submitted an application for impleading his legal representatives as respondents. His contention was that the appeal as originally filed was well within time and when the fact of the death of Khadim Ali came to his notice he immediately submitted an application for impleading his legal representatives. Actually he was not to blame and on the contrary it was the office of the Senior Civil Judge who> had not complied with the orders and failed to make the requisite correction. He has also drawn my attention to the case of Pakistan Post Office v. Settlement Commissioner 1987 S C M R 1119, wherein it was observed that departmental delay whenever put forward as a ground for condonation of delay requires consideration on its merits and rejected or accepted accordingly as the case may be.

3. From the aforesaid circumstances it has become more than clear that the learned counsel for the appellants was not much at fault in filing the appeal as a dead person and he was entitled to be allowed some condonation of delay. I cannot hold that the appeal was incompetent because subsequently proper respondents were brought on record when the actual fact came to the knowledge of the learned counsel. The net result of the above discussion is that I am of the opinion that the learned Senior Civil Judge grossly exaggerated the point of absence of the party before him when he granted the ex parte decree. He also improperly dismissed the application for setting aside the ex parte decree although it was submitted after twenty days and well within the period of limitation and more than sufficient reason for the absence of the counsel had also been brought on record in evidence. The appeal can also not be held to be incompetently Filed because the mistake had originated on the record due to no fault on the part of the appellants or their counsel. I will, therefore, accept this appeal, set aside the impugned order dated 1-12-1987 of the learned Senior Civil Judge whereby he had rejected the application of the appellants for setting aside the ex parte decree. 1 will also set aside the ex parse decree and remand the case back to the learned trial Judge with the direction that he shall proceed in the matter from the stage it which the suit was when the ex parte decree was passed. Costs shall follow the event. MUHAMMAD AZAM KHAN, J.--This is a first appeal which arises out of a out of the Court of Senior Civil Judge, Peshawar dated 27-2-1986 by which it passed an ex-parte decree for recovery of Rs.45,00,000 against the applicants in favour of the predecessor-in-interest of the respondents Khadim Ali.

2. The facts are that Khadim Ali aforesaid filed a suit against the defendant-appellants socking to recover from them a sum of Rs.45,00,000 alleging that he had suffered loss to the tune of that amount as a result of refusal of the appellants to allow him to go ahead with two contracts that they signed and in the process he had also been deprived of a sum of Rs.4,76,000 that he expected to earn from the contracts. The defendant-appellants admitted, that two contracts, as alleged, had been signed with the plaintiff-respondent but due to his inability to commence work as agreed, the contracts were rescinded and that the machinery and equipments collected on the site were also not upto the mark and, therefore, not approved. On these assertions, after framing issues, the case proceeded and law adjournments from time to time till it was decreed on the back of the defendant-appellants on 27-2-1986 as ex parte.

3. On 19-3-1986, the defendant-appellants moved an application for setting aside the ex parse decree. It was stated that absence of the appellants was not intentional. Agent of the counsel had reported attendance to the Reader in the morning, the counsel himself, being out of station in connection with some urgent business. The job unexpectedly took longer to finish and the counsel arrived back in Peshawar quite late and for this reason could not attend the Court.

4. To support the petition later the counsel as also his clerk gave evidence. He reiterated the above position, testifying that he was away to Swabi to mediate for settlement of a dispute between his brothers-in-law over a house and the negotiations took time. When he got back to Peshawar it was late and the Court time was already over.

5. The plaintiff led no evidence in rebuttal, supporting his contention that the absence on the part of the defendant-appellants was inexcuseable, but the Court rejected the application for setting aside the exparte decree. Hence this appeal.

6. The appeal. was Filed against Khadim Ali, though in the meanwhile he had died. An application, therefore, was made by his legal heirs for dismissal of the appeal as being in-competant, having been riled against a dead person. On this point mainly the contest here took place.

7. It is admitted that Khadim Ali has died in a road accident in January, 1987. Then the proceedings regarding setting aside of the ex parte decree were in progress in the trial Court and an application therein was made by the defendant appellants to substitute his legal representatives on record. The application was allowed vide order appearing at serial No.7 of the memorandum of daily orders and the same roads in the words of the Court in Urdu as under:--

8. The next order on the order sheet is also reproduced as it also appears relevant in the context of appointment of legal representatives:--

9. Despite these orders clearly directing substitution of the legal representatives on record in place of Khadim Ali no entry was made either on the application for setting aside the ex parte decree or on the plaint or in the relevant register. The omission remained unnoticed and even the order finally passed by which the application for setting aside the ex parte decree was rejected did not mention it. The copy of the order given to the appellant also did not show the names of the L.Rs. and accordingly this appeal was preferred against Khadim Ali showing him only to be the respondent. Subsequently, however, his L.Rs. were placed on record on an application moved for the purpose by the appellants. This was done through order dated 15-1-1959, passed in respect of CM No.135/88. Obviously the L.Rs were not brought on record within due time and an objection to this effect was raised at the hearing that the appeal as originally instituted, being against a dead person merited dismissal as being incompetent. It was contended that it was in the knowledge of the appellants that Khadim Ali had died, because an application to place his L.Rs on record had been made before the trial Court while it was dealing with the application for setting aside the ex parte decree. It was also pointed out that even in the memorandum of appeal it had been admitted that Khadim Ali had died. Yet in the appeal Khadim Ali himself had been impleaded as respondent and not his legal representatives. It was long afterwards, when the period of limitation had already expired that the L.Rs were brought on record.

10. To meet the above objection, the learned Advocate-General submitted in the first instance that the copies supplied to him did not carry the names of L.Rs of Khadim Ali. Instead his own name was there and from the same it appeared that he was alive and the appeal as such was filed against him, impleading him only as respondent. He also submitted that the appeal could be deemed to have been flied against the L.Rs of Khadim Ali because in para. No. 1 of the appeal the fact that he had died had been mentioned and the words used clearly indicated that his L.Rs were respondents in the appeal.

11. It cannot be denied that the copy of the order against which this appeal has been filed does not carry the names of L.Rs. of Khadim Ali. His own name appears therein as the plaintiff. Therefore, the same can lead to the impression that he was alive, unless, of course it was known that he had died.

12. Learned counsel for the respondent contended that it was known to the appellants that Khadim Ali had died and in this respect he referred to the statement contained in para No.1 of the appeal under the head "Facts" where Khadim Ali had been shown to have died.

13. For facility of reference para. No.1 as framed is reproduced below:-- "That Khadim Ali the predecessor-in-interest of the respondent filed a suit for the recovery of Rs.45 lacs in the Court of Senior Civil Judge, Peshawar as damages against the appellant for the breach of contract."

14. Undoubtedly there is a tacit admission in para. 1 that Khadim Ali had died and the fact was known to the appellant. Learned counsel for the appellant, however, denies that there is any such admission in para. No.]. According to him instead the para indicates that the appeal was not against Khadim Ali but against his successors-in-interest, impleaded as respondents. He further contends that the appellants had done all that was necessary for him to do to bring the L.Rs of Khadim Ali on file, having applied for the purpose at the earliest when the matter was pending before the trial Court in the shape of proceedings for setting aside the ex parte decree. There was an order also passed by the Court to substitute the L.Rs. on record. K there occurred any lapse in not carrying out the order for it the appellant could not be blamed. He also contended that with reference to para. No.1 of the appeal it was possible to say that the appeal had been filed against the successors-in-interest of Khadim Ali and their names being not there was just an omission curable by an order of the Court. In fact, continuing he contended, the mistake had been rectified and the L.RS. now stood included in the appeal and had also duly been represented by a competent counsel. Their omission, therefore, from the appeal during its earlier stages should construed to fatally affect the appeal, because a substantial amount was being sought to be recovered on flimsy grounds. He expressed the view that only the cause title needed to be corrected replacing the name of Khadim Ali with those of his heirs and placed reliance for support on a decision of the Supreme Court in the case of Province of East Pakistan v. Major Nawab Khwaja Hassan Askary and others P L D 1971 SC 82. 1n this judgment dealing with a similar situation it is w observed at pages 86 and 87 as below:-- "It is not disputed that an appeal against a dead party can be amended by bringing his legal representatives on the record. Except Sindh and Upper Burma Courts, all other High Courts in this sub-continent have taken this view. I am not inclined to take a different view on this point. The contention of the respondent, however, is that the correction of the cause title after 1208 days means the bringing of the legal representatives on file of the appeal after 1208 days and the said delay having not been condoned by this Court, the appeal is not maintainable and is liable to be dismissed with costs. In reply, the appellant have not given any explanation for condoning the delay of 1208 days. Their only contention is that on the 19th October, 1968, the Supreme Court sent a notice to the Attorney that Muhammad Haider Ali Khan Panni respondent died on the 3rd June, 1986 and steps may be taken to bring his legal representatives on the record. It was in pursuance of this that the appellant moved an application for bringing the legal representatives of the deceased on the record. According to the appellant the mistake on their part was bona fide and the delay in correcting the cause-title may be condoned. After hearing the learned counsel for the parties 1 am satisfied that no case has been made out to condone the delay of 1208 days. The appellant was negligent in pursuing the remedy in this Court. They filed the appeal against a dead person and corrected the cause-title after a lapse of 1208 days. In the absence of any satisfactory explanation, the appeal is barred by 1208 days. 1t is accordingly dismissed with costs."

15. Viewing the situation in hand in total context how the lapse occurred in the trial Court by failure on its part to implead the heirs of Khadim Ali and the resultant mistake in showing him to be alive in the record and the attempt here made to apply to the Court to bring on record the legal representatives, it would 1 appear only fair to ignore the lapse that occurred in seeking correction of the cause-title. It is not a case of deliberately leaving out any respondent. The mistake has occurred, but in a bona fide way and deserves to be ignored. Accordingly the appeal is held to be competent and is against the L.Rs of Khadim Ali.

16. As about the ex parte decree maintained by the trial Court vide order r dated 1-2-1987 by which it refused to set the decree aside, it is noticeable that the learned defence counsel had himself appeared to testify as a witness to explain his absence. According to him he had to rush to Swabi to mediate in a dispute over a house between his brothers-in-law. He expected it to be settled quickly but it took time and when he arrived back at Peshawar the Court time was already over. This statement of the counsel is supported by his clerk who remained behind at J Peshawar to look after his case work.

17. There is no evidence from the other side showing that the counsel for the defendants or his clerk had told lies or that otherwise their stand was incorrect.

18. The above evidence has not been criticised by the opposite party, except to say that even if it be accepted it cannot explain own absence of the defendants ` on the relevant day. It was stated that if the counsel himself was away to attend to a matter at an out station, some representative of the defendant-appellants should I have been present before the Court to look after the case. In not having sent any one of them to appear before the Court the defendants had been negligent and the law does not help the negligent.

19. To this objection there is an answer available in the testimony of the counsel for the defendant-appellants that he gave in support of his application for setting aside the ex parte decree. Explaining why a representative of the defendants did not attend on the date, he said that a representative used to attend in the beginning but he told him later that he should not attend in future and that he himself (counsel) would look after the case and it was for this reason that the representative was not present to attend the Court on that day. No negligence thus appears to have been displayed by the defendant-appellants in not deputing a representative to he present on their behalf on the relevant date.

20. Next the competency of the counsel himself was questioned. It was contended that the counsel was not competent to apply for setting aside the decree because authority to do so had not been given to him. He could present an application on behalf of the defendants but could not make one on his own behalf as he did in the case.

21. This objection is apparently misconceived because the power of attorney given to the counsel and appearing at page No. 254 of the trial Court's file clearly confers such an authority on him to apply for setting aside the ex parte decree.

22. An objection was also raised that the Court-reader had not been examined to say that he was contacted that day by clerk of the counsel and apprised of his being out of station. This is correct but nothing seems to turn on the same in favour of the respondents. The result is that we accept the appeal, set aside the impugned judgment and decree of the trial Court and remand the case for fresh decision, after allowing the parties to adduce evidence as they wish. However, the defendant-appellants shall have to pay a sum of Rs.500 as costs for the plaintiff-respondents to compensate them for the inconvenience they suffered in the process. The amount of costs should be deposited with the trial Court l within a month of the return of the record to it. A.A./1035/P Case remanded.