1983 PLP 2199 (CLC)

P L D 1966 S C 467 ; P L D 1971 Kar. 756 and P L D 1981 Kar. 355 ref. Nizam Ahmad for Plaintiff. Hassan & Co. for Defendant. .. Date of hearing . 8th August, 1982. This order will dispose of all the applications. Suit No. 388/77 has been filed by Haji Kabir Pasha for specific performance of the contract against Yousuf Shareef on the allegation that Yousuf Shareef had agreed to sell the property in dispute for Rs. 4,10,000 which was paid to him but he has failed to convey the property. Yousuf Shareef has pleaded that the. sum of Rs. 4,10,000 was advanced to him as a loan and the agreement was intended to be a mortgage. On these allegations Shareef filed suit No. 507/77 for recovery of Rs. 4,10,000. . Suit No. 388/. 77 was decreed on 15th April, 1981 and Suit No. 507/77 was dismissed on the same date.

2. The facts leading to the passing of decree and order of dismissal are that on 21st September, 1980 Kabir Pasha had closed his side and the matters were fixed on 29th September, 1980 for further evidence and argument. On that date it was adjourned to 6th October, 1980 when they could not be heard. They were again fixed on 22nd December, 1980 and 2nd March, 1981 for the same purpose but the hearing was adjourned for want of time. On 2nd April, 1981 when the suits were again fixed for evidence and arguments as Yousuf Shareef and his Advocate were not present his side was closed and the matters were fixed for argument on 15th April, 1981. On 7th April, 1981 Shareef filed C. M. A. 1925/81 under Order IX, rule 7, C. P. C. for setting aside ex parte proceedings against him. It seems that no action was taken on this application till 12th May, 1981 when a note was put by the office raising objections. On 15th April, 1981 when the matters were taken up for arguments, again Shareef and his Advocate did not appear. Consequently, judgment was passed when Suit No. 388/77 was decreed and Suit No. 507/77 was dismissed.

3. On 18th June, 1981 Shareef filed Miscellaneous Application No. 2358/81 in Suit No. 388/77 for setting aside the decree and in Suit No. 507/77 C. M. A. 2357/81 was filed under Order IX, rule 9, C. P. C. On 14th September, 1981 Shareef also filed an application under section 5 of the Limitation Act in both the suits. In his application under Order IX, rule 9 Shareef has pleaded that he is a heart patient and due to his illness he could neither attend the Court nor apprise his Advocate that the witnesses have not come from Lahore. It was pleaded that he was submitting a medical certificate but no such certificate was produced. A photo copy of a medical certificate dated 12th April, 1981 has been placed on record which seems to have been fixed on 14th September, 1981. Shareef has nowhere stated in his affidavit or application, why his Advocate did not appear on the date of hearing. The application under section 5 of the Limitation Act is supported by the affidavit of the learned counsel who has stated that he was busy before another Court and came to know about the order at 12‑30 p. m. and consequently application under Order IX, rule 7 was filed. The unfortunate situation with this application is that no attempt was made to pursue it far obtaining hearing on or before 15th April, 1981 when the suits were fixed for hearing.

4. Mr. Fakhruddin Faruqui the learned counsel for Kabir Pasha has contended that on 7th April, 1981 when application under Order IX, rule 7, C. P. C. was filed the learned counsel for Shareef had not filed his power and he was not authorised to file this application. From the record it seems that the power was filed on 10th May, 1981. This application remained lying in the office till 12th May, 1981 when objections were raised and it was returned. The same was replied on 14th June, 1981 and it was represented. By. this time Suit No. 388/77 had been decreed and Suit No. 507 of 1977 was dismissed. The application under Order IX, rule 7, C. P. C. had thus become infructuous and is dismissed as such. The learned counsel for Shareef has half‑heartedly contended that if this application would have been placed before the Court perhaps the final order dated 15th April, 1981 would not have been passed. The fact, however, remains that this application was not properly filed and no attempt was made by Shareef to prosecute and proceed with this application. The application was rendered infructuous due to the negligence of Shareef himself.

5. As regards applications under Order 1X, rule 13 and under Order IX, rule 9, C. P. C., the main contention of the learned counsel for Kabir Pasha is that they are barred by time, no sufficient cause has been made out and lastly that the judgment was passed on merits and, therefore, it cannot be seaside. The impugned orders were passed on 15th April, 1981 and these applications were filed on 18th June, 1981. These applications are clearly barred by time. In order to meet this Shareef has filed application under section 5 of the Limitation Act. The main ground for condonation of the delay is that Shareef and his Advocate were not aware that order had been passed on 2nd April, 1981 ; that the matters shall be taken up for arguments on 15th April, 1991 as none of them had read the order dated 2nd April, 1981.

6. Mr. Fakhruddin Faruqui the learned counsel for Kabir Pasha has contended that Shareef, and his Advocate were aware of the order dated 2nd April, 1981 as they had filed application under Order IX, rule 7, C. P. C. on 7th April, 1981 for setting aside the said order, and, therefore, it should be presumed that they had read the order dated 2nd April, 1981 and were aware that the suits were fixed for arguments on 15th April, 1981. This contention is not without force. Further the party making an application under section 5 of 'the Limitation . Act has to account and explain for delay of each and every day. No such attempt has been made by Shareef. In fact the explanation given is vague and even if accepted delay cannot be condoned. Mere filing of an applica tion under Order IX, rule 7, C. P. C. does not absolve the party from taking any step for its prosecution. Shareef has been negligent in prosecuting with the suit as well as the application and although the ex parte order had been passed on 2nd April, 1981, which date was in his knowledge, no proper steps were taken to attend the Court. Nor it has been explained why from 15th April, 1981 till 18th June. 1981 no steps were taken in the matter. On application under Order IX, rule 7, B C. P. C. the office had raised an objection on 12th May, 1981 that the suit had been decreed on 15th April; 1981. This could be sufficient notice to Shareef and he could have filed application for setting aside that order well in time but no steps seem to have been taken till 18th June, 1981. The application under section 5 of .the Limitation Act was filed three months thereafter. In these circumstances'the delay cannot be condoned.

7. Mr. S. M. Abbas the learned counsel for Shareef has referred P L D 1966 S C 467, P L D 1971 Kar. 756 and P L D 1981 Kar. 355 and contended that a liberal interpretation should be given to the provisions of Order IX, rule 9 and Order IX, rule 13, C. P. C. A liberal interpretation cannot be given to justify the gross negligence on the part of a party and, C therefore the observation made in the aforestated authorities cannot be pressed in service by him. Shareef has failed to show sufficient cause for setting aside the ex parte decree and order of dismissal. In view of this discussion all the applications are dismissed. M.Y.H. Suit dismissed.