1998 PLP 1383 (CLC)

Dates of hearing: 18th November; 4th and 24th December, 1997 This is an application under Order 9, Rule 9 read with section 151, C.P.C. (Civil Miscellaneous Application No.1911 of 1997) filed by the Plaintiffs praying for recall of this Court's order, dated 29‑9‑1997, dismissing the Suit and restoring the same on file. The brief facts giving rise to this Application are as follows:‑‑‑ After recording of evidence of the parties had been concluded on 16‑8‑1989, the Suit was adjourned for arguments but did not proceed on several dates for reasons stated in the Order‑sheet. On 23‑4‑1997, Defendants filed an Application under Rule 743 of Sindh Chief Court Rules (SCCR) requesting the Court to refund the security amount in the sum of Rs.1,50,000 with profit accrued thereon. On 5‑5‑1997 the Court issued notice of the Application to the Plaintiffs. The Suit was listed in Court on 29‑9‑1997 for arguments and for hearing of the said Application. When the Suit was called at 12‑30 p.m. on that day Mr. Muhammad Naim, learned counsel for the Defendants was present while none appeared on behalf of the Plaintiffs. Consequently, the Suit was dismissed for non‑prosecution and so also the Miscellaneous Application. On 30‑9‑1997 the Plaintiffs' counsel filed an Application under Order 9, Rule 9 read with section 151, C.P.C. praying for recall of the Order of Dismissal, dated 29‑9‑1997 and restoration of the Suit to file on the ground that at the time the Suit was called for arguments. Mr. Anjum Ghani Khan, Advocate was busy in the Court of Mr. Justice Sabihuddin Ahmed and thereafter, when he came to the Court of the learned Chief Justice he found that the Suit had been dismissed for non‑prosecution. The Application was supported by the Affidavit of Mr. Anjum Ghani Khan and no Counter Affidavit to the same was filed by the Defendants. Mr. Anjum Ghani Khan has argued that: (i) As no Counter Affidavit has been filed by the Defendants, the facts stated in the Application and the Affidavit in support thereof stand un-contradicted; and (ii) As the Suit was fixed for final arguments it ought not to have been dismissed but disposed of on merits because submission of arguments is not necessary after evidence, of the parties has been recorded and has relied upon PLD 1991 SC 601 and PLD 1969 SC

270. Mr. Muhammad Naim, learned counsel for the Defendants vehemently opposed the Application and argued that if the Suit has been dismissed wrongly under Order 9, Rule 8, C.P.C., the remedy is to file an Appeal and not an Application under Order 9, Rule 9, C.P.C. He has further argued that the Application under Order 9, Rule 9, C.P.C. should show sufficient cause of the absence of the Plaintiff and his Advocate which has not been done by them. His third argument is that the Application has neither been filed by the Advocate for the Plaintiffs nor is it supported by an Affidavit of the Plaintiffs or the Advocate engaged by the Plaintiffs as evidenced by the Vakalatnama because Mr. Anjum Ghani's name is not mentioned in the Vakalatnama. He has relied upon A.I.R'' 1940 Rangoon 162 in support of his contentions. In reply to the arguments of Mr. Muhammad Naim, learned counsel for the Defendants, Mr. Anjum Ghani Khan has argued that non‑mention of his name is an irregularity which can be cured at any stage of the proceedings. He pointed out that he has filed a fresh Vakalatnama on 15‑12‑1997 signed by the Plaintiffs which includes his name and signature in acceptance of the same. It has been held by the Hon'ble Supreme Court of Pakistan that the hearing of arguments is not enjoined on the Court by the Code of Civil Procedure, 1908. All that it requires is that if the parties or their Counsel want to address arguments, the Court has to give them an opportunity to do so, but hearing of arguments is not essential before disposing of the case. (PLD 1991 SC 601). Further, in case where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the case should not be dismissed but adjourned or decided on merits. The Supreme Court while discussing the provisions of Order XVII, C.P.C. in PLD 1969 SC 270 at 276 observed: "The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the material already brought on the record, it should proceed under Rule 3, of Order XVII and not under. Rule

2. This appears to us also to be sound on principle. Every party who has instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal for non‑prosecution should, therefore, be an exception and not a rule." It seems that under undue pressure of work the Court overlooked this principle and dismissed the Suit for non‑prosecution as well as the Miscellaneous Application filed by the Defendants which should not have been done as Mr. Naim, learned Advocate for the Defendants was present in Court. In view of the principles laid down by our Supreme Court referred to above, AIR 1.940 Rangoon 162 cited by the Defendants is irrelevant and cannot be followed by this Court. Moreover, the circumstances prevailing and the practice followed in this Country today are very different from the circumstances and practices of Rangoon in 1940. This Suit should be decided on merits and not dismissed for non‑prosecution as was inadvertently done. The reason given by the Counsel for the Plaintiffs that he was busy before another learned Judge of this Court when the Suit was called in the Court of the Hon'ble Chief Justice which has not been denied, in my opinion, is sufficient cause for setting aside the order of dismissal on Monday which is a Miscellaneous Day when several applications of one counsel are listed for hearing before different Judges and it is not possible for him to be present before two Judges if two matters are called for hearing at the same time. This becomes almost impossible especially if the two Courts are situated far apart which was the situation in the present case. Consequently, such absence of counsel would be sufficient cause so long as the present system of listing on Mondays continues in the High Court. The objection regarding the omission of Mr. Anjum Ghani's name in the Vakalatnama raised by the learned counsel for the Defendants is‑not sound. In Malik Sajawal Khan v. The Deputy Commissioner, PLD 1968 Lahore 52, the Election Petition though not signed by the petitioner, was signed by the attorney and the question for consideration was whether by reason of the name of the Advocate not being recorded in the body of Vakalatnama, he was not a duly constituted agent of the petitioner and the presentation was not valid. The Lahore High Court after detail discussion of the relevant law on the question in issue held that the omission in the Vakalatnama was only an clerical error and the presentation was not invalid. Similarly, the Application for restoration filed by the learned counsel for the Plaintiffs in the present Suit cannot be said to be invalid. Further, the non‑mention of the name of Mr. Anjum Ghani Khan in the Vakaltanama or omission to file a Vakalatnama mentioning his name with the Application for Restoration according to PLD 1969 Karachi 210 is an irregularity which can be cured at any stage of the proceedings. This has been done by him by filing of a fresh Vakalatnama on 15‑12‑1997 which mentions his name. The irregularity, if any,, in the Application for Restoration filed by the learned counsel for the Plaintiffs has thus, been cured. The objection taken by the learned counsel for the Defendants relating to the irregularity in the Vakalatnama, in all fairness, should not have been raised and insisted upon. In view of the above discussion, the Application for Restoration is allowed, the Order, dated 29‑9‑1997 dismissing the Suit for non‑prosecution is set aside and the Suit is restored to file. Consequently, in the interest of justice, Defendant's Application under Rule 743 Sindh Chief Court Rules which was dismissed inadvertently is also restored and the Order for refund of security is recalled. The Plaintiffs shall be entitled to costs of Rs.3,000 (Rupees three thousand) in respect of this Application. A.A./C‑12/K Suit restored