P L D 1971 Quetta 77 (PLP)

4. The learned District Judge, who dismissed the restora tion application, has held that the application was governed by Article 163 of the Schedule to the Limitation Act. This Article reads as follows:

163. By a plaintiff for an order to set aside a dismissal for default of appearance or for failure to pay costs of service of process or to furnish security of costs. Thirty days. The date of the dismissal. The restoration application was admittedly filed more than 30 days after the dismissal of the appellant's suit, and as Mr. Munawar also admitted that the appellant could not rely .on section 5 of the Limitation Act in support of this restoration application, the appellant can succeed only if he can establish that his restoration application did not fall under Article

163. Here I may point out that both the learned counsel stated that this Article was applicable only to applications under Order IX, rule 9, C. P. C., therefore, to get round the bar of limitation, Mr. Munawar submitted that the appellant's restoration application was under section

151. C. P. C., whilst, according to Mr. Basharatullah, it was, and could only be, under Order IX, rule 9, C. P. C.

5. Order IX, rule 9, C. P. C. states that when a suit is dismissed under rule 8 the plaintiff " may apply for an order to set the dismissal aside" and rule 8, which is relevant to the arguments of the learned counsel, in so far as it is relevant, reads as follows:‑ "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed . . . . . . " As the suit was fixed for hearing on 27‑6‑1966, the day when it was dismissed, the only question is whether, in view of the presence of Mr. Riazul Hassan, the appellant's Advocate, it can be said that the appellant had not appeared in Court on that day. It is true that the notice of the Court had required the appellant's presence for the purpose of giving evidence, and this was obviously something Mr. Riazul Hassan could not do on the appellant's behalf. But, on the other hand, Order 111, rule 1 expressly states: "

1. Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person." The provisions of Order V with regard to appearance by defendants are, similar, therefore Mr. Munawar submitted that Order IX, rule 8 was attracted only when the plaintiff and his Advocate were both absent and that, as on 26th June 1966 the appellant's then Advocate Mr. Riazul Hassan was present in Court, it could not be said that the suit had been dismissed under Order IX, rule 8, C. P. C.

6. Mr. Basharatullah admitted that a plaintiff can enter appearance through an Advocate, but he submitted that appearance by an Advocate meant appearance by an Advocate who was properly instructed by the plaintiff; and in support of his sub mission learned counsel referred me to a judgment of the Bombay High Court in Basalingappa v. Shidramappa Shivanagi (A I R 1943 Bom. 321) in which a Division Bench of that Court observed at page 322: "The question as to whether the defendant's Pleader cats be said to have appeared depends not upon his mere presence in Court but whether he was duly instructed in the matter before the Court . . . . . Whether a pleader is duly instructed is a question of fact, but if he refused to take part in the trial on the ground that he has no instructions and withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte." Although the case cited had reference to the appearance of the defendant, the distinction is not material and I am in respectful agreement with the observations on which learned counsel relied; therefore the questions which arise in the instant case are whether Mr. Riazul Hassan was properly instructed on 27th June 1966 and whether he had withdrawn from the case. It is not disputed before me that Mr. Riazul Hassan had been appearing for the appellant for a long time in the suit under appeal and in the connected suits, and it is also not denied that the appellant's vakalatnama in his favour was valid and subsisting on 27th June 1966. In these circumstances, it is difficult to see how it can be said that he was not duly instructed by the appellant for the hearing on 27th June 1966. It is true that he was not able to proceed with the case, but that was because the case had been fixed for the appellant's evidence, and no Advocate can give evidence on behalf of his client. However, Mr. Basharatullah submitted that the terms of the adjournment application filed by Mr. Riazul Hassan on 27th June 1966, and the subsequent allegations of the appellant against him clearly indicated that Mr. Riazul Hassan had withdrawn from the case.

7. As to the adjournment application, after referring to the fact that his letter to the appellant had been returned by the postal authorities with the endorsement "refused", Mr. Riazul Hassan has further stated: "Under the circumstances, I am unable to state anything on behalf of the plaintiff. If the Court considers it expedient a date may be given so that I may further contact my clients" so the appellant's suit was fixed on 27th June 1966, for his evidence, Mr. Riazul Hassan's state ment that he was unable to say anything obviously referred to his inability to give evidence on behalf of his client and I cannot treat this statement as a plea of no instructions. As to the second sentence on which Mr. Basharatullah relied, I have already said that Mr. Riazul Hassan had made a half hearted attempt to get an adjournment. But does this mean that he was pleading no instructions? As the record of the case shows that the appellant had taken many adjournments, it seems to me that Mr. Riazul Hassan might well have been embarrassed in asking for an adjournment which he thought was an abuse of the indulgence of the Court; therefore again I cannot treat his request for an adjournment as tantamount to a plea of no instructions. Finally, as the plea of the appellant in his restoration application was that Mr. Riazul Hassan had not informed him that the Court had fixed the hearing of the suit on 27th June 1966, Mr. Basharatullah thought that this was a piece of evidence which showed that Mr. Riazul Hassan had withdrawn form the case. I am not able to accept this argument. In the first place, the appellant has to prove his allegations against Mr. Riazul Hassan. Secondly, the fact that Mr. Riazul Hassan wrote to him at an incorrect address may have been dud to a bona fide mistake, therefore even on the assumption that Mr. Riazul Hassan had not informed the appellant of the hearing fixed by the Court, this does not mean that Mr. Riazul Hassan wanted to withdraw from the suit.

8. Mr. Basharatullah then referred to the adjournments taken by the appellant in the suit and submitted that it would be an abuse of the process of the Court to permit such a litigant to file a restoration application. Learned counsel's objection is premature. He will be entitled to advance this argument when the restoration application is heard. But merely because of the past delays of the appellant, it cannot be said that his application was not fit to be admitted.

9. In the result, I accept Mr. Munawar's argument that as Mr. Riazul Hassan was present in Court on 27th June 1966, the appellant's suit could not be dismissed under Order IX, rule 8, C. P. C., Mr. Basharatullah then feebly submitted that the suit could not have been dismissed under any other provision, but Order XVII, rule 2 authorises the Court "to dispose of the suit in the modes directed in that behalf by Order IX or make such other order as it thinks fit". Therefore the Court had ample power to dismiss the suit otherwise than under Order IX.

10. The result of this discussion is that, as the appellant's case does not fall under Order IX, rule 9, C. P. C., he is entitled) to invoke the inherent power of the Court under section 151, C. P. C., provided he makes out a case for the exercise of that jurisdiction. As observed by Kaikaus, J. in Ghulam Muhammad v. Mst. Sahisban (P L D 1957 Lah. 624): "There is always inherent jurisdiction in a Court to grant hear ing to a party in respect of an order passed in his absence if there was sufficient cause for non‑appearance. There is inherent jurisdiction to set aside ex parte orders in cases not covered by the different rules or Order IX. In the exercise of inherent jurisdiction the Court can pass all orders which justice demands should be passed unless the power of Court has been limited by a specific section or rule. This power existed in the civil Court by virtue of the fact that it had jurisdiction to decide disputes as to civil rights before the Civil P. C., was enacted and is not the creation of that Code. Only it is now subject to the provisions of the Code. I am in respectful agreement with this view, and as the appellant's claim is not in any way contrary to the provisions of the Civil Procedure Code, I hold that he was entitled, in the circumstances discussed, to invoke the inherent powers of this Court in support of his restoration application. It is admitted before me that such an application does not fall under Article 163, but that it can only fall under the residuary Article 181 which provides a period of limitation of three years; therefore the restoration application was within time, and the learned District Judge erred in dismissing it as time‑barred.

11. The appeal is allowed and the case is remanded to the learned District Judge so that he may hear and decide the appellant's restoration application according to law. In the cir cumstances of the case I leave the parties to bear their own costs. S. Q. Appeal Allowed.