2005 PLP 1014 (SCMR)

Laws Cited

Representation

• Mian Fazl-e-Mehmood, Senior Advocate Supreme Court, M. Raza Kazim, Senior Advocate Supreme Coon Syed Iftikhar Hussain Shah, Advocate Supreme Court. Ch Mehdi Khan Mehtab, Advocate-on -Record for Petitioners. (Petitioner No.1 (in person).
• Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court with M.A Zaidi, Advocate-on-Record for Respondents.
• Date of hearing: 5th November, 2004.
• Mian Fazl‑e‑Mehmood, Senior Advocate Supreme Court, M. Raza Kazim, Senior Advocate Supreme Coon Syed Iftikhar Hussain Shah, Advocate Supreme Court. Ch Mehdi Khan Mehtab, Advocate‑on -Record for Petitioners. (Petitioner No.1 (in person).
• Syed Najam‑ul‑Hassan Kazmi, Advocate Supreme Court with M.A Zaidi, Advocate‑on‑Record for Respondents.
• 5. Case was taken up for hearing on 11th October, 2004 when Mr. M. Raza Kazim, Senior Advocate Supreme Court appeared and argued that case on behalf of petitioners, during course whereof, he was asked to show the bona fides of the petitioners towards discharging their liability, if finally they are adjudged to make the payment of decretal amount as guarantors. He after having taken instructions stated that petitioners have agreed to deposit Rs.20 millions (two crore) in the Court subject to decision of instant petition for leave to appeal and to do the needful time was sought up to 21st October, 2004. Keeping in view the facts and circumstances of the case, following order was passed on 11th October, 2004:‑‑‑
• Surprisingly, instead of complying with the above order, petitioner through Messrs Mian Fazl‑e‑Mehmood, Senior Advocate Supreme Court and Syed Iftikhar Hussain Shah, Advocate Supreme Court as well as Ch. Muhammad Akram, Advocate‑on‑Record filed an application under Order XXXIII, rule 6 of the Supreme Court Rules, 1980, on behalf of petitioner No.2, contending therein that Mr. M. Raza Kazim, Senior Advocate Supreme Court had, at no stage, contacted petitioner No.2 for obtaining her consent or her instructions in this behalf. Notice of this application was given to the respondents as well as to Mr. M. Raza Kazim, Senior Advocate Supreme Court to appear in person and file reply. Accordingly, reply of the application has been filed on behalf of respondent No.1 and by Mr. M. Raza Kazim, learned Senior Advocate Supreme Court. Contents of his reply read as under thus:‑‑‑
• Senior Advocate Supreme Court.
• During arguments he confirmed that he had contacted petitioner No. 1, and on his instructions, statement was made by him under the bona fide impression that petitioner No. 1, who is also one of the Directors of the Company, is authorized to make statement on behalf of remaining petitioners i.e. No.2 and 3, as well. Petitioner No.1 Mian Aftab A. Sheikh has not denied conveying of instructions to Mr. M. Raza Kazim, Senior Advocate Supreme Court to make statement for the deposit of Rs.20 million in the Court before 21st October, 2004.
• 6. It may be noted that perusal of record suggest to hold that petitioner No.1 Mian Aftab Sheikh had been conducting proceedings on behalf of petitioners Nos.2 and 3 as well. Reference in this behalf may be made to the application filed by the petitioners for leave to appear and defend the suit dated 17th March, 1999. We fail to understand that if the petitioners had not given any instructions to Mr. M. Raza Kazim, Senior Advocate Supreme Court why he would make a statement before the Court to deposit Rs.20 million, with a view to show their bona fides to discharge their liabilities.
• 7. It is also important to note that Mr. M. Raza Kazim, learned Senior Advocate Supreme Court got adjourned the case for a short time on 11th October 2004 and when after some time, hearing of the case resumed, he made statement about deposit of Rs.20 million. Thus the statement made by the counsel for petitioners being correct and true is bound to be accepted and cannot be disbelieved for the reason that petitioners later on had backed out from their statement and had taken a different stand, and if such practice is allowed to prevail, there would be no end to litigation.
• 8. Learned counsel appearing for respondents has also supported the version of Mr. M. Raza Kazim, Senior Advocate Supreme Court in respect of his statement, which he made on 11th October, 2004. Therefore, we are of the opinion that petitioners were bound to comply with the order, dated 11th October, 2004 in letter and spirit and on account of non‑compliance of the same, petition deserves to be dismissed.
• 9. Besides above, on account of non‑compliance of the order by the petitioner No. 1, under whose instructions, Mr. M. Raza Kazim, Senior Advocate Supreme Court gave an undertaking to the Court about the deposit of Rs.20 million before the next date of hearing, he is also liable to be proceeded against for contempt of Court because we are of the considered opinion that if strict action is not taken, then no individual litigant would ever care about the Court proceedings, particularly in the implementation of undertakings being given in the Court.
• 9‑A. Now we have also to see as to whether the order, dated 11th October, 2004 can be recalled in view of the application moved by the petitioner No.2 Mrs. Nasrin Aftab. In this behalf it is to be noted that Order XXXIII rule 6 of the Supreme Court Rules, 1980 under which application has been moved, confers inherent powers upon the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Admittedly, the order, dated 11th October, 2004 is not the result of abuse of process of the Court nor it is in the interest of justice to recall the said order, for the reasons mentioned above. In addition to above, ordinarily, inherent powers are exercised when no provision of law is available to cater the situation, whereas in instant case, if at all petitioners were aggrieved of the order, dated 11th October, 2004, they should have filed a review petition in terms of Article 188 of the Constitution of Islamic Republic of Pakistan read with Order XXVI of the Supreme Court Rules, 1980 but the petitioners intentionally did not file review petition because it was not possible for their counsel i.e. Mr. M. Raza Kazim, Senior Advocate Supreme Court to resile from the statement which he had made before the Court.
• 11. As far as merits of the case are concerned, we have also examined the same, which indicates that no indulgence can be shown in this behalf as well, because their application under section 10 of the Banking Companies (Recovery of Loans, Advocates, Credits and Finances) Act, 1997 was dismissed on 27th July, 1999, as they failed to make out a case for leave to appear and defend the suit. Similarly, application moved by them under section 12(2), C.P.C. was also dismissed on 26th July. 1999. Learned High Court, in appeal, on having taking into consideration respective contentions raised on behalf of the petitioners, declined to interfere in the judgment of the trial Court in pursuance whereof decree was passed.

Headnotes / Summary

Judgment & Decree