P L D 1996 Karachi 164 (PLP)

In this C.M.A. which is filed on 10‑1‑1994 the plaintiff has prayed that order 6‑4‑1993 may be set aside and suit be restored for decision on merits This application is supported by affidavit filed by Dr. Izhar Fatima, the plaintiff. The relevant and actual contents of the affidavit are as follows:‑‑ "(2) That the accompanying application under Order 9, Rule 9 read with section 151, C.P.C. has been drafted under my express instructions, and I crave' leave of this honorable Court to deem its contents as a part of this affidavit. (3) That I say that whatever stated in the said application is true an correct. (4) That unless the prayer in the accompanied application is, granted, shall be seriously prejudiced, ‑‑and shall suffer irreparable loss an injury.

2. This C.M.A. is opposed by Abdul Ghaffar, the attorney of defendant Nos.6 and

7. The relevant paragraphs of the counter‑affidavit are reproduce as under :‑‑ "That the contention raised in para. 3 of the affidavit is untenable b law and baseless, as per the advice received by me which is verily believed by me to be correct. it is submitted that the said objections o the defendants against the impugned Award, are not an interlocutor application in any suit and it was, as a matter of fact and in striking against the very root of the Award and the application file under section 14 of the Arbitration Act, 1940 which was registered ‑a Suit No.687 of 1986. As such the order dated 6‑4‑1993 dismissing the said suit under Order 9, Rule 8, C.P.C. is a legal and proper one Furthermore the said application under Order, 9, Rule 9, C.P.C. grossly time barred." (5) That the contentions made in para. 4 of the affidavit are not on], misleading and mala fide but the same are also misconceived in law. As such the said application, being frivolous, mala fide, not maintainable in law and time‑barred, is liable to be dismissed with cost. As such the said application, being frivolous, mala fide, nor maintainable in law and time-barred, is liable to be dismissed with cost

3. I have heard Mr. Dewan Bashir Ahmed who has contended that when the case was called out no person from the side of plaintiff was present and the suit was dismissed under Order 9, Rule 8, C.P.C.

4. That the matter was fixed for hearing of C.MA No.1622/92, and objections to award filed by the defendant and for non‑prosecution the C.MA and objections could have been disposed of only and not the suit. That the plaintiff is a lady and not aware of the date and absence was not bona, fide.

5. Mr. KB. Bhutto has contended that objections of the defendant against the impugned award were not an interlocutory application in suit and were as a latter of fact and in law striking against the way very root of the award and application filed under section 14 of the Arbitration Act, 1940 was registered as a Suit No.687/86; that order dated 6‑4‑1993 is a legal and proper one; that the C.M.A. being frivolous, mala fide, not maintainable in law and time‑barred is liable to be dismissed with costs.

6. In this matter the award by the learned Arbitrator was presented in office on 14th October 1986 and this Court on 16‑10‑1986 passed the following order;‑‑ plaintiff with her counsel Mr. Qamar Muhammad Khan. Defendant with his counsel Mr. SA Kirmani

1. Granted

2. It is an application under section 17 of the Arbitration Act, 1940 signed by the parties as well as their counsel for making the Award ride of the Court. The Award has been filed on 14‑10‑1986 and is accepted by the parties. The application is granted. The Award is made rule of the Court, in so far as it concerns the parties. (Sd.) Judge.‑

7. Against this order J.M. No.8/89 was allowed by this Court vide order dated 9‑44991 with the observation as under:‑‑ I have considered the submissions of the learned counsel. As stated Mr. KB. Bhutto and borne out by the record in Suit No.687/86, it clear that the defendant had died on 8‑10‑1986 whereas the application under section 14 of the Arbitration Act was made on 10‑1986 and also that no notice of this application or the subsequent application of the plaintiff made under Rule 110, Sindh of Court Rules (O.S.) was issued to the defendant but on 16‑10‑1986 some person claimed to be the defendant appeared in the Court and gave consent for making the award rule of the Court. This obviously is committing fraud and making misrepresentation with regard to proceedings in the suit. No doubt it is a settled law that section 12(2), C.P.C. would not be applicable where the fraud or mis representation is claimed with regard to actual facts but the provisions of this section would certainly be applicable where the fraud or mis representation is alleged and shown to have been committed with regard to proceedings in the matter. As observed above in the present case, the applicants have sufficiently shown that the fraud has been played with regard to proceedings in the suit. I would, therefore, allow this application and set aside the decree passed in the suit on 5‑4‑1987 whereby the award was decreed as rule of the Court. However, the suit will proceed from the stage the application under section 14 of the Arbitration Act was moved of which roper notice will issue to the concerned parties. It will be open age present applicants to make application to be joined in suit being legal representatives of the defendant. There will be no order as to costs. (Sd.) Judge.

8. Against this order plaintiff Dr. Izhar Fatima filed the appeal and the learned D.B. of this Court in High Court Appeal No.85/91 passed the order on 2‑10‑1991 which reads as follows:‑‑ "It is, however, admitted that defendant Muhammad son of Umar was already dead when the order dated 16‑10‑1986 was passed showing that the parties including the defendant had signed the application and had no objection to the award. The plaintiff may not have been aware of the death of the defendant on 8‑10‑1986 at the time the proceedings took place on 15th and 16th October 1986, but the fact remains that the defendant had already died on 8‑10‑1986. Without notice to the legal heirs of deceased defendant, the award could not have been made a rule of the Court. Admittedly, neither the respondents Nos.2 to 5 (legal heirs of deceased, defendants were made parties to the proceedings nor any notice was issued to them. If the Court had been informed that the defendant was already dead, the Court would not have made the award rule of the Court without issuing notice to the legal heirs of deceased defendant. The Court was wrongly informed on 1.6‑10‑1986 that the defendant had signed the application under section 17 of the Arbitration Act and there was also a wrong statement about the presence of the defendant before the Court on 16‑10‑1986, as the defendant had already died earlier on 8‑10‑1986. In the circumstances, the learned Single Judge rightly allowed the application under section 12(2), C.P.C. setting aside the judgment and abductee."

9. In this background, of the litigation the Court passed order dated 6‑4‑1993.

10. Mr. Dewan Bashir Ahmed has referred the following case‑laws:‑‑ (1) 1973 SCMR 103 Syed Nasir Hussain Shah v. Allah Ditta. The Honourable Supreme Court has held as follows:‑‑ "Suit dismissed for default on date not fixed for hearing ‑‑‑ Suit, held, could not be dismissed in absentia and restoration rightly ordered by trial Judge." Whereas suit in hand was fixed for hearing and the learned Judge in absence of the plaintiff and his 'counsel dismissed the suit. (2) PLD 1972 SC W M. Imamuddin Janjua,'v. The Authority. Thal Development The rule laid down by the Honourable Supreme Court is as follows:‑‑ "It is no doubt, true that parties to an arbitration agreement can also by consent modify an award, but this does not mean that they can waive the statutory requirements of the Limitation Act. There can be no kind of estoppel against a statute, particularly where the question of limitation is involved, for section 3 of the Limitation Act clearly enjoins upon the Court that every suit appeal or application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed although limitation has not been set up as a defence." The contention, therefore, that since the opposite‑party had consented to the withdrawal of the application with permission to file a fresh application amounted to an estoppel, had no force." (3) 1993 SCMR 1940 Qazi Muhammad Tariq,v. Hasin Jahan and 3 others. The Honourable Supreme Court observed a s under.‑‑ 'Suit dismissed for default on date not fixed for hearing ‑‑‑ Suit, held, could not be dismissed in absentia and restoration rightly ordered by trial Judge." Whereas suit in hand was fixed for hearing and the learned Judge in absence of the plaintiff and his counsel dismissed the suit. (2) PLD 1972 SC 123 M. Imamuddin Janjua v. The Thal Development Authority. The rule laid down by the Honourable Supreme Court is as follows:‑‑ "It is, no doubt true that parties to an arbitration agreement can also by consent modify an award, but this does not mean that they can waive the statutory requirements of the Limitation Act. There can be no kind of estoppel against a statute, particularly where the question of limitation is involved, for section 3 of the Limitation Act clearly enjoins upon the Court that every suit, appeal or application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed "although limitation has not been set up as a defence". The contention, therefore, that since the opposite‑party had consented to the withdrawal of the application with permission to file a fresh application amounted to an estoppel, had no force." (3) 1993 SCMR 1949 Qazi Muhammad Tariq v. Hasin Jahan and 3 others. The Honourable Supreme Court observed as under:‑ A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application of temporary injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for ‑ temporary function. It could not proceed beyond that and dismiss I the suit as well."

4. PLD 1979 Kar. 635 Karachi Shipyard and Engineering Works Ltd. v, Muhammad Aslam. Khan The petitioner brought the application under section 8 of the Arbitration Act on 18‑8‑1977 seeking appointment of an Arbitrator to decide the suit between the parties. Zaffar Hussain Mir J. (as his lordship then a was) held as follows:‑‑ "The right to apply under section 8 clearly arises upon the failure of the other parties to appoint the arbitrator within 15 clear days after the service of such notice. It is, therefore, clear to me that the effect of A the language employed as to the time when the right to apply accrues in the two sections is materially different. In my humble opinion this distinction has been clearly mentioned in the cited passage into the t Supreme Court judgment. The commencement of the period of limitation for an application under section 8 cannot, therefore, be related to the point of time when differences arise between the parties." (5) 1992 SCMR 917 Tanveer Jamshed and another v. Raja Ghulam Haider. My lord Sajad Ali Shah, J. has held as under:‑‑ "Appeal before High Court to be filed within thirty days ‑‑‑ Time barred appeal by about eight months which time was spent in pursuing appeal in wrong forum ‑‑‑ Such time could not be excluded on the ground of legal advice where mistake was neither bona fide nor was unavoidable after acting within limits of diligence ‑‑‑ Appeal being time‑barred was dismissed." The case‑law cited here to above by Mr. Dewan Bashir is different and distinguishable from the facts of the present case. As such is not helpful to the case of the plaintiff.

11. Mr. K.B. Bhutto has referred to an unreported authority of this Court (1) Civil Revision No.314/88 Bhooralal v. MA. Ansari and another. (2) 1981 SCMR 212 Sher Muhammad v. Said Muhammad Shah. It was held by the Honourable Supreme Court:‑‑ "It was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learnt of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay." 1974 SCMR 162 Zulfiqar Ali v. Lal Din and another It was held by the Honourable Supreme Court that:‑. "The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side." (4) 1995 SCMR 1419 Mst. Nadira Shahzad v. Mubashir Ahmed and others. My lord Ajmal Mian, J. has held as under:‑‑ "The grounds disclosed by respondent No.1 in the above‑quoted paras3 and 4 of the application under Rule 22 of the Rules lack material particulars as to the date when respondent No.1 left for abroad, as to the date of his return etc. He was supposed to give justifiable reason for the delay of each day, which he failed to do." (5) PLD 1995 SC 396 Government of the Punjab through Secretary Services, General Administration and Information Department, Lahore and another v. Muhammad Saleem. My lord Saleem Akhtar, J. has held as under:‑‑ "In the present case, the High Court gave good reasons for declining to condone the delay. It held that the ground taken by the appellants in their application under section 5 of the Limitation Act that they could not file the appeal within time as they had entered into correspondence with litigating departments and the Solicitor was quite vague and reliance was also placed on a judgment of this Court reported in 1990 SCMR 1059 wherein it was held that "It is a well- settled principle of law that under section 5 of the Limitation Act, delay of each day is to be explained" and further that, the Government cannot be treated differently that a private litigant on the question of limitation under section 5 of the Limitation Act. Discretion exercised by the High Court proceeded on correct appreciation of factual and legal position. It, therefore, does not call for any interference by this Court." (6)1995 CLC 461 Kar. Messrs Ciba‑Geigy (Pak.) Ltd. v. Muhammad Safdar. My learned sister, Majida Razvi, J. has held as under:‑‑ "It may be pointed out here that under Article 163 of the Limitation Act, the petition for filing an application to set aside an order dismissing a suit for default of appearance of the plaintiff is thirty days."

12. I would like to refer the case of Honourable Supreme Court (1970 SCMR 76) Muhammad Sharif Khan and 4 others v. Board of Revenue. The Honourable Supreme Court has been pleased to hold as under:‑‑ "We are not prepared to accept that a client's responsibility ceases after he has briefed a counsel to appear on his behalf, it is his duty to keep in touch with his counsel and to find out the progress of his matter. If he cannot go personally, it is his duty to make proper arrangements for timely information to be conveyed to him by either the counsel or his clerk."

13. The order passed in the J.M. 8/89 was agitated before D.B. In H.C.A. 85/81 filed by Izhar Fatima after dismissal of the H.C.A. The parties were represented through their counsel and were attending the Court when order‑dated 6‑4‑1993 referred to above was passed. I would like to reproduce Order 9, Rule 8, C.P.C. which reads as under:‑‑ "

8. Procedure there defendant only appears .‑‑ 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, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder."

14. The contention of Mr. Dewan Bashir is that the matter was fixed for hearing of C.M.A. No.1622/92 and objections to the award filed by the defendant and for non‑prosecution two (C.M.As and objection to award) could have been disposed of only and not the entire suit is not tenable. The reading of Order 9, Rule 8, C.P.C. referred to above is that where defendant appears and plaintiff does not appear when the suit is called for hearing the Court shall make an order that the suit be dismissed, unless defendant admits the claim. The use of word "shall" further provides unless the defendant admits the claim. Here in this matter defendant had not admitted claim of the plaintiff. The defendants filed objection to the award plaintiff her counsel being absent there was no other option left to the Court except to dismiss the suit itself.

15. It would be pertinent to refer Order 9, Rule 9, C.P.C. which reads as under:‑‑ "

9. Decree against plaintiff by default bars fresh suit.‑‑(I) Where, a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he. may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non‑appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."

16. The contention that the plaintiff is a lady and was not aware of date is untenable; that absence was wilful and deliberate. Admittedly-suit was dismissed for non‑prosecution on 6th April 19931 and this C.M.A. was filed 9 months after the order i.e. on 10‑1‑1994. Apart from the authorities referred here to above the reading of Order 9 Rule 9 is' clear, in my humble view plaintiff has not been able to submit sufficient cause A to non‑appearance when the suit was called for hearing. I have gone through the material place with the matter and have also considered the case‑law cited by the parties and have come to the conclusion that no sufficient cause for restoration of the suit is made out and there is no substance in the application which otherwise hopelessly is time‑barred, consequently same is dismissed with no order as to costs. C.M.A. No.5318/94:

1. Mr. Dewan Bashir has contended that Article 163 of the Limitation Act applies to suit only and not to arbitration proceedings.

2. That there is no limitation period prescribed for restoration of arbitration suit and as such residuary Article 181 of Limitation Act will apply in which period is of 3 years; that plaintiff is a lady and was not informed by her counsel about the impugned order. She only came to know in the first week of January, 1994 and immediately application dated 10‑1‑1994, referred here to above was filed for setting aside the impugned order; that inquiry was made for a long time but learned counsel for the plaintiff did not inform her about the proceedings of the case.

3. C.M.A. No.5318/94 has been filed with a prayer that delay if any in filing application under Order 9, Rule 9, C.P.C. may be condoned and the case be decided on merits,

4. In support of this application, affidavit of Izhar Fatima is filed, C.M.A. is opposed and counter-affidavit to this application is filed by Abdul Ghafoor son of Abdul Sattar attorney of defendants Nos.6 and

7. Mr. K.B. Bhutto has contended that application under Order 9, Rule 8, C.P.C. (C.M.A. 102/94) has been filed after about 9 months of the order dated 6‑4‑1993 without application for condonation of delay, that the instant application (C.M.A. 5318/94) is filed, on 25th October, 1994 (i.e. after about 18 months); that the plaintiff has raised contradictory contentions as to the period of limitation for setting aside the said order; that no explanation has been given by the plaintiff for her absence on the date of hearing dated 6‑4‑1993 in her both application i.e. under Order 9, Rule 9, C.P.C. and under section 5 of the Limitation Act; that plaintiff has shifted the blame of her absence upon her learned counsel so as to get scot free from her own legal obligations to attend her suit; that there, is no explanation of absence of the plaintiffs learned counsel for the . above date of hearing. 5. 1 have heard the learned counsel of the parties at length and have I gone through the material placed with the matter. As pointed out earlier hereinabove in C.M.A. No.102/94 was filed after about 9 months of the order dated 6‑4‑1993 and no sufficient cause for non‑appearance has been shown. This application was filed on 25‑10‑1994 (i.e. after about 18 months) from the date of order and the plaintiff has miserably failed to submit reasonable cause for non‑appearance or for condonation of delay. Application hopelessly is time‑barred, in view of the order in C.M.A. No.102 of 1994 this C.M.A. has become in fructuous and consequently is dismissed with no order as to costs. AA./I‑260/K Application dismissed.