1998 PLP 150 (MLD)

It was, thus, strange for me to note that introduction of the sub-rule in the year 1990 remained 'out of sight from a Senior District Judge, Karachi. It is also not known why the Appellate Court referred provision of section 5 of the Limitation Act in the impugned order particularly when there was no such application before the learned Judge for condonation of delay, if any. This aspect has demolished the sanctity of the impugned order to large extent notwithstanding to this fact whether the Advocate for the appellant should have moved any such application or not.

6. The circumstances, in which the order of dismissal of appeal on 6th July, 1994 was passed, are of great importance. Hence it shall be proper to bring into light the order passed by the Appellate Court on 6-7-1994 which was the subject-matter of the impugned order. The said order runs as under:- "On Ist call, Mr. Abbas Ali, Advocate for respondent No. 2 and Mr. Syed Irtiza Hussain counsel for respondent No. 1 are present. None present on behalf of the appellants. On second call, an application for adjournment was moved on the ground that Mr. Syed Jamil Ahmed, counsel for appellants is busy before the Hon'ble High Court, as such the matter was kept at 2.30 p.m. On third call at 2-30 p.m. another application was moved for adjournment on the ground that due to heavy rain in the city and failure of the electricity, the counsel is not attending the chamber. Two applications have been moved for adjournment on contradictory grounds. The counsel for the respondents have opposed the adjournment applications on the ground that right from December, 1993, till date the appellant is seeking adjournments on one or the other grounds. If the counsel for the appellants is not attending the chamber, the application should, have been moved on this ground earlier. The adjournments are being sought by the learned counsel for the appellants on one or the other ground since 2-12-1993. This shows the conduct of the appellant, that he is not interested in prosecuting his appeal. The application for adjournment have no merits, I, therefore, dismissed the same, and dismissed the appeal under Order 41, rule 17, C.P.C. with cost." It was, in these circumstances and the background that, the learned advocates for the appellant first moved an application for certified copy of the above order on the very next day and after obtaining its copy on 20-7-1994 filed an application under Order 41, rule 19, C.P.C., by considering it proper path or the only forum. From the R & P it appears that several newspapers were brought on record which contained the news of heavy rains on their first page. The Daily Jang, Karachi gave this news in 5 columns on the first page in its issue of 6th July, 1995, as under: These are only headlines but the detailed news of that day is more horrible when the learned Judge dismissed the appeal for non-prosecution. It is important to point out that the rains continued for weeks and till July 18, 1994 they had completely paralysed Karachi. Civic bodies had failed to provide relief to the rain victims. Electricity and water sewerage systems were particularly in the worst shape. These rains had played havoc with human-life which can be realised from the news of Daily Star, Karachi in its issue of July 18, 1994 with the following 8 columns news on its front page. "Death Toll 55; Economic Loss Rs.35 Bn; Rain Ravages." Similarly several other Newspapers such as Daily Mashriq, Karachi, Daily Aghaz, Karachi, were also brought on record in support of that application.

7. In these circumstances orders of dismissal of appeal under Order 41, rule 17, C.P.C. (and particularly with cost) passed on 6-7-1994 could not be expected from Mr. Shabbir Ahmed, on account of his being a Senior District Judge of Sindh, especially by holding that: "This shows the conduct of the appellant that he (means the learned counsel for the appellant) is not interested in prosecuting his appeal. This application for adjournment has no merits. " If such grounds as mentioned in the applications had no merits in the light of havoc of rains, then I am afraid that no other ground could be so effective to satisfy the learned District Judge to adjourn the matter. Similarly the words "contradictory grounds" used in the order dated 6-7-1994 appear to be totally misconceived because the first application had been moved on the ground that the learned Advocate was busy before the Hon'ble High Court. Cause list of the High Court dated 6th July, 1994 shows that the learned advocates had to proceed before the learned Justice Mrs. Majida Razvi in Suit No. 425 of 1994 with date by Court. This ground was, perhaps, not sufficient for the learned District Judge to-adjourn the matter because the said application was not disposed of and the matter was kept to be taken at 2-30 p.m. This conduct was surprising for me. But for what purpose the matter was put to be taken at 2-30 p.m? Whether to hear the appeal or to pass any order on application for adjournment? Nothing is clear from the said order. Another application was moved by the learned Advocate at 12-15 hours when he came to know that the matter was being kept by the learned District Judge to be taken at 2-30 p.m. Adjournment, in this application was sought on the ground that due to heavy rains in the city and failure of the electricity the counsel was not attending the chamber. None of the two grounds mentioned in the two applications was based on falsehood on the face of record, therefore, they could not be labelled as "contradictory grounds". Similarly it is not necessary that an adjournment application should contain all the grounds. There is much difference between an "adjournment application" and the "plaint of suit". It cannot be expected from the Court to reject an adjournment application as is done with the suits under Order 2, rule 2, C.P.C. If the learned advocate for the appellant had not been free from the High Court then first application moved by the learned Advocate for adjournment was more than sufficient to adjourn the matter. It was his cautiousness that he came back and moved the second adjournment application on another ground. I think that learned District Judge might be fully aware of the difference between the expressions "different grounds" and " contradictory grounds" and, therefore, I need not to elaborate this aspect anymore. However, in this regard, I would like to refer the case of Muhammad Saeed v. Manzoor Ahmed reported in 1992 CLC

961. In that case the appeal was dismissed for non-prosecution at 12-05 p.m. the first call in the appeal had been made at 10.00 a. m. Application was moved on the ground that the appellant was ill, hence he could not come from his village Chak Jhumra and his advocate was busy before some other Court. The Court rejected the plea for adjournment on the ground that the medical certificate appended by the appellant was incorrect as no date was mentioned on the certificate. Thus, reason was available to the Court to dismiss the application but the High Court treated such order arbitrary and accepted the appeal which had been dismissed at 12-05 p.m. In the present case, the application had been dismissed at 2-30 p.m. which was not proper especially when applications for adjournment before the Court were on most reasonable grounds as enlightened in the above lines. Regarding application of rule 17, Order XLI, C.P.C., it can be said that an appeal can be dismissed for default or for non-prosecution when an impression is created or statement is given by an Advocate for the appellant or on his behalf that he/she has no interest in the appeal. If any learned advocate for an appellant remains absent from the Court without any intimation then it can be presumed by the Court that no one, particularly the appellant, is interested in the appeal hence the same may be dismissed for non-prosecution under rule 17, Order XLI, C.P.C. However, I am of the view that if any advocate sends an application for adjournment or intimation to the Court that he/$he is unable to attend the Court on account of certain- reasons then such an Advocate is constructively present in-the shape of adjournment application or intimation due to which it cannot be presumed that he has no interest in the appeal. Therefore; such presumption of "no interest" in such circumstances would be baseless especially when the reasons mentioned in the requests for adjournment through application, intimation or by some other means are not based on falsehood. In the present case, position is the same as discussed above. Two adjournment applications were sent by the learned advocate for the appellant on two different grounds. Neither any of the grounds was based on falsehood nor they were unreasonable under the discussed circumstances. Therefore, presumption of the learned Appellate Court that the learned Advocate "was not interested in proceeding his appeal" was totally based on negative imagination which certainly amounts to exercising power in excess of jurisdiction and such an order can never attract Rule 17, Order XLI, C.P.C.

8. I think that there may be a specific category of advocates or Judges who are not exhausted even after 2-30 p.m and can proceed with Regular Appeals but every advocate and every Judge may not be having so much energy. For the best relationship between the bar and bench, it is necessary, that this important aspect be not ignored by any Court. I also believe that Mr. Abdul Hafeez Pirzada who is one of the Senior Advocates of our judiciary may not differ with reference to this aspect but, in spite of that, the learned counsel stressed that in the light of the past conduct of the learned Advocate for appellant, appeal had been fixed on 6-7-1994 for final hearing and, on account of the contrary grounds mentioned in the adjournment applications, the learned District Judge was justified to dismiss the appeal. It was also urged by the learned counsel that if the order of the learned District Judge is supposed to be bad in law in the light of the circumstances with reference to havoc of rains, even then the remedy was available to the appellant under Order 41, rule 19, C.P.C. and this remedy could be availed by him within 30 days under Article 168 of the Limitation Act. As the appellant had moved application after the expiry of 30 days without presenting any application under section 5 of the Limitation Act for condonation of delay, therefore application was barred under section 3 of the Limitation Act and the Court was left with no discretion to grant relief to the appellant under Order 41, rule 19, C.P.C. It is thus evident that contention of the learned Advocate is totally based on technicalities of law. I have no doubt in my mind that the learned Advocate advanced the most impressive arguments on technical grounds but in spite of all my praises for such averments I could not embrace the same on account of one technical point. Although the said point was not urged by any of the learned Advocates yet the Courts are not supposed to follow arguments of Advocates blindly if any law point is left from being argued deliberately or unintentionally. During perusal of the record it radiated that the learned counsel, instead of directly applying for restoration of appeal first moved an application for certified copy of the order dated 6-7-1995 on the very next day and obtained its copy on 20-7-1995 although it was ready on 18-7-1995. The questions which agitated my mind was whether the time requisite for obtaining certified copies has to be excluded for the purpose of period of limitation under section 12 of the Limitation Act when section 5 of the Limitation Act was fully applicable under sub-rule (2) to rule 19 of Order 41, C.P.C.? If the answer returns in the positive then, I am sorry to point out that the Appellate Court, the learned counsel for the appellant, the learned Advocate for respondent No. 2 (or Mr. Salim Zaki, as the case may be) and the learned Advocate for the K.D.A. too, did not pay their attention to this important factor. However duty of advocates is to assist the Court only. To do justice in accordance with law is duty of the Court no matter the advocates have assisted the Court on a specific point or not. Therefore, any order passed only on submissions of advocates by ignoring any provision of law not urged by them, according to my point of view, would) amount crucifixion of justice by a Supreme Court to set a very bad precedent fort the future. In case if section 5 of the Limitation Act is attracted for filing an application for restoration of appeal under Order 41, rule 19, C.P.C. then the time consumed for obtaining certified copy of the order of dismissal for default has to be excluded at the time of computing the period of limitation under section 12 of the same Act otherwise the purpose of introducing sub-rule (2) to rule 19, Order XLI, C.P.C. would become meaningless. In this regard I was fully influenced by and prevailed over by a judgment reported as Karachi Municipal Corporation v. M/s. Karimi & Co reported in PLD 1967 Karachi 537 decided by a Division Bench comprising of A.S. Faruqui and Abdul Kadir Shaikh, JJ. (as they then were). Although the said judgment was related to a certified letters patent appeal and not for restoration of appeal under Order 41, rule 19, C.P.C. yet the dictum laid down in that case attracts the present case also. In that case, question before the Division Bench was whether the time consumed for obtaining certified copy of 'the judgment/order could be excluded or not when it had been expressly stated that in an appeal under clause (10) of the Letters Patent, the memorandum of appeal need not be accompanied by a copy of the judgment, decree or order appealed from. There were conflicting views of different superior Courts. One view was expressed in a case reported as Abdul Karim v. Shaikh Muhammad (PLD 1966 B.J. 14 D.B). The said case was relied upon the case of Jogdhian v. Hussain (AIR 1935 Lahore 328) decided by a Full Bench but the case of Jogdhian (supra) was overruled by a subsequent Full Bench judgment consisting of 5 Judges of the Lahore High Court in the case of Punjab Cooperative Bank Ltd. Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. (AIR 1941 Lahore 257). By taking into consideration the conflicting views and several other judgments in the case of Karachi Municipal Corporation (supra) the Hon'ble Division Bench observed that: ......The fact that a copy of the judgment need not be accompanied is merely a facility which is permitted under the rule but it often becomes necessary for a counsel to examine the judgment before drafting the grounds of appeal. Therefore, when such a copy has been applied for it is difficult to see how the time taken in obtaining such copy is not to be excluded in computing the period of limitation, particularly when the rule itself provides that section 12 of the Limitation Act would apply." Although this judgment relates to 1966 yet the dictum laid down in it fully attracts the present appeal particularly after insertion of sub-rule (2) to rule 19, Order 41, C.P.C. which, according to my view, has completely changed the legal position of limitation period. If the time consumed in obtaining certified copies is not excluded in such cases then introduction of the sub-rule in reference would become purposeless. On the same proposition I am of the view that if an appeal has been dismissed on any ground by an Appellate Court and the concerned party applies for certified copy of the order to know the grounds of dismissal as well as to decide what steps be taken for redress against the dismissal then the time taken in obtaining such copy be excluded in computing the period of limitation. Accordingly, I have no hesitation to hold that the application for restoration of appeal filed before the learned District Judge was undoubtedly within time because, admittedly application for copy of the order dated 6-7-1995 was moved on 7-7-1995 and the same was obtained on 20-7-1994 although it was ready on 18-7-1994. Thus, application under 'Order 41, rule 19, C.P.C. could be filed by the learned counsel on/or before 17-8-1994, if the date of preparation of the copy is taken into consideration or on/before 19-8-1995 if the date of obtaining the copy is given more importance than the date of preparation of copy As the application under Order 41, rule 19, C.P.C. was filed on 11-8-1994 much before the expiry of limitation period hence the same cannot be treated as time- barred.

9. It is important to point out that the appeal in hand was admitted by this Court on 22-3-1,995 on the ground that on 6-7-1995 when the order of dismissal of appeal was passed by the First Appellate Court, an application under Order 39, rules 1 and 2 read with section

151. C.P.C. was still pending for hearing. Therefore dismissal of appeal was improper and void ab initio unless the Miscellaneous Application had been disposed of and on account of this reason the subsequent impugned orders were also void in the eyes of law. The learned counsel for Mr. Salim Zaki strongly attacked this plea by urging that there was no provision of any law in C.P.C. to put any such condition that without disposing of the pending miscellaneous applications, appeal could not be disposed of. The learned counsel stated that appeal could be dismissed for non-prosecution and the same was properly dismissed. No doubt there is no such provision of any law to put any such condition as contended by the learned Advocate but undoubtedly there are judgments of the superior Courts which support the contention of the learned Advocate for the appellant. In this regard it may not be out of place to refer the case of Pak Carpet Industries Limited v. Government of Sindh and 2 others, reported in 1993 CLC

334. This judgment was authored by my learned brother Salahuddin Mirza, J. Instead of giving the background of that case I would like to reproduce one para. of the judgment which seems to be relevant and runs as under:-- "A perusal of R & P of the Appellate Court shows that application under Order 41, rule 27, C.P.C. was moved by the plaintiff/appellant oil 9-7-1984 and notice for its hearing was ordered to be issued for 2-8-1984 and it was adjourned from time to time for one reason or the other and thereafter, perhaps due to inadvertence, it was forgotten and main appeal itself was heard and decided. This was extremely improper on the part of learned Appellate Court. Before hearing final arguments in a suit or an appeal, it is incumbent upon the Court first ensure that every miscellaneous application filed by any of the parties stands disposed of, notwithstanding the fact as to whether the party concerned presses it or not. If it is not pressed, it may be dismissed on that account but a specific order must be passed in that regard. Since this was not done to impugned appellate order dated 29-11-1987 is liable to be set aside. A reported judgment PLD 1976 Kar. 1075 (Haji Ibrahim v. Ismail) is not exactly on this point but failure of the lower Court in first disposing of a pending application while deciding the main suit was one of the grounds for setting aside the order of the lower Court. As such, the impugned appellate judgment is not maintainable on this ground. " (Underlining is my own). The referred case of Haji Ibrahim v. Ismail and 9 others (PLD 1976 Karachi 1075) in the above judgment was authored by Abdul Hafeez Memon, J. (as he then was and now the Acting Chief Justice of High Court of Sindh). In this case the subordinate Court had passed order on an application case without deciding the connected pending application. Hence the said order was set aside by the High Court with following pinching remarks for the learned Judge of the subordinate Court:-- ....It appears that the learned Judge adopted this method, in his anxiety to earn uits, but surely, this is not legitimate earning and the method adopted by him cannot be approved. For the aforesaid reasons, I allow this revision application and set aside the impugned order and remand the case to the Trial Judge for deciding afresh both the applications filed under Order I, rule 10, C.P.C. after hearing the parties or their counsel. The applications shall be decided by a Judge other than the judge who passed the impugned order." With profound respect for my learned brothers in Chamber I could not persuade myself to fall in full agreement with the views expressed in the above judgments. There may be dozen of applications alongwith the memo. of appeal but these applications should not be treated hurdle for disposing of an appeal finally. Hence the contention of the learned advocate for Mr. Salim Zaki has force in it. But at the same time I am of the view that when a Court is going to dispose of any appeal, it should dispose of all other pending miscellaneous applications too. Similarly it is my considered view that if an appeal has been admitted for regular hearing then effort be made by the Court to dispose. of the appeal on merits.

10. Keeping these propositions in my mind I perused the R & P of the Appellate Court which revealed that an application under Order 39, rules 1 and 2 read with section 151, C.P.C. was filed on 14-10-1993 alongwith supporting affidavit. The learned District Judge passed the following order on 16-6-1993 on this application: "Notice costs. Hearing on 23-10-1993." Counter-affidavit was filed on behalf of respondent No.2 on 2-12-1993. Then affidavit-in-rejoinder was filed by the appellant on 20-1-1994. Besides this application another application under Order 39, rule 7, C.P.C. read with Order XVIII, rule 18, C.P.C. was also filed on 20-1-1994 and notice was issued to the other side. Counter-affidavit on behalf of the respondent No.2 was submitted on 15-2-1994 and this application was disposed of on 19th day of March, 1994. But application under Order 39, rules 1 and 2, C.P.C. was never disposed of. The exercise of issuing notice on the said application, filing counter -affidavit by respondent No.2 and submitting of rejoinder-in-affidavit by the appellant cannot be treated an exercise in futility. In presence of these realities, the learned District Judge was bound to dispose of this application too alongwith the main appeal by passing specific order on that application, may be alongwith the disposal of the appeal if not prior to its dismissal.

11. Diary sheet dated 6-7:1994 also reveals that Mr. Abbas Ali, Advocate, for respondent No.2 and Mr. Syed Irtiza Hussain counsel for the respondent No. 1 were present before the Court on 6-7-1995 and they had opposed the adjournment. No doubt the learned Advocates had right to oppose the adjournment even in the prevailing condition of rains and its havoc. In these circumstances the learned District Judge could hear the learned Advocates for the respondents on all important issues raised in the appeal even at 2-30 p.m. if he was so interested to dispose of the appeal on that day and which needed no further evidence except that which was available in the record. After going through the R & P as well as the contents of the memo. of appeal filed before the Appellate Court, I have no hesitation to say that the appeal contained arguable points to be decided on merits. I am of the view that whenever an appeal is admitted and it contains arguable points then the Appellate Court should avoid from disposing of the appeal technically especially for non-prosecution because the law favours adjudications of rights of the parties on merits rather than disposal of the same in a summary manner or on technical grounds. Admittedly, this principle of natural justice was fully ignored at the time of passing order of dismissal of appeal on 6-7-1995 although there was no hurdle before the Court to decide the same on merits. It leaves me with no other alternative but to hold that passing any such order of dismissal in such havoc of rains by the learned District Judge was highly arbitrary which resulted in miscarriage of justice and failure to adjudicate the rights of the parties on merits. Such an order, in my view, was an order in excess of jurisdiction. The superior Courts are not supposed to leave the parties, particularly in such circumstances, at the mercy of discretion of Courts/exercised arbitrary to put a seal of legalization on the excesses of any Court by ignoring the important factors related to the circumstances

12. In the last but not the least, I would like to deal the legal status of Salim Zaki who appeared before this Court as attorney of respondent No.2 and objection was raised regarding his status. The respondent No.2 is an Educational and Welfare Society and it can be presumed from its name that the plot in dispute may have been allotted by the K.D.A. to the Society for starting some welfare work for the people or to promote education. Unfortunately it has become a trend of white-collared influential to obtain plots under the pretext to do welfare work and then sell the same to builders to construct commercial (last/centres to loot the public after looting the K.D.A. In the present case one Mr. Abdul Wahab Lakhani has executed "Irrevocable General Power of Attorney in favour of Mr. Salim Zaki, Proprietor of Saima Real Estate, for and in Society's name, to prepare building plans and get it approved from the concerned departments/authorities, to advertise and book bungalows villas, offices, etc. However, part, II of the said general power of attorney shows that power of sale, lease transfer or alienation of any nature, whatsoever, shall solely and exclusively remain with the Society. I was expecting that Mr. Muhammad Ibrahim Dasti the learned Advocate for the K.D.A would bring on his lips real purpose of allotment of more than 10,000 sq. yards piece of land in dispute but he remained mum or was mummed by the authorities of K.D.A. because he had to say, what he would be instructed or informed by the authorities. If the Judges of the Courts had been remote controlled computerised robots not to touch anything even if the same apparently appears to be illegal in the eyes of law, then I would have also not touched the same. Judges in capacity of citizens of Pakistan, are bound to protect interests of public whenever the same is disclosed to them and, in this respect their hands are not tied with the chains of technicalities. Therefore, they are not supposed to remain spectators if they sense something wrong in any matter. On account of this proposition it was not possible for me to ignore the issue regarding legal status of Salim Zaki so lightly. I, therefore, consider it necessary that the K.D.A. must bring on record all the facts about the terms and conditions for allotting such a big plot in dispute to respondent No.2. If the plot was allotted to the society for welfare purpose and the same is being used for commercial purposes then not only the K.D.A. is morally and legally bound to take all those possible steps in accordance to law to stop violations of terms and conditions even by demolishing all what has been constructed or is being contracted in violation of those terms and conditions of allotment, if the law so permits, but the Government of Sindh is also expected to take every action against all those officers who remained spectators over the violations or had illegally put a stamp of legalization on any such violation by respondent No.2. For the establishment of justice and setting an example for others the Courts are not supposed to remain silent over such issues. If anyone fears that due to such actions, the heaven would fall then let it fall if it falls on account of innocent crimes of curbing corruption of white collared influentials or for establishing justice and' protecting the rights of public.

13. In the light of above discussion I have no hesitation to observe about the impugned order that:-- "(a) The learned District Judge/Appellate Court passed the said order on visionary misconceptions by treating the application of restoration to be time-barred and on the presumptions that section 5 of the Limitation Act was not applicable while according to my perceptions section 5 of the Limitation Act was fully applicable in cases the appeals are dismissed for non-prosecution and choice is left with the appellants to approach directly to the Court to file application for restoration of appeal without obtaining and appending the certified copy of dismissal order. If certified copy of the said order is applied then the time requisite for obtaining the same shall be excluded under section 12 of the Limitation Act for computing the period of limitation under Article 168 of the said Act. In such situation if the application for restoration was filed beyond the period of limitation, even then the Court would not be barred to condone the delay if any application under section 5 of the Limitation Act was appended with the restoration application. (b) Similarly the circumstances, in which the order of dismissal, dated 6th July, 1994 was passed, were not attracted by rule 17, Order XLI C.P.C. for dismissing the appeal. Besides this factor I,' in principle, subscribe to the view of my learned brother Salahuddin Mirza expressed by him in Pak Carpet's case (supra) with this exception that the pending miscellaneous applications were necessary to be disposed of by passing specific order alongwith the order of dismissal of appeal if the same were not disposed of before disposing of the main appeal."

14. Resultantly the appeal is allowed. Impugned order dated 15-9-1994 is set aside alongwith order dated 6-7-1994. The Appellate Court is required to dispose of pending application under Order 39, rules 1 and 2, C.P.C. as well as the main appeal on merits within a period of three months. The K.D.A. Authorities are required to bring on record all necessary infirmities regarding allotment of the land in dispute so that the Appellate Court could decide the status of present attorney of respondent No.2 namely Salim Zaki in the light of objections raised before this Court. No order as to costs. A.A./G-36/K Appeal allowed.