2005 PLP 1191 (CLD)

There is an application for condonation of delay in filing of the appeal. This application was filed after the office of this Court raised objection regarding filing of the appeal beyond the period of limitation. Notices to the respondents were duly served but none of them made appearance in Court in pursuance thereof. It is ordered that appeal shall proceed against them ex parte. Mr. Nadeem Akhtar, submitted that the petitioner had no knowledge of the date of hearing which took place on 23-12-2004 and submitted that as per notice issued by this Court, annexure A-5 at page 99 (relevant page being 101), the petitioner was required to appear in Court on 17-1-2005 for hearing of Judicial Miscellaneous No.41 of 2004. However, when on 17-1-2005 the appellant in compliance of the aforesaid notice came to this Court it transpired that the matter had already been taken up by the Court on 23-12-2004 and the said judicial miscellaneous application has been disposed of through the impugned order without affording any opportunity to the petitioner to put forward his claim. He submitted that on that very day the appellant applied for a certified copy of the impugned order which was made available on 14-2-2005, whereas the appeal was filed on 24-2-2005. He submitted that the appeal cannot be said to be time-barred in as much as the appellant had no knowledge that the matter was fixed on 23-12-2004 as it has been served with a notice calling upon the appellant to appear in Court on 17-1-2005. and it is a well recognized principle that when a case is decided or an order is passed on a date of which the concerned party had no notice then the period of limitation will run from the date when such order comes to the knowledge of the aggrieved party. The contention raised by Mr. Nadeem Akhtar merits consideration and we are of the view that the appeal was filed within the period of limitation as the impugned order was passed without notice to the appellant and the period of limitation will be computed from the date the order come to the knowledge of the appellant which in the present case is 17-1-2005. This application stands disposed of on the above terms. We have also heard Mr. Nadeem Akhtar relating to the main appeal. He has reiterated his arguments advanced in support of the application for condonation of delay and submitted that a notice was received by the appellant for hearing of J. Miscellaneous No.40 of 2004, which was filed by the respondent for settlement/compromise arrangement, in accordance with section 284 of the Companies Ordinance, in respect of the various loans/finance facilities provided to respondents by various creditors numbering 42, the appellant being one of them. He further submitted that the failure to appear in Court on 23-12-2004 was neither intentional nor wilful but was purely on account of lack of knowledge. He further submitted that in view of the notice dated 21-12-2004, the learned Single Judge ought not to have proceeded with the matter on 23-12-2004 and in doing so he prevented the appellant from appearing before him, submitting his claim and advancing arguments in its support. We have considered the arguments advanced by Mr. Nadeem Akhtar and have also perused the material on record. From annexure A-5, it is established beyond any doubt that the creditors of the respondent including appellants were required to appear before the Company Judge for disposal of J. M. 40 of 2004 on 17-1-2005. From the record it is also established that the matter was taken up on 23-12-2004. The learned Single Judge while proceeding with the matter did not ensure the presence of all the creditors before him and proceeded in the absence of the appellants. It has been stated by Mr. Nadeem Akhtar that a joint application was moved by all the creditors except the appellants for ante-dating the case, which application came up for hearing on 23-1-2004, which was granted on 23-12-2004, ante-dating the case to 23-12-2004 on which date, arguments were heard, and the matter was disposed of. From consideration of the above facts and circumstances, we are of the view that the learned Single Judge had proceeded with the matter in great haste without ensuring the representation of all the creditors and providing to them an opportunity to submit their claim. The appellant is one of the creditors and was entitled to notice of the application for ante-dating the matter from 17-1-2005 to 23-12-2005. However, no such notice was given to the appellant and the matter was disposed of in its absence which violated the principle of natural justice. It is an established principle of law that violation of principle of natural justice is to be equated with a violation of law rendering the order illegal and void ab initio. In the circumstances, we have no hesitation in holding that the order dated 23-12-2004 suffers from illegality as it deprived the appellant, one of the creditors, from availing the rights made available to it by section 284 of the Companies Ordinance. The same is set aside and J. Miscellaneous 40 of 2004 is restored to the stage on which it stood before passing the impugned order dated 23-12-2004. It is required to be disposed of after providing an opportunity to the appellant to submit its claim and put forward its case. This appeal stands disposed of as above. S.A.K./P-35/K Order accordingly.