2001 PLP 426 (YLR)

(C) Articles 164 & 181

Ex parte decree, setting aside of Limitation-- Any cause shown for non-appearance at first hearing, whether non-service of summons, or any other sufficient cause, e.g., accident or act of God-- Article 164 applies to such case and limitation commences from date of knowledge of decree (when summons not duly served) otherwise from date of decree

Application for setting aside ex parte decree not covered by Art. 164

Governed by residuary Art.181 giving period of limitation as three years from accrual of right to apply

Ex pane decree passed on a date after initial service of summons, on fresh hearing after return of records form High Court, and defendants having no notice of date of hearing when such decree passed

Application for setting aside ex parte decree made within three years of ex parte decree as also from date of knowledge of decree, held, within prescribed limitation period. (5) Section 115

Dismissal for non-prosecution is not legally well -recognized for reason that jurisdiction under section 115 is invoked by an aggrieved person to point out illegalities or irregularities or jurisdictional defects in orders passed by subordinate fora. Therefore, on entertaining a revision petition Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings of subordinate Courts do suffer or not. from any illegality or irregularity

In other words after filing of a revision matter rests between revisional and subordinate Court

Thus, it is advised that Court after having entertained a civil revision instead of dismissing it in default may make efforts to dispose it of in accordance with parameters laid down in section 115. (6) (i) Limitation Act (IX of 1908)

Art. 181

Three years' limitation time provided in residuary Art. 181 would apply to application filed under section 151, C.P.C. The respondent has relied on the following case-laws: 1995 CLC 461 (Messrs Ciba Geigy (Pak) Limited v. Muhammad Safdar.)

Art. 163

Civil Procedure Code (V of 1908), O.IX, R.3

Dismissal of suit in default

Limitation for setting aside order of dismissal of suit for default is thirty days. (b) Dismissal of suit for default of appearance

Plaintiff's plea that Court should have proceeded to frame issues and not dismissed the suit would be of no avail for it was incumbent on parties to be present on the day of settlement of issues-- Provision of O.XVII, R.2, C.P.C. was also not attracted for such provision could be resorted to only where suit was adjourned to a fixed date and the parties, or any one of them failed to appear on that date-- Duty is cast upon plaintiff to pursue his case diligently and where he neglects or fails to do so, provision of O.IX, R.3, C.P.C. would become operative ...Suit was thus, rightly dismissed for default in appearance on specified date under O.IX, R.3, C. P. C. (c) O. IX, R, 9

Object and scope of O. IX, R.9, C.P.C.

Only consideration before Court under provision of O.IX, R.9, C.P.C. would be to do justice between the parties and in absence of any express bar, it should not hesitate to grant proper relief on mere technical grounds

Plaintiff, however, must satisfy the Court that there was sufficient cause for his non- appearance. (d) S.5

Dismissal of suit for default of appearance

Application for restora tion of suit filed after about one year of dismissal of suit i.e. beyond period of limitation

No application for condonation of delay was filed by plaintiff

Effect

Even if ground for non-appearance (i.e. wrong noting of date) of plaintiff were accepted there being no application for condonation of delay or any ground in support thereof, and substantive right having accrued to defendant, Court was left with no alternative but to dismiss application for restoration of suit. (b) Engagement of an advocate by a litigant

Does not absolve litigant of his responsibility in proper and diligent prosecution of matter for which Advocate is engaged-- Litigant is also under duty to see that his matter is prosecuted properly and diligently by Advocate engaged

He cannot seek recall of an order passed by Court on basis of statement made by his counsel. 1974 SCMR 162 (Zulfiqar Ali v. Lal Din and another):

O.XLI, R.19-- Appeal, re-admission of

Appeal dismissed for non-prosecution-- Restoration sought on ground of default due to negligence of counsel and no negligence on appellant's part

Contention without force-- Mere engagement of counsel does not absolve litigant of all his responsibilities

Party as well as counsel both bound to see appeal properly and diligently prosecuted-- Counsel engaged, if lacking in his sense of responsibility to Court, opposite-party cannot be made to suffer on that account. PLD 1954 Baghadad-ul-Jadid 53 (Shaikh Abdul Rahman v. Mal Bhagwan Das through Custodian of Evacuee Property, Bahawalpur): (a) Civil Procedure Code (V of 1908), Section 151

Inherent power not to be resorted to even if other remedy is time-barred. Application under Order IX, Rule 9, Civil Procedure Code for restoration of suit had become time-barred. The plaintiff applied for restoration-under section 151, C.P.C.: Held, the petitioner could not legally invoke the inherent powers of Court when a specific procedure has been provided by the Code under Order IX; rule 9, C.P.C. 'The application for setting aside the dismissal of the suit, which was obviously time-barred, was incompetent. Any subsequent application for the restoration of a previous application shall also be deemed to have been made under Order IX, rule 9 read with section 141 and not under Order IX, C.P.C. Considering the above and the facts of the case I am of the considered opinion that it would be an unfair proposition on the part of the Court to dismiss the suit for non-prosecution if the counsel pleads no instructions. If the counsel wants to seek discharge from the case then there are proper provisions available which if strictly followed would not lead to a situation where gross in justice may be done to party purely because he is unaware of his case having been fixed in Court. In this matter an affidavit of the previous counsel also shows that a letter was written but it remained un-served. On the other hand the plaintiff has pointed out that there was a change of address. If this is true then it would be logical that the plaintiff would not be aware as to when this case was fixed. It is an acknowledged fact that the cases on the original side become ripe after years and there would be certain difficulties faced in contacting the parties by the lawyers. As observed earlier when a lawyer pleads no instructions then instead of dismissing the suit it is necessary to issue notice to the parties. Under the circumstances this revision is allowed and the order dated 4-3-2000 is set aside. The matter to be fixed for recording of evidence after due notice to both sides and as it is an old case, therefore, the recording of evidence may be completed within six months. Q.M.H./M.A.K./H-44/K Revision allowed.