1993 PLP 1892 (CLC)

Date of hearing: 14th April, 1993. This matter was brought before this Court as FAO and it was ordered to be treated as Civil Revision, on entertainment on 29‑9‑1992. By way of this revision petition, plaintiffs‑petitioners seek to set aside orders passed by the learned trial Judge on 3‑5‑1992 and 18‑5‑1992, in the course of proceedings of a civil suit, instituted on 10‑2‑1992 for recovery of Rs.6,30,620/38, with interest, by M/s. Hoechst Pharmaceuticals Pakistan,Ltd., against M/s. Chaudhary Agricultural Traders, Railway Road, Dunyapur.

2. The suit had been filed in the Court of Senior Civil Judge, Multan, for recovery of dues outstanding against the defendant firm for supply of pesticides. With effect from 1‑7‑1991, Lodhran district was carved out of Multan District, and the suit was transferred there, as the defendants were shown to be residents of Dunyapur, a place in Lodhran District. On 21‑3‑1992, the learned Civil Judge had ordered issuance of notices by post (AD) to the defendants, the firm and its sole proprietor, Ch. Abdul Hafiz, for 15‑4‑1992. Notices were not returned, after service, by the due date and the Court made orders for service upon the defendants, to be effected through registered A.D, notices, by affixation as also through proclamation, to be made in a newspaper, next date being 3‑5‑1992. The plaintiff's counsel was not present in Court, and only his clerk was in attendance, on 3‑5‑1992, when the Court dismissed the suit on account of failure of the plaintiff‑firm in making payment of the proclamation charges. This order was purported to have been passed under Order 9, rule 2, C.P.C.; and an application for restoration of the suit under Order 9, rule 4, read with section 151, C.P.C. was made on 7‑5‑1992, but the application was rejected, vide order dated 18‑5‑1992. The learned Civil Judge observed that a clear order on the previous date i.e. 15‑4‑1992 had been passed and made known by the Presiding Officer of the Court, in his own words, and there was no question of the order having not been understood or correctly been followed by the clerk of the counsel, and since the order was not complied with, the legal consequences‑would follow and the suit was liable to dismissal, even though the plaintiffs had paid a heavy amount of court‑fee. This order, according to the learned counsel for plaintiffs‑petitioners, is amenable to interference by this Court in exercise of its revisional jurisdiction, for the following reasons, and I must say that there is lot of force in the contentions put forth:‑ (a) The plaintiff firm is multinational company engaged in preparation of pesticides and had made payment of huge amount of court‑fee and engaged eminent lawyers for enforcing their claim against the debtors. There was no earthly reason why they should have committed default in the matter of depositing proclamation charges and incurred the risk of dismissal of such an important action, on a technical ground. They must have complied with the order, had there been no confusion about it. (b) An affidavit was appended with the application under Order 9, rule 4, C.P.C. The clerk of the counsel had solemnly deposed that he had fallen prey to a bona fide mistake or misunderstanding. Here it may pertinently be remarked that if the learned Court, as is, in the order dated 3‑5‑1992, had actually observed the clerk to be mysteriously smiling, the possibility of his having acted in league with the other side, especially when he had given no reason before the Court, for non‑compliance of its earlier direction dated 18‑4‑1992, could not entirely be ruled out. In cases by and against Government, as also corporate bodies, and business concerns, incidents of such a dishonest or collusive or treacherous conduct on the part of clerks of Government offices are not lacking and even employees of firms are found to have played their dirty role. In the instant case; however. there was no counter‑affidavit, and nothing else in rebuttal; and the Court ought to have believed what had been stated on oath by the deponent. (c) It was not a case of total non‑compliance of order of the Court, as process fee and registered envelop had been deposited in time and had even been issued by the office of the Court. If the plaintiff company had cared to comply with that part of the order, there was no reason why the direction in entirety should not have been carried out, especially when being a big concern it did not matter much, if the plaintiff had also been required to make deposit of the proelamation charges (of a few hundred rupees). (d) The defendants had been evading service during pendency of the suit in the Court at Multan, and appeared to have taken under advantage, on the case having been transferred to Lodhran, and the reader of the Court might have, in collaboration with the defendants, suppressed a part of the order, while making it known to the parties. (e) Had the plaintiffs actually been aware of the disputed portion of the order, they would have been too happy to act with promptitude in obedience thereto, as all available means of effecting service upon the defendants were exhausted and the defendants to be proceeded against ex parte, in the event of their absence or non‑representation. Other side was also not in attendance, on 3‑5‑1992, and the matter was in its initial phase as yet and the situation did not dictate a drastic action against the plaintiffs. The Court had refused to apply conscious and judicial mind, in refusing the restoration of the suit, on 10‑5‑1992, by recalling its earlier order dated 3‑5‑1992. (f) Provisions of Order 9, rule 2, C.P.C., being not of imperative nature, its rigid application was not warranted. The word used in rule 2 of Order 9, C.P.C. is `may', whereas the one occurring in rule 4 is `shall'. The defendants having not yet appeared on the scene, the plaintiff was entitled to certain amount of indulgence. Order 9, rule 4, C.P.C. is an enabling provision and not a 'restrictive' or `prohibitive' one. A Court is not bound to pass an order of dismissal of the suit under Order 9. rule 2 or rule 8, C.P.C.; the Court may proceed to pass a proper order for further progress of the suit.

3. The above submissions all have considerable substance and the learned counsel has relied on certain celebrated authorities, as Dhunda v. The Punjab Province (PLD 1960 (W.P.) Lahore 786), Muzaffar Khan v. Yarn (1983 CLC 1469), M/s. Eastern Steel v. National Shipping Corporation (1984 CLC 1640), Government of Balochistan v. Ghulam Muhammad (1991 CLC 2033), Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) and Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89). If a party has been found to have been pursuing a case diligently, it must not be penalised for a minor lapse. Except for persistent or contumacious negligence on the part of a party, penal provisions should not be pressed into service and an extreme penalty should not be inflicted.

4. When the order manifestly suited the interest of the plaintiffs, there= was no question' why there should have been hesitation or neglect on their part. The learned counsel has successfully brought home his point that in the facts and circumstances of the case, there was hardly any room left for inferring that partial failure on the part of the plaintiffs, in making compliance with the order dated 15‑4‑1992, was not on account of some inadvertence or bona fide mistake but was intentional. A suit for recovery of lacs of rupees should not 1 have been decided in that summary manner, the plaintiff‑company should not have been made to face a technical knock‑out, viewed from any angle, and the trial Court should have readily acceded to the request of the plaintiffs for its revival.

5. The impugned orders dated 3‑5‑1992 and 18‑5‑1992 are hereby set aside and the suit is restored, on acceptance of the revision petition. It shall come up for further proceedings before the learned Senior Civil Judge, Multan, on 11‑5‑1993.

6. By the present order, I also propose to dispose of the accompanying transfer application No:145‑C‑1992. The suit had originally been instituted in the Court of learned Senior Civil Judge, Multan. The plaintiff‑company had its regional office at Multan and the pesticides, price of which had not allegedly been paid by the defendant‑firm, had been supplied at Multan. Such payment had to be made at the regional office at Multan. Since the defendant‑firm had its office at Dunyapur, and its sole proprietor was also putting up there, the suit had to be tried by a Civil Court at Multan, as Dunyapur then was a part of Multan District. Lodhran District was created subsequently on 1‑7‑1991. Part of cause of action, rather main cause of the action, having primarily arisen at Multan, the plaintiff‑company has a right to ask for trial of the suit by a Civil Court at Multan, and even the defendant‑firm would not be put to any D inconvenience, as Dunyapur is a place not far away. Competent lawyers may also not be available in abundance at Lodhran, a small place. For administrative reasons and in interests of justice also, this Court has wide powers to transfer a case even outside the territorial limits of the district, it pertains to. I, therefore, withdraw the case from the Court at Lodhran, and make it over to the learned Senior Civil Judge, Multan. He shall hear the case either himself or shall entrust it to a Civil Judge, Ist Class, of sufficient seniority and maturity. Parties shall appear before the learned Senior Civil Judge, Multan, on 11‑5‑1993. AA./H‑86/L Order accordingly.