2004 PLP 1140 (MLD)

1. This is an application filed on behalf of the plaintiff under, section 151, C.P.C. for recalling of order, dated 29‑10‑2003 by which the plaintiff's side to produce evidence was closed. The application is supported by affidavit of the plaintiff's counsel namely that of Mr. Nasimuddin Shaikh. The defendant has filed counter‑affidavit to this' application. In reply to the counter‑affidavit, rejoinder affidavit has been filed which is also of Mr. Nasimuddin Shaikh. The record shows that issues in the suit were framed on 14‑9‑1998. Thereafter the matter came up for evidence on 6‑5‑2003 when the counsel for the plaintiff stated that as the witness will come from U.S.A., he requested for a fixed date after vacation. Fixed date of 12‑8‑2003 was given. On 12‑8‑2003 the counsel for the plaintiff again requested for adjournment on the ground that the witness could not come from U.S.A. The matter was adjourned as a last chance to 30‑9‑2003. On 30‑9‑2003 the counsel for the plaintiff yet again requested for adjournment on the ground that the witness is unwell. The learned Judge seized of the matter while adjourning it to 29‑10‑2003 imposed a cost of Rs.10,000 (Rupees Ten Thousand only). On 29‑10‑2003 the counsel for the plaintiff made a statement in Court that in spite of repeated reminders he has not received any instructions from the plaintiff and even the cost has not been deposited. No witness was present from the side of the plaintiff. The Court, therefore, passed an order by which the plaintiff's side was closed and the matter was put off for hearing of arguments. In the affidavit filed 'in support of the application, the reason assigned for the non‑payment of cost and for non‑appearance of the witness are as follows:‑‑ "(3) That the representative of the plaintiff could not come from America and the amount of costs was not deposited, the Hon'ble Court closed the side of the plaintiff. (4) That due to security reason that plaintiff's witness/representative could not reach Karachi to attend the Court to adduce evidence. It may be noted that on 6‑5‑2003, 12‑8‑2003, 30‑9‑2003 and 29‑10‑2003 no statement was made by the counsel that the witness is not appearing due to security reason nor any explanation was given as to why the cost was not deposited. Rather it was stated on 29‑10‑2003 that despite repeated reminders, no instruction is being received from plaintiff. In fact this statement amounted to pleading of no instructions and its consequence would have been that of dismissal of the suit. The Court however allowed the plaintiff to argue the matter. It may further be noted that although on three occasions adjournment was sought but the name of witness was not disclosed even though on 30‑9‑1993 it was stated that the witness is unwell. Still in the affidavit the name of the witness is not disclosed. Further the reason taken in the affidavit that of security, if that was true reason for the non‑appearance of the witness on the four dates, it is not shown as to how such security reason has now been displaced. Though what security reason was there is also not explained. Learned counsel for the defendant has taken objection to the maintainability of the application on the ground that it has been filed with the supporting affidavit of Mr. Naseemuddin Sheikh, the counsel of the plaintiff and not of the plaintiff itself. In support of his contention, he has referred to the case of Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. (1999 MLD 3173) and the case of Lithuanian Airlines v. Bhoja Airlines (Pvt.) Ltd. 2004 CLC

544. As against this the counsel for the plaintiff has referred to the provisions of Order 19, Rule 3, C.P.C. and the case of Messrs Adamjee Construction Company Ltd. v. Government of Punjab (1999 MLD 2202) and the case of Abdul Latif v. Muhammad Yousaf (PLD 1996 Karachi 365). Sub rule (1) of Rule 3 of Order 19, C.P.C. provides that affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory application, on which statement of his belief may be admitted; provided that the grounds thereof as stated. Sub‑rule (2) provides that the costs of every affidavit which shall unnecessarily set -forth matter of hearsay or argumentative matter, or copies of extract from documents, shall (unless the Court otherwise directs) be paid by the party filing the same. In the case of Adamjee Construction Company (supra) cited by the plaintiff counsel, the rule is based on the provision of section 22 of the Legal Practitioner and Bar Council Act, 1973 from which a learned Single Judge of the Lahore High Court has drawn that the relationship between the client and counsel is that of principal an agent and that principal was vested with the authority to ratify the act of his agent with retrospective effect. By this the counsel for the plaintiff states that whatever is stated in his affidavit can be ratified by the plaintiff itself. In the case of Abdul Latif (supra) the rule laid down by a Single Judge of this Court is that sanctity is attached to an affidavit filed by an Advocate and reasons as explained in the affidavit of an Advocate can be treated to be sufficient cause. Both the cases relied upon by a counsel are distinguishable inasmuch as in the first case the party has ratified the act of the counsel and in the second case there was affidavit of the party as well as that of the Advocate. In the case of the Giorgio Beverly Hills Inc, his lordship Rana Bhagwandas, J as he then was at page 3174 of the reported case has observed. In all fairness in each case the parties or its agent or attorney should file an affidavit in support of the case and not the counsel. I am, therefore, not included to consider the earlier as well as the latest affidavit filed by the counsel and dismiss the C.M.A. for substitution of the respondent‑Company being not maintainable at law". This view was followed in the Lithuanian Airlines case (supra) where his lordship Shabbir Ahmed, J., at page 65 observed as follows: "Before proceedings further, I would like to dispose of the objection taken by the learned counsel for the lessee to the affidavit filed by Mr. Mahmood Abbas, the counsel for the lessor in support of the objection to the application under disposal. The objection was that he not being conversant of the facts of the case cannot file affidavit and such affidavit is to be excluded from consideration. To enforce her submission, she referred the view taken in Giorgio Beverly Hills Inc. v. Colgate Palmolive Pakistan Ltd. (1999 MLD 3173), wherein the affidavit filed in the same line by the counsel was excluded with the following observation:‑‑ 'In all fairness, in each case the parties or its agent or attorney should file an affidavit in support of the case and not the counsel. I am, therefore, not inclined to consider the earlier as well as latest affidavit filed by the counsel and dismiss the C.M.A. for substitution of the respondent‑Company being not maintainable at law.' The learned counsel for the lessor as not able to controvert thes above plea, therefore, the affidavit filed by Mr. Mahmood Abbas is excluded from consideration." In view of the above discussion, not only the application is misconceived but is found to be not maintainable and is dismissed. While I have dictated the above order, the counsel for the plaintiff stated that the cost amount was deposited by him pursuant to the order, dated 1‑12‑2003. It seems that this order was passed on this application and permission for depositing the amount was allowed subject to all just exceptions. The default made in depositing the cost pursuant to the order, dated 30‑9‑2003 was not condoned and the application in that respect was not decided.

2. The counsel for the plaintiff requests for adjournment. Adjourned to a date in office. H.B.T./E‑3/K Application dismissed.