1989 PLP 630 (CLC)

This is a revision application under section 115, C.P.C.

2. The facts of the case have been elaborately stated in the two impugned orders dated 3‑3‑1982 and 23‑1‑1984 passed by the learned Second Senior Civil Judge, Larkana and learned District Judge, Larkana and I need not narrate them again. Suffice it to say that a suit was filed by the respondents claiming right of pre‑emption in adjoining land purchased by the petitioner. The Suit No.77 of 1973 was originally filed in the Court of Civil Judge, Larkana which on administrative ground was later on transferred on 29‑10‑1979 to the Court of Second Senior Civil Judge, Larkana who on receipt of the case‑file issued notice to the parties. These notices were admittedly served on the counsel for the parties. The counsel for the petitioner, Mr. Abtlul Fateh Moghal, as well as the petitioner, however, failed ( to appear on the date fixed. The suit was then, adjourned to 6‑11‑1979. Again the counsel for the petitioner remained absent and so was the petitioner. His side was thus closed on 6‑11‑1979 and the suit was adjourned to 8‑12‑1979 when the respondents' side was closed. On 9‑3‑1980 the learned Second Senior Civil Judge passed ex parte decree against the petitioner/ defendant.

3. Being aggrieved by the said decree the petitioner filed an application under order IX, Rule 13, C.P.C. on 30‑4‑1981, after about a year which was dismissed by the learned Judge by his order dated 3‑3‑1982 as time‑barred. As against the said order the petitioner filed a miscellaneous appeal before the learned District Judge which was also dismissed by his order dated 23‑1‑1984, concurring with the decision of the learned Senior Civil Judge that the application was hopelessly time‑barred. The relevant portion from the order of the learned District Judge reads as under:‑ "The defendant further claimed that a notice regarding the transfer of the suit to the Court of learned IInd Senior Civil judge was not served on him nor he was informed by his Advocate, therefore, he could not appear in Court. He further stated that he came to know about the decree about a week before the filing of the above application." Learned Judge further wrote.‑ "1 have gone through the record and I agree with the learned Senior Civil Judge that the application under Order IX rule 13 C.P.C.. was time‑barred. This application had to be moved within 30 days. from the. date of decree. The record shows that the defendant /appellant had applied for true copy of the decree on 23‑10‑1980 which was granted to him on 25‑10‑1980. It is, therefore, abundantly clear that he had knowledge of the decree on 23‑10‑1980 when he applied for the true copy of the same. In that event he should have filed the above application within 30 days from the above date but he did not care to do so and moved the application on 30‑4‑1981 i.e. after more than six months. This delay has not been explained by the defendant and the above application was rightly dismissed as being time‑barred." Now the petitioner has filed the above revision.

4. Learned counsel for the petitioner has argued before me that the notice served on 'the counsel of the petitioner in 1979 cannot be termed as notice served on the petitioner. He further submits that both the Courts below were wrong in holding that the application was time‑barred. According to him, it was not Article 164 but Article 181 of the Limitation Act, 1908 which was applicable. He has relied on a number of decisions and insisted that they should all be noticed and taken down by this Court although, in the circumstances of the case, the counsel was told that the said decisions were neither required nor applicable. However, before adverting to the said decisions, it may be stated that Article 181 of the Limitation Act applies to a suit for which period of limitation has neither been prescribed by the. Limitation Act or the Civil Procedure Code. Under section 164 a period of thirty days has been prescribed for filing an application by a defendant for an order to set aside a decree passed ex parts: and the time to run is from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. I need not go into further discussion in the case on this point of law which has been elaborately dealt with by me while delivering opinion of the Division Bench of this Court in Constitutional Petition No.23 of 1987 (Sabzal and others v. Bingo and others) in which learned counsel Mr. Mangi appeared for the petitioner and his contention was repelled. However, since there is a difference on facts in the instant case and the Constitutional Petition decided earlier it was the petitioner whose suit had been dismissed whereas in the case before me it is the petitioner, against whom ex parte decree has been passed, I am, therefore, to see on what date the notice of transfer of the suit was served on the petitioner or his counsel and if not, when the petitioner came to know of the decree having been passed against him so as to attract the provision of Article 164 of the Limitation Act. Admittedly the notice of transfer of the case from Civil Judge to the Court of learned Ilnd Senior Civil Judge was duly served on the counsel for the petitioner for 29‑10‑1979 and, it cannot be said that the service on his Advocate was not a service on him. No law as against the said legal position has been produced by the learned counsel. Let me now examine the plea of knowledge of the ,petitioner, as also canvassed before me by his counsel, Mr. Mangi that the petitioner had no knowledge of the passing of the ex parte decree against him, of which he came to know only a few days before making application under Order IX, Rule 13 C.P.C. The submission of the counsel., 1 must say, is wrong which is apparent on record. Learned counsel for the respondent has shown me the application filed by the petitioner for obtaining copy in the Court of Senior Civil Judge which is dated 23‑10‑1980 and the copy was granted to him on 25‑10‑1980 and the application for setting aside decree was admittedly filed on 30‑4‑1981. This fact has also been referred to in the order of the learned District Judge. The counsel appearing in. the Courts owe a duty not only to their clients but to Courts also. There should not be an attempt to mislead the Court by making such statements which are falsified by the, facts on record.

5. Adverting to the case‑law, the counsel had cited the following cases, namely, ' (i) Muhammad Saleh and another v. United Grain and Fodder Agencies P L D 1964 SC

97. In the first case P L D 1964 SC 97 it has been observed at page 100 that "ex parte proceedings can be ordered only in respect of absence on the day fixed in the summons or on the day to which the hearing of the case has been adjourned. Of course "adjourned" means "adjourned by the Court". In the instant case the counsel was served for a date fixed by the Court in the notice as 29‑10‑1989 and on that date the counsel for the petitioner was absent. The case thus was adjourned by the Court to 6‑11‑1979 and ultimately decreed ex parte 'on 9‑3‑1980. On the basis of the above‑cited judgment of the Hon'ble Supreme Court nothing wrong can be attributed to the learned Civil Judge. Rather the cited authority goes against the petitioner. (ii) Messrs Rehman Weaving Factory (Regd) Bahawalnagar v. Industrial Development Bank of Pakistan P L D 1981 AC

21. As regards the second case P L D 1981 SC 21, it is noticeable that the said case was also cited by the learned counsel in C.P. No.D‑23/1987 and stands distinguished. Relevant observation is reproduced as under:‑ "A bare reading of the above provisions will show that Article 181, as relied on by the learned counsel, is not at all applicable to the facts of the case inasmuch as that Article 181 contemplates a situation where no period. of limitation is prescribed in the Schedule of the Limitation Act or section 48 of the Code of Civil Procedure. The observations made by the Hon'ble Supreme Court relate to a situation where no period of limitation was prescribed in the Limitation Act for setting aside an ex parte order which was found ab initio void for lack of jurisdiction on the part of the Court passing the decree. It is not at all contended by the learned counsel that Court had no jurisdiction to try the suit or pass the order of dismissal for non‑ prosecution . It would also appear from reading the above‑quoted Articles 163 and 164 that the incidence of Article 163 for making application for restoration of a suit under Order IX, Rule 9, C.P.C. dismissed for non‑prosecution and making an application under Order IX, Rule 13 for setting aside an ex parte decree passed against the defendant are different. In a case of restoration of suit Article 163 applies whereas in .the case of setting aside decree Article 164 is applicable. It is, therefore, apparent that Article 163 applies to the facts of the present case i.e. the application ought to have been filed within 30 days from the date of the dismissal of suit which was not done in the case. When the learned counsel was pointed out, the correct legal position, as enunciated above, he stated unceremoniously that he drops this plea." (iii) Qamar Sultana v. Abdul Hussain P L D 1982 Kar.

355. The third case P L D 1982 Kar. 355 is also distinguishable, and goes against the petitioner. In the cited case it was observed that the Vakalatnama not having been withdrawn by the learned counsel the said Vakalatnama existing on the file was deemed to be valid and the Advocate for all intents and purposes "presumed to represent his client in proceedings". Service effected on the Advocate was thus held valid and proper. Perhaps the learned counsel did not read the judgment in full before citing it. (iv) Manager, Jammu and Kashmir State Property v. Khudayar PLP 1975 Supreme Court

678. The fourth case was also cited in the C.P. No.D‑23/87 by the learned counsel which has already been distinguished as under‑ "We fail to understand the relevance of logic in citing the above passage by the learned counsel. The impugned order passed in revision by the learned District Judge was not on a technical ground. It is neither arbitrary nor capricious. Making an application for restoration after a lapse of more than a year and the learned Senior Civil Judge passing as order for restoration without giving any reason for allowing the said application and restoring the suit without adverting to or taking into consideration the point of limitation, was in negation of the settled principles of justice and law, because a vested right had accrued to the respondent by the lapse of a period. of more than one year, and no order restoring the suit could be passed by the Senior Civil Judge without condoning the delay in filing application for restoration, which remained unexplained and, perhaps unattended to." (v) Masud Zain v. Muhammad Tariq Ahmed Malik (P L D 1988 Karachi 154). The fifth case too does not help the petitioner. In the cited case the applicant had engaged two counsel, one from outside the city and the other a local one but none appeared on the relevant date. Mere fact that one of the counsel was from another place could not absolve him from obligation of explaining his absence. Party, though could be made to suffer on account of a gross negligence. minor lapses were generally condoned. In this case a learned D.B of this Court while ordering restoration of application on the peculiar facts of the case, however, observed that "the said omission can be compounded by imposition of costs". Every case has to be decided on its own merits and the facts of the cited case are distinguishable from the case before me and do not at all warrant interference in the orders passed by the two Courts below even on payment of cost to the respondents. (vi) Wali v . Manak Ali P L D 1965 S C

651. The sixth case is also distinguishable as in the said matter dismissal of the suit/appeal against the living defendants/ respondents had been held by the lower Court to have abated, whereas in the opinion of the Hon'ble High Court it was not a case of total abatement and the suit could be proceeded with by or against the living parties to the suit. The above‑cited case has no bearing on the facts in the instant case. Perhaps the counsel failed to notice the ratio decided of the cited case. '

6. Mr Waris, learned counsel for the respondents referred to the case which was cited by the counsel for petitioner at the time of admission of the revision which is reported as Muhammad Ismail v. Commissioner Ex‑Officio Court of Wards 1984 C L C 3045. He submitted that the case is distinguishable as in that case the finding of the Hon'ble Judge was that the notice on the respondent was "not served" and so the order passed against him was' bad in law whereas in the . present case the notice was admittedly served on the petitioner's counsel.

7. A civil revision is provided with a view to afford an opportunity to a party who has been wronged by committing an illegality or material irregularity by the Courts below. I am confident that there is no illegality or irregularity in the orders passed by the Courts below. There is yet another point which had escaped notice of the appellate Court. The learned Civil Judge after passing the ex parte order dated 6‑11‑1979 closing the side of the petitioner/defendant, passed judgment. and decree in the suit on the subsequent date, (after about thee months) which required a regular civil appeal under section 96 C P C to be filed by the petitioner, which the petitioner admittedly failed. Mere filing a civil miscellaneous appeal against the ex parte order without filing regular appeal, is also against the law.

8. For the reasons discussed above the revision is frivolous and, dismissed‑ I think it is a fit case in which I would award special costs to the respondents. Learned counsel Mr. Enayat Waris stated before me that he has been paid by the respondents a fee of Rs.4,000 F and his client has incurred more than Rs.2,000 as expenses as on every date he had to come from Larkana and the matter has been hanging fire since 1984. I, however, award Rs.5,000 as special costs to the respondent. Before parting with the case it may be added that precedents are quoted by the counsel appearing in a case to assist the Court to arrive at just conclusion in its proper administration of justice and not to encumber the Court with such precedents that are irrelevant and in fact not applicable to the case before the Court and more so without reading them in full. Non‑observance of this principle not only results in causing unnecessary delays in justice but also clogs the way of the disposal of genuine cases, waiting for their turn since long. This, in a way is also responsible for back‑log of cases in the judiciary. , A . A . / M‑660/ K Revision dismissed.