2015 PLP 1220 (MLD)

MUHAMMAD HASHIM KHAN KAKAR, J.

Civil Miscellaneous Applications ("C.M.As.") Nos.2341 and 2342 of 2014, filed under section 151 of the Civil Procedure Code, 1908 (CPC), arising out of Constitutional Petitions ("C.Ps.") Nos.379 and 402 of 2011, carry the following prayer:-- "In view of above, it is, accordingly prayed that this Hon'ble Court may graciously be pleased to recall the order and judgment passed on 10-11-2014 in exercise of powers conferred upon this Hon'ble Court under section 12(2), C.P.C., in the interest of justice, fairplay and equity." Since common question of law and facts is involved in the matter and that both the applications are arising out of one and same order, therefore, the same are being disposed of through this common order.

2. The factual matrix relies in a narrow compass. The aforesaid C.M.As. are filed for restoration of abovementioned C.Ps., which were dismissed in default and for non-prosecution on 10th November, 2014.

3. Mr. Amanullah Kanrani, learned counsel for the applicants, contended that, as a matter of fact, he was on general adjournment w.e.f. 29th September, 2014 to 17th October, 2014, duly granted to him by the then Hon'ble Chief Justice, High Court of Balochistan, Quetta, as he was required to appear in the International Tribunal i.e. International Centre for Settlement of Investment Disputes ("ICSID"), thus, he requested for restoration of the aforesaid CPs, while exercising powers conferred upon this Court under Section 12(2) of the C.P.C. In support of his contention, he referred to certificate issued by one Meg Kimear, Secretary General ICSID, which reads as under:-- "Pursuant to Regulation 31 of the Administrative and Financial Regulations of the International Centre for Settlement of Investment Disputes (ICSID), I hereby certify that Mr. Amanullah Kanrani Baloch is a witness in the arbitration proceedings between Tethyan Copper Company Pty Limited and Islamic Republic of Pakistan (ICSID Case No.ARB/12/1). In this regard, Mr. Amanullah Kanrani Baloch will be travelling on passport No.AB3765883 issued by the Islamic Republic of Pakistan, to participate in a hearing scheduled to take place from October 6 through 17, 2014 at the ICC Hearing Centre, located at 112 avenue Kleber, 75016 Paris. Counsel for Pakistan has informed us that the Pakistani team of counsel and witnesses for this hearing will need to arrive a week prior to the starting of the hearing, on September 29, 2014."

4. Before dilating upon the contention raised by learned counsel for the applicants, it would be advantageous to reproduce herein below the provisions of Section 12(2) of the C.P.C., which reads as under:-- "

12. Bar to further suit.

(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies. (2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

5. There is no cavil to the proposition that the above provision of law is applicable to the proceedings in the writ jurisdiction and apart from the provision of Section 11 of the C.P.C. i.e. res judicata. Section 12 of the C.P.C. prohibits the institution and trial of suits in cases, covered by Order II, Rule 2, Order IX, Rule 9, Order XXII, Rule 9 and Order XXIII, Rule 1 of the C.P.C., because the Courts possessed powers to set aside their own judgments, decrees or final orders, fraudulently or collusively obtained. Neither the aforesaid provision of law is related to the proposition of law, involved in the instant CMAs, nor is any question of fraud, misrepresentation or jurisdiction involved in the instant applications.

6. However, so far as powers of the Court within the purview of Section 151 of the C.P.C. is concerned, we are of the opinion that every Court should be deemed to have "inherent powers" to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Undoubtedly, ordinarily, the Court should not be loath/ reluctant to exercise such powers, provided the party concerned approaches the Court with due diligence and shows sufficient cause for its non-appearance on the date of hearing. The existence of sufficient cause, as noted earlier, is the sine qua non for exercise of the powers. It does not and cannot depend on the will or mere assertion of the party in default. A lis has to be prosecuted without fault and default. The prayer for recall should be backed by cause considered sufficient. Thus, absence of sufficient cause, the answer is bound to be "monosyllabic no".

7. While considering the instant applications on the touchstone of the aforementioned criterion, we have noticed that the applications are signed by Mr. Amanullah Kanrani, Advocate, on behalf of the applicants, but the instrument of his appointment as a pleader was neither filed in the constitutional petitions, dismissed in default and for non-prosecution, nor with the instant applications. The record also depicts that the said constitutional petitions were presented by Messrs Nadir Ali Chalgari and Ali Ahmed Lehri, Advocates. The application in each case contains an averment that Mr. Amanullah Kanrani, Advocate, had gone out of the country to appear in the International Tribunal ICSID, situated at Paris. In fact, Constitutional Petitions Nos.379 and 402 of 2011 were presented by Messrs Nadir Ali Chalgari and Ali Ahmed Lehri, Advocates, on 14th and 30th June 2011 before the Additional Registrar of this Court and at that point of time, Mr. Amanullah Kanrani, Advocate, was enjoying the status of Advocate General, Balochistan. It is evident from the record that both the petitions were clubbed with Constitutional Petition No.370 of 2010 and at some point of time, Mr. Amanullah Kanrani, Advocate, did appear on behalf of the official respondents and after his resignation, he appeared in both the petitions on behalf of the petitioners in view of the fact that Messrs Nadir Ali Chalgari and Ali Ahmed Lehri, Advocates, were his junior fellows. It is trite position that senior counsel appears in the Court with his juniors, the applications do not indicate as to why at least junior counsel or the applicants themselves did not or could not appear to make appropriate submissions for whatever worth.

8. It is also evident from the record that the arguments in both C.Ps. were heard on 13th, 14th and 15th October, 2014, while the judgment was pronounced on 10th November 2014, however, during this period, neither any application was moved on behalf of the petitioners, nor any attempt for re-hearing of the petitions was made. No cause is, thus, shown for non-appearance as well as for failure to do the needful. In the face of absence of cause for failure, the question of non-appearance becomes insignificant.

9. Moreover, the claim of the petitioners in both the petitions is based on the strength of Rules 12 and 12-A of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules 2009 and needless to observe that we have already decided the fate of the said Rules through a detailed judgment, operative portion whereof reads as under:-- "In the light of what has been discussed hereinabove, we have no hesitation in our mind after having examined rule 12 of the A.P.T. Rules 2009 to hold that the same is discriminatory and ultra vires of Articles 2A, 3, 4, 9, 18, 25 and 27 of the Constitution. The Provincial Government should consider of doing away all such kind of discriminatory provisions and reservation of seats in the government institutions".

10. In such view of the matter, we are of the view that restoration of both the petitions would serve no fruitful purpose and it would be a futile activity, because there should be a point of finality in all legal proceedings. By holding this view, we are fortified from the judgment of Hon'ble Supreme Court of India-reported in AIR 197 SC 429, relevant portion whereof reads as under: "At the same time, it must be borne in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity".

11. These cases, thus, reflect gross negligence. There is failure on the part of the applicants to show due diligence. They have failed to show sufficient cause. Law does not permit a state of hibernation of cases in this manner.

12. In view of the aforesaid position, we are satisfied that no sufficient cause is made out for allowing the prayer and recalling the orders passed by this Court in the C.Ps. and to set the dismissal aside. We know that such prayers should be considered liberally, but the facts, as unfolded in these cases, clinched the issue against the applicants and did not justify revival of the cases dismissed in default. In the circumstances, we declined admission and dismiss these applications summarily. AG/33/Bal Applications dismissed.