Negligence of counsel

2019 CLC 321 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 5 & 3Constitution of Pakistan, Art. 199Constitutional petitionMaintainabilitySuit for declaration and permanent injunctionAppealLimitationNegligence of counselCondonation of delaySufficient causeScopeAppeal was dismissed on the ground of limitationPlea of petitioner was that due to negligence of his counsel appeal could not be filed within timeValidityPetitioner challenged impugned judgment and decree after the delay of five hundred and thirty seven days

Petitioner, despite having knowledge of impugned judgment on the day it was announced did not take steps to file appeal within the time prescribed under the law

Application for condonation of delay was silent with regard to details of facts as to when counsel, against whom allegation was that he filed the appeal was engaged and certified copies were handed over to him

Nothing was on record that petitioner was diligent and had enquired from the counsel with regard to filing of appeal

Slackness for non-filing of appeal for such a long period could only be attributed to the petitioner

Law helped the vigilant and not the indolent

Negligence of counsel would not constitute sufficient cause for condonation of delay

Only remedy available to the petitioner against negligence of his counsel for not filing appeal in time was to file suit for damages against the counsel

Once limitation started running no subsequent event could stop the same

Delay of each day had to be explained for its condonation

Vested right would be created in favour of other side after expiry of limitation

Condonation of delay was prerogative of the Court which had to be exercised rationally and judicially

Impugned order for rejecting application for condonation of delay was based on sound reasons

Court was bound to dismiss the suit, appeal or application if same was found to be barred by limitation

Court could condone the delay where plausible explanation constituting sufficient cause for not approaching it within time had been mentioned

Assertions made in the affidavit filed by the appellant before Appellate Court in support of application for condonation of delay had been controverted by filing objections/counter affidavit by the respondent

Appellate Court had rightly dismissed appeal as barred by time

Constitutional petition was not a substitute either of revision or second appeal

Appreciation of facts could not be resorted to in exercise of constitutional jurisdiction

Petitioner had not preferred second appeal against the judgment passed by the first Appellate Court

Impugned judgment could not be questioned in constitutional petition

No illegality, irregularity or substantial error had been pointed out in the impugned judgment passed by the Appellate Court

Constitutional petition being not maintainable was dismissed in circumstances.

2017 MLD 1713 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.5, Sched. & Ss.9(5)(a) & 9(6)Constitution of Pakistan, Art.199Constitutional petitionEx parte judgment and decreeNegligence of counselEffectApplication for setting aside ex-parte judgment and decreeMaintainabilityCondonation of delaySuits for maintenance, dower and dowry articles were decreed ex parte against husband for his non-appearance

Husband filed application under S.9(6), Family Courts Act, 1964 for setting aside ex parte judgment and decree, which was dismissed both by Family court and appellate court

Contention raised by husband was that he could not appear due to negligence of his counsel who had neither informed him about date of hearing of suits nor passing of ex parte order

Validity

Husband had been seriously prejudiced due to negligence of his counsel, for which Disciplinary Committee of Bar Council had initiated proceedings against the counsel

Impugned order passed under S. 9(6) of Family Courts Act, 1964 was set aside and suits were remanded to Family Court for decision on merits

Constitutional petition was accepted in circumstance.

2014 PLD 114 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Negligence of counselEffect

Duty of client would be to keep himself abreast of proceedings in his case and remain in touch with his counsel for such purpose, otherwise he would have to suffer for negligence of his counsel being his agent

Principles.