' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioners seek leave to appeal against the judgment, dated 4th December, 2002 passed by Lahore High Court, Lahore whereby R.F.A. Filed by them has been dismissed.
2. Precisely stating the facts of the case are that Messrs Sun Shine Cloth Ltd. (respondent No,2)
[herein after referred to as 'the Company'] through petitioner No,3 Mian Hassan Aftab, Chief Executive/Director and petitioners Nos.1 and 2, who were also Directors of the Company, obtained machinery on lease video equipment lease agreement bearing No,LHR/01/93/M/016, dated 23rd January 1993 from respondent No,1 for a period of five years. As per the contents of the agreement, the lease amount was Rs,23, 000,000 whereas rental payable monthly in advance was Rs,570,569.
The petitioners and respondent No,2 paid a sum of Rs,5, 706,023 after 21st June, 1995 and requested for rescheduling, which was allowed by respondent No,1 as such a memo. Of undertaking containing the terms of rescheduling was signed on 21st June, 1995 to document the transaction but despite of it, they failed to discharge their liability and when an amount of Rs,29,935,750, inclusive of all arrears of the rent was outstanding for the payment of which they were responsible, severally and jointly, a suit was filed by respondent No,2 in the Banking Court No,II, Lahore through official liquidators, as in the mean time, the Company had been ordered to be wound up in C.O.
No,75/1997 by the learned Company Judge of Lahore High Court, Lahore.
3. It may be noted that respondent No,1 i,e, Trust Leasing Corporation Ltd. Was authorized to pursue and prosecute the suit for recovery of Rs,29,935,750. An application filed by petitioners on 14th May, 1995 to appear and defend the suit was dismissed by the learned Company Judge-II, Lahore on 26th July, 1999. It may also be noted that the Company i,e, respondent No,2 itself did not file any application seeking permission to appear and defend the suit. After dismissal of the application, a decree was passed by the learned Banking Judge in favor of respondent No,1 to the tune of Rs,23,510,720 minus Rs,6,425,000 which was paid by them during the pendency of the suit against the petitioners as well as respondent No,2. Petitioners moved an application under section 12(2), C.P.C. Before the learned Banking Judge for setting aside the judgment/decree, dated 26th July, 1999, but without any success as the same was dismissed on 25th September, 1999. Thereafter, an appeal was filed before the High Court, by the petitioners. As far as the Company is concerned, it conceded to the judgment.
4. It is important to note that the petitioners in their application for leave to appear and defend the suit, denied execution of guarantees on behalf of respondent No,2 but before the High Court, the petitioners conceded execution of guarantee on behalf of the Company i,e, respondent No,2.
Learned High Court, ultimately dismissed the appeal filed by the petitioners. Relevant para from the judgment reads as under thus:--- "(12) In the present case also appellant guarantors had expressly given their consent as per above reproduced clauses 2,7,8,9 and 10 of the letter of guarantee dated 23-1-1993 and had assented to any subsequent composition of debt, enlargement of time and other variations between the leasing corporation and the company (UL). The guarantee was a continuing guarantee, permitting the creditor and the principal debtor to vary the terms of the leasing agreement. The appellant guarantors had waived their prior right of consent or assent to such variance. In our opinion, contracting parties had a right to contract out of the privilege of release or discharge by executing an agreement of waiver of prior consent/assent in the guarantee. Rescheduling Memorandum of Understanding dated 21-6-1995 was within contemplation of above clauses and, therefore, did not affect discharge of appellants.
5. Case was taken up for hearing on 11th October, 2004 when Mr. M. Raza Kazim, Senior Advocate Supreme Court appeared and argued that case on behalf of petitioners, during course whereof, he was asked to show the bona fides of the petitioners towards discharging their liability, if finally they are adjudged to make the payment of decretal amount as guarantors. He after having taken instructions stated that petitioners have agreed to deposit Rs,20 million (two crore) in the Court subject to decision of instant petition for leave to appeal and to do the needful time was sought up to 21st October, 2004. Keeping in view the facts and circumstances of the case, following order was passed on 11th October, 2004:--- "Learned counsel was called upon to show bona fide of the petitioners towards discharging their liability if finally they are adjudged to make the payment of decretal amount as guarantor, who after having taken instructions stated that, petitioners have agreed to deposit Rs,20 millions (two caror) in the Court subject to decision of instant petition for leave to appeal for which he sought time up to 21st October, 2004.
' Request so made on behalf of petitioners is allowed. Let petitioners deposit the amount till stipulated date in the official account of the Supreme Court, which shall be invested by the Registrar in any profitable scheme of the Government of Pakistan. The matter be fixed on 25th October, 2004 at Serial No,
1. It is pointed out in both the learned counsel for parties to come prepared to argue the case as it is likely to be decided finally on the said date. However, it is made clear that if the amount of Rs,20 million (two caror) is not deposited till 21st October no further indulgence will be shown and instant petition shall be dismissed accordingly on the- date fixed for hearing."
' Surprisingly, instead of complying with the above order, petitioner through Messrs Mian Fazl-e- Mehmood, Senior Advocate Supreme Court and Syed Iftikhar Hussain Shah, Advocate Supreme Court as well as Ch. Muhammad Akram, Advocate-on-Record filed an application under Order XXXIII, rule 6 of the Supreme Court Rules, 1980, on behalf of petitioner No,2, contending therein that Mr. M. Raza Kazim, Senior Advocate Supreme Court had, at no stage, contacted petitioner No,2 for obtaining her consent or her instructions in this behalf. Notice of this application was given to the respondents as well as to Mr. M. Raza Kazim, Senior Advocate Supreme Court to appear in person and file reply. Accordingly, reply of the application has been filed on behalf of respondent No,1 and by Mr. M. Raza Kazim, learned Senior Advocate Supreme Court. Contents of his reply read as under thus:--- 4 respectfully submit that the statement I made before this Honourable Court on 11-10-2004 was true and correct and made totally honestly as counsel for the petitioners.
' (Sd.) M. Raza Kazim, ' Senior Advocate Supreme Court.
' During arguments he confirmed that he had contacted petitioner No,1, and on his instructions, statement was made by him under the bona fide impression that petitioner No,1, who is also one of the Directors of the Company, is authorized to make statement on behalf of remaining petitioners i,e, No,2 and 3, as well. Petitioner No,1 Mian Aftab A. Sheikh has not denied conveying of instructions to Mr. M. Raza Kazim, Senior Advocate Supreme Court to make statement for the deposit of Rs,20 million in the Court before 21st October, 2004.
6. It may be noted that perusal of record suggest to hold that petitioner No,1 Mian Aftab Sheikh had been conducting proceedings on behalf of petitioners Nos.2 and 3 as well. Reference in this behalf may be made to the application filed by the petitioners for leave to appear and defend the suit dated 17th March, 1999. We fail to understand that if the petitioners had not given any instructions to Mr. M. Raza Kazim, Senior Advocate Supreme Court why he would make a statement before the Court to deposit Rs,20 million, with a view to show their bona fides to discharge their liabilities.
7. It is also important to note that Mr. M. Raza Kazim, learned Senior Advocate Supreme Court got adjourned the case for a short time on 11th October 2004 and when after some time, hearing of the case resumed, he made statement about deposit of Rs,20 million. Thus the statement made by the counsel for petitioners being correct and true is bound to be accepted and cannot be disbelieved for the reason that petitioners later on had backed out from their statement and had taken a different stand, and if such practice is allowed to prevail, there would be no end to litigation.
8. Learned counsel appearing for respondents has also supported the version of Mr. M. Raza Kazim, Senior Advocate Supreme Court in respect of his statement, which he made on 11th October, 2004.
Therefore, we are of the opinion that a petitioner were bound to comply with the order, dated 11th October, 2004 in letter and spirit and on account of non-compliance of the same, petition deserves to be dismissed.
9. Besides above, on account of non-compliance of the order by the petitioner No,1, under whose instructions, Mr. M. Raza Kazim, Senior Advocate Supreme Court gave an undertaking to the Court about the deposit of Rs,20 million before the next date of hearing, he is also liable to be proceeded against for contempt of Court because we are of the considered opinion that if strict action is not taken, then no individual litigant would ever care about the Court proceedings, particularly in the implementation of undertakings being given in the Court.
9-A. Now we have also to see as to whether the order, dated 11th October, 2004 can be recalled in view of the application moved by the petitioner No,2 Mrs. Nasrin Aftab. In this behalf it is to be noted that Order XXXIII rule 6 of the Supreme Court Rules, 1980 under which application has been moved, confers inherent powers upon the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Admittedly, the order, dated 11th October, 2004 is not the result of abuse of process of the Court nor it is in the interest of justice to recall the said order, for the reasons mentioned above. In addition to above, ordinarily, inherent powers are exercised when no provision of law is available to cater the situation, whereas in instant case, if at all petitioners were aggrieved of the order, dated 11th October,. 2004, they should have filed a review petition in terms of Article 188 of the Constitution of Islamic Republic of Pakistan read with Order XXVI of the Supreme Court Rules, 1980 but the petitioners intentionally did not file review petition because it was not possible for their counsel i,e, Mr. M. Raza Kazim, Senior Advocate Supreme Court to resile from the statement which he had made before the Court.
11. As far as merits of the case are concerned, we have also examined the same, which indicates that no indulgence can be shown in this behalf as well, because their application under section 10 of the Banking Companies (Recovery of Loans, Advocates, Credits and Finances) Act, 1997 was dismissed on 27th July, 1999, as they failed to make out a case for leave to appear and defend the suit. Similarly, application moved by them under section 12(2), C.P.C. Was also dismissed on 26th July, 1999. Learned High Court, in appeal, on having taking into consideration respective contentions raised on behalf of the petitioners, declined to interfere in the judgment of the trial Court in pursuance whereof decree was passed.
12. Thus no case is made out for grant of leave to appeal.
' As petitioner No,1 intentionally failed to comply with the order of the Court, dated 11th October, 2004, therefore, notice is issued to him to appear and explain as to why action of contempt of Court may not be taken against him. Office is directed to fix this case for further action in the 2nd week of January, 2005.