C.M. No.228-B of 2004 This petition under section 151, C.P.C. prayed restoration of suit (C.O.S. No.17 of 2000) dismissed by this Court on 28-5-2003 on account of lack of instructions to its counsel, regarding settlement of repayment of the outstanding loan of Rs.31,35,159. It was observed while dismissing the suit on 28- 5-2003 that in case of restoration of suit, all the applications filed by the defendants shall be deemed to be pending and shall be reactivated automatically.
2. Succinctly, relevant facts are that the applicant (Zarai Taraqiati Bank Limited) filed a suit for recovery of outstanding loan, under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 wherein respondents/defendants filed their respective petitions for leave to appear/defend the suit. Pending these matters, respondents/defendants applied for amicable settlement of repayment of their outstanding loan by availing S.B.P. Circular No.29 of 2002 re-structuring package with concurrence by the parties whereunder an amount of Rs.2.00 Millions was paid by the respondents on 3-5-2003. This Court had been adjourning the suit awaiting settlement between the parties, out of Court and ultimately the suit was dismissed as noted above. Petitioner has now filed instant petition for revival of suit on account of default of respondents, to stick with repayment schedule, as settled.
3. The learned counsel for the petitioner submitted that with the concurrence of the parties the outstanding loan was restructured by giving schedule for its repayment in 18 instalments to which the respondent No.1 did not abide hence, the suit may be ordered to be revived. It was further submitted that since dismissal of suit on account of lack of instructions, was not under Order IX, rule 8, C.P.C. hence its revival may be ordered under section 151, C.P.C., which will be governed by residuary Article 181 of the Limitation Act, 1908 whereunder the limitation is three years from the date of knowledge. In support of his arguments reliance was placed to the judgment in the case of Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCM R 1949; Muhammad Afzal v. Small Business Finance Corporation and 4 others 1997 CLC 1080; Muhammad Bakhsh and others v.
Ghulam Yasin and others 2000 M LD 466; Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820 and Haji Ahmad Associates v. Cotton Export Corporation of Pakistan Limited 2001 YLR 426.
4. The learned counsel for the respondents Nos.1, 2, 4 and 5 refuted the arguments of the petitioner and opposed the revival of suit and referred to paragraph 5 of the petition to contend that on account of default in payment according to settlement, a fresh cause of action has accrued to the Bank, hence instead of re-activating the old suit they should file a fresh suit. It was further contended that dismissal of suit on account of lack of instructions to the counsel will be deemed to be dismissed in default of appearance under Order IX, rule 8, C.P.C. and the suit can only be restored, if sufficient cause is shown, within a period of 30 days from the date of dismissal. The learned counsel for the respondent No.3 argued that defendant No.3 was neither a loanee nor guarantor/surety, hence, the suit against him may not be ordered to be revived.
5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record with their assistant. It is not disputed amongst the parties that there had been a restructuring package under S.B.P. Circular No.29 of 2002, giving a schedule for repayment of the outstanding amount of loan against the respondents who also accepted it and made payment of Rs.2.00 Million thereunder. Order sheet of the suit revealed that the suit was being adjourned by this Court, awaiting settlement between the parties and was ultimately dismissed on 28-5-2003 for lack of instructions about the settlement between parties for repayment of the loan.
Since the suit was dismissed in the presence of the learned counsel for the petitioner, hence, dismissal cannot be considered under Order IX, rule 8, C.P.C. Besides it, if the learned counsel for the petitioner had no instructions regarding settlement between parties regarding repayment of loan amount out of Court, the suit should have proceeded on its own merits and the same could not be dismissed simply for the reason that the counsel was not aware of the fate of the settlement/compromise with the defendants. In the given circumstances, at the most the learned counsel for the petitioner could retire/discharge from the proceedings with the leave of the Court necessitating notice to the plaintiff requiring fresh representation on its behalf. In similar circumstances, the judgment in the case of Haji Ahmad Associate (supra) wherein it was held that dismissal of suit on the statement of the counsel that he had no instructions from his client i.e. plaintiff, the suit could not have been dismissed for non-prosecution. I have no ambiguity that neither the suit was dismissed under Order IX, rule 8, C.P.C. nor the same could have been dismissed under this provision of law. Another circumstances to negate the dismissal order dated 25-8-2003 is that on this date the suit had not been fixed for hearing, as the same was being adjourned awaiting settlement between the parties, out of Court. A suit could be dismissed under Order IX, rule 8, C.P.C. only on a date fixed for its hearing. The Honourable Supreme Court in the case of Qazi Muhammad Tariq (supra) annulled the dismissal of suit, ordered on a date on which only application of the plaintiff praying temporary injunction was fixed for determination. In this view of the matter, the order of dismissal of the suit on a date not fixed for hearing, is bad at law.
The question which hinges for determination is that if the suit was not dismissed under Order IX, rule 8, C.P.C. then how it can be revived. Provisions of section 151, C.P.C. were promulgated to cater such situations as those were intended by the legislature for advancement of justice. A Language of section 151, C.P.C. left no room for the assumption that if a suit was incorrectly dismissed, the same cannot be revived. Since it is the obligation of the Court to administer the justice between parties by applying the correct law, it is quite apt to my conscious judicious mind that an incorrect order of dismissal of petitioner's suit, can be rescinded/recalled by invoking the jurisdiction by the Court under section 151, C.P.C., keeping aside the technicalities.
6. Adverting to the objection regarding limitation, for the reasons noted, since the dismissal was not legally justified and the same was not one under Order IX, rule 8 of C.P.C. and for revival of suit, invoking the jurisdiction under section 151, .C.P.C., there being no controlling provision in the Limitation Act 1908, the residuary Article 181 of the Act (ibid) would be applicable which provides a period of three years from the date of knowledge. The Honourable Supreme Court very graciously mandated in the case of Muhammad Sadiq (supra) that no limitation having been prescribed for filing an application to invoke the jurisdiction of the Court under section 151, C.P.C. in the Limitation Act 1908 or section 48, C.P.C. residuary provision of Article 181 would be attracted. I respectfully following the view of the Honourable Supreme Court hold that application in hand was filed within three years from the date of dismissal of suit thus the same was not barred by limitation. Attending to the argument of the learned counsel for the respondent that due to default in payment, according to the schedule agreed between parties given under restructuring settlement, a fresh cause of action has accrued to the petitioner for filing a fresh suit, hence, the suit incorrectly dismissed may not be revived. This argument has not impressed me because the original cause of action which accrued to the petitioner on nonpayment of the finance facility availed by the respondent, is not only recurring but also remained undecided, as the suit was dismissed incorrectly. Besides it, nonobservance of repayment schedule gave the petitioner cause for revival of its suit which in itself was sufficient for restoration of the suit. Respondents cannot be permitted to take benefit of their own default by saying that the suit be not revived.
7. For the reasons noted above, the petitioner has made out a case for an order for setting aside the order of dismissal of suit dated 28-5-2003 and this petition is accordingly accepted, by rescinding the dismissal order and the suit is ordered to be revived/restored to its original number.
There will be no order as to costs.