' RAHMAT HUSSAIN JAFFERI, J.---This order will dispose of C.M.A. No,3817 of 2002 under section 151, C.P.C. For the restoration of petition and C.M.A. No,3818 of 2002 under section 151, C.P.C. Read with section 5 of Limitation Act for condonation of delay in filing the above application.
2. The facts giving rise to the present application are that on 29-12-1991, constitutional petition was filed by the petitioner against the respondents. The same was fixed for regular hearing in the year 1992 and it was being adjourned from time to time for various reasons when on 28-1-2000 the petition was dismissed as nobody was present from the side of the petitioner.
3. After more than two years of dismissal of the petition, the present applications have been filed on 23-5-2002 on the grounds that petitioner was resident of Lahore and from there he was contacting his Advocate but he was being informed that the matter was pending. In the month of April, 2002 he shifted to Karachi, he again contacted his Advocate who assured him that his matter was still pending. Subsequently, he contacted the office of this Court where he came to know that the petition was dismissed on 28-1-2000, therefore, he prayed for condonation of delay in filing of application for restoration of application. The respondent No,1 filed counter-affidavit in which he denied all the allegations of the petitioner and took a plea that the application was time-barred, therefore, he prayed for the dismissal of the application. The petitioner filed rejoinder, in which he asserted the same facts as disclosed by him in the applications.
4. We have heard the Advocates for the petitioner, respondent No,1, Standing Counsel for A.A.-G., and perused the R&Ps of this case and examined the law involved in the matter.
5.. The learned Advocate for the petitioner has asserted the same facts as disclosed by the petitioner in his application and further added that for the fault of pervious Advocate of the petitioner the party should not be penalized and further asserted that he had good case to succeed, therefore, the matter should be decided on merits. On the said prepositions he has relied upon Noorul Amin and another v. Muhammad Hashim and 27 others (1992 SCMR 1744) and Jane Margrete Willian v. Abdul Hamid Mian (1994 SCMR 1555).
6. On the other hand the learned Advocate for the respondent No,1 has argued that the grounds taken by the petitioner that he contacted his Advocate from Lahore and also in Karachi where he was informed that the petition was pending, has hot been supported by the affidavit of his previous Advocate; that the Advocate is the agent of the petitioner, therefore, all his actions are binding upon the petitioner and the matter is in between the petitioner and his Advocate for that the valuable rights, which have been acquired by the respondent cannot be taken away.
7. On the proposition of conduct of Advocate engaged by a party he has relied upon (1)
Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan Lahore (1970 SCMR 76),
(2) Zulfiqar Ali v. Laldin and another (1974 SCMR 162), (3) Jhanda v. Maqbool Hussain and others (1981 SCMR 126), (4) Sher Muhammad v. Said Muhammad Shah (1981 SCMR 212), (5) Abdul Hamid and 3 others v. Sayed Abdul Qadir and others (PLD 2001 Supreme Court 49), and (6) Saifullah Siddiqui v. Karachi Electric Supply Corporation Limited (1997 SCMR 926). He has further argued that the cause shown by the petitioner for his non-appearance or his Advocate is not coming within the ambit of sufficient cause, which means "beyond the control of petitioner". He has further argued that the valuable right has accrued to the respondent No,1 which cannot be curtailed in the present manner.
8. The learned Standing Counsel and A.A.-G. Have adopted the arguments as that of respondent No, 1.
9. We have given due consideration to the arguments. The entire matter hinges upon the fact as to whether or not the conduct of the Advocate engaged by a party is binding upon the party. The learned Advocate for the petitioner has relied upon Muhammad Sadiq v. Mst. Bashiran (PLD 2000 SC 820). The facts of the case are that Lahore High Court dismissed the revision petition for non- prosecution. After about one and half years, an application under Order IX, rule 9, read with section 151, C.P.C. For recalling/setting aside the order of dismissal of revision petition was filed. In the said petition the Lahore High Court observed that the petitioners were poor litigants and had suffered due to negligence of their counsel and in order to decide the petition on merits, the dismissal order of revision petition was recalled and the petition was restored to its original position subject to payment of costs of Rs,6,000 to the respondent. The said order was challenged before the Hon'ble Supreme Court of Pakistan. The main ground for maintaining the order was the point of Limitation.
At page 823, (para 5), it has been observed as under:-- "At the very outset it may be observed that dismissal of a civil revision after its admission by the Court seized with it for non-prosecution is not legally well-recognized for the reason that jurisdiction of a revisional Court under section 115, C.P.C. Is invoked by an aggrieved person to point out illegalities or irregularities or the jurisdictional defects in the proceedings and the orders passed by the subordinate forums. Therefore, on entertaining a revision petition, Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings of the subordinate Courts do suffer or not from any illegality or irregularity. In other words, after filing a revision, matter rests between the revisional and subordinate Courts. To substantiate this argument reference may be made to Naoomal Tourmal v. Tarachand Sobharaj and another AIR 1933 Sindh 2000. Thus is advised that the Court after having entertained a civil revision instead of dismissing it is default, may make efforts to dispose it of in accordance with the parameters laid down by section 115, C.P.C.
10. At page 824 (paras. 7 and 8), it has been observed as under:-- "7. As it has been observed hereinabove that there is no specific provision in Civil Procedure Code to restore a revision dismissed for non-prosecution, therefore, an aggrieved party can claim relief under section 151, C.P.C. In this regard reference may be made to House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Karachi 329.
8. In continuation of above conclusion it is to be observed that for filing of an application to invoke inherent jurisdiction of Court no limitation has been prescribed under a particular Article of Limitation Act. Therefore, the application so filed shall be governed by residuary provision i,e, Article 181 of Limitation Act, according to which application for which no period of limitation is provided elsewhere in the schedule or section 48 of Code of Civil Procedure, prescribed time limit shall be three years when the right to sue accrues".
11. From the perusal of above authority, the question of conduct of advocate of petitioner was not discussed. However, the point of Limitation was considered in a matter of Revision petition.
12. On the same point the learned advocate for the respondent No,1 has relied upon the authorities of the Honourable Supreme Court of Pakistan from the years 1970 to 2001.
13. In the case of Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore (1970 SCMR 76), it has been observed that even if counsel was at fault, other side could not be deprived of valuable right accruing to him by lapse of time.
14. In the case of Zulfiqar Ali v. Lal Din and another (1974 SCMR 162) it has been observed that the mere fact that a litigant has engaged a counsel to appeals on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Code, it is he who should suffer and not the otherside.
15. In the case of Jhanda v. Maqbool Hussain etc. (1981 SCMR 126) it has been observed as under: -- "It seems to us that not much benefit can accrue to the petitioner on the basis of the certificate furnished by Rana Abdul Majid, Advocate, regarding his illness. We notice that the certificate does not mention the dates during which the learned counsel had been indisposed and confined to bed so that he could not send any intimation to the petitioner regarding the dismissal of his case in the High Court. As already stated, the judgment of the High Court was announced on 22nd April, 1980, and it was only by chance that the petitioner is stated to have come to know of the High Court's order on the 17th of September,' 1980, through the village Patwari. This makes a period of almost five months, but there is no material before us to come to the finding that Rana Abdul Majid, Advocate, was so seriously ill during all this period as not to be able to send any intimation to the petitioner regarding the order made by the High Court. We consider, therefore, that this is a case of clear negligence on the part of the counsel, and the question is whether this would constitute sufficient reason for condoning a delay of 103 days, during which a valuable right has accrued in favour of the contesting respondents.
' As a result, we consider that no justification has been made out for the condonation of an inordinate delay extending to 103 days. The petition is, accordingly, dismissed as hopelessly barred by time."
16. In the case of Sher Muhammad v. Said Muhammad Shah (1981 SCMR 212) it has been observed as under:-- "It was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learnt of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay, as observed by this Court in Mustafa v. Settlement Commissioner 1974 SCMR 104 and Muhammad Nawaz v. Mst. Sakina Bibi 1974 SCMR 223. In the first mentioned case the petitioner's counsel had, in fact, sent intimation to the petitioner, which somehow did not reach him in time. The Court observed that: ' We are not satisfied that the explanation for the delay put up by the petitioner is either genuine or convincing. It is obvious that the petitioner has been negligent in not keeping himself informed about the fate of his case.
' In the second case, the delay was attributed to the negligence of the counsel in the matter of furnishing intimation to the petitioner about the dismissal of the case by the High Court. It was observed by the learned Judge that: "Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case, the initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision it is announced in their absence. Even it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents Nos.1 to 3, We are not satisfied that the petitioners were diligent or took due care in the matter.
' We are of the view that the observation made in the two precedent cases are fully attracted to the facts of the present case, and, accordingly, no justification is at all made out for condoning delay of 84 days. The petition, therefore, is dismissed as being barred by time".
17. In the case of Abdul Hamid v. Abdul Qadir (PLD 2001 SC 49) at page 53 it has been observed as under:- "Both the grounds do not appear to be tenable as a party who knocks the door of the Court is expected to be diligent and vigilant to keep a track of the proceedings and not to wait for notice of the Court. In any event, no notice of dismissal of a cause is issued by the Court and in case the deceased plaintiff was kept in dark by his counsel it is a matter between a client and the counsel which benefit cannot be extended to the disadvantage of the opposite-party."
18. In the case of Safiullah Siddiqui v. Karachi Electric Supply Corporation Limited (1997 SCMR 926) it has been observed at page 934 as under: "The view taken by the learned Judge in Chambers gets support from the above two judgments relied upon by him. However, we may observe that we are not inclined to subscribe to the observation of the learned Judge in chambers that a party cannot be penalized for the negligence of his Advocate. If the Court motion notice would have been served on the Advocate of the respondent and if he would not have appeared without any sufficient cause, the respondent would have no case for setting aside of the above ex prate judgment/decree. A party does not discharge his obligation to conduct the case to ensure that the case is properly and diligently prosecuted or defended. Any negligence on the part of his Advocate will be binding on him."
19. From the careful examination of the authorities, it is unanimous opinion of the Hon'ble Supreme Court of Pakistan that any negligence on the part of the advocate of the party is binding upon him and if he engages a counsel who is lacking sense of responsibility to the Court, it is he who should suffer and not the other side. Thus, the petitioner cannot take the refuge in the conduct of his advocate. Furthermore, his previous advocate has also not filed any affidavit in support of his averments. From the averments made in the petition, it is clear that the non-appearance of the petitioner on the date of hearing is not coming within the ambit of sufficient cause.
20. After considering the material available on the record, we are of the considered view that the applications merit no consideration.
21. Above are the reasons of our short order dated 13-3-2006 by which we had dismissed the application.