' ANWAR ZAHEER JAMALI, J.---By this order, we propose to dispose of above numbered three miscellaneous applications moved by the appellants.
2. First application, C.M.A. No,1607 of 2006, is an application under Order XLI, Rule 19, read with Order IX, Rule 9 and sections 107 and 151, C.P.C seeking recall/review of the order dated 6-9-2006 and restoration of this appeal. Second application, C.M.A. No,1641 of 2006, is an application under Order XLI, Rule 5, read with sections 107 and 151, C.P.C. Seeking suspension of operation of impugned order dated 30-6-1997 and restoration of status quo ante, pending disposal of this appeal. Third application C.M.A.No,1749 of 2006, is an application under section 151, C.P:C. Whereby appellants have sought permission of this Court for placement of further affidavit of Mr. Mehboob Elahi, Director of appellant No,1, on record, for consideration of earlier application C.M.A. No,1607 of 2006.
3. Notices of these applications were issued to the other side, whereupon detailed counter affidavits to C.M.As Nos. 1607/06 and 1641/06 have been submitted by the respondent No, 1 .
Subsequently, counter affidavit to C.M.A. Nos. 1749 of 2006 has also been filed by the respondent No,1 on 31-10-2006. Rejoinder to such counter affidavits have been submitted by the appellants on 30-10-2006 and 2-11-2006, which are also available on record.
4. Briefly stated, the facts, relevant, for disposal of these applications, are that after passing of impugned order dated 30-6-1997 on C.M.A. No,2782 of 1997 in suit No,330 of 1995, which was an application under Order XXXIX, Rules 2(3), read with section 151, C.P.C. And sections 3 and 4 of the Contempt of Court Act, 1976, moved by the respondents, thereby ordering attachment of the disputed project of the appellants through Official Assignee of Karachi, with further directions for him to inform the Court as to the extent of violation and also issuing notice to Mr. Maqbool Elahi, Director of respondent No,1, to show cause why action for dis-obedience of Court's order should not be taken against him, the instant, appeal under Order XLIII was preferred on 4-7-1997.
5. The perusal of case record reveals that during the proceedings of this appeal on 8-7-1997, when the matter was fixed before the Court, at the request of Mr. Farogh Nasim, learned' counsel for appellants, it was adjourned to 15-7-1997, on which date it could not be proceeded as one of the Hon'ble Member of the Bench was the same Hon'ble Judge, who had passed the impugned order.
On 17-7-1997, this appeal was admitted to regular hearing and the operation of impugned order was suspended till next date of hearing, i,e, 24-7-1997.. On 24-7-1997 case was adjourned to 26-8- 1997 at the request of the learned counsel for respondents to enable him to file counter affidavit and interim order was extended till the next date of hearing. On 9-12-1997, C.M.A. No,651 of 1997, an application under Order XLI, Rule 5 read with section 151, C.P.C. Was fixed for hearing before the Court, but due to the absence of parties, it was adjourned. Again, on 23-2-1998 when the same application came up for hearing, none was present and accordingly, case was adjourned to a date in office. On 16-3-1998, Mr. Irfan Aziz, holding brief for Mr. Farogh Nasim, learned counsel for appellants, had sought adjournment on the ground that the latter was busy before another bench.
On 30-3-1998, case was adjourned to 22-4-1998 with the observation that C.M.A. No,651 of 1997 will be heard along with main appeal. On 22-4-1998, when the case came up before the Court for hearing of application as well as regular hearing of appeal, nobody was present for respondents, therefore, case was adjourned to a date in office. On 11-9-1998, arguments of learned counsel for the parties were partly heard and case was adjourned to 16-9-1998. On 16-9-1998, only counsel for respondents was present, thus, the case was adjourned to 25-9-1998. On 25-9-1998, though both the counsel for the parties' were present, but the case was adjourned to 30-9-1998, on which date it was ordered by the Court that case may not be treated as part heard and it may be fixed according to roster. On 1-2-2000, at the request of Mr. Farogh Nasim, learned counsel for appellants, case was adjourned to a date in office. Again, on 21-9-2000, case was adjourned as Mr. Farogh Nasim, learned counsel for appellants, was stated to be on general adjournment. On 8-2- 2001, case was again adjourned by consent as Mr. Farogh Nasim, learned counsel for appellants, was not available and his junior Ms.Farkhunda Jabeen was holding brief for him. On 23-8-2002 again Ms. Danyal Alam, a junior counsel of Mr. Farogh Nasim, learned counsel for appellants, was present and the case was adjourned. Similar was the position on 10-1-2003 when Ms. Farkhunda Jabeen, holding brief for Mr.Farogh Nasim, had requested for adjournment on the ground of latter's illness. On 17-3-2004, Ms. Farkhunda Jabeen from the office of Mr. Farogh Nasim, learned counsel for appellants, stated before the Court that this appeal will be argued by senior counsel Mr. Sharifuddin Pirzada, therefore, case was adjourned. On 18-10-2004, Mr. M.H. Javed Junior associate of Mr. Farogh Nasim, had left a chit that the latter was busy before another bench therefore, case was adjourned. On 6-12-2004 again Ms. Farkhunda Jabeen from the 'office of Mr. Farogh Nasim had made a statement before the Court that on behalf of appellants, case will be argued by the senior counsel Mr. Sharifuddin Pirzada, who was not present on that day, therefore, case was adjourned.
On 16-5-2006 again Ms. Farkhunda Jabeen, holding brief for Mr. Farogh Nasim was present and the case was adjourned to a date in office. On 6-9-2006, when the case came up before this court for hearing of listed application and regular hearing of the appeal, Mr.Farogh Nasim, one of the counsel appearing for the appellants, was present in Court, but he expressed his inability to proceed with the matter, therefore, following order was passed by this Court, whereby this appeal was dismissed for non-prosecution: "6-9-2006.
' Mr. Farogh Naseem, Advocate for the Appellant. Mr. Kanwar Majid, Advocate for the Respondent.
' Dr. Farogh Naseem, one of the counsel appearing for the appellant, is present in Court. He expresses his inability to proceed with the matter. Other, counsel Mr. Sharifuddin Pirzada is not present today. Mr. Kanwar Majid, advocate for the respondent is present. Perusal of case record reveals that interlocutory order dated 30-6-1997 passed on C.M.A. No,2782 of 1997. In Suit No,330 of 1995 has been assailed through this appeal under Order XLIII, rule 1, C.P.C. Filed on 4-7-1997 and since then for one or the other reason, this matter has not proceeded.
' In such circumstances we are not inclined to adjourn appeal, accordingly the same is dismissed for non-prosecution."
6 It is in the above background of this case that three listed applications have been moved by the appellants. In the first application (C.M.A. No,1607 of 2006) it has been stated that the absence of the senior counsel on behalf of appellants was neither wilful nor deliberate and further the delay in the disposal of appeal could not be attributed to the appellants as on several occasions, adjournments were sought on behalf of respondents. It has also been stated in the application that no opportunity was given to the appellants as a last or final chance to engage new counsel, thus, the appellants were deprived of their right of natural justice. Lastly, it was contended that the Hon'ble Supreme Court of Pakistan has always preferred disposal of cases on merits and has discouraged dismissal of cases for non-prosecution and on technical ground, therefore, following such precedence, the order dated 6-9-2006 be recalled/set aside/reviewed and the appeal be restored to its original number. In the supporting affidavit to this application, filed by Mr Mehboob Elahi, Director of the appellant No,1, he has stated in detail the facts and circumstances in which initially late Ghulam Hussain Abbasi and Mr. Farogh Nasim were engaged by him and later on Mr. Sharifuddin Pirzada was engaged along with Mr. Farogh Nasim, However, in the whole affidavit, he has not disclosed any reasons whatsoever about his own absence on the dates of hearing, particularly when show-cause notice was issued to him for proposed penal action for violation of earlier orders passed by the learned single Judge in suit No,330 of 1995. In the other affidavit of Mr. Mehboob Elahi filed along with C.M.A. No,s1749 of 2006, he has further stated on oath that in the first week of September 2006, Mr. Sharifuddin Pirzada one of the counsel engaged by him, was busy in marriage ceremony of his daughter and that on 6-9-2006 Mr. Sharifuddin Pirzada, who is also Senior Minister in the Federal Cabinet was at Islamabad for some urgent official work and from there, he rushed to. Lahore in order to attend Valima of his daughter, scheduled on 7-9-2006. Thus, his absence from this Court on 6-9-2006 was not deliberate or wilful.
7. In the counter affidavits to the application of the appellants, it has been stated by the respondent No,1 that the facts stated by the appellants for seeking restoration of this appeal, are misleading and that the learned Senior counsel engaged by the appellants, never made his .Appearance in this appeal. Respondent No,1 further stated that all the advocates, who had signed the vakalatnama on behalf of appellants were duly authorized to argue on their behalf, therefore, mere absence of the senior counsel on the relevant date was not sufficient for recalling of the order dated 6-9-2006: It has also been stated that the counsel present in Court on behalf of appellants (Mr. Farogh Nasim) was duty bound to proceed with the case, but despite shocking delay -of almost ten years in the disposal of this appeal, preferred against an interlocutory order, he refused to proceed with the appeal for no valid reason. To sum up, the respondent No,1 has stated that no sufficient cause for the absence of the appellants and their counsel on the relevant dates was disclosed, therefore, no case for recall/review of the order dated 6-9-2006 is made out.
8. Mr. Rasheed A. Razvi, learned counsel for appellants, after making detailed reference to the facts of the case and proceedings in the present appeal, has contended that delay in the disposal of the appeal and non-proceeding of this appeal on every date of hearing cannot be attributed to the appellants, therefore, the order dated 6-9-2006 passed by this Court is extremely harsh, as it has deprived the appellants from seeking adjudication of the controversy involved in the appeal on merits. He further contended that indeed there is no plausible explanation about the absence of the appellants themselves on 6-9-2006, but in the presence of their counsel Mr. Farogh Nasim on such date of hearing, their presence was not required and in case for any reason Mr. Farogh Nasim has shown his inability to proceed with the case, proper course available to this Court, was that a direct notice should have been issued to the appellants to engage some other counsel, so that due opportunity of hearing was afforded to them. Learned counsel in this regard, made reference of following judgments of this Court and the Supreme Court of Pakistan:
(1) PLD 1966 Supreme Court 467
(2) PLD 1965 Supreme Court 669
(3) 1985 SCMR 2064
(4) PLD 1992 Supreme Court 577
(5) 1989 SCMR 2056
(6) PLD 1988 Karachi 154
9. In the end, summing up his submissions Mr. Razvi reiterated that due to the misconduct or negligence of the counsel, party should not be made to suffer, therefore, in the larger interest of justice, such conduct of the learned counsel may be condoned and full opportunity may be afforded to the appellants to contest the matter on merits.
10. Mr Bilal Shoukat learned counsel for respondents, vehemently controverting the arguments of Mr. Rasheed A. Razvi, has contended that passing of order dated 6-9-2006 by this Court is result of sheer irresponsible and negligent conduct of the appellants as well as their counsel, as on one hand, appellants were not absolved of their own/legal obligation to pursue the appeal diligently even after engaging several counsel in the matter, while on the other hand, Farogh Nasim, learned counsel for appellants, who was twice engaged in the matter, as first vakalatnama was signed by him on 4th July, 1997 and second vakalatnama was filed by him on 18-3-1999, was present in Court all along, but for no valid reason, he had refused to proceed, with the . Appeal. He further contended that in the given facts and circumstances, for restoration of appeal or recalling of order dated 6-9-2006, provisions of Order XLI, Rule 19, C.P.C. Were not attracted, In this regard, he has placed reliance upon one judgment of Indian jurisdiction reported as AIR 1940 Allahabad 248.
Dilating upon the concept of sufficient cause, learned counsel further contended that the perusal of case record shows that the present appeal was instituted on 4-7-1997 along with the vakalatnamas of Mr. Ghulam Hussain Abbasi and Mr. Farogh Nasim and ' interim relief was granted in their favour on 17-7-1997, which continued to remain in operation to the prejudice of the interest of the respondents, but no efforts were made by the appellants for proceeding with the appeal.
Making reference to the filing of vakalatnama of learned senior counsel Mr. Sharifuddin Pirzada in this appeal. On 18-3-1999, Mr. Bilal Shoukat contended that after filing of this vakalatnama, it was again a joint vakalatnama of M/s. Sharifuddin Pirzada and Mr. Farogh Nasim, but not even once, the learned senior counsel had appeared in this case rather on various dates of hearing; adjournment were sought in the case, after the demise of Mr. Ghulam Hussain Abbasi, on the ground that Mr. Farogh Nasim was busy in other Courts or was ill, which clearly gives an impression that it was he, who was to proceed with this appeal. Even on certain dates request for adjournment on the ground of non-availability of the senior counsel Mr. Sharifuddin Pirzada was not made by any counsel from his office, but by the juniors of Mr. Farogh Nasim, while Mr. Farogh Nasim had not made any such statement before the-Court about his inability to proceed with the case throughout the period of over nine years, except on 6-9-2006, which is sufficient to show that such was only a pretext for seeking further adjournment in the matter when he was called upon by the Court to proceed with the matter.
11. Replying to the arguments of Mr. Rasheed A. Razvi that law favours adjudication of cases on merits rather than on technicalities, therefore, further opportunity should be allowed to the appellants to contest this appeal on merits, learned counsel contended that exercise of discretion in this regard will entirely depend upon the facts and circumstances of each case and this proposition cannot be made applicable as thumb rules or rule of universal application. To fortify his further submission that absence of the appellants was also to be explained satisfactorily and mere negligent conduct of the appellants counsel will not absolve them of their own legal obligation to pursue the matter vigilantly, learned counsel has further placed reliance on the following cases:--
(1) 1974 SCMR 162
(2) 1976 SCMR 366
(3) 1982 SCMR 1229
(4) 1984 SCMR 910
(5) 1985 SCMR 333
(6) 1994 SCMR 1948
(8) 2001 CLC 1559
12. Referring to the particular cases, where a party has opted to engage more than one counsel in the matter on its behalf, learned counsel made reference to the judgment in the cases of 35 IC Patna 429 and 2003 SCMR 194 to show that in such circumstances mere satisfactory explanation about the absence of one counsel, cannot be accepted as sufficient cause for restoration of appeal as the other counsel engaged in the matter was equally responsible for proceeding with the appeal. Lastly, learned counsel also made reference to the relevant provision of Sindh Chief Court Rules to add force to his submission that in case any of the counsel engaged by a party was not willing to proceed with the appeal for one reason or the other, the proper course available for him was to seek discharge of his vakalatnama but as long as his vakalatnama was intact, he was bound to proceed with the case while concluding his submissions, Mr.Bilal Shoukat also contended that the respondents have already suffered a lot due to the pendency of this appeal for almost ten years, and suspension of impugned order passed in their favour, therefore, grant of listed applications, will amount to giving further premium to the appellants for their own wrong at the cost of the respondents, which will be unjust, harsh and misuse of the process of law. He therefore, prayed for dismissal of C.M.A. No,1607 of 2006 with costs.
13. In the context of detailed submissions made by the learned counsel, as noted above and the relevant facts of the case, which have also been noted in the preceding part of this order, we have carefully perused the case law cited at the bar. There is no cavil to the proposition of law canvassed in each judgment of the Hon'ble Supreme Court and the High Court cited by learned counsel for the parties, but their applicability is to be gauged looking at the peculiar facts and circumstances of each case. Admittedly, this appeal preferred against an interlocutory order remained pending for a period of almost nine years before its dismissal for non-prosecution vide order dated 6-9-2006 and during this long period, on the basis of interim order passed in their favour, the execution/implementation of the action proposed in the impugned order was successfully avoided by the appellants. A careful perusal of the proceedings of the case goes to show that all this was done by the appellant in a calculated manner to avail maximum benefit of the interim order, to the prejudice of the interest of the respondents, who are pursuing a cause of public interest viz. Objecting to the raising of unauthorized construction.
14. The salient features of the case which lend support to our view may be summarized as under:-- -
(a) On 4-7-1997 this appeal was instituted in High Court against an interlocutory order dated 20-6- 1997, passed on application under Order XXXIX, Rule 2(3) read with section 151, C.P.C. And sections 3 and 4 of the Contempt of Court Act, 1976, whereby the Official Assignee of Karachi was directed to attach the project of the appellants and to inform the Court as to the extent of violation, and notice was also to be issued to Mr. Maqbool Illahi, Director of appellant company to show-cause why action for dis-obedience of Court's order should not be taken against him. The operation of this order was suspended by this Court on 17-7-1997 and since then it remained suspended till the dismissal of this appeal for non-prosecution on 6-9-2006.
(b) On 8-7-1997, 15-7-1997, even before passing of interim order, this appeal was attended by Dr. Farogh Naseem Advocate, but no request for adjournment was made by him on the ground that this matter was to be proceeded by some other learned counsel.
(c) During the further proceedings of the case, particularly after the demise of Mr.G.H. Abbasi, another advocate for the appellants, on 1-2-2000, 21-9-2000, 8-2-2001, 23-8-2002 and 10-1-2003, all along either Dr. Farogh Naseem himself appeared in Court or his junior counsel represented him in Court and sought adjournments, but on none of these dates any request for adjournment was made, on the ground that the other Senior Counsel Mr. Sharifuddin Pirzada, engaged by the appellants in this appeal on 18-3-1999, will proceed with this matter.
(d) It was for the first time on 17-3-2004, when a junior counsel from the office of Dr. Farogh Naseem, made request for adjournment on the ground that Senior Counsel Mr.Sharifuddin Pirzada will argue this appeal on behalf of the appellants. Thereafter again on 18-10-2004 request for adjournment was made by the junior partner of Dr. Farogh Naseem, on the ground that Dr. Farogh Naseem was busy before another bench, while no explanation whatsoever was offered about the absence of Senior Counsel Mr.Sharifuddin Pirzada.
(e) On 6-12-2004 again the ground for adjournment urged on behalf of the appellants by the junior partner of Dr. Farogh Naseem was that this appeal will be argued by Mr. Sharifuddin Pirzada, who was not available on that date. However, nobody appeared in Court from the office of Mr. Pirzada to make such request.
(f) On 16-5-2006, again Ms. Farkhanda Jabeen was holding brief for Dr. Farogh Naseem, advocate for the appellant, (not for Mr.Sharifuddin Pirzada advocate) and by consent the case was adjourned to a date in office.
(g) From 18-3-1999 onwards, on none of the dates of hearing till the passing of order dated 6-9- 2006 Mr. Sharifuddin Pirzada, Advocate appeared in this appeal or even any junior partner from his office placed his appearance in this appeal to show that it was only Mr. Sharifuddin Pirzada, who was to proceed with this appeal on behalf of the appellants.
(h) Admittedly, in this appeal Dr. Farogh Naseem was appearing for the appellants right from the date of its institution in the year 1997 and he had twice filed his vakalatnama for them. But at no point in time before passing of order dated 6-9-2006 he had bothered to move this Court for discharge of his vakalatnama, if he was directed by the appellants not to proceed with this appeal on their behalf or he was facing any other genuine impediment in this regard.
15. In our view, the chequered history of this appeal is sufficient to demonstrate that throughout its proceedings appellants were non-serious in seeking adjudication of this appeal on merits. Indeed, the order dated 6-9-2006 cannot be based or justified merely by looking at these salient features of this appeal but at the same time this Court while considering the question of exercise of its discretion, cannot remain oblivious of these facts.
16. Till this date no satisfactory explanation has been offered by the appellants or their counsel Dr. Farogh Naseem, that what were the compelling reasons due to which Dr. Farogh Naseem was unable to proceed with this appeal on 6-9-2006, except to delay the proceedings in the appeal. In our view it is palpably clear from the record that the absence of Mr. Sharifuddin Pirzada advocate, pleaded by the appellants to seek recall of order dated 6-9-2006 is just a pretext and misuse of his name. This fact further finds support from the record, which shows that the learned Senior Counsel Mr. Sharifuddin Pirzada has not come forward to support such plea of the appellants by filing his personal affidavit to the effect that it was he, who was to proceed with this appeal or that for this purpose he was contacted by the appellants to be present in Court on 6-9-2006 for proceedings with the appeal.
17. In our view, even when learned Senior counsel Mr. Sharifuddin Pirzada, was one of the counsel for the appellants the other counsel engaged by the appellants, namely Dr. Farogh Naseem was bound to proceed with the appeal till such time he withdraws his power or it was revoked/cancelled by his client according to rules. It is pertinent to mention here that on 6-9-2006, when this appeal was dismissed for non-prosecution, no plausible explanation was offered by Dr. Farogh Nasim for not proceeding with the appeal, and even after passing of such order till this date, he has not come forward to explain his position in this regard. In such circumstances, we' have no option, but to hold that the conduct of Dr. Farogh Naseem for not proceeding with this appeal on 6-9-2006, was deliberate and without any sufficient cause, therefore, it disentitles the appellants for any indulgence or lenient view in the matter. In case, the appellants has suffered any loss due to such conduct of Dr. Farogh Nasim, option is available with him to sue him for the damages, which he might have suffered due to such conduct of his counsel.
18. Indeed, there is no cavil to this proposition of law that law favours adjudication of cases on merits rather than on technicalities. Thus, as far as possible, of course looking to the facts and circumstances E of each case, this should be the approach of all judicial forums. One of the celebrated judgment on this point is the case of Imtiaz Ali v. Ghulam Ali PLD 1963 SC 382, which is followed by plethora of case law, some of which have been cited by Mr. Rasheed A. Razvi.
Nevertheless, in the exercise of discretion in this regard the Courts are required to be fair with the rival parties and rational/balanced in their approach in a way, F that no party should be allowed to misuse the indulgence or concession shown by the courts so as to make the whole system an abuse of process of law. Keeping in view this legal position, the principles for exercise of discretion propounded in the judgments in the cases of Ex. Mirza Mushtaq Baig v. Central Court. Martial 1994 SCMR 1948, Hayat Khan and others v. Abdul Razzaq and others 2003 SCMR 1940, and Zulfiqar Ali v.
Lal Din 1974 SCMR 162,are fatal to the case of the appellants. In the first case, where the constitutional petition filed by the petitioner was dismissed by the High Court for non-prosecution, and subsequently the restoration application was also dismissed. The Hon'ble Supreme Court of Pakistan dealing with the leave to appeal petition declined to interfere and held that even if the case papers were taken away by the client, the senior counsel, who was representing him, was duty bound to have appeared in Court till such time he had withdrawn his power or it was cancelled according to rules by his client. In the second case, it was held that when the appellant has engaged more than one counsel, then each of his counsel was bound to represent him, and failure of one of the counsel to appear in Court, even if explained, will not justify an order of restoration. In the last case, it was held by the apex Court that mere engagement of counsel by a party will not absolve him of his personal obligation to pursue the case vigilantly. It was further held that for seeking restoration of appeal, satisfactory explanation was to be offered, both by the appellant and his counsel.
19. From the above discussion, we are of the considered opinion H that C.M.A.No,1607 of 2006 is liable to be dismissed . .
20. As regards other two applications, C.M.A. Nos. 1641 of 2006,being an application for interim relief, is dismissed having become infructuous, while C.M.A.No,1749 of 2006 for acceptance of additional affidavit, is allowed, as we have already taken into consideration such affidavit filed on behalf of the appellants.