1. ' MUHAMMAD TASNIM, J.---This second appeal has been filed by the appellant under section 100, C.P.C. Challenging the order dated 13-4-2009 passed by Vth Additional District Judge, Karachi-East, in Civil Appeal No,239 of 2006.
2. ' Brief facts leading to this appeal are summarized as under:-- ' The respondent filed Suit No,416 of 2004 in the Court of VIth Senior Civil Judge, Karachi-East, for possession, mesne profits and injunction. It is stated in the memo. Of appeal that respondent was owner of suit property which was agreed to be purchased by the appellant against a total sale consideration of Rs,16,50,000. The appellant made part payment of Rs,11,00,000 of the above sale consideration to the respondent and the remaining amount of Rs,5,50,000 was to be paid in two installments first being of Rs,100,000 by 10-12-2000 and second for Rs,4,50,000 within three years i.e, up to 28-8-2003 but appellant paid only. Rs,50,000 to the respondent on. 29-10-2000 and remaining Rs,50,000 were paid by appellant on 12-1-2001. In part performance of the contract the possession of the property was delivered to the appellant who continued to be in possession thereof. The respondent was ready and willing to perform his part of obligation but appellant failed to perform his part of obligation. In the circumstances respondent had no option but to cancel the agreement dated 28-8-2000 and forfeit the amount of token money and asked the appellant to vacate the suit property. In the circumstances, suit was filed by respondent for possession and mesne profit. The appellant contested the proceedings by filing his written-statement. The learned Senior Civil Judge after recording the evidence of parties and hearing them decreed the suit vide judgment and decreed dated 25-4-2006 and 2-5-2006. The appellant felt himself aggrieved against the aforesaid judgment and decree and filed Civil Appeal No, 239 of 2006 which was pending before Vth Additional District Judge, Karachi-East. The learned Appellate Court who was ceased of the matter dismissed the aforesaid appeal on 21-2-2009 for non-prosecution due to non-appearance of the appellant. Against the aforesaid dismissal for non-prosecution an application for re-admission of the appeal was filed by the present appellant. The respondent contested such application by filing his counter- affidavit. The learned Appellate Court heard the arguments of the respondent's advocate on the. Application for re-admission of appeal and dismissed such application vide order dated 13th April, 2009 which order has been impugned in this appeal.
3. ' Mr. Zahid Hussain, learned counsel for the appellant, has contended that learned Appellate Court instead of dismissing the appeal for non-prosecution should have provided opportunity to the appellant to argue the case and should have disposed of the appeal on merits. Learned counsel for the appellant further submitted that it is the consistent view of the. Superior Courts that all matters are to be decided on merits and technicalities should be avoided. Learned counsel for the appellant further submitted that on merits he has a very strong case to argue before the learned Appellate Court. Learned counsel for the appellant prayed that impugned order dated 13-4-2009 be set aside. He further prayed that order dated 21-2-2009 passed by the learned Appellate Court dismissing the appeal in non- prosecution may also be set aside and matter may be remanded to the learned Appellate Court. He further prayed that it be ordered that the appeal filed by the appellant shall be deemed to be pending before Appellate Court. He further argued that a direction be issued to the leaned Appellate Court for deciding the appeal on merits after hearing the counsel for the parties.
4. ' Learned counsel for the appellant in support of above contention has placed reliance on the following judgments:--
(1) Muhammad Yousaf v. Munawar Hussain and others (2000 SCM R 204)
(2) Mumtaz Hussain Khan and others v. Muhammad Hussain and others (2001 CLC 946)
(3) Muhammad Bashir v. Haji Muhammad Siddique and others (1997 CLC 466)
(4) Fauja. v. Mst. Karim Khatoon and others (1993 M LD 1078)
(5) Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others (1989 SCM R 883)
(6) The Municipal Corporation of the City Karachi v. Messrs Dalmia Cement, Limited (PLD 1959 (W.P)
5. Karachi 395)
6. ' Mr. S. M. Akhtar Rizvi, the learned counsel for respondent, on the other hand, has submitted that learned Appellate Court has rightly dismissed the appeal filed by the appellant for non- prosecution. Learned counsel for respondent submitted that after filing of the appeal the appellant's counsel was in habit of filing adjournment applications one after another. Learned counsel for the respondent has also invited my attention to the applications for adjournment filed by the appellant's counsel and the orders passed by the learned Appellate Court on such applications. Learned counsel submitted that learned Appellate Court prior dismissing the appeal for non- prosecution had given ample opportunities to the appellant .To present his case but on all the dates of hearing the appellant counsel deliberately avoided the proceedings and forced the learned Appellate Court to dismiss the appeal for non-prosecution. Learned counsel for the respondent has further argued that .After dismissal of the appeal execution application was filed by respondent for execution of decree passed by the learned Senior Civil Judge in favour of respondent. He further submitted that in consequence to the execution proceedings possession of the suit property was handed over to the respondent. He further submitted that after having the possession of the property from the appellant the respondent has invested very heavy amount on renovation of the suit property and same is being occupied by him at present. Learned counsel for the respondent has further argued that in view of aforesaid changed circumstances no fruitful result could be achieved by reviving the appeal before the learned Appellate Court. On legal plane learned counsel for the respondent submitted that appeal under section 100 C.P.C. Is not maintainable for the reasons, firstly, that second appeal lies against the decree passed by the Court below, secondly, under Order XLI Rule 19, C.P.C. If request for readmission of the appeal is declined, the remedy available to such aggrieved party is to file an appeal under section 104 of C.P.C. In view of provisions contained in Order XLII Rule 1, C.P.C. Learned counsel for the respondent further submitted that if the Court treats the present appeal under section 104 instead of 100, C.P.C.
7. In that event the present appeal shall be time barred. As according to learned counsel for the respondent 30 days limitation period is provided for filing of an appeal under section 104, C.P.C.
8. Whereas 90 days period has been provided for filing an appeal under section 100, C.P.C. Learned counsel for the respondent further submitted that since the appeal of the appellant was time barred under section 104 of C.P.C. He has circumvented the law and has filed the present appeal under section 100, C.P.C. To seek the benefit of 90 days limitation period. Learned counsel submitted that on legal plane as well present appeal is not maintainable and liable to be dismissed. As barred by time.
9. ' In support of his contentions learned counsel for the respondent has placed reliance on the following judgments:--
(1) Zulfiqar Ali v. Lal Din and another (1974 SCM R 162)
(2) Rafiq Ahmad Khawaja v. Abdul Haleem (1982 SCM R 1229)
(3) Yusuf v. Mst. Rabia (1985 SCM R 1066)
(4) Haji Abdul Hameed through legal heirs v. MRs, Mumtaz Ayub (1985 SCM R 1595)
10. From the perusal of counter-affidavit of respondent, applications for adjournment filed by the appellant before the learned Appellate Court and the order sheet containing the order passed by the learned Appellate Court on the adjournment applications it becomes crystal clear that after filing of appeal the appellant's counsel did not take part in the proceedings seriously and avoided the same. On number of occasions A adjournment applications were preferred and all such applications were granted by the learned Appellate Court. Even on number of occasion last chance and caution was given to the appellant's counsel but on the date of passing of order dismissing the appeal for non-prosecution no one appeared from the side of appellant.
11. The provision of Rule 19 of Order XI, C.P.C. Provides that where an under Rule 11 Sub-Rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for re-admission of the appeal and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required the Court shall re-admit the appeal on such terms as to costs or otherwise as may think fit but the perusal of record clearly shows that more than seven opportunities were provided to the present appellant by the Appellate Court and at the request of appellant matter was adjourned on 3-9-2008, 15-10-2008, 8-11-2008, 22-12-2008, 24-1-2009 and 7-2-2009. Lastly when matter was taken-up on 21-2-2009 none appeared on behalf of the appellant though the counsel of respondent was in attendance. On 22- 12-2008 the learned Appellate Court while granting adjournment to the present appellant has ordered as under:-- "....Record reveals that case is being adjourned as further last and final chance and further by consent last and final chance. Today the learned counsel for the appellant undertaken that on the next date he will argue the matter. Keeping in view of hardships of the learned counsel for the appellant in the larger interest of justice matter is adjourned as further last and final chance with the directions that no adjournment would be granted on any ground as appeal pertains to the year, 2006, Matter adjourned to 24-1-2009."
12. ' The learned Appellate Court on 21-2-2009 while dismissing the appeal in non-prosecution has ordered as under: - "This appeal is called thrice since morning, but hone come forward on behalf of the appellant. The learned counsel for the respondent is present. It is a matter of record that the appellant and his counsel reluctant to pursue the matter on the dates of hearing. So also remained absent when the matter was called- up for hearing. However in the larger interest of justice the matter was being adjourned as last, further last and further and further last and final chance on various dates. The learned counsel for the appellant used to come late in court and shown his inability to proceed with the matter on one pretext or other, even he has given undertaking before the court that if he will not proceed the matter on the next date of hearing his matter may be dismissed or passed any appropriate order in this regard. Today the matter was Called at 9-30 A.M. And 10-30 A.M. And then matter was fixed at 12-00 Noon but the learned counsel for the appellant failed to appear. Now it is 12-30 p.m. Shows that appellant and his counsel just want to hanging of this matter, reasons best known to them, consequently the appeal in hand is dismissed for non- prosecution."
13. From the perusal of the order sheet of the learned Appellate Court dated 24-1-2009 would show that prior passing of aforesaid two quoted order the learned Appellate Court had adjourned the matter in the interest of justice as a last and final chance and adjourned the same to 31-1-2009 at 9-30 a.m. It further appears that on 7th February, 2002 the advocate for appellant again made an application for adjournment and such application was granted by the Court fixing the matter on 21-2-2009 at 12-00 noon. On 21-2-2009 the appellant's counsel again did not appear which forced the Court to pass the above quoted order dated 21-2-2009. The judgments cited by the learned counsel for respondent fully support the case of respondent. In the case of Zulfiqar Ali Supra the Hon'ble Supreme Court of Pakistan has observed as under:-- "....The mere fact that a. Litigant has engaged a counsel to appear 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 Court, it is he who should suffer and not the other side."
14. In view of above factual and legal position the appellant and his counsel were negligent and the learned Appellate Court has not committed any error of law while dismissing the appeal for non- prosecution and finally declining to readmit the appeal.
15. ' Now taking-up the submission of learned counsel for the respondent that no fruitful result could be achieved if this matter is remanded to the learned Appellate Court for decision afresh. Learned counsel has invited my attention to the judgment dated 25th April, 2006 passed by the original Court whereby the suit of the plaintiff was decreed and interest of both the parties has been protected. The learned Senior Civil Judge has held as under:- " Admittedly he has no title over the suit house. The contract has not perform the defendant.
16. Therefore, in view of the discussion in issue No,1 since the contract has been failed to perform therefore the plaintiff is ready to return the amount to the defendant. The plaintiff claim Rs,8,000 per month mesne profits from 29-8-2003 till realization of possession of the suit house. On the contrary the defendant admitted Rs,7,000 per month the rent. From the evidence of the parties establish that Rs,1,00,000 paid by the defendant out of sale consideration of Rs, 16,50,000 and the remaining amount of Rs,4,50,000 were to be paid but the defendant failed to pay therefore the plaintiff is ready to return the amount to the plaintiff and as per the admission of the plaintiff since he is living in the suit house therefore, Rs,7,000 per month he has to pay the mesne profits from 29- 8-2003 till the realization of possession of the suit house as per limitation. 'Hence the amount for mesne profits is adjusted in the amount paid by the defendant at Rs,1100,000 as such the amount of mesne profits at the rate of Rs,7000 per month w.e.f, 29-8-2003 comes to Rs,2,31,000 the said amount deducted from the amount Rs,11,00,000 and the remaining amount which comes after deduction up till now Rs,8,69,000 be returned to the defendant. It is further order that since the amount of mesne profits be adjusted till the realization of the possession therefore the same be adjusted till the time whenever the possession be demanded-over to the plaintiff the remaining amount whatever may be returned to the defendant. Therefore, this issue answered as under."
17. ' From the above it is clear that learned Original Court has passed the aforesaid judgment and decree in accordance with law. The appeal of the appellant was rightly dismissed by the Appellate Court after providing him ample opportunities to argue the case. Learned counsel for the appellant has failed to point out any illegality or legal infirmity in the impugned order passed by the learned Appellate Court. All the judgments cited by learned counsel for the appellant are distinguishable on facts and are not applicable to the present case.
18. With regard to the maintainability of present appeal learned counsel for the respondent has rightly argued that appeal against order passed on an application under Rule 19 of Order XLI, C.P.C. Is to be filed under section 104, C.P.C. Learned counsel for the respondent is right in arguing that time for limitation of 30 days has been provided for filing an appeal under section 104, C.P.C. Against an order in terms of Order XLIII Rule 1, C.P.C. Learned counsel for the respondent has rightly argued that provisions of section 100 of C.P.C. Are not available to the present appellant for the reasons that an appeal under section 100, C.P.C. Lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on the grounds that decision was contrary to law or usage having the force of law or the decision having failed to determine some material issue of law or usage having the force of law and a substantial error or defect in the procedure provided by Code of Civil Procedure or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits but none of the grounds apply to the present case for the reasons mentioned hereinabove. More particularly, the present appellant was negligent in prosecuting his appeal before the Appellate Court. Learned counsel for the respondent has rightly invited my attention to the provisions of Article 156 of First Schedule of Limitation Act, 1908, which provide 90 days period for filing of appeal under section 100, C.P.C. But in the present case appeal lies under section 104, C.P.C. In terms of Order XLIII, Rule 1, C.P.C. Such appeal is to be filed within 30 days from the date of passing of order. On this ground as well the appeal is time barred if converted and treated an appeal under section 104, C.P.C.
19. ' For the 'forgoing reasons present appeal fails which is accordingly dismissed with no order as to costs.