1. ' This revision application is filed against the impugned order dated 26th September, 1978 of learned 7th Additional District Judge Karachi, whereby appeal against the dismissal of application under Order IX, rule 9 read with section 151, C. P. C. For restoration of the suit dismissed for default, has been accepted and a direction is made to the trial Court to dispose of the suit within a period of three months from the date of that order.
2. ' Briefly stated the facts are that a suit for recovery of money was filed by Messrs Aero Travels against the present applicant, which was fixed for recording of evidence on 28th July, 1975 in the Court of Ist Civil Judge, Karachi. On that day respondent/plaintiffs and their counsel were absent, in consequence whereof the suit was dismissed for default. Subsequently on 13th August, 1975. An application under Order IX, rule 9 read with section 151, C. P. C. Was filed for restoration by Miss Rashida Masood Advocate supported by her personal affidavit, in which she has stated that on 7th July, 1975, she attended-the Court and noted down the next date as 8th August, 1975, and when she came to the Court on 8th August, 1975, she was informed that the case was dismissed for default on 28th July, 1975: It was further stated that -- she had perhaps misunderstood the next date.
3. Notice of this application was ordered to be given to the other side and the hearing was put off on several occasions after which ultimately the application was heard on 18th August 1976, and dismissed. The learned Senior Civil Judge accepted the objection raised by the present applicant that Miss Rashida Masood Advocate had not filed her power in the case on behalf of respondent as such she had no locus srandi to move applicatian for restoration of the suit'. The respondent before me went is appeal against this order which was allowed by the learned 7th Additional District Judge Karachi as stated above.
4. I have heard Mr. M. M. K. A. Zai Advocate who is applicant appearing in person and Mr. Sher Afghan, Advocate for the respondents. The main argument advanced by Mr. Zai is.That Miss Rashida Masood , Advocate was not engaged as Advocate in the case-by the respondents and' she had not tiled her power on behalf of the respondents as such she had no legal authority to make the application on behalf of the respondents for restoration of the suit which was dismissed for default.
5. In this context perusal of Vakalatnama filed on behalf of the respondents before the trial Court shows that it is a printed Vakalatnama of Mr. Mohsin Tayebaly, Barrister-At-Law, which is signed by him as well as Mr. Khalid Hamid Advocate, whose name has been added. The name of Miss Rashida Masood Advocate does not appear on this Vakalatnama. It is submitted by Mr. Sher Afghan that Miss Rashida Masood has stated in her personal affidavit, which is on record in support of application under Order IX, rule 9, C. P. C. That at the relevant time she was working as an Advocate' with Messrs Mohsin Tayabally & Company Advocates and further that she had been personally attending that case and this fact is not, controverted' by Mr. Zai in his counteraffidavit dated 11th October, 1975, filed against an affidavit of Miss Rashida Masood. Mr. Zai has stated in his counteraffidavit that para. 1 (of the affidavit of Miss Rashida Masood) is denied as the learned Advocate for the plaintiff was not personally attending the matter all through. Mr. Sher Afghan further contended that the assertion made by Miss Rashida Masood 'that she was working as Advocate with Messrs Mohsin Tayabally and Company advocates, as stated in the opening para. Of the_ affidavit is not denied by Mr. Zai in his counter-affidavit. Sn far the assertion that Miss Rashida Masood has been personally attending the matter the denial as contained itt para 2 of the counter-affidavit on the record of the trial Court is to the effect that she was not personally attending the matter all though, from which inference can be drawn that she had attended at some stage before. In this respect the order-sheet with regard to the dates before the failing of restoration application is silent in the sense that the names of the Advocates of the parties are not mentioned excepron two occasions i. e. On 2nd November, 1972 and 1st December, 1972. On these dates the name of Mr. Khalid Hamid is mentioned. There is some force in the contention of Mr.' Sher Afghan that Mr. Zai had not denied categorically that she did not appear in the case at some strip before. Perusal of further contents of counter-affidavit of Mr. Zai on the record , of the trial Court further indicates that he does not deny that she had appeared in the case before. Pertinent paragraphs from the said counter-affidavit of Mr. Zai are reproduced as under
(3) That para. 2 as constructed is denied. False allegation against Peshkar of the Court is made only to save her skin. The Advocate for the plaintiff has not admitted her mistake in clear terms and the lame excuse given is concocted, false and an afterthought.
(4) That para. 3 of the affidavit, is not admitted for want of knowledge in respect of affairs on 8th August 1975. However no proof in support thereof is filed by the plaintiff.
(6) That para. 5 is denied as the Advocate for the plaintiff has not proved her version, and the deponent reserves his right to comment further, when facts are known to him.
6. It is therefore very clear from the counter-affidavit of Mr. Zai that he has not disputed the. Fact that Miss gashida Masood had appeared in the case before 'that date. This counteraffidavit was filed on 11th October, 1975 in which objection was not taken that Miss Rashida Masood was not the Advocate of the respondents. Incidently it may be mentioned here that the perusal of the record of trial Court shows that there is and application dated 1st July, 1972 on the record for adjournment drafted" and signed by Miss Rashida Masood. This application is written by her in her own band on which no objection is recorded by Mr. Zai. Miss Rashida Masood present in this Court mere irregularity, which should have been allowed to be rectified but the trial Court did not give opportunity for such rectification and even did not adjourn the hearing on the specific request for such purpose made by him and disposed of the application on thesame date. The order passed by the learned "trial Court on 18th August, 1976 on the record mentions specifically the presence of Mr".
7. Sher Afgnan and request made by him for adjournment on the ground that Mr. Mohsin Tayabally was busy in the HighiCourt. In support of the contention raised, the learned counsel for the respondents has put reliance upon the case of Toor (Jul v. Mst. Mumtaz Begum (1) wherein it is held that accidental omission of the name of the pleader from the body of Vakalatnama is a mere irregularity and it would be too technical to hold that the Vakalatnama is not valid merely on this account. The defect can be remedied at any time and certainly beforethe period of .Limitation or the time prescribed for the doing of the act in question has expired. Another ruling cited on the subject is Messrs Nabi Bux & Sons v. Pakistan through the Secretary Ministry of Industrial and National Resources (2) wherein it is held that where an application is signed and presented by a pleader to whom auchority'has no't been given in the manner prescribed under Rule IV, Order III. C.
8. P. C., it is a mere irregularity which can be cured at a subsequent stage.
9. It is further contended by Mr. Sher Afghan that since the trial Courti, did not give any opportunity to rectify. The inadvertant mistake of the omission of the name of Miss Rashida Masood was shown this application and she has admitted it to be written and signed by her. However, onID 18th August, 1976 when the application under Order IX, rule 9, C. P. CI filed by Miss Rahida Masood was taken up for hearing by the trial Court, the objection was taken for the first time by Mr. Zai that she could - not appear and she could not file application for restoration for the reason that she had no legal authority from the respondents to appear in the case as she had not filed her Vakalatnama nor her name appears in the Vakalatnama which has been filed by Mr. Mohsin Tayabally.
10. ' On the other hand the contention of Mr. Sher Afghan Advocate for the respondents is that Miss Rashida Masood was working as an advocate in the firm of Mr. Mohsin Tayabally, Advocate and at the time when the application for restoration was taken up for hearing he was himself present in the Court and had informed the Court that Mr. Mohsin Tayabally, Advocate for the respondents was busy in the High Court and. On that ground a request was made by him for adjournment but the Court declined his request and proceeded with the disposal of application 'accepting the objection raised by Mr. Zai in respect of legal status of Miss Rashida Masood in this case. It is further contended by the learned counsel that on the request of the Advocate the trial Court should have adjourned the case to afford an opportunity to Miss Rashida Masood to prove that she had the authority to represent the respondents' in the case. It is further submitted by him that the omission of the name of Miss Rashida Masciod. In the Vakalatnama of Mr. Mohsin Tayabally was accidental and was in the Vakalatnama, and the order was passed on the same day {{FOOT NOTE}}
(I) PLD 1972 SC 9 (2) PLD 1969 Kar. 210 {{FOOT NOTE}} ' in spite of request for adjournment and application for restoration was dismissad. Immediately thereafter appeal was filed before the learned District Judge alongwith Vakalatnama, of Mr. Mohsin Tayabally which includes the name of Miss Rashida Masood and mistake of omission was corrected at the first possible opportunity. The contention of the learned counsel is in perfect consonance with the legal position enunciated in the rulings mentioned above. In these circumstances I do not find any reason whatsoever to disagree with the order passed by the learned Additional District Judge impugned herein whereby the order of the trial Court has been set aside and appeal has been .Allowed with direction to the trial Court to dispose of .The suit within three months.
11. ' In these circumstances there is, no, merit in this revision application which is hereby dismissed with costs and impugned order is maintained. The learned trial Court is directed to dispose of the suit within three months from; the date of this judgment.