' MUNIB AKHTAR, J.-- These are two applications, both moved by the plaintiff, who seeks to have the order dated 30-10-2006, whereby the suit was dismissed for non-prosecution, set aside and the suit restored to its position as on that date. The first application is under Order IX, Rule 9, C.P.C. While the second application is under section 5 of the Limitation Act, 1908 seeking condonation of the delay.
2. Learned counsel for the plaintiff submitted that the plaintiff was an illiterate person who resided in a village in a rural area. The suit had been filed through Mr. Muhammad Nasrullah Siddiqui, Advocate. It appears that learned Advocate engaged by the plaintiff subsequently discovered that he could not, on account of certain reasons, 'continue representing the plaintiff in the suit. Learned counsel gave notice dated 1-4-2006 to the plaintiff under Rule 50 of the Sindh Chief Court Rules, and it appears that this notice was sent by registered A/D post on 3-4-2006. On that date, Mr. Siddiqui filed an application, being C.M.A. 2384 of 2006, seeking his withdrawal from the suit.
Learned counsel for the plaintiff submitted, on instructions, that in fact the notice sent by Mr. Siddiqui was never received by him. It appears that the aforementioned C.M.A. Was fixed in Court on 24-4-2006 when it was allowed and Mr. Siddiqui. Was discharged from the matter. It was ordered that notice be issued directly to the plaintiff for the next. Date. Learned counsel submitted that thereafter notices were ordered to be issued to the plaintiff on 18-9-2006, and 2-10-2006, to be served through the District Judge Lasbella. Learned counsel contended that none of these notices was ever served on the plaintiff. The matter was then fixed in Court on 30-10-2006 when the following order was made: "On 24-4-2006 Mr. Muhammad Nasarullah, Advocate who was representing the plaintiff withdrew his power and stated that he had intimated his intentions of withdrawing from the case to the plaintiff. Office was then directed to issue notice directly to the plaintiff which was issued for 15-5- 2006 but the plaintiff did not appear. Thereafter on 18-9-2006 and 1-10-2006 notices were again issued to the plaintiff. In spite of the fact that plaintiffs Advocate had intimated the plaintiff about his discharge from the case, the plaintiff did not appear though he ought to have appeared himself or engaged another counsel which he for the last six months failed to do. In the circumstances, I have no other option but to dismiss the suit for non-prosecution."
3. Learned counsel for the plaintiff submitted that the plaintiff thereafter did engage another counsel for the suit, being Mr. Raja Mir Mohammad, but the latter did not pursue the matter and eventually, he, the learned counsel now appearing in these applications was engaged and the said applications were filed. Learned counsel submitted that the plaintiff remained in the dark regarding the status of the suit for a long time and that his inability and failure to appear before the Court or to earlier file an application for restoration was not wilful and entirely unintentional. Learned counsel submitted that the plaintiff had a good case on the merits and there was no reason why he would abandon the same. He submitted that in the facts and circumstances of the case, and especially in view of the individual incapacity and position of the plaintiff, the delay, though prolonged, ought to be condoned and the suit restored to its original position. Learned counsel referred to certain case law which I will presently note.
4. Learned counsel for the defendant No.1 opposed the restoration of the suit. He submitted that although it was claimed by the plaintiff that he had engaged another counsel in the suit (the aforementioned Mr. Raja Mir Muhammad), no vakalatnama had been filed by the latter. He submitted that no dates as such had been given as to when the second, and thereafter the present, Advocates had been engaged but that in any case it was clear from the very fact that the plaintiff admittedly sought to engage fresh counsel that he was fully aware that his original Advocate had 'withdrawn from the suit. Learned counsel further submitted that the prolonged delay in the matter, extending to around three years, had not at all explained by the plaintiff. He submitted that if at all the plaintiff had any grievance it could only be against one or the other of the Advocates engaged by him, in which case his remedy would lie in pursuing a claim of damages against. Him (or them, as the case may be). He contended strongly that the present applications were entirely without merit and that they should therefore be dismissed.
5. I have heard learned counsel as above and examined the record and considered the case law relied upon. The first point to note is that although notices were more than once issued by the Court once permission had been granted to the original Advocate, Mr. Muhammad Nasrullah Siddiqui, to withdraw from the matter, there is nothing in the record that establishes that these notices were ever served on the plaintiff. Therefore, the fact that the notices were directly issued to the plaintiff is not (except as hereinafter noted) of any relevance in determining the fate of these applications. The only question is whether the plaintiff received the notice sent to him by Mr. Siddiqui under Rule 50 as noted above. The notice was sent through registered A/D post, and while the slip issued by the postal authorities showing dispatch of the notice was placed on record, the acknowledgement slip has not been produced. However, as correctly pointed out by learned counsel for the defendant No.1, the affidavit in support of the restoration application is itself sufficient to establish that the plaintiff did have knowledge that Mr. Siddiqui had withdrawn from the suit. He had, after all, engaged another learned counsel to appear on his behalf, but being dissatisfied by his apparent lack of interest he finally engaged the learned counsel presently appearing on his behalf. An application under Order IX, Rule 9, C.P.C. Must be filed within 30 days of the date of dismissal but any delay may be explained in terms of section 5 of the Limitation Act, which has been made applicable to this provision. The present applications were filed around three years after the dismissal of the suit for non-prosecution. An examination of the affidavits in support of both the applications shows that they are identical in all material respects. The requirements of section 5 of the Limitation Act are well-known, and it is well-established that normally, each day's delay must be properly explained. No such explanation appears in the affidavits sworn by the plaintiff and prima facie it would seem that the restoration application is hopelessly time-barred.
6. I have carefully considered the matter, especially the various orders that were made from 24-4- 2006 onwards when Mr. Siddiqui was discharged, to 30-10-2006 when the suit was dismissed for non-prosecution. It is clear from the three dates that fell in between the aforesaid two dates that nothing substantive occurred on those dates, and in fact the Court repeatedly ordered notices to be issued to the plaintiff As I have already noted, it appears that those notices were never served. I therefore go straightaway to the crucial date of 30-10-2006. The order made on that date has been reproduced above. However, in my view what is of importance is a consideration of the matters for which the suit , was fixed in Court on that date. As per the order sheet, those matters were as follows:
(I) For hearing of C.M.A. No.438 of 2006.
(2) For hearing of C.M.A. No.5157 of 2004.
(3) For hearing of C.M.A. No.7345 of 2005.
(4) For hearing of C.M.A. No.671 of 2006.
(5) For orders on Nazir's report dated 24-4-2006.
(6) For further orders as no W.S has been filed by defendant No.9.
' If the foregoing matters are examined in some detail, the following result obtains. C.M.A. 438 of 2006 was filed by the defendant No.1 under Order XIV, Rule 4, C.P.C. The prayer made in that application was for the examination of the four officials mentioned in para-14 thereof, who were stated to be witnesses in the suit. It will be recalled that Order XIV, Rule 4, C.P.C. Simply allows the court to postpone the framing of issues till after examination of such person(s) or document(s) as the court deems fit. C.M.A. 671 of 2006 was filed by certain interveners who sought to be made party to the suit under Order I, Rule 10, C.P.C. It would seem that neither these interveners nor any counsel on their behalf was in attendance on 30-10-2006. C.M.A. 7345 of 2005 was an application moved by the defendant No.1 under Order VII, Rule 11, C.P.C. Seeking rejection of the plaint. Finally, C.M.A. 5157 of 2004 was the stay application that had been moved by the plaintiff for interim relief, and the Nazir's report (dated 24-4-2006) was in compliance of an earlier order made by the Court for inspection of the suit property. The last item on that date was an office note whereby further orders were sought as defendant No.9 (the City Survey Superintendent) had not filed his written statement.
7.. Thus, when the foregoing matters as actually fixed on the crucial date are examined, it becomes apparent that they were of an interlocutory nature and the majority of the matters listed were in any case filed by persons other than the plaintiff. The only application that the plaintiff could have been required to pursue on that date was his stay application.. Keeping in mind what was actually fixed for consideration by the Court, in my respectful view, the suit itself ought not to, and could not, have been dismissed for non-prosecution on that date. At best, the Court could have dismissed the plaintiffs stay application and/or considered the applications moved by the other persons, including the defendant No.1, with the assistance of learned counsel in attendance and on the basis of the material as available on the record. I have also seen the notices that were issued to the plaintiff on the orders of the Court. All of these notices sought to give intimation to the plaintiff regarding the pending interlocutory applications. None of these notices appears to have been given for the main suit itself. It is also to be noted that it appears that all of the contesting defendants had in fact already filed their written statements by that date. (The defendant No.9 apparently not being a crucial party, his failure to file a written statement can be ignored for present purposes.) Thus, had learned counsel in attendance on that date so pointed out, even the issues could have been framed in the suit (after disposal of the defendant No.l's application C.M.A.
438 of 2006). I am respectfully of the view that unless the suit had been fixed for some substantive hearing or proceeding, it could not have been dismissed for non-prosecution. In this regard I would refer to Qaim All Khan v. Muhammad Siddique 1987 SCM R 733, where it has been observed (at pg.
734) that a "suit cannot be dismissed in default as it was not intended that there should be hearing of the suit in the ordinary sense of the word, i,e, at which either evidence is to be taken or arguments heard, or questions relating to the determination of the suit, considered but ' is merely for some interlocutory matter to be decided" (emphasis supplied). It is to be noted that the Supreme Court has chosen to use the word "cannot" and not (for instance) "ought not", which would, in respectful view, tend to indicate that the Supreme Court regarded that the court had no discretion in such a situation. The suit simply could not be dismissed. In my respectful view, the foregoing observations apply directly to the facts and circumstances of the present case. All of the matters fixed on that date were of an interlocutory nature. No substantive step or proceeding in the suit itself was contemplated or required to be undertaken. Even the notices issued to the plaintiff were for purposes of the interlocutory matters, and in any case, these notices were never served.
The. Court could therefore have, at most, dealt with the interlocutory matters, and not the suit itself in its entirety.
8. Since the ing the suit itself ought not to have been made at all, I am also respectfully of the view that the issue of limitation cannot and does not arise in the present situation and is not a bar to considering the restoration application on its merits. I am of the view that, for the reasons stated above, the suit should be restored.
9. In the foregoing circumstances, it is not necessary for me to look at the case-law relied upon by learned for the plaintiff in any detail, which was in any case, if I may so with respect, not directly applicable or of much assistance. Insofar as learned counsel for the defendant No.1 is concerned, he relied upon Ahmed Din v Ghulam Muhammad and others 2000 SCM R 647, Jhanda v. Maqbool Hussain -1981 SCM R 126 and Muhammad Hayat Bhatti v Official Assignee, Karachi 1983 CLC 1773 (SHC; SB). These cases were in relation to a counsel being liable to his client for any negligence on his part, and also in relation to the issue of delay. On account of the view that I have taken in the matter, it is not necessary for me to consider these eases in any detail.
10. Accordingly, for the reasons given above, C.M.A. 9705 of 2009 s allowed. The order dated 30-10- 2006 dismissing the suit for non-prosecution is set aside and the suit is restored to its position as on that date. In the circumstances, C.M.A. 9706 of 2009 is infructuous .And is disposed of as such.
Suit restored