' MUHAMMAD ALI MAZHAR, J.---By this common order, I intend to dispose of C.M.A. No,10582 of 2011 filed by defendant No,1 under section 5 of the Limitation Act read with section 151, C.P.C. And C.M.A.
No,9842 of 2011 moved under Order IX Rule 13 read with section 151, C.P.C.
2. The brief facts of the case are that the plaintiffs had filed this suit for compensation and damages under the provisions of Fatal Accidents Act, 1855. The Additional Registrar's diary shows that various opportunities were provided to the defendants No,1 for filing written statement. The diary dated 28-1-2003 of the Additional Registrar shows that the defendant No,2 filed written statement but no written statement was filed by the defendant No,1, therefore two weeks' further time was granted as a last chance. On 6-3-2003 again, the diary shows that no written statement was filed by the defendant No,1 however it was stated that vakalatnama for defendant No,1 was filed on. 26-11-2002 but no written statement was filed by the defendant even on 6-3-2003, no one appeared for her, hence the defendant No,1 was debarred from filing written statement. Issues were framed on 1-9-2003 and on. 2-5-2005 Commissioner was appointed. It is interesting to note that when the Commissioner was appointed, Mr. Nisar Ahmed Dogar, counsel for the defendant No,1 was present and by consent commissioner was appointed to record evidence. After concluding the evidence, the report of Commissioner was taken on record on 6-2-2006, even on that date, Mr. Nisar Ahmed Dogar, counsel for the defendant No,1 was present.Commissioner's report dated 16-1- 2006 presented on 17-1-2006 shows that copies of affidavit-in-evidence of witness of plaintiffs were provided to the learned Advocate appearing for defendant No,1 and other Advocates. The examination-in-chief of P.W.1 was recorded on 27-6-2005, who was cross examined by the learned counsel for the defendant No,2 but the learned counsel for the defendant No,1 was not present.
Despite the fact that the defendant No,1 was debarred from filing written statement, many opportunities were given to the counsel for the defendant No,1 to cross examine the plaintiffs' witnesses, but he failed to cross examine the witnesses. Since 18-5-2006, this Suit was being fixed for final arguments and vide judgment dated 27-9-2010, the. Suit was decreed against the defendants.
3. Now the defendant No,1 has filed this Application on 24-8-2011 under Order IX Rule 13, C.P.C. For setting aside the judgment and decree dated 27-9-2010, which application she has filed almost after 11 months. Since the application on the face of it was time-barred, therefore, she has also filed another application under section 5 of the Limitation Act. In the supporting affidavit of application, the plea was taken that due to mishandling of the case by her previous counsel, she could not file application for setting aside the ex parte decree earlier. It is further stated that her counsel neither appeared before this Court after filing vakalatnama nor intimated her about the Court proceedings. It is further stated that she called her Advocate several times but he used to reply that there is no need of her and he will inform her whenever ordered by this Court. 'The defendant No:1 has also taken a plea that she came to know about the judgment and decree when she received the notice of appeal which was filed by the other defendant against the judgment and decree passed in this suit.
4. Conversely, Mr. Shahid Qadeer, learned counsel for the plaintiffs argued that the suit has not been decreed ex parte but it has been decreed on merits after: service of summons on defendant No,1 on 7-10-2002 whereafter vakalatnama was filed by her Advocate Mr. Nisar Ahmad Dogar on 26-11-2002 and she was debarred front filing written statement on '6-3-2003. He further argued that after framing of issues and appointment of Commissioner the copies of the pleadings and affidavit-inevidence- were supplied to the counsel for defendant No,1 on 28-5-2005 and the case was adjourned for cross-examination on 14-6-2005 and on that date, the counsel for defendant No,1 was not present and the case was adjourned to 23-7-2005 and thereafter a last chance on 30-7-2005 was given, whereupon the counsel for defendant No,1 was not present and the side of defendant No,1 was closed as per report of the Commissioner dated 7-11-2005. He further argued that instant application has been filed on 24-8-2011, which is time-barred and not maintainable.
The defendant No,1 was obliged to file application when she was debarred on 6-3-2003 or when her side was closed to cross examine the plaintiff on 30-7-2005. He lastly argued that the defendant No,1 and her counsel intentionally and deliberately avoided to appear in the Court and contest the proceedings of the case and no plausible grounds have been shown in the instant application for setting aside the decree.
5. Heard the arguments and perused the record.
6. Under Article 164 of the Limitation Act, thirty days' time is provided for setting aside an ex parte decree and the starting point of limitation is from the date of decree or where the summons was not duly served, when the applicant has knowledge of the decree. Though under Order IX Rule 13, C.P.C., section 5 of the Limitation Act is made applicable by virtue of an amendment made in C.P.C.
In the year 1980 but it is clear without any shadow of doubt that a party who seeks condonation of delay under section 5 of the Limitation Act is bound to offer plausible explanation constituting sufficient cause in approaching the Court.The Court is required to dilate upon essentials, which required condonation of delay and the same cannot be decided in a cursory manner. Delay in filing proceedings cannot be condoned lightly unless it is shown that there are sufficient reasons causing delay.. Law of Limitation reduces an effect of extinguishment of a right of a party when significance lapses occurs and no sufficient cause for such lapses, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses. So far as Order IX Rule 13, C.P.C. Is concerned, though it is a remedy for setting aside ex parte decree but again in, this Order also sufficient cause is to be shown. The defendant No,1 has completely shifted the entire burden on her counsel. Even in the supporting affidavit of ' the application moved under section 5 of the Limitation Act, neither any sufficient reason or ground has been shown nor she has explained the delay for which she has sought the condonation. What she has written is that she came to know about the judgment and decree when she received the notice of appeal in the above matter but neither she has given any particulars and details of appeal nor any specific date was given to show or plead her knowledge of knowing ex parte judgment and decree. The mere explanation that she came to know the date of judgment and decree when she received the notice in appeal is totally misconceived and erroneous unless she provides the necessary particulars and details to prove her bona fide with sufficient grounds and explanation for condoning the delay. Throughout the proceedings, it is clear that her Advocate had filed Vakalatnama, even he was present at the time of appointment of Commissioner and even he appeared before the commissioner, he received copies of affidavit-in-evidence and despite opportunities he failed to cross examine the plaintiffs' witnesses. All this show that he was associated with the proceedings and if he has committed any wrong or lapses in his professional conduct and duties, the defendant No,1 may take up this matter, directly with him for which she has herself mentioned in the supporting affidavit that she will take up necessary action against her Advocate as per law.
7. Since in the judgment, the learned single Judge of this Court also directed the Pakistan Medical and Dental Council for necessary action against the defendants for their gross negligence and carelessness in professional duties and directed them to submit the report to MIT of this Court, therefore few notices of Pakistan Medical and Dental Council are available on record, one notice is dated 19-5-2011 which was issued to defendant No,
1. The Law Officer of Pakistan Medical and Dental Council has also filed the comments in which it is reflected that notices were issued to delinquent doctors including defendant No,1 under Pakistan Medical and Dental Council Regulations on 19-5-2011 and they were directed to file comments within 21 days. The notice and comments available on record belie the contention of the personal affidavit of the defendant No,1 that she came to know about the decree through the notice served in appeal. If the notice was served upon the defendant No, 1 on 19-5-2011, there was no occasion to file application for setting aside the ex parte decree on 24-8-2011 and after filing this application, application for condonation of delay was filed after two months on 19-10-2011. There is a gap of more than three months from the date when the notice was issued to the defendant No,1 by Pakistan Medical and Dental Council and filing of application for setting aside the decree.
8. It is the duty of a party to litigation to keep him informed regarding the proceedings and progress of the matter and it is also his duty to remain in touch with C his counsel and if the counsel is negligent, it is he who should suffer. It is well-settled that in civil matters, on expiry of limitation, valuable rights accrue to the other side which cannot be taken away lightly except on making out a case of sufficient cause explaining the delay of each day.. Mere engagement of counsel does not absolve any party froin their responsibility to prosecute their cases properly. His failure to pursue the case with due diligence will not entitle him to seek indulgence of the Court.
Negligence of counsel is the negligence of party because he acts merely as an agent. A party wishing to take advantage of section 5 of the Limitation Act must satisfy the Court that it has not been negligent rather pursuing his case with due diligence and care. Negligence on the part of counsel does not constitute sufficient cause to condone the delay where valuable rights have accrued in favour of the other party.
9. After hearing the arguments and perusing the record, I have reached to an irresistible conclusion that no case of condonation of delay is made out by the defendant No,1; therefore the application for condonation of delay moved under section 5 of the Limitation Act is dismissed. Since the condonation of delay is not allowed, the application moved under Order IX Rule 13 C.P.C. Is also dismissed.