1. ' SADIQ HUSSAIN BHATTI, J.---This is an application under section 5 of the Limitation Act, seeking condonation of delay in filing the application under Order XI, Rule 9, C.P.C. Read with section 151 thereof.
2. ' Brief facts of the case are that the plaintiffs filed the above suit on 26th January 1993. The same was dismissed vide order dated 9-7-2008. The plaintiff filed an application under Order IX, Rule 9, C.P.C. For recalling the said order dated 9-7-2008. Since the application was filed on 12-2-2009, therefore, there was delay in filing the same. Accordingly, the plaintiff filed the listed application under section 5 of the Limitation Act, seeking condonation of delay in filing the application under Order IX, Rule 9, C.P.C.
3. ' Learned counsel for the plaintiffs/applicants stated that there was no wilful default on the part of the plaintiffs but it was due to the ill health of the counsel for the plaintiffs that they were unable to file the application on time. It was submitted that the plaintiffs constantly tried to contact their counsel but he was not traceable. They also contended that the plaintiffs could not be made to suffer on account of fault of their counsel. It was also argued that a decision on merits is better than a technical knockout. It was, therefore, prayed that the delay in filing the restoration application may be condoned and suit may be restored to its original position.
4. ' In support of the application under section 5 of the Limitation Act, an elaborate affidavit has been filed by the plaintiff No,1, Muhammad Akber wherein he has set out the facts in a chronological order to justify condonation of the delay in filing of the application under Order IX, Rule 9, C.P.C. It was stated that the suit was filed by his counsel, Mr. J.H. Rahimtoola who expired in the year 1999 and, thereafter, he engaged another counsel who was later on elevated to the Bench. The plaintiffs then engaged Mr. Mohammad Arshad Hussain, advocate as their counsel who attended the case for some time but thereafter he was superseded by Mr. Gul Muhammad Memon, advocate. Mr. Memon fell ill and thereafter, the plaintiffs engaged Mr. Abdul Haleem Pirzada, advocate to represent them. He was diligently following the case and kept the plaintiffs informed about the proceedings 2007. It is stated that after August, 2007, the said counsel did not inform the plaintiffs about the proceedings of the suit. The plaintiff tried to contact the counsel and also called at his office but nobody picked up the phone. Subsequently the plaintiff visited the office of the said Counsel but the same was found locked. However, the plaintiff was informed by peon of next office that the son of the Counsel has expired and he has gone to attend the funeral of his son to his native village. In the first week of January 2009, the plaintiffs tried to contact Mr. Abdul Haleem Pirzada for knowing the stage of the litigation as the said senior counsel had neither contacted nor informed the plaintiff about the proceedings of the abovementioned case but he could not be traced. However, in the third week of January, 2009 the plaintiffs came to know that Mr. Abdul Haleem Pirzada is severely ill and has left practice for quite some time and has started living in Sukkur since then, therefore, the plaintiffs approached the office of this Hon'ble Court for knowing about stage of proceedings in the above suit but the concerned persons could not trace the file of the case. However, after about more then a week's hard work the plaintiffs were able to trace the file of the case and found out that it was dismissed for non-appearance of the counsel for plaintiffs.
5. ' It was argued that from the diary sheet that on 29th August 2007, it is clear that the case was adjourned by consent. On 24-10-2007, plaintiff's counsel was not present due to which side of defendant No, 2 was closed without giving last chance to the plaintiff's counsel. That from October 2007 to May 2008, only two times the abovementioned case was fixed for final arguments on 17-4- 2008 and 9-5-2008 respectively and the matter was adjourned on the request of the counsel of the defendant No,
2. It is pertiment to mention that on both dates the plaintiff's counsel was not present nor the said counsel informed the plaintiffs about the abovementioned dates for final arguments. It is further submitted that the said counsel never informed the plaintiffs about his ill- health and protracted illness. Therefore, on 20-5-2008, the learned Single Judge without providing last opportunity to the plaintiffs' counsel and without serving notice directly on plaintiffs as his counsel was not appearing as per the practice followed as required by law in order to decide cases on merits and to meet the ends of justice.
6. ' On the other hand, Mr. Nazar Hussain Dhoon, learned counsel for the defendant submitted that though the counsel for the plaintiffs was not present on 9-7-2008 but the suit was not dismissed for non-prosecution on account of absence of the plaintiffs and their counsel but it was dismissed under Order XVII, Rule 3, C.P.C. As the suit was not maintainable due to the fact that it is now well settled that a school cannot run in a residential building. He submitted that even in the lease also it is mentioned that the said property is to be used for residential purposes only. It was due to this fact that the plaintiff was avoiding to proceed with the matter.
7. ' I have heard the learned counsel for the parties and have gone through the record and the case- law cited before me.
8. ' Since first I am dealing with the application under section 5 of the Limitation Act, which seeks condonation of delay in filing the application under Order IX, Rule 9, C.P.C., therefore, the first question would be whether the delay occurred in filing of the said application could be condoned or not.
9. ' It was vehemently argued that the non-appearance of the plaintiffs' counsel for a few dates was due to the illness of Mr. Abdul Haleem Pirzada for which the applicant is not to be penalized. It is stated that the plaintiff came to know about illness of his counsel while inquiring about the fate of the above mentioned suit. Therefore, the absence of the plaintiff's counsel on the last date of hearing was not wilful and deliberate but due to the situation beyond his control and is a sufficient cause for condoning the delay in filing application under Order IX, Rule 9 of the C.P.C. It was also argued that the plaintiff should not suffer and be prejudiced because of the unforeseen circumstances and act of the Counsel who was suffering from serious illness.
10. ' In the present case, the plaintiff No,1, Muhammad Akber, in his affidavit in support of the application under section 5 of the Limitation Act, himself stated, in para 3 thereof, stated that "However, after August 2007, the plaintiff's counsel did not inform the plaintiff about the proceedings continued in the above-mentioned suit. The plaintiff contacted the counsel and called at his office but nobody picked up the phone. Subsequently, the plaintiff visited the office of the counsel for plaintiffs but the same was found locked. However, on enquiry from the neighbours it transpired that the son of the counsel has expired and he has gone to attend the funeral of his son to his native village."
11. "4. That in the first week of January, 2009, the plaintiffs tried to contact Mr. Abdul Haleem Pirzada for knowing the stage of the litigation .. In the third week of January, 2009 the plaintiffs came to know that Mr. Abdul Haleem Pirzada is severely ill and has left practice for quite some time and has started living in Sukkuk since then, therefore, the plaintiff approached the office of this Hon'ble Court for knowing about stage of proceedings in the above suit."
12. ' From the above quoted portion of the affidavit of the plaintiff No,1 it is clear that plaintiffs' counsel did not inform the plaintiffs about the proceedings in the suit. However, they kept quiet from 2007 to January, 2009. It was only in the third week of January, 2009 that the plaintiff approached the office of this Court to enquire about the fate of his case. Thus, by no stretch of imagination, it could be said that the plaintiffs were following their case with due diligence.
13. It is the duty of a party to litigation to keep himself abreast of the proceedings and progress of the matter and it is also his duty to remain in touch with his counsel. If his counsel, for any reason, is A unable to contact him or inform him, about the progress of his case then the party should personally keep track of the same as it is he who should suffer in case any adverse order is passed in the matter against him. It is well-settled that in civil matters, on expiry of limitation, valuable rights B 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 illness of counsel does not absolve the plaintiff party from his responsibility to prosecute his case 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 D 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 E part of counsel does not constitute sufficient cause to condone the delay where valuable rights have accrued in favour of the other party.
14. It is also a settled principle of law that while seeking condonation of delay the applicant has to explain each day's delay. In the F present case, according to the statement of the plaintiff himself, after August, 2007, the counsel for the plaintiffs did not inform the plaintiffs about the progress of the case. The suit was dismissed on 9-7-2008 and the application for restoration was made on 12- 2-2009. Thus, there is no explanation for the delay of each day from 9-7-2008 to 12-2-2009.
15. According to the plaintiff himself, they did not take any step from 2007 upto third week of January, 2009. This clearly shows that the plaintiffs were very negligent and deserve no leniency.
16. ' In the case of FAZAL HAMEED and others v. MUHAMMAD FAYAZ KHAN and others (2013 CLC 403), a learned Single Judge of the Peshawar High Court held as under:- "6. It is settled, law that condonation of delay is the discretion of the Court to condone or not to condone the delay after its satisfaction that there was sufficient cause for condonation of delay. It is the duty and obligation of the Court to exercise its discretion keeping in view the principle of equity and fair play in judicial manner and has no power to exercise discretion arbitrarily. It is settled law that object of law of limitation is to help vigilant and not to the indolent. Law of limitation is required to be construed strictly and that delay of each day has to be explained.
17. Reference is made to PLD 2011 SC 657 where in it is held:--- "Aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit etc. Is filed beyond limitation each day's delay has to be explained. Where vague explanation was given without even specifying the date of knowledge, nor any explanation tenable in law was provided to justify condonation, delay condoned was violative of law and, was not sustainable".
18. ' Reference is also made to PLD 2011 SC 174 where the august Supreme Court dismissed appeal by holding:- ' No mention of any sufficient cause in application for condonation of delay which was evasive and vague, no explanation had been given as to why appellant waited till 4-6-2005 for filing of appeal after order dated 9-5-2005 passed by Supreme Court .... Appeal was not promptly and immediately instituted and there was no explanation for each and every 'day's delay. Supreme Court declined to condone delay".
19. ' It is an admitted position that from August, 2007 to January, 2009, neither the counsel for the plaintiffs informed the plaintiffs about the progress of case nor the plaintiffs themselves made any efforts to follow their case. It was only in the third week of January, 2009 that the plaintiffs approached the office of this Court. This exercise should have been done a lot more earlier.
20. Although the suit was dismissed on 9-7-2008 and the plaintiffs were required to explain each day's delay from 9-7-2008 to 12-2-2009 but in fact it is an admission on the part of the plaintiffs that they did not pursue their case from August, 2007.
21. ' It was also argued that the Court should have issued an intimation notice to the plaintiffs that their counsel is not appearing in the matter. Suffice it to state that it was duty of the plaintiffs to follow their case with due diligence and it cannot shift this burden to any one including the Court.
22. ' In view of the above discussion, no case for condonation of delay has been made out as neither any reasonable cause has been shown for the same nor delay of every day has been explained.
23. ' So far as the contention of the learned counsel for the respondent is concerned that the decision was given on merits and that the suit was not dismissed for non-prosecution on account of nonappearance of the counsel for the plaintiffs, suffice it to say that since I have held that no case has been made out for condonation of delay, therefore, no question arises of disposing of the case on merit. However, it is evident from perusal of the Order dated 9-7-2008 that the same was not a mere dismissal for non-prosecution rather it is an elaborate order wherein merits of the case have been discussed in detail.
24. ' Accordingly, I find no merit in the application under section 5 of the Limitation Act and dismiss the same.
2. As result of my above finding, C.M.A. No.1607 of 2009 is also dismissed.