' SYED SAEEDUDDIN NASIR, J.---This High Court Appeal is directed against order dated 19.11.2012 passed by the learned Single Judge in Suit No, 1480 of 2007 filed by the appellant against the respondents whereby the learned Single Judge dismissed the application under Order XI Rule 9 read with Section 151, C.P.C. And the application under Section 5 of the Limitation Act filed by the appellant for setting aside the order dated 11.1.2011 whereby the suit of the appellant was dismissed for non-prosecution.
1. Brief facts of the case are that the appellant's suit was dismissed for non-prosecution on 11.1.2011 when it was fixed for the evidence of the plaintiff, whereas the application for its restoration was presented on 08.6.2011 i.e, after a delay of about five months. In the supporting affidavits to the applications for restoration of the suit under Order IX, Rule 9 read with Section 151, C.P.C. And for condonation of delay under Section 5 of the Limitation Act, the appellant stated that the appellant became ill in 2010 and was suffering from multi system disease on account of which the appellant remained under treatment from 1.12.2010 to 1.6.2011, and during this entire period the appellant remained confined to bed and was unable to perform any daily routine work. The appellant visited the concerned branch of this Court on 7.6.2011 along with his Advocate to enquire about the suit.
Upon inquiry the appellant was informed that the suit was fixed for evidence of the plaintiff on 11.1.2011 and since none was present for the plaintiff, the suit was dismissed for non-prosecution at 1.30 p.m.
2. The aforesaid two applications came up for hearing before the learned Single Judge on 19.11.2012, who not being satisfied by the inordinate delay and the reasons stated in the supporting affidavits to the applications dismissed the same.
3. The learned counsel for the appellant submits that he was not aware that the suit was fixed for appellants evidence on 11.1.2011 as no notice was issued for this purpose, and that due to his absence as well as the absence of the appellant, the suit was dismissed for non-prosecution.
4. The record shows that the notice of respondents' CMA No,4953/2010 was issued to the appellant as well as to his learned counsel, but no one was present on behalf of the appellant on 13.12.2010.
The order passed on 13.12.2010 shows that, as a matter of indulgence, it was ordered by this Court on respondents' aforementioned application that this matter may be fixed for evidence on 11.1.2011 (date by Court) after issuance of an intimation notice to the appellant as well as his counsel for 11.1.2011. However, the learned Single Judge has also observed in the said order that no one is in attendance from the plaintiff's side since 12.04.2010 when the issues were framed. The record further reveals that the notice was duly received by the learned counsel for the appellant on 04.01.2010, but neither he nor the appellant was present on 11.01.2011.
5. The learned counsel for the Appellant has argued that though the Bailiff's report 04.1.2011 bears an endorsement that the bailiff delivered the notice to the Advocate, however, neither the appellant nor his counsel ever received any intimation notice regarding fixation of suit for recording of evidence on 11.1.2011. The order dated 11.1.2011 was passed in the absence of the appellant and his counsel. The intimation notice issued by this Court received by some unknown person and not by the counsel of the appellant. He further argued that the applications under Order XI Rule 9 read with section 151, C.P.C. (CMA No,8231/2011) and application under section 5 of the Limitation Act should not have been dismissed by the learned Single Judge and ought to have been granted in the interest of justice to restore the suit.
6. We have heard the learned counsel for the appellant, perused the record of the Suit No,1480 of 2007 and the impugned order dated 19.1E2012, passed by the learned Single Judge. It is an admitted position that no one appeared before the learned Single Judge on 11.1.2011, on account of which the suit was dismissed for non-prosecution at 1.30 p.m. The learned counsel for the appellant denies that he ever received any such notice from this Court. However, the bailiff's report dated 04.1.2011 will vouch for it, which clearly states that the notice was received by the Advocate for the plaintiff.
The appellant did not file any proof of illness for two years except for a medical certificate issued by one New Sindh Medical Centre, which is situated in Shop No,39, Ramzan Shopping Centre, Ramzan Garden, Opp. Shama Palace Hall, Shoe Market, Karachi. It is not understandable that when the appellant was confined to bed on account of severe illnesses for a period of six months, how come he is not in possession of detailed medical record of those six months during which the appellant must have been under treatment of several Doctors, who must have prescribed several laboratory tests and medicines to him, then he should have been in possession of test reports and medical record etc. However, we see no such medical record filed by the appellant along with the aforesaid two applications before the learned Single Judge, therefore, the explanation/justification given by the appellant for filing the aforesaid applications after an inordinate delay of about five months is not found to be acceptable. Furthermore, the appellant has also not been able to give any cogent explanation as to why his counsel was not present before the Court when the matter was called up on 11.01.2011 due to the counsel's default the suit was dismissed.
7. We are fully in agreement with the observation of the learned Single Judge that he made while dismissing the aforesaid two applications that the parties are bound by the acts and omission of their counsel, and that in case of negligence on the part of the counsel, the parties cannot claim that they are not to be held responsible. Admittedly, there is no cavil to the fact that on account of dismissal of the suit, valuable rights have accrued in favour of the respondents, which cannot be taken away unless justifiable, strong or convincing cause is shown to the Court. The learned Single Judge in this regard while dismissing the aforesaid applications has rightly relied upon the judgments reported in 1974 SCM R 223 - Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others, PLD 2006 Kar. 252 - (Sindh High Court - Division Bench) Zahid Ahmed v. Deputy Director Adjudication and 2 others and 1984 CLC 182 (Singh High Court - DiviMon Bench) Khalid Saigal v.
National Investment Trust Ltd. And 2 others.
' For the aforesaid reasons we see no force in the arguments extended by the learned counsel for the appellant. Consequently, there is no reason to interfere with the impugned order, which is unexceptionable, therefore, we dismiss the instant appeal in limine at preliminary/Katcha Peshi stage along with all listed applications.