C.M.No.2-C of 2018 MAIN CASE ATIR MAHMOOD, J.---This is an application to place, on record some documents. Allowed, subject to all just and legal exceptions. Documents appended with the application be made part of the file.
2. Through this civil revision, petitioners have challenged the legality of order dated 30.10.2015 passed by learned Civil Judge, Kamalia, whereby, application filed by the predecessor in interest of petitioners for setting aside the ex parte judgment and decree dated 02.11.2010 was dismissed and judgment dated 03.02.2017 passed by learned Additional District Judge, Kamalia whereby appeal of the petitioners also met with the same fate.
3. Precisely, the facts of the case are that respondents filed a suit for declaration and possession against the predecessor in interest of the petitioners before learned Civil Judge, Kamalia on 20.11.2008, facts of which are well mentioned in the plaint. Vide judgment and decree dated 02.11.2010, suit was ex parte decreed in favour of respondents. Afterwards, on 03.10.2011 predecessor in interest of petitioners through his counsel namely Sardar Siddique Akbar Khatana, Advocate filed application for setting aside the said exparte judgment and decree which was resisted by the other side but the counsel for the petitioners without his consent had withdrawn the said application on 10.11.2012. The predecessor in interest of petitioners after getting knowledge of withdrawal of application, filed second application for the said purpose on 05.03.2013 along with the application under section 5 of Limitation Act which was vehemently contested by the other side through filing of written reply. Issues were framed and evidence of both the parties was recorded. Learned Civil Judge, Kamalia vide impugned order dated 30.10.2015 dismissed the application of the petitioners.
Feeling dissatisfied, petitioners assailed the said order by filing appeal before learned Additional District Judge, Kamalia which met with the same fate.
4. Learned counsel for the petitioners contended that impugned order as well as judgment passed by the learned courts below are against the law and facts of the case; that the findings of the courts below are the result of misreading and non-reading of evidence available on the record; that previous counsel of the petitioners namely Sardar Siddique Akbar Khatana, Advocate without his consent had withdrawn the application for setting aside the aforementioned ex parte judgment and decree; that the predecessor in interest of the petitioners was paralyzed and unable to walk, therefore, he could not get knowledge of the withdrawal of the application; that the cases should be decided on merit while ignoring the technicalities coming in the way of justice; that the petitioners were condemned unheard. Lastly, prayed that this revision petition be accepted and orders of both the courts below be set aside.
5. Arguments of learned counsel for the petitioners have been heard. Record has also been perused.
6. The case of the petitioners is that he had not been served and ex-parte judgment and decree dated 02.11.2010 was passed in his absence without service, by the learned trial Court. After having knowledge, predecessor in interest of the petitioners filed application for setting aside the said judgment and decree and when it was replied by the other side; his counsel namely Sardar Siddique Akbar Khatana, Advocate withdrew the same without his consent taking benefit of illness of predecessor in interest of the petitioners as he was paralyzed at that time. Thereafter, he again filed application for the same purpose along with application for condonation of delay that was dismissed vide impugned order 30.10.2015. The result of appeal of the petitioners was also the same.
7. The petitioners mainly contended that he was paralyzed and was unable to appear before the Court and his counsel having edge of this, in connivance with the other party had withdrawn the suit without his knowledge and consent. To prove this contention, petitioner No.4, Muhammad Babar appeared as AW-4 in the witness box but he could not utter even a single word with regard to the proof of his father's illness. Mere asserted that he was paralyzed and could not walk. There is no denial on the part of petitioners that Sardar Siddique Akbar Khatana, Advocate was their duly appointed counsel in the suit before the learned trial court. The petitioners are resisting the consequences of said statement on the ground that statement was recorded by their counsel without any consent/authority from all the petitioners or their father. The power of attorney executed by the petitioners' father in the name of said advocate clearly reflects that he was vested with the authority to do any act on behalf of petitioners. Therefore, there is no ambiguity that he was a duly appointed counsel and his statement was binding upon the petitioners. Order III of The Code of Civil Procedure (V of 1908) deals with the matter of appearance by a person or his recognized agent or pleader in the proceedings before the court. The appointment of pleader is governed by Rule 4 of Order III of "C.P.C." which reads as under:- "4. Appointment of pleader.---(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of- attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regard the client.
(3) For the purposes of sub-rule (2) an application of review of judgment, an application under S.144 or S.152 of this Code, any appeal from any decree or order in the suit and any application or act, for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit."
From the above, it is manifestly clear that authority of an advocate duly appointed by the father of the petitioners to act on his behalf in a court shall be deemed to be in force until determined with the leave of the Court by a writing signed by the petitioners or the advocate, as the case may be, and filed in Court or until the petitioner or the advocate dies, or until all proceedings in the suit are ended so far as regards the petitioners. Therefore, the plea of the petitioners that the statement was recorded by counsel without their consent is highly ill-founded. Furthermore, the petitioners have not filed any complaint against the said Advocate before the competent forum i.e. Punjab Bar Council in time rather statedly; same is filed on 25.04.2017 which proves that same is afterthought.
8. Another contention of the petitioners is that they cannot be ousted from the proceedings merely on the basis of technicalities. No doubt, it is settled law that the cases should be decided on merits, after hearing both the sides, and nobody should be condemned unheard, its maxim of Audi alteram partem, is very consistently followed by the Courts, which is also the principle of natural justice but at the same time the conduct of the petitioners should also be kept in mind while deciding the matters as whether he is vigilant or proved as indolent. It is also settled law that in case of condonation, the applicant has to explain each and every day's delay, but in the case in hand, no such explanation by the petitioners has been given. Limitation is not a mere technicality rather is a mandatory statutory provision and treating it a formality would amount to make the entire Limitation Act, as redundant. While enacting the Limitation Act, 1908, the legislature in its wisdom has fixed the period of limitation for a particular action. The structure of the law is founded upon the legal maxims, that delay defeats equity, time and tide wait for none and law helps the vigilant not the indolent. The object of law of limitation is to help the vigilant and not the indolent.
Helping hand could not be extended to a litigant on having become forgetful of his rights. Besides, invoking remedy by some aggrieved person beyond the period of limitation prescribed for redressal of grievance, creates a valuable right in favour of the opposite party, therefore, in such case, delay of each day has to be explained by the defaulting party to the satisfaction of the court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the opposite party. In the case in hand, petitioners proved themselves indolent towards their rights and kept silent for four months in filing another application. Even otherwise, for the sake of arguments, if contention of the petitioners is accepted, then the second application tiled by the petitioners squarely hits by the maxim of res judicata. Therefore, from all angles, the. petitioners could not establish their case.
9. Even on merits of the case, petitioners while filing his application for setting aside ex parte judgment and decree did not state that the address given in the plaint was incorrect. It was merely asserted that his service was not effected. Under Order V Rule 20 of C.P.C., the law has prescribed the mode of service through substituted means. This fact has not been denied by the petitioners through their application that they were not served through publication of Court notice in the newspaper. Presumption of truth is attached to the proceedings of the courts unless proved otherwise, therefore, it is held by this Court that predecessor of the petitioners was served in accordance with law but he did not appear before the learned trial Court to defend the suit which was subsequently decreed ex parte against him. There is another aspect of the matter that the application dated 13.10.2011 was not signed by the petitioner/judgment debtor Naik Muhammad himself as the petitioner No.4, Muhammad Babar who stated himself to be special attorney of the petitioners admitted in cross-examination that power of attorney was not attested by any notary public. He further admitted that the application (which was submitted through Sardar Siddique Akbar Khatana, Advocate) was not signed by his father rather he himself signed the same. He further stated that power of attorney was executed two years ago whereas his statement was recorded on 07.09.2015 and the second application (subject matter of the present case) was filed on 05.03.2013. This witness further admitted that he signed the application himself and according to him this application was filed 8/9 months ago which is absolutely contrary to the record. So, petitioner No.4 in fact has committed forgery by making signatures of his father. These admissions by petitioner No.4 clearly reveal that the petitioners did not approach the Court with clean hands and tried to deceive the Court by their acts.
10. In view of the above circumstances, I am in consonance with the findings of the learned courts below. Furthermore, I am of the view that the original judgment debtor, in his lifetime, never agitated the matter and did not challenge the ex parte judgment and decree passed against him, therefore, the present petitioners being the successors had no right to ask for setting aside the judgment and decree passed against their predecessor. There are concurrent findings against the petitioners which cannot be reversed in revisional jurisdiction of this Court until and unless there is some gross illegality, irregularity, misreading or non-reading of evidence and record therein which could not be proved by learned counsel for the petitioner. No interference is called for.
11. For what has been discussed, this civil revision is without any substance. The same is dismissed.
No order as to cost.