This appeal arises out of a suit filed by the appellant against the respondents on 29-8-1963. The suit has had a very chequered history. Perhaps on account of its high valuation, the suit was transferred from time to time from the Court of the Senior Civil Judge, Quetta to the Court of the District Judge, Quetta and vice versa. Further, as the appellant had filed two other suits against the respondents, at one stage, all the suits had been consolidated by an order of the learned District Judge, but later they were ordered to be heard separately. The appellant had also taken adjournments from time to time. In this rather confusing background, the suit out of which this appeal has arisen, was transferred to and received by the Court of the learned District Judge on 2nd June 1966. This was long after the framing of issues, and on that day the learned District Judge ordered the issue of summons to the Advocates of the parties for 27th June 1966, with a further order that the appellant should be present on 27-6-1966 for his evidence. The Advocate of the appellant was Mr. Riazul Hassan and he appeared in the Court of the learned District Judge on 27th June 1966 and stated that he had not been able to contact the appellant who was out of Quetta and had been out of Quetta when he received the Court's summons. He however stated that he had sent a letter to the appellant at a Karachi address which had been returned as refused. Lie produced this letter and rather half-heartedly applied for an adjournment. Presumably because of the many adjournments taken by the appellant in the past, the learned District Judge refused an adjournment and dismissed the suit. In his order dismissing the suit dated the 27th June 1966, the learned District Judge observed that, as the appellant had deliberately remained absent, he had closed the appellant's side. Then after pointing out that the burden of all the issues was on the appellant, the learned District Judge further observed: "The result is that the suit stands dismissed with costs." Aggrieved by this order, the appellant filed an application under Order IX, rule 9 read with section 151, C. P. C. for the restoration of his suit which came up for hearing before another learned District Judge. By his order dated 15.11-1966 the learned District Judge, who heard this restoration application, dismissed it in linane on the short ground that, as the restoration application had been filed after more than 30 days from the date of the dismissal of the suit, it was time-barred. The appellant therefore filed an appeal which has now come up for hearing before me and I will now consider learned counsel's arguments.
2. The first question for determination in this appeal is whether the dismissal of the appellant's suit on 27th June 1966, was on merits or for default. The order was passed long after issues had been framed and after evidence had been recorded in one of the connected suits when that suit has been consolidated with the suit under appeal. However it is admitted before me that, as the suits were separated again, the evidence recorded in the other suits is not part of the evidence in the suit out of which this appeal has arisen. The result is that the appellant's suit was dismissed, without any evidence whatever having been recorded in it Mr. Munawar Ahmed therefore submitted that the order for dismissal of the suit was an order under Order XVII, rule 2, C. P. C., whilst Mr. Basharatullah submitted that the dismissal was on merits under Order XVII, rule 3, C. P. C.
It is true that in dismissing the suit the learned District Judge had observed that the burden of proof was on the appellant and that as the appellant was absent, the suit had to be dismissed. But as the suit was dismissed before evidence was recorded, and in view of the judgment of the West Pakistan High Court in Dalal Khan v. West Pakistan Mr. Munawar Ahmed submitted that the order of 27-6-1966 had been passed under Order XVII, rule 2, and not under Order XVII, rule 3. The judgment fully supports learned counsel's argument and may point out here that the same view was taken by Yakubali J. in Inayatullah v. Khan Begurn and others . I am in respectful agreement with the view thus taken by the West Pakistan High Court, and although Mr. Basharatullah relied on judgment of the Indian jurisdiction where a different view was taken, I do not need to consider those judgments.
3. Additionally, on examining the record of the case I find there is another flaw in Mr. Basharatullah's argument. Order XVII, rule 3, C. P. C. reads as follows: "Order XVII, rule 3.--Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith."
The provisions of this rule are attracted only when the case had been adjourned at the instance of the party in default. That is the settled law and Mr. Basharatullah did not even try to contest this proposition. However, because the Court's order of 2-2-1966 directed the appellant to be present for his evidence, Mr. Basharatullah submitted that the case fell under rule 3. But merely because the Court had directed the appellant to be present, it does not mean that he had taken time to produce his evidence and had failed so to do. Here I may refer to the history of the case at the relevant time. In May 1966 the suit of the appellant was pending in the Court of the Senior Civil Judge, and on 4th May 1966 it had to be adjourned because the learned Senior Civil Judge was absent. It was adjourned to 28th May 1966, in the meanwhile the learned District Judge had passed the order recalling the case to his own Court, therefore the learned Senior Civil Judge again adjourned the case, and after the file of the case had been received in the District Court, that Court had issued its notice directing the appellant to be present. In these circumstances it cannot possibly be said that the case had been fixed on 27-6.1966 at the appellant's request for his evidence. The appellant's failure to be present on that date, for whatever reason, was not a failure to produce evidence under rule 3, so that even if the learned District Judge purported to act under rule 3, which is not very clear, he acted illegally in so thinking, and I have no doubt whatever that1 2 the order of 27-6-1966 could only have been passed under Order XVII, rule 2. The appellant was therefore entitled to file a restoration application as he did, and the next question for consideration is whether that application was in time.
4. The learned District Judge, who dismissed the restoration application, has held that the application was governed by Article 163 of the Schedule to the Limitation Act. This Article reads as follows :
163. By a plaintiff for an order to set aside a dismissal for default of appearance or for failure to pay costs of service of process or to furnish security of cost.Thirty days. The date of the dismissal.
The restoration application was admittedly filed more than 30 days after the dismissal of the appellant's suit, and as Mr. Munawar also admitted that the appellant could not rely on section 5 of the Limitation Act in support of this restoration application, the appellant can succeed only if he can establish that his restoration application did not fall under Article 163. Here I may point out that both the learned counsel stated that this Article was applicable oily to applications under Order IX, rule 9, C. P. C., therefore, to get round the bar of limitation, Mr. Munawar submitted that the appellant's restoration application was under section 151, C. P. C., whilst, according to Mr. Basharatullah, it was, and could only b; under Order IX, rule 9, C. P. C.
5. Order IX, rule 9, C. P. C. states that when a suit is dismissed under rule 8 the plaintiff " may apply for an order to set the dismissal aside" and rule 8, which is relevant to the arguments of the learned counsel, in so far as it is relevant, reads as follows :- "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed.
As the suit was fixed for hearing on 27-6-1966, the day when it was dismissed, the only question is whether, in view of the presence of Mr. Riazul Hassan, the appellant's Advocate, it can be said that the appellant had not appeared in Court on that day. It is true that the notice of the Court had required the appellant's presence for the purpose of giving evidence, and this was obviously something Mr. Riazul Hassan could not do on the appellant's behalf. But, on the other hand, Order III, rule 1 expressly states : "1. Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the Nay in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person."
The provisions of Order V with regard to appearance by defendants are similar, therefore Mr. Munawar submitted that Order IX, rule 8 was attracted only when the plaintiff and his Advocate were both absent and that, as on 26th June 1966 the appellant's then Advocate Mr. Riazul Hassan was present in Court, it could not be said that the suit had been dismissed under Order IX, rule 8, C.
P. C.
6. Mr. Basharatullah admitted that a plaintiff can enter appearance through an Advocate, but he submitted that appearance by an Advocate meant appearance by an Advocate who was properly instructed by the plaintiff; and in support of his submission learned counsel referred me to a judgment of the Bombay High Court in Basalingappa v. Shidramappa Shivanagi in which a3 Division Bench of that Court observed at page 322: "The question as to whether the defendant's Pleader. can be said to have appeared depends not upon his mere presence in Court but whether he was duly instructed in the matter before the Court.
Whetter a pleader is duly instructed is a question of fact, but if he refused to take part in the trial on the ground that he has no instructions and withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte."
Although the case cited had reference to the appearance of the defendant, the distinction is not material and I am in respectful agreement with the observations on which learned counsel relied; therefore the questions which arise in the instant case are whether Mr. Riazul Hassan was properly instructed on 27th June 1966 and whether he had withdrawn from the case. It is not disputed before me that Mr. Riazul Hassan had been appearing for the appellant for a long time in the suit under appeal and in the connected suits, and it is also not denied that the appellant's vakalatnama in his favour was valid and subsisting on 27th June 1966. In these circumstances, it is difficult to see how it can be said that he was not duly instructed by the appellant for the hearing on 27th June 1966. It is true that he was not able to proceed with the case, but that was because the case had been fixed for the appellant's evidence, and no Advocate can give evidence on behalf of his client.
However, Mr. Basharatullah submitted that the terms of the adjournment application filed by Mr. Riazul Hassan on 27th June 1966, and the subsequent allegations of the appellant against him clearly indicated that Mr. Riazul Hassan had withdrawn from the case.
7. As to the adjournment application, after referring to the fact that his letter to the appellant had been returned by the postal authorities with the endorsement "refused", Mr. Riazul Hassan has further stated: "Under the circumstances, I am unable to state anything on behalf of the plaintiff. If the Court considers it expedient a date may be given so that I may further contact my clients" so the appellant's suit was fixed on 27th June 1966. for his evidence, Mr. Riazul Hassan's statement that he was unable to say anything obviously referied to his inability to give evidence on behalf of his client and I cannot treat this statement as a plea of no instructions. As to the second sentence on which Mr. Basharatullah relied, I have already said that Mr. Riazul Hassan had made a half hearted attempt to get an adjournment. But does this mean that he was pleading no instructions ?
As the record of the case shows that the appellant had taken many adjournments, it seems to me that Mr. Riazul Hassan might well have been embarrassed in asking for an adjournment which he thought was an abuse of the indulgence of the Court; therefore again I cannot treat his request for an adjournment as tantamount to a plea of no instructions. Finally, as the plea of the appellant in his restoration application was that Mr. Riazul Hassan had not informed him that the Court had fixed the hearing of the suit on 27th June 1966, Mr. Basharatullah thought that this was a piece of evidence which showed that Mr. Riazul Hassan had withdrawn from the case. I am not able to accept this argument. In the first place, the appellant has to prove his allegations against Mr. Riazul Hassan. Secondly, the fact that Mr. Riazul Hassan wrote to him at an incorrect address may have been due to a bona fide mistake, therefore even on the assumption that Mr. Riazul Hassan had not informed the appellant of the hearing fixed by the Court, this does not mean that Mr. Riazul Hassan wanted to withdraw from the suit.
8. Mr. Basharatullah then referred to the adjournments taken by the appellant in the suit and submitted that it would be an abuse of the process of the Court to permit such a litigant to file a restoration application. Learned counsel's objection is premature. He will be entitled to advance this argument when the restoration application is heard. But merely because of the past delays of the appellant, it cannot be said that his application was not fit to be admitted.
9. In the result, I accept Mr. Munawar's argument that as Mr. Riazul Hassan was present in Court on 27th June 1966, the appellant's suit could not be dismissed under Order IX, rule 8, C. P. C., Mr. Basharatullah then feebly submitted that the suit could not have been dismissed under any other provision, but Order XVII, rule 2 authorises the Court "to dispose of the suit in the modes directed in that behalf by Order IX or make such other order as it thinks fit". Therefore the Court had ample power to dismiss the suit otherwise than under Order IX.
10. he result of this discussion is that, as the appellant's case does not fall under Order IX, rule 9, C.
P. C., he is entitled to invoke the inherent power of the Court under section 151, C. P. C., provided he makes out a case for the exercise of that jurisdiction. As observed by Kaikaus, J. in Ghula n Muhanvna v. Mst. Sahiban : "There is always inherent jurisdiction in a Court to grant hearing to a party in respect of an order passed in his absence if there was sufficient cause for non-appearance. There is inherent jurisdiction to set aside ex parte orders in cases not covered by the different rules or Order IX. In the exercise of inherent jurisdiction the Court can pass all orders which justice demands should be passed unless the power of Court has been limited by a specific section or rule. This power existed in the civil Court by virtue of the fact that it had jurisdiction to decide disputes as to civil rights before the Civil P. C , was enacted and is not the creation of that Code. Only it is now subject to the provisions of the Code.
I am in respectful agreement with this view, and as the appellant's claim is not in any way contrary to the provisions of the Civil Procedure Code, I hold that he was entitled, in the circumstances discussed, to invoke the inherent powers of this Court in support of his restoration application. It is admitted before me that such an application does not fall under Article 163, but that it can only fall under the residuary Article 181 which provides a period of limitation of three years; therefore the restoration application was within time, and the learned District Judge erred in dismissing it as time-barred.
11. The appeal is allowed and the case is remanded to the learned District Judge so that he may hear and decide the appellant's restoration application according to law. In the circumstances of the case I leave the parties to bear their own costs. PLD 1970 Quetta 79 PLD 1958 Lah. 686 AIR 1943 Bom. 321 PLD 1957 Lah. 624