' The above appeal was called for hearing on 17th October, 1982 when Mr.Niazi A.Khaliq, Advocate for the respondent was present. Since however the appellant and his Advocate (Mr.Yousuf Rafi) were called absent the appeal was dismissed for non-prosecution with costs.
1. On 15th February, 1983, the appellant moved Civil Miscellaneous Application No,182/83 under Order XLI, rule 19, C.P.C. read with section 151, C.P.C. for setting aside the order, dated 17th October, 1982 dismissing the appeals in default and for it re-admission to its original number. The appellant also moved an application C.M.A. No, 181/83 under section 5 of the Limitation Act for condonation of the delay in moving the above-mentioned application.
2. In support of the application C.M.A. 182/83 an affidavit has been filed by Mr.Yousuf Rafi, Advocate.
He explained that Mr.Nasir Shah Mir Advocate filed the appeal but he was superseded by Mr.A.H.
Abbasi, Advocate. Thereafter Mr.Shafaat Hussain, Advtteate was engaged who superseded Mr.Abbasi, and on 19th August, he (Mr.Rafi) filed his Vakalatnama and thus superseded the previous Advocate appearing for the appellant.
' The above facts are not challenged by the learned counsel for the respondent and find support from para 4 of the counter-affidavit filed by the respondent.
3. Mr.Yousuf Rafi, Advocate in his affidavit further stated ,that the cause list for 5th September, 1982, in accordance with the praCtice in his office was checked and his name was found as an Advocate appearing for the appellant and thus he did appear in the Court of Mr.Justice Saeeduzzaman Siddiqui before whom the case was fixed but the board was discharged and the case did not proceed. He further stated in the affidavit that thereafter the case was not noticed in the cause lists received as his name did not appear in the same and that during the winter vacation while going through the list of pending cases on his file he noticed this appeal as one of the pending cases. He, therefore, directed his Court Clerk to make inquiry as to why the said case had not been fixed for regular hearing after 5th September, 1982 was then made by the said clerk in the Court office on 2nd January, 1983 (i.e, on opening day of the Court after winter vacation) when he learnt that the case was dismissed for default on 17th October, 1982. Mr.Yousuf Rafi, Advocate further stated on solemn affirmation that immediately on receipt of this information on the evening of 2nd January, 1983, he checked the cause lists received in his office and found that his name was not shown in the cause lists issued by the High Court after 25-9-1982 and in these circumstances neither the appellant nor his attorney could appear on 26th September, 1982 when the case was adjourned on 17th October, 1982 when the same dismissed for default. Mr. Rafi, Advocate also solemnly stated that had his name appeared in the cause list, he would have definitely attended that Court on 17- 10-1982. He submitted that the dismissal of the appeal for default on account of his non- appearance on 17th October, 1982 thus was due to the failure of the Roster Branch of this Court to notify his name in the cause lists, weekly as well as daily. It has also been stated in the affidavit by him that the reason for his non-appearance and that of the appellant was thus beyond their control and was unintentional.
' The statement made by Mr.Yousuf Peri, Advocate in his affidavit is supported by the cause lists.
Copies of which he hid filed with his affidavit.A perusal of these cause lists shows that on the September, 1982 the above-mentioned appeal was listed before Mr.Justice Saeeduzzaman Siddiqui at No,1 of the cases fixed for regular hearing and the name of Mr.Yousuf Rafi is also shown in it. In the cause list for 17th October, 1982 this case appears at Serial No,4 but name of Mr.Yousuf Rafi is not mentioned. Affidavit of Mr. Muhammad Hussain Jawed, Court Clerk of Mr.Muhammad Yousuf Rafi, Advocate has also been filed which also fully corroborates waist has been stated by Mr. Rafi
4. Mr.Muhammad Menai, one of the respondents, has filed counter affidavit, in which the facts stated by Mr.Yousuf Rafi, Advocate supported by the affidavit of his Court Clerk, explaining the cause for non-appearance of Mr.Yousuf Rafi, Advocate due to mistake of Roster Branch of the Court for not showing his name in the cause list of 17th October, 1983 has not been denied.
' Mr.Niazi A.Khaliq, the learned counsel for the respondents, however, argued that section 5 of the Limitation Act is not applicable to rule 19 of Order XLI, C.P.C. and thus the delay cannot be condoned and that for the said reason the said application for readmission of the appeal was liable to be dismissed as barred by time. It was also contended by Mr. Niazi, the learned counsel, that the appellant had from time to time changed his Advocates, one Advocate superseding the other and thus the hearing of the appeal has been delayed and that the respondents have been suffering on account of the delay thus caused by the appellant.
5. Mr. Yousuf Rafi, Advocate conceded that section 5 of the Limitation Act is not applicable as contended by the learned counsel for the respondents. He however, argued that in view of the admitted fact that his name did not appear in the cause list for the cases fixed before the Court on 17th October, 1983, due to mistake of the Roster Branch he had no notice of the date fixed for hearing of the appeal and thus the, appellant could not be penalized for mistake of the office of the Court, and that in the circumstances to avoid grave prejudice to the appellant for no fault either on his part or that of his Advocate, the delay is liable to be condoned in exercise of inherent jurisdiction of the Court. According to the learned counsel the application under section 5 of the Limitation Act was filed as a matter of abundant caution.
' Mr.Rafi, in support of his arguments placed reliance on the case of Muhammad Ibrahim and another v. Taslimul Hassan 1982 CLC 264. The facts of the said case were that the appeal was dismissed by the High Court on 23rd September, 1979 for non-prosecution as neither the appellants nor their counsel were present on that date. An application under Order XLI, rule 19 and section 151, C.P.C. was subsequently filed on 20th November, 1979, i.e, after the expiry of 30 days of the Order dismissing the appeal on which objection was raised that the said application having not been filed within time prescribed by the Limitation Act was liable to be dismissed as barred by time. In reply it was submitted by the learned counsel for the appellants that he had not noticed the case in the cause list consequent to which he could not appear before the Court on the date fixed for hearing and that the application was made by him for readmission of the appeal within two days of his coming to know, about the order of dismissal of the appeal. The learned Division Bench of this Court after considering the cases cited, held that it was a fit case for exercise of discretion under section 151, C.P.C. and observed:- "The general principle of law is that where a specific period of limitation is provided by the Limitation Law, inherent powers are not available to the Court under section 151 of the Code of Civil Procedure to entertain an application beyond the prescribed period of limitation. However, this is not an absolute rule and there might be situations where the Court may exercise powers under section 151 of the Code of Civil Procedure to entertain an application even after the expiry of the period of limitation but such inherent powers are exercised with great caution. An order which is a nullity may be challenged by the effected party even after the period of limitation. I may here refer to a passage from the judgment in the case of Mahmud Alam v. Mehdi Hussain PLD 1970 Lah.
26.
"There are many other decisions and we find sufficient authority in support of the proposition that an act or so order which is a nullity, has simply to be ignored and proceedings need not be initiated to get it annulled. In case, however the order or action which is a nullity is to be enforced against the person affected by it, that person at that time will be entitled to challenge the same on the basis of it being a nullity. In such circumstances, the cause of action, in so far as that person is concerned, will arise only when the attempt is made to enforce such an action or order against him, and therefore, there will be no question of limitation involved, in the sense, that the date of order, which is a nullity, for the purpose of start of limitation, will become insignificant."
' The learned Court also relied upon the observations made in the case of Fehmida Khatoon v.
Additional Deputy Commissioner PLD 1975 Lah. 942, which being relevant, are reproduced below:- "The impugned judgments were announced on 2-2-1972 while the review applications in all the four writ petitions have been filed on 6-11-1972. It is in the affidavit of the applicant filed along with his applications under section 5 of the Limitation Act that he came to know about the judgments under review on 30-9-1972, when he applied for the supply of certified copies, therefore, which were made available to him or 4-10-1972. According to him, he spent a month thereafter, in inspecting the relevant records, getting necessary certified copies thereof and preparing the case. The circumstances as explained in the application warrant condonation of the delay in filing the review applications. Even otherwise, according to law an application barred by limitation can be treated as one under section 151, C.P.C. if the Court is satisfied that there has been a flagrant abuse of its own process and removal of an apparent injustice done to the applicant is necessary. Reference in this respect can be made to Kawdu v. Berar Ginning Company Ltd. AIR 1929 Nag.
185. In that case the order was obtained in the absence of a person, named Narayan, whose presence was otherwise necessary for the adjudication of the question involved. When Narayan came to know about the order he made an application for review of the same. His application being time-barred was held to be otherwise liable to be treated as an application under section 151, C.P.C. for removing the apparent injustice done to him on account of his non-impleading as party in the case."
' In view of the above principles laid down by the learned Judges of the Lahore High Court, it was held:- "The above exceptions to the general principle of law that inherent powers under section 151, C.P.C. are not available to a Court after the expiry of the specified period of limitation are not the only exceptions and there can be other situations where grave injustice might be done to a party, who is not at fault, if powers under section 151, C.P.C. are not exercised. In my view the present is such a case where in spite of the expiry of the limitation period prescribed by Article 168 of the First Schedule to the Limitation Act, powers under section 151, C.P.C. are available to the Court to entertain the application for recalling the Order, dated 23-9-1979, dismissing this appeal for non- prosecution. In this case, as observed earlier, learned counsel for the respondent did not challenge the application (C.M.A. 2108/79) on merits. In the circumstances, I would take the facts as what are stated in the affidavits of learned counsel for the appellants in support of the application. The factual position, therefore, that is to be accepted is that learned counsel for the appellants missed this case in the cause list and did not notice the same and it is for this reason that he could not appear on 23-9-1979. Secondly it is to be accepted that the appellants and their counsel came to know on 18-11-1979 for the first time that this appeal had been dismissed and C.M.A.2108/79 was filed in this Court without any delay i.e, on 20-11-1979."
6. In my opinion the principles laid down in the case of Ibrahim and another v. Taslimul Hassan (supra) are fully applicable to the facts of this case in view of the circumstances explained by Mr.Yousuf Rafi, Advocate, for the appellants in his affidavit, which establish satisfactorily that the non-appearance of the appellants and his Advocate was solely because of the mistake of the office of this Court in failure to mention his name in the cause list issued for 17th October, 1982. For such a mistake the party obviously cannot be made to suffer.
7. Mr.Niazi A.Khaliq, the learned counsel for the respondents referred to the cases Abdul Shahid and another v. Azeem Bakhsh PLD 1981 SC 200, M.A.Latif Faruqui v. National Bank of Pakistan PLD 1981 Kar.
645, Dhanji Shah Behramji Ghadialy v. Abdul Latif PLD 1983 Kar.
121.
' In the case of Abdul Shahid and another v.Azeem Bakhsh (ibid), the Honourable Supreme Court while dismissing the appeal against the order of tlip learned High Court rejecting the application made for the restoration of the appeal dismissed in default, came to the conclusion that the appellants and their counsel were negligent and that they further failed to prove that the learned Judge of the High Court while rejecting the application for restoration of the appeal had exercised his discretion illegally or unreasonable.
' In the case of M.A. Latif Farooqui v. National Bank of Pakistan (supra) after going through the said judgment I find that the facts thereof are distinguishable from those of the present case. In that case, the affidavit filed on behalf of the counsel for the appellant in support of application for setting ex parte decree was found by the Court to be silent on sources of acquiring knowledge of fixation of date of hearing of suit, i.e, weekly cause list and daily cause list, further finding that the case was of gross negligence or complete lack of interest on part of appellant's counsel and that no sufficient cause had been shown for setting aside the ex parte decree, the learned Division Bench upheld the order of the Single Judge of dismissal of the application for setting ex parte decree. In the said case admittedly the name of the Advocate for the defendant/appellant had appeared in the cause list of the cases fixed for hearing.
' In the case of the Dhanjishah Behramji Ghadialy v. Abdul Latif (ibid), the learned High Court found that the counsel for the appellant/ plaintiffs had attended in a Constitutional Petition fixed before another Bench of the Court on the date fixed for hearing of the suit which was also shown in the cause list. It was accordingly observed that surely he could not have missed the suit which was also listed in the same cause list and thus it was held that neither the appellants nor their counsel made efforts muchless genuine efforts to be present at the hearing of the suit. The order of the learned Single Judge dismissing the application for setting aside the ex parte judgment and decree passed in the suit was accordingly upheld by the learned D.B. of this Court.
8. After considering the facts of the present case and the principles discussed above. I am of the opinion that the appellant and his Advocate Mr. Yousuf Rafi, could not attend the case on 17th October, 1982 due to mistake in the part of the office of this Court. I am satisfied with the statement made on solemn affirmation by Mr. Yousuf Rafi, Advocate that his absence on the above- mentioned date when the appeal was dismissed for non-prosecution was due to reasons beyond his control and that it is a fit case, in which the appellant should not suffer on account of the mistake of the office of the Court as it otherwise would result in grave injustice to the appellant for a mistake for which he is not responsible.
9. For the above reasons I recall the order passed on 17th October, 1982 and while setting aside the said order direct that the appeal be readmitted to its original number. As delay has taken place in disposal of the appeal, I would award Rs,,750 as costs which the appellant shall pay to the respondents within a period of three weeks.