1. ' The facts forming the background of this application made on behalf of the respondent under section 151, C.P.0 read with Order 41, rule 19, C.P.C. Are these:-- ' The appeal was dismissed for non-prosecution on 27th September, 1987. The appellant filed an application (CMA No,1830 of 1987) for restoration of appeal. It was heard on 18th November 1987 when my learned brother Dr. Tanzil-ur-Rehman, J. Passed an order on that day setting aside the order dated 27th September 1987, by consent of Mr. Liaquat Merchant, learned counsel for the respondnt, on payment of Rs,1,750 being the amount of one month's rent as cost to respondent and fixed the appeal for regular hearing to 19-11-1987. On the said date viz. 19-11-1987 Mr. Iqbal Haider, Advocate appeared for the appellant and Mr. Liaquat Merchant Advocate for the respondent. Both the learned counsel for the parties by consent got the hearing adjourned to 23-11-1987. It was subsequently fixed on several dates but ultimately it was heard by me on 21-12-1987 and 22-12-1987 and reserved the judgment. It was on 24th Macrh, 1988 that I announced the judgment thereby allowing the appeal. About six months thereafter on 20th September, 1988 the present application (CMA No, 1631 of 1988) was presented on behalf of the respondent. In the meanwhile, it may be noted here, both the learned counsel for the parties have stated before me that the application for special leave to appeal was presented against my order and that it has been duly granted with the result that the appeal is pending before the Supreme Court.
2. ' I have heard Mr. Abdul Sattar Pingar, Advocate on behalf of the applicant/respondent and Mr. Iqbal Haider, Advocate for the appellant. It was contended by Mr. Abdul Sattar Pingar that the appellant was all along under the impression that the respondent has duly complied with the order of the Court dated 18-11-1987 regarding payment of cost. But while examining the record of the Court it was noted that no cost was paid by the respondent pursuant to the above order. These facts, the learned counsel submitted, are elaborately stated in the application under consideration which is duly supported by the affidavit of the respondent. Mr. Pingar, therefore, vehemently urged that the payment of cost was a condition sine qua non to the setting aside of the order dated 27- 9-1987 and the restoration of the appeal to its original number. The condition precedent having not been fulfilled the appeal legally did not stand restored to regular hearing. Consequently the hearing of the appeal and the judgment pronounced on 24-3-1988 both were without jurisdiction inasmuch as the original order of dismissal of appeal, dated 27th September, 1987 did not lose its effect on account of non-fulfilment of the condition precedent, namely the payment of cost. In support of the application Mr. Liaquat Merchant, Advocate also filed his own affidavit, pursuant to the order of the Court dated 10-1-1989. Inviting my attention to this affidavit Mr. Abdul Sattar Pingar submitted that Mr. Liaquat Merchant has deposed that Mr. Iqbal Haider, Advocate for the appellant expressed inclination to pay me the cost of Rs,1,750 awarded by this Honorable Court to the respondent being equivalent of one month's rent and Mr. Iqbal Haider even took out his wallet for the aforesaid purpose whereupon I informed Mr. Iqbal Haider that I would not accept cost as cost had been awarded to the respondent equivalent to one month's rent and it should be tendered to the respondent or deposited in Court for the respondent's benefit. There was no other understanding or arrangement with regard to the cost awarded by this Hon'ble Court. In short, the contentions of Mr. Abdul Sattar Pingar were that the non-payment of cost by the appellant divested this Court of its jurisdiction to hear this appeal on merits and dispose it of by a final judgment. The Court had become fungus officio on account of non-fulfilment of the condition upon which the re-admission of appeal was ordered. Since this Court had no jurisdiction in the matter, Mr. Abdul Sattar Pingar so urged, the judgment delivered on 24th March, 1988 is of no legal effect and hence it may be recalled. In support of his contention he placed reliance on the following two authorities from the Indian jjurisdiction:--
(1) AIR 1971 Assam 156.
(2) AIR 1976 Allahabad?
3. ' It was on the other hand, submitted by Mr. Iqbal Haider, learned counsel for the appellant that the cost was actually tendered by him as counsel of the appellant to Mr. Liaquat Merchant, who did not accept the same by saying: "I do not take cost from my brother Advocate but from Mr. Iqbal Haider I will take dinner." He stated that he has deposed this fact in para 2 of his own affidavit, dated 28th May, 1989 filed in this case. He stated that Mr. Liquat Merchant also did not tell him that the payment of cost was to be made to the respondent. In his submission, the respondent was not present in Court nor she ever appeared personally on any date of hearing in Court. He also submitted that as a matter of fact the refusal of Mr. Liaquat Merchant to accept the cost from him was taken by him as a waiver by the counsel of the respondent of the cost awarded by the Court.
4. This fact has also been deposed to by him in para 3 of his affidavit. He then urged with vehemence that the appeal was, after 19th November, 1937, mutually adjourned to different dates but Mr. Liaquat Merchant did not press or utter a single word about the payment of cost which further lent support to his plea that the payment of cost had been waived. It was next contended by him that the appeal has been finally dacided by this Court by its judgment, dated 24th March, 1988 and hence this application is highly belated and deserves to be dismissed on that score as well. It is not maintainable at this stage when the matter is pending before the Supreme Court upon an appeal carried by the respondent against the judgment of this Court. Upon pronouncement of the .Judgment this Court stood divested of its jurisdiction and it has become functus officio.
5. ' I have given my earnest consideration to the submissions made at the Bar and have also perused the affidavits filed by Messrs Liaquat Merchant and Iqbal Haider, Advocates. Mr. Liaquat Merchant has in his affidavit manifestly stated that Mr. Iqbal Haider, Advocate for the appellant had expressed inclination to pay him the cost of Rs,1,750 awarded by this Court to the respondent being equivalent to one month's rent and that he had taken out his wallet for the aforesaid purpose. He has also stated in his affidavit that he had no longer concerned with this appeal as it has been concluded and the judgment has been announced matter is now pending in the Supreme Court of Pakistan. Mr. Iqbal Haider in his affidavit, as already pointed out, has specifically mentioned that he was ready to pay the cost of Rs, 1,750 to Mr. Liaquat Merchant, who did not accept the same and uteered the words as respoduced above. He has further denied in his affidavit that Mr. Liaquat Merchant had said to him about the payment of the cost to the respondent. The statement of Mr. Liaquat Merchant made in his affidavit to the effect that he had declined to accept the cost as it had been awarded to the respondent and that he informed Mr. Iqbal Haider that it should be tendered to the respondent or deposited in Court for respondent's benefit, is specifically denied by Mr. Iqbal Haider, Advocate in his affidavit. No rejoinder-affidavit has been filed by Mr. Liaquat Merchant. The above averments made by Mr. Iqbal Haider, Advocate in his affidavit in reply to the affidavit filed by Mr. Liaquat Merchant thus remained uncontroverted. I am further clearly of the view that the element of default in the compliance of the order of this Court dated 18-11-1987 regarding payment of cost is not involved inasmuch as Mr. Iqbal Haider, Advocate had admittedly brought the amount of cost on 19-11-1987 to pay the same to the counsel for the resixindent Mr. Liaquat Merchant, who declined to accept the same as deposed by Mr. Iqbal Haider which statement, I would prefer to believe as it appears to be more in consonance with the facts which transpired between two counsel on that date. There was nothing in the Court's order that the cost shall be paid personally or directly to the respondent In the normal and usual course of events in matters regarding payment of cost as and when awarded to a party, it is the respective counsel of the party who pays and receives the same. However, if there had been default in payment of rent, as alleged in the application filed after almost six months of even the final disposal of the appeal, thereof should have been brought to the notice of the Court, if not on 19-11-1987 then on 23rd November, 26th November, 16th December, 21st December and 22nd December, 1987 on which dates the appeal was subsequently placed before the Court for hearing. The plea taken in the application as well as in the affidavit of Mr. Liaquat Merchant that the setting aside of the order of dismissal and restoration of the appeal was on payment of the amount of cost to the respondent and not to the counsel for the respondent, is more technical than real. The two cases cited by Mr. Abdul Sattar Pingar are distinguishable on their own facts.
6. ' The facts of Allahabad case were that the plaintiff's suit was dismissed for default on 12th April, 1934. On 13th April, 1934 an application for restoration of the suit was made. It was allowed on 15th September, 1934 on condition of payment of Rs,8 for cost to the opposite party on or before 27th October, 1934. In case of dafault the application was to stand as dismissed. Rs,4 were paid on 16th September, 1934 to the opposite party and the balance was not paid up to 27th October, 1934. On 29th October, 1934 an application was made on behalf of the plaintiff for permission to pay the balance and for direction to the opposite party's counsel to receive it. It was dismissed by the High Court on the ground that it had no power to extend the time for payment of costs. The revision was therefore filed before the High Court raising, inter alia, the contention that the time for payment of costs should have been enlarged under section 148, C.P.C. The High Court held:-- "The application of section 148, Civil P.C. Depends on the question whether the matter has been finally disposed of by the Court and the Court is seized of the matter and has control over it or not.
7. If the order is not final and the Court retains its control over and is seized of the matter it has full power to make any just and necessary order therein including in appropriate cases the extension of time and section 148, Civil P.C. Can be applied. On the other hand if the effect of the order is that in the event of non-compliance it operates automatically and without further intervention of the Court, the section cannot be applied for the obvious reason that the Court ceases to be seized of the matter and becomes functus officio."
8. ' The revision was dismissed.
9. ' The facts of the case reported in AIR 1971 Assam 156 were these: ' The suit was dismissed for default on 7-10-1966. An application under Order 9, Rule 9 of the Civil Procedure Code was filed on behalf of the plaintiff and it was allowed subject to the condition that the petitioners deposit a cost of Rs, 15 by 20th of December, 1967 and in case of default the case shall stand dismissed. The petitioners did not pay the cost by 20th. December, 1967, so on 21st December, 1967 the learned Munsiff ordered that since no cost was deposited by the petitioners on or before 20th December 1967 the case stood dismissed. The petitioners thereupon filed a petition under section 151, Civil Procedure Code on 5-1-1968 for restoration of the revival petition giving reasons for failure to deposit the cost in time. By his order dated 8-1-1968 the learned Munsiff rejected the said application. Thereafter, the petitioners filed another application under Order 47, Rule 1 of the Code of Civil Procedure for setting aside the order of dismissal of Misc. Application. It was allowed by the learned Munsiff and the original suit was restored vide his order dated 13-12- 1968. Against that order the defendant preferred an appeal before the First Appellate Court which was allowed and the impugned orders of learned Munsiff were set aside. This led to the filing of revision before the Assam High Court. The High Court held: "It appears that the learned Munsiff considered the grounds alleged in the petition under section 151, Civil Procedure Code and he did not accept those grounds as sufficient and therefore he rejected that petition. The application under Order 47 Rule 1 was filed and in the circumstances there could not be any review of the earlier order on the same grounds."
10. In the instant case I have already held that there was no non-compliance of the order of this Court dated 18-11-1987. The amount of cost was admittedly tendered by Mr. Iqbal Haider, counsel for the appellant but Mr. Liaquat Merchant declined to accept it on friendly considerations. Or to put it in other words, he waived his right to receive the same voluntarily. It is, therefore, not open to the respondent to turn around and disown the act of her counsel so as to debar the appellant from conducting the appeal.
11. For the foregoing reasons I hold that the application is misconceived and it deserves to be dismissed as such. Before parting with the case I would also like to add that the Honourable Supreme Court is already seized of the matter and this Court has become functus officio. The above are the reasons of the short order passed in the appeal on 11-3-1990.