1. ' By this common judgment I intend to dispose of these two revision applications as they arise out of the same order and the points of fact and law involved are the same.
2. ' Briefly the facts are that the applicant had filed the suit against the present respondents for declaration and permanent injunction and in the alternate for specific performance of contract in respect of the disputed plot of land. The respondents were served. At application under Order 7, Rule 11, C.P.C. was moved in the suit for rejec ion of plaint on legal grounds which application was allowed by an order passed by the trial Court on 11-8-1983 and the plaint was rejected. Being aggrieved the present applicants challenged the said order in appeal which appeal was heard and allowed by the learned IV Additional District Judge vide orders I assed on 10-2-1985 and the suit was remanded for trial on merits. On remand the notices were issued to the Advocates for the parties and on 27-1-19 36 both the Advocates for parties were present in the Court when the matter was adjourned to 27-2-1986 for plaintiffs evidence. On this date the plaintiffs a idence could be not recorded as the defendants (present respondents) and t their counsel were called absent and the suit was adjourned to 22-3-1986 On this date plaintiffs evidence was recorded and his cross- examination was reserved for the next date as on this date also none was present for the deft ndants. On the next date again none was present for the defendants, and, therefore, the cross- examination of plaintiffs side was closed and the suit it was adjourned to 21-4-1986 for defendants' evidence. None was present on behalf of the defendants on this date also and, therefore, the suit was again adjourned to 29-4-1986. On this date also none was present for the defendants and their side was closed. The suit was then adjourned to 10-5-1986 on which date the arguments were heard and finally the judgment was announced on 20-5-1986 decreeing the suit whereby the reliefs of declaration and injunction were granted while the relief of specific performance was rejected. On 1-12-1986 i.e. more than six months after the decree an application under Order 9, Rule 13, C.P.C. was moved by the present respondent No,2 on the ground that the decree is ex parte inasmuch as no notice was issued to the defendant No,2 after remand of the suit. This application was dismissed on 9-8-1987 by the trial Court. Being aggrieved the present respondent No,2 preferred a Civil Miscellaneous Appeal which was heard by the HI Additional District Judge (ast), Karachi and was accepted, setting aside the decree and remanding the case to the trial Court vide orders passed on 18-7-1988. The present applicant has, therefore, filed this revision application.
3. ' I have heard Mr. K.B. Bhutto, learned counsel for the applicant and Mr. Dewan Bashir, Advocate for the respondent No,2. Respondent No,1 has remained absent. The main contention raised by Mr. K.B.
4. Bhutto, Advocate appearing for the applicant is that the application moved by the present respondent No,2 under Order 9, Rule 13, C.P.C. was after a period of more than six months from the date of decree and, therefore, was barred by limitation as provided under Article 164 of the Limitation Act. He has further submitted that an order in appeal was passed by IV Additional District Judge on 10-2-1985 whereby the suit was remanded and that Advocate for the respondent No,2 had appeared before the trial Court on 27-1-1986 and thereafter he chose to remain absent.
5. Learned counsel has further submitted that this is a clear case of negligence on the part of the respondent and his counsel and that no cogent grounds have been advanced for setting aside of the judgment and decree and that the order passed by the lower appellate Court suffers from material illegality as the lower appellate Court in such circumstance had no jurisdiction to allow the said appeal and remand the suit. As against this Mr. Dewan Bashir, learned counsel appearing for the respondent No,2 has submitted that law favours adjudication on merits and that Courts should exercise the discretion in favour of decision on merits. He has further submitted that after remand of the suit it was the duty cast upon the trial Court to have issued the notices to the respondents and that respondent has filed an affidavit that no such notices were ever served on him or on his Advocate. {{PAGE CUT}} I have considered the submissions of the learned counsel and the law cited at bar. In the first instance, I would agree with the learned counsel for the respondent No,2 that Courts should lean in favour of decisions on merits but at the same time it may be observed that such discretion is not to be exercised in favour of party who from the very conduct appears to be negligent in pursuing the case and where a valuable right has accrued in favour of the other party due to lapse of time. In the present case on factual aspect it may be observedthat the respondent No,2 had been repesented by an advocate throughoutHe had an Advocate before lower appellal Court at the time when appeal against the rejection of plaint was pending nd the very application moved by the respondent No,2 under Order 9, Rt le 13, C.P.C. shows that he had the knowledge that the said appeal was ac :epted and the suit was remanded. This order was passed on 10-2-1985, the eafter, the Advocate for the present respondent No,2 has appeared before the trial Court on 27-1-1986. The Vakalatnama of the Advocate was on the record and it is not the case of the present respondent No,2 that he had di ;continued his Vakalatnama. I have also been shown an affidavit-in-rejoinder f led by the respondent No,2 before the lower appellate Court wherein he has tated that the notice was waived by his Advocate of his own. This shows that the Advocate had appeared before the trial Court on the abovesaid date. The ; aid Advocate had not filed any affidavit to the effect that he was not served rith the notice. Accordingly, I have no hesitation in holding that the Advocate for the respondent No,2 did have the notice of the suit before the trial Court after it was remanded and he appeared before the Court. Now if the Advocate does not inform his client, it is not the other party who is to suffer for the same. The present application under Order 9, Rule 13, C.P.C. has been mov by the respondent No,2 on 1-12-1986 wherein it is stated that he acquired C Le knowledge on 19-11- 1986. Even this delay of eleven days in making of the application has not been explained nor any application under section 5 of the Limitation Act for condonation of delay has been filed. Nowhere in his affidavit filed in support of this application or his affidavit-in-rejoinder, the respondent No,2 has stated that he was not informed by his Advocate about the da :es of the suit before the trial Court. It may also be observed that the suit was remanded by an order passed on 10-2-1985 whereas according to the respondent No,2 he acquired the knowledge of the judgment passed in s tit on 19-11-1986. He has not shown as to why during this period of 22 montl s he has not been in contact with his Advocate. It appears that the respondent No,2 slept over the matter. In legal proceedings in Court even the parties are under obligation to keep themselves abreast of the proceedings once they acquire the the knowledge of an action having been brought for or against them. In I he case of Mian Kamaluddin v. Malik Muhammad Bashir PLD 1952 Lah. 45 a Division Bench has held that once a party receives intimation of an action it is for him to pursue it and to keep himself in touch with the proceedings e ther personally or through his counsel. Same principle has been followed by t .R. Kayani, C.J. (as his Lordship then was) in the case of Abdul Shakoor Haji Aminuddin v. Miss Mumtaz and others PLD 1961 Kar.
145. From the above d scussion, therefore, it can be concluded that the present respondent No,2 had be en negligent in pursuing the matter.
6. ' Mr. Dewan Bashir, learned ounsel for the respondent No,2 has vehemently argued that the Advocate i or the respondent No,2 had appeared before the trial Court on the said d. Lto of his own accord and had then remained absent without informing his :lient about the dates of hearing in the suit and that thus the client is not to suffer on account of such negligence or conduct of his Advocate. This plea cannot be sustained in law. If an Advocate on acocunt of his negligence causes any loss or damage to his client, then it will be open to his client to take any disciplinary action against him before a competent forum or claim damages. In the case of Sher Muhammad v. Said Muhammad Shah 1981 SCMR 212. It was held by the Honourable Supreme Court:-- "It was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learnt of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay."
7. ' Also in the case of Charagh Din and others v. Mst. Janat Bibi 1976 SCMR 399, it was held that: "Learned counsel and A.O.R. for the petitioner have both filed their affidavits to say that they were suddenly taken ill on 28-6-1974 and 27-6-1974 respectively and, therefore, could not appear. There is no reason to doubt that statement. It however, does not, absolve the Advocate-on-Record muchless the petitioners of their obligation to appear. The Advocate-on-Record according to his affidavit fell ill a day earlier but he made no arrangement to inform the Court in time. No affidavit is filed by the petitioners. To have briefed A.O.R. did not absolve them of their obligation to appear and to ensure that their case is properly conducted."
8. ' In the case of Muhammad Nawaz and others v. Mst. Sakina Bibi and others 1974 SCMR 223, it was held by the Honourable Supreme Court:-- "3. Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case. The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence. Even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents Nos.1 to 3. We are not satisfied that the petitioners were diligent or took due care in the matter."
9. ' In the case of Zulfiqar All v. Lal Din and another (1974 SCMR 162), it was held by the Honourable Supreme Court that:-- "The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."
10. Similarly in the case of Muhammad Sharif Khan and 4 others v. Board of Revenue 1970 SCMR 76, the Honourable Supreme Court has been pleased to hold:-- "We are not prepared to accept that a client's responsibility ceases after he has briefed a counsel to appear on his behalf. It is his duty to keep in touch with his counsel and to find out the progress of his matter. If he cannot go personally, it is his duty to make proper arrangements for timely information to be conveyed to him by either the counsel or his clerk."
11. In view of the case-law laid down by the Honourable Supreme Court it may be observed that it is not only the duty of the counsel to keep his client uptodate of the proceedings in litigation but duty is also cast upon the client to keep himself in touch with his counsel and to keep himself informed of the progress in the action brought for or against him. In view of the fact in the present case that for 22 months the respondent No,2 did not remain in touch with his counsel shows that he is himself guilty of negligence and such conduct of his or that of his counsel would not defeat the valuable rights which have accrued to the other party on account of lapse of time. In this view of the matter the orders passed by the lower appellate Court are set aside and the orders of the trial Court are maintained. The costs will be borne by the present respondent No,2.
2. In view of the above order this application has become infructuous and is dismissed.