1. ' Granted subject to all just exceptions.
2. This appeal is directed against order passed under section 12(2), C.P.C. by IVth Senior Civil Judge & Rent Controller, Karachi (East) in Execution Application No,28 of 1991.
3. The respondent had filed Rent Case No,939/1988 under section 14 of the Sindh Rented Premises Ordinance, 1979 against the appellant. The case was finally decided by judgment, dated 28-6-1991.
2. ' Subsequently the respondent filed execution application which was resisted by the appellant by filing application under section 12(2), C.P.C. for recalling eviction order on the ground that his Advocate was in collusion with the respondent and had committed fraud against the appellant. It is alleged that his Advocate did not press the application filed for recalling the respondent for further cross-examination and allowed it to be dismissed. The said Advocate neither filed appellant's affidavit-in-evidence, nor informed him about the progress of the case. As a result of the above fraud, the order of eviction came to be passed by the Rent Controller. The impugned order was passed by the learned Rent Controller on 16-9-1992. The learned Rent Controller by the impugned order dismissed the said application under section 12(2), C.P.C, relying on the cases of Rafiq Ahmed Khawaja v. Abdul Haleem 1982 SCM R 1229 and Mushtaq Ali v. Muhammad Bux 1968 SCM R 194.
3. ' The learned counsel for the appellant urged that the order of dismissal was procured by the respondent in collusion with the Advocate for the appellant. According to the learned counsel section 12(2) can be pressed into service on the ground of collusion. He has relied on the case of Iqbal v. Mst. Jainan Bibi 1991 CLC 553, wherein a learned Single Judge of Lahore High Court has observed that though the term collusion as such is not one of the enumerated grounds in section 12(2) of C.P.C. for challenging the validity of a judgment, decree or an order of the Court, yet having regard to the true object behind the remedy in this subsection, a decree collusively obtained can also be challenged under section 12(2) because taint of collusion is equivalent to perpetration of fraud both on the Court and affected party.
4. ' The learned Judge has referred to the definition of collusion in Wharton's Law Lexicon, 14th Edition page 212, which is as under:-- "Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose."
5. ' If the case is judged on the touchstone of the aforesaid definition, the Advocate for the appellant not being a party to the proceedings, it cannot be said that the order for eviction was obtained collusively in terms of the aforesaid definition.
6. ' The learned Advocate for the appellant contended that the appellant should not be made to suffer on account of the acts and omissions on the part of his Advocate. He relied on Shivrattan G.
7. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. PLD 1965 SC 669, in which it was held that it would be wrong to make the plaintiff suffer on account of the professional misconduct on the part of his Advocate.
8. ' The above authority came up for consideration in the case of Rafiq Ahmed Khawaja v. Abdul Haleem 1982 SCM R 1229 and it was observed as under:-- "However, the decision in that case did not proceed solely on that basis but further reasons were given in support of order of the appellate Bench. The case, therefore, is no authority for the proposition that a party cannot be made to suffer on account of the negligence of his counsel in the conduct of proceedings before the Court."
9. ' Referring to the case of Zulfiqar Ali v. Lal Din and another 1974 SCM R 162, their Lordships have reproduced the following observations from the report:-- "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 responsibilities to the Court, it is he who should suffer and not the other side."
10. 'Similar view was taken in the case of Charagh Din v. Mst. Jannat Bi 1976 SCM R 399.
11. ' In Taj Begum and another v. Sultan Khan and 12 others 1968 SCM R 193, the Honourable Supreme Court has observed as under:-- " The petitioners now seek special leave to appeal from this order and all that has been urged on their behalf is that they should not be made to suffer for the negligence of their learned Advocate in the High Court. We arc unable, however, to agree with this contention, for, who else should be held liable. Surely not the respondents, to whom a valuable right has now accrued by reason of the dismissal of the Letters Patent Appeal. They cannot be deprived of that right merely on the ground that the petitioners should not be made liable for their Advocate's negligence.
12. ' That'there was gross negligence by the counsel cannot be disputed. He did not even care to enquire about the progress of the appeal which had been filed by him till his clients' agent came to make enquiries. Such conduct clearly indicates that neither the learned Advocate nor his clerk were seriously interested in the fate of the Letters Patent Appeal which was, in any event, from an interlocutory order refusing stay of further proceedings in the suit. If the petitioners feel aggrieved by his conduct they should seek to have redress from him and not harass the respondents. This petition is wholly without any substance and is, accordingly, dismissed."
13. It may be pointed out that the learned Rent Controller in his order has observed that the appellant himself was negligent in conducting the proceedings and he was not keeping himself in touch with the counsel. The scrutiny of the record and proceedings of the rent case shows that on 154-1990, the learned Advocate for the opponent sought time for filing affidavit-in-evidence on the ground that he could not contact the appellant due to his preoccupation. On the same day he also applied for certified copy of the cross-examination of the respondent. On 13-5-1990, he again moved an application for time for filing affidavit-in-evidence on the ground that the appellant was out of Karachi. On 8-1-1991 again time was sought on the ground that copies of some important documents were to be obtained to be filed alongwith the affidavit-in-evidence.
14. ' There is, therefore, no substance in this appeal and the same is hereby dismissed in limine.
3. The application is dismissed having become infructuous.