' Pleading that there is no other adequate or efficacious remedy available, M/s. Zia Enterprises, Green Market, Toba Tek Singh, and its sole proprietor, Muhammad Safdar, have approached this Court by filing a Writ Petition under Article 199, Constitution of Islamic Republic of Pakistan, 1973, with a prayer that they be permitted to deposit or pay requisite amount of court-fee and their appeal earlier dismissed by an Additional District Judge of Lahore be revived and the matter be decided on merits.
2. Facts in brief are that M/s. Fauji Fertilizers, 48-Main Gulberg, Lahore, through its Marketing Manager Mr. M. Faisal Baig, had sued the petitioners in a Civil Court for recovery of Rs,1,97,973.76, towards end of November, 1988, and Mr. Muhammad Aslam Bhatti, Civil Judge Ist Class, Lahore had decreed the suit ex parte on 2-3-1991. An appeal against the said decree was preferred on 9-4- 1991. The learned Additional District Judge, Lahore, Mr. Muhammad Aslam Javed, made a direction on 10-12-1991 that deficiency in court-fee to the tune of Rs,14,850 be made up by 4-1-1992. As the needful was not done, the appeal was dismissed, on 5-1-1992.
3. Then, on 9-3-1992, an application was submitted for restoration of the appeal, with a request that the judgment-debtors be allowed to affix .On appeal court-fee stamps, as required by the order dated 10-12-1991. This application also was rejected on 21-5-1992, with the result that the ex parte decree dated 2-3-1991 holds the field. Execution thereof is also sought to be stayed by the judgment-debtors (petitioners herein).
4. At the outset, it may be remarked that the judgment-debtors have other avenues or remedies open to them, but they have preferred to file a writ petition, in order to undo the ex parte decree aforesaid, and nullify its effect or operation, insisting on revival of their appeal, that was dismissed by the learned Additional District Judge, Lahore, on 5-1-1992. But even if the writ petition lies, it seems to have no merit at all, for the following reasons:--
5. The mere fact that the principal amount (Rs,2,33,500) obtained on 2-12-1985 as loan by the petitioners had already, on 14-2-1990, been paid, would not absolve them of their collateral or consequential liability of making payment of rests, interest, etc., having accumulated as against the unpaid amount, for the period over which the debt remained un-discharged. In any case, it was open to the petitioners to contest their liability in the matter by putting in defence in the suit instituted against them on 27-11-1988 ,by the creditoRs, They however did not care to contest, with the result that the ex parte decree was awarded against them on 2-3-1991, long after institution of the suit. Copy of the ex parte decree has not been placed on record and history of the litigation, that remained pending in the learned trial Court, resulting in the aforesaid ex parte decree, is thus not known. I have gone through the grounds invoked in assailing the decree. The petitioners, as defendants in the suit, did appear in the trial Court but did not file the written statement and also absented themselves. They were proceeded against ex parte on 16-6-1990. Application for setting aside the ex parte proceedings was dismissed on 1-2-1991. Ex parte evidence was recorded on 28- 2-1991 and the suit was decreed on 2-3-1991. It appears that as defendants the petitioners had made an application under Order 7, rule 11, C.P.C. For rejection of the plaint and had on another occasion invoked the arbitration clause in the Dealership Agreement, but the same did not find favour with the learned trial Judge. To set aside the ex parte proceedings, ordered on 16-6-1990, the defendants moved the application with a delay of about three months on 12-9-1990. That would show the state of inaction which the petitioners preferred to remain in. Lack of bona fides on their part is also manifest from the fact that the appeal had been filed by affixing court-fee stamp of Rs,10 only, and when on discovery of deficiency in court-fee a direction was made by the first appellate Court, for making good the deficiency, in the amount of Rs,14,840, the judgment-debtors did not care to comply with the direction. It is silly to say that they could not come to Lahore from Toba Tek Singh and contact their counsel and were thus unaware of the orders of the Court. A Court has communion with parties to a litigation through their counsel, and it is for the counsel to remain in touch with his client, and vice versa. If such an ingenious and pretentious plea, as has been taken up by the petitioners, is permitted to have sway, the matters pending in Courts of law will never come to close, frivolity and treachery will perpetuate and real relief will become a far cry.
It was obviously the duty of the litigant to have kept himself abreast of the day-to-day proceedings or periodical developments in the litigation and he could not shift the blame on to his counsel for his inability to carry out the orders of the Court. When deficiency in the court-fee was not made up, the appeal was dismissed on that account, and rightly so, on 5-1-1992.
6. Evidently this order could not be recalled, and what had been pleaded by the petitioners as appellants-applicants before the first appellate Court had no substance and no force. They could not be permitted to thrive on the strength of their own lapses and consequences of the default on their part could not be undone in that manner. Surprisingly, the petitioners woke up from their deep slumber after a long time and made up their mind and mood to come to Lahore on 1-3-1992, about two months after dismissal of their appeal; and then they engaged another counsel, and made a miscellaneous application, on 9-3-1992, seeking restoration of their appeal. By a well-reasoned order passed on 21-5-1992, the learned Additional District Judge rejected the said application, rightly observing that they had been pursuing the litigation with under hands and in no bona fide manner and they could not be allowed an edge over their adversaries by being granted permission to make good the deficiency in court-fee, at that late stage, months after dismissal of their appeal on that count.
7. These being the facts and circumstances of the case, accordance of indulgence by this Court in exercise of its discretionary jurisdiction available under Article 199 of the Constitution, in coming to rescue of such an indolent and idle litigant and such a deliberate defaulter is certainly not called for; and proceed to dismiss the petition in limine.