1. ' The applicant who was plaintiff in the suit before the Court of first instance, had filed a suit for declaration and cancellation of documents against the respondents which was dismissed in default on 28-3-1987 by the learned Senior Civil Judge, Shandadpur. The applicant preferred an application under Order IX, Rule 9 read with section 151, C.P.C. Which was again dismissed by the Senior Civil Judge, Shandadpur vide its order dated 3-7-1989. Against this order the applicant preferred First Appeal bearing No,42 of 1989 which was dismissed by the learned Additional District Judge, Shandadpur vide his judgment dated 29-7-1993. The applicant has now impugned the said order in this Civil Revision filed under section 115, C.P.C.
2. ' Before the trial Court the respondents Nos.2 and 3 who were defendants Nos.2 and 3 respectively were declared ex parte. Only respondent No,1 was contesting the suit. On 28-3-1987, the case was fixed for evidence of the plaintiff/applicant when neither the plaintiff nor his counsel was present.
3. Therefore, the suit was dismissed in default. On 6-5-1987 the plaintiff/applicant filed an application under Order IX, Rule 9, C.P.C. For setting aside the order of dismissal of suit. This application was filed after a delay of approximately nine days. The plaintiff/applicant in support of his application under Order IX, Rule 9, C.P.C. Filed his affidavit as well as the affidavit of his advocate namely Mr. Mirza Saleem Baig. The applicant/plaintiff has stated that the suit was fixed for evidence on 8-2- 1987 when the plaintiff/applicant and his counsel were present but the case was adjourned to 8-3- 1987 as the concerned Judge was on leave. That on 8-2-1987, besides present suit there were two other suits and three execution applications which were all adjourned to 8-3-1987. That on 8-3- 1987 all the suits were adjourned to 12-4-1987 on the grounds that the mother of the advocate for respondent had died. That thereafter the cases were adjourned to 3-5-1987 on which date the plaintiff/applicant was informed by his counsel that the suit was dismissed in default on 28-3-1987.
4. That their absence was neither wilful nor deliberate and that the same was caused due to misunderstanding and bona fide mistake. That the plaintiff/applicant will suffer irreparable loss and injuries if his application under Order IX, Rule 9, C.P.C. Is not granted. More or less, same facts were stated in the affidavit by Mr. Mirza Saleem Baig, Advocate. It is pertinent to note that none of the respondents filed any counter-affidavit or any objection to the supporting affidavits which have gone unrebutted.
5. ' The learned Senior Civil Judge, Shandadpur disallowed the application of the plaintiff/applicant on the grounds that neither any application for condonation of delay was filed nor the delay was effectively explained. The learned Additional District Judge, Shandadpur has also dismissed the first appeal preferred by the plaintiff/applicant on the grounds, inter alia, that no compliance of provisions of Order XLIII, Rule 3, C.P.C. Was made prior to presentation of appeal and that no application under section 5 of the Limitation Act was filed seeking condonation of delay.
6. ' I have heard Mr. Hakim Ali Siddiqui, Advocate for the applicant and Mr. Muhammad Ali Chohan, Advocate for the respondent No,l. According to the learned counsel for the respondent No,1, the application under Order IX, Rule 9, C.P.C. Was filed after a delay of 9 days and since no application under section 5 was filed, it was rightly dismissed by both the subordinate Courts. He has further argued that since the plaintiff/applicant was not able to comply the provisions of Order XLIII, Rule 1, C.P.C., the appeal was not maintainable. He has referred to the following cases: ' Abdul Rehman and another v. Mukhtar Ahmed and another 1985 CLC 1072, Messrs National Bank of Pakistan v. Mst. Parveen Akhtar PLD 1985 Kar. 60, Lal Shah v. Muhammad Ishaq PLD 1977 Lah. 1058, Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821, Mir Afzal and 6 others v. Samiur Rehman and 34 others 1980 CLC 1446, Sardar Noor Hussain v. Chief Settlement Commissioner, Lahore and 2 others PLD 1973 Lah. 809, Muhammad Ramzan and 4 others v. Mst. Masooda Hasan and 2 others PLD 1993 Quetta 88, Usman Ghani v. Gulzar Ahmed 1987 CLC 1753 and Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Co., Lahore 1987 CLC 1169.
7. ' Mr. Hakim Ali Siddiqui, Advocate appearing for the plaintiff/applicant has argued that in absence of any rebuttal to the averments of the affidavits filed by the plaintiff/applicant and his counsel, the learned Senior Civil Judge should have granted the same and should have restored the suit to its original -number. That it was merely a technical objection that no application under section 5 of the Limitation Act was filed and that on such technical grounds a party is not liable to be non- suited. He has referred to the following cases: ' Muhammad Haleem and others v. H.H. Muhammad Nairn and others PLD 1969 SC 270, Messrs Landhi Industrial Trading Estates Ltd., Karachi v. Government of West Pakistan through Excise and Taxation Officer 'N' Division, Karachi 1970 SCMR 251, Mrs. Dino Manekji Chinoy and 8 others v.
8. Muhammad Matin PLD 1983 SC 693 and Haji Muhammad Khan and others v. Deputy Land Commissioner and others PLD 1987 Kar.
9. 387.
10. I have given my anxious consideration to the arguments of both the learned counsel. The contents of the supporting affidavits filed by the plaintiff and his counsel have gone uncontroverted and unrebutted inasmuch as the statement that the plaintiff came to know about the order of dismissal on 3-5-1987, was not rebutted and thus it has gone unchallenged. Both the learned subordinate Courts have not given any consideration to the affidavit of an advocate who has stated on oath that on 15-3-4987 he was present in the Court when the case was not shown in the cause list and that the absence of the A plaintiff and his counsel on 28-3-1987 was neither wilful nor deliberate and it was occasioned due to misunderstanding and bona fide mistake. Therefore, the averments of the affidavit that the plaintiff and his counsel came to know on 3-5-1987, was to be accepted as admitted by the defendants in absence of any counter-affidavit. Therefore, in my view, there was no necessity of filing any application for condonation of delay. It is now well-settled law that where a party is required to deny any fact on oath and if it fails to deny the same then it will amount to admission.
11. ' A Division Bench of this Court in the case of Muhammad Rafiq Gazdar v. Additional Commissioner, Karachi and 3 others PLD 1972 Kar. 119 held that in Constitutional petition where the respondent was required to file his comments and he did not specifically deny the allegation raised in the petition, it was held that according to the rules of the pleadings, if a fact is required to be denied is not denied, it must be deemed to have been admitted. In the case of Muhammad Gul Kakar v. Province of Balochistan PLD 1979 Quetta 66, a Division Bench of Balochistan High Court held that since the petition was duly supported by an affidavit of the petitioner, there was no cogent reason to disbelieve the facts in the petition, specially when no counter-affidavit was filed by the respondents controverting the facts alleged in the said petition. More or less, same principle was enunciated by a learned Single Judge of this Court in the case of Mahmood Ahmed (Muhammad Ahmed) v. Tribunal/S.D.M. City Hyderabad PLD 1985 Kar. 187 while dealing with a Constitutional petition it was held that since the respondent No,2 (S.H.O.) did not controvert the facts of petition by filing his counter-affidavit, therefore, in absence of any counter-version the allegations of mala fides was upheld and the proceedings pending before the respondent No,1 was declared to be an abuse of process of law. It is also pertinent to observe that the Courts have always attached much sanctity to an affidavit filed by an advocate. The reasons as explained in the affidavit of an B advocate are sometimes treated to be "sufficient case". (See Jan Muhammad v. Muhammad Asghar PLD 1981 SC 513 and the case of Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467).
12. ' In this case, the controversy involved before the trial Court was a mixed question of law and facts.
13. The facts as stated on solemn affirmation by the applicant/plaintiff and his advocate were not denied by the respondents. Therefore, the Courts should have applied the law on these uncontroverted facts; In my considered view, since the applicant/plaintiff filed the application under reference within 30 days of his knowledge, there was no need of filing any application under section 5 of the Limitation Act, 1908. It would be advantageous to refer here the case of Abdul Kaiim v. Muhammad Ibrahim 1976 SCMR 79 where the Lahore High Court condoned the delay in filing appeal by respondent on the ground, inter alia, that no counter-affidavit was filed by the petitioner to controvert the allegations of the respondents. The Hon'ble Supreme Court of Pakistan while refusing leave to appeal to the petitioner, upheld the decision of Lahore High Court and made the following observations: "Learned counsel for the petitioner further argued that respondent's appeal before the High Court was barred by limitation and that delay was condoned for inadequate reasons. The argument is without substance. As pointed out already respondent filed an affidavit explaining the reasons which prevented him from filing the appeal within time. There was no counter-affidavit by the petitioner. The petition is accordingly dismissed."
14. ' In the case of Lal Shah PLD 1977 Lahore 1058 a learned Single Judge of Lahore High Court Mr. Muhammad Afzal Zullah, J. (as his Lordship then was) held that an appeal which was filed after expiry of 10 days may be considered for condonation of delay subject to the condition that there must be a proper application supported by an affidavit disclosing the causes of delay. In the case of Mir Afzal and 6 others 1980 CLC 1446 it was held by a learned Single Judge of Peshawar High Court that if an appeal is filed beyond the prescribed time, then the appellant is duty bound to explain delay and existence of sufficient cause which is condition precedent for exercise of discretion under section 5 of the Limitation Act. In the case of Abdul Rehman and another 1985 CLC 1072 it was held by the Lahore High Court that there must be formal application under section 5 of the Limitation Act for enabling the Court to condone delay. In the instant case the applicant has stated that he came to know about the order of dismissal on 3rd May and that he has filed the instant application on 6th May, before the expiry of 30 days after the date of knowledge. In these circumstances, it was argued that he was not required to file any application under section 5 of the Limitation Act. The cases of Sardar Noor Hussain PLD 1973 Lahore 809 and the case of National Bank of Pakistan PLD 1985 Karachi 60 are not relevant. However, in the case of Mst. Walayat Khatun PLD 1979 SC 821 it was held by the Hon'ble Supreme Court that a plaintiff who is guilty of contumacy, positive mala fides or lack bona fides is not entitled to any indulgence.
15. ' On the question of non-compliance of Order XLIII, Rule 3, C.P.C., it was held in the case of Ghulam Rasool (1987 CLC 1174) that where the appeal is filed in disregard of mandatory provisions of Order XLIII, Rule 3, C.P.C. The same is liable to be dismissed. Same view was upheld by this Court in the case of Nazir Jegirani Baloch 1987 CLC 1750. Mr. Hakim Ali Siddiqui has referred to the case of Mrs. Dino Manekji Chinoy and 8 others PLD 1983 SC 693 where the Hon'ble Supreme Court held that any appeal filed in non-compliance of Order XLIII, Rule 3, should not be entertained. But in the said reported case the Supreme Court came to the conclusion that since learned Division Bench had issued a pre-admission notice to the advocates of the respondents who have contested the admission of the said appeal, therefore, all the objects to which Rule 3 was inserted in Order XLIII were satisfied in substance. It was further held that since the proper place of procedure is to help and not to thwart the obtaining of justice and that procedural law should not be allowed to defeat Justice for failure to comply with the form where the substance, in fact been complied with. In this connection the Hon'ble Supreme Court has referred to the other two cases of Imtiaz Ahmed v.
16. Ghulam Ali and others PLD 1963 SC 382 and the case of Manager, J&K Estate Property in Pakistan v.
17. Khuda Yar PLD 1975 SC 678.
18. The Courts below have not considered this aspect of the case that all the relevant facts were available on record for the purpose of considering the delay but despite that they did not consider the same and denied the relief to the plaintiff/applicant on a mere technical ground that no application under section 5 of the Limitation Act was filed. Procedural laws are meant for advancing cause of justice and cannot be made a vehicle of oppression to suppress the remedies.
19. (For reference see the case of Noorul Amin and another v. Muhammad Hashim and 27 others 1992 SCMR 1744).
20. ' Since, I am of the considered view that the trial Court should have restored the plaintiff's suit to its original number, the objection that provision of notice as required under Order XLIII, Rule 3, C.P.C.
21. Was not complied with and that the appeal was liable to be dismissed, does not require consideration, as I am inclined to hold that the initial order of the learned Senior Civil Judge, Shandadpur is not sustainable in law. Facts and circumstances of this case fully attract interference of this Court and I do not see any reason not to interfere as both the two Courts below have failed to consider the real controversy involved and have based their Judgments on mere technicalities. Result of the above discussion is that this Revision Application is accepted and both the orders of the learned subordinate Courts are set aside. Suit of the plaintiff bearing No,F.C. 22 of 1983 is restored to its original number. I am also mindful of fact that the original suit is pending since 1983, as such, learned trial Court is directed to expeditiously proceed with the suit and to complete the proceedings within next six months after receipt of his order.