' In this suit for recovery of Rs,13,60,967, suit was listed for recording evidence when on 17-1-1995 it was decreed for the reason that neither the defendant nor his counsel appeared for cross- examination of plaintiff's attorney Mr. Azmat Ali who was in attendance. As the plaintiff's counsel did not wish to produce any other witness and closed his side, learned Single Judge closed the side of defendant and accepting the affidavit-in-evidence filed on behalf of plaintiff in support of the averments in the plaint decreed the suit as prayed.
2. All the aforesaid C.M.As. Were filed on 20-6-1995. While the first CMA seeks the condonation of delay under section 5 of the Limitation Act in filing CMA No,3476/1995 under Order IX, rule 13 for setting aside the ex parte order, the third application was moved under section 151, C.P.C., for stay of execution proceedings being Execution Application No,23/1995. In the application for condonation of delay it is urged that the applicant and his counsel had no knowledge about ex parte order, dated 17-1-1995 till 20-6-1995 for the reason that the defendant had been seriously ill from December, 1994 to June, 1995 and his doctor had advised him to resume his work since 20-6- 1995 when he filed the present application. In the second application under Order IX, rule 13, C.P.C., it is said that learned counsel for the defendant could not attend the Court due to oversight as she missed the case mentioned in the cause list and was under the bona fide belief that the case was likely to be fixed for evidence. Illness of the defendant was also pleaded as a ground for his absence who could not contact his advocate till 20-6-1995 when the application was filed. In support of this application affidavit of the defendant as well as learned counsel are filed which have been controverted by way of separate counter-affidavits filed on behalf of the plaintiff stating that these applications are filed on frivolous grounds in order to prolong the execution proceedings. With regard to the counsel it is said that she had the knowledge of listing of the case as the case had been listed in the weekly cause list commencing from 16-1-1995; that the plea of illness is vague as it does not disclose the duration or nature of illness and is not supported by a medical certificate issued by a competent authority. A copy of the weekly cause list has been filed alongwith the counter-affidavits. Affidavits in-rejoinder were filed by the defendant as well as the counsel enclosing therewith a certificate of illness from Dr. Hanzala Atiq of Atiq Clinic, Bahadurabad as well as four Laboratory test reports bearing different dates to show that the defendant had attended the laboratory for liver function test. The medical certificate certifies that the defendant was under care for viral hepatitis since 2-12-1994. He had developed complications of typhoid fever and chronic hepatitis and given intensive therapy and complete rest. He was now convalescing and improved since his last report of 19-6-1995 and was allowed to resume normal light duties.
3. I have heard learned counsel for the parties and examined the material on record with some care.
4. Article 164 of the First Schedule to the Limitation Act prescribes a period of 30 days for an application by a defendant for an order to set aside a decree passed ex parte from the date of the decree or where the summon was not duly served when the applicant has knowledge of the decree. In the present case, since the defendant after due service of summons actually contested the suit and was represented by counsel, his case shall fall within the first part of the time period prescribed for making an application. On fact it may suffice to say that though the ex parte judgment was passed on 17-1-1995, decree was actually drawn on 13-3-1995 and the period of limitation shall start running from 14-3-1995 and expire on 12-4-1995 whereas the instant application was moved on 20-6-1915 and is, thus, is barred by 68 days. Under the law in order to succeed in an application for condonation of delay within the meaning of section 5 of the Limitation Act, a party is required to explain the delay of each day beyond the period of limitation.
In this case there is a general and vague statement that the counsel missed to notice the date in the cause list without any reference to the weekly list or monthly list issued by the roster. Likewise the defendant himself in his affidavit in support of the application for condonation of delay as well as application for setting aside the ex parte decree did not mention as to the period of his illness, the nature of his ailment and his disability to move about or to communicate with his counsel. It was only after a counter-affidavit was filed on behalf of plaintiff that the defendant took the stand that he could not keep in touch with the counsel for the reason that he was suffering from hepatitis and was seriously ill and produced the medical certificate for the first time on 31-8-1995. Even in this affidavit he did not disclose the precise date of his confinement to bed and did not state whether he was completely disabled from moving about or communicating with his counsel through a letter or on phone. In my view the plea set up on the face of it does no ring true and seems to be afterthought and engineered in order to meet the situation. To my mind the defendant has been negligent and at any rate not diligent in prosecuting his defence by remaining away from the Court proceedings and loosing contact with his counsel. In any case the certificate from a private practitioner, in the absence of any reliable and tangible evidence, to show that he was confined to bed and incapacitated is of no assistance and, thereby, the defendant failed to make out a sufficient cause for the condonation of delay in making the application for setting aside the ex parte decree. On this ground alone his application under section 5 as well as application for setting aside the ex parte decree are liable to be dismissed.
5. Adverting to the second ground, namely, the counsel having missed the case from the cause list, no doubt there is an affidavit of the counsel it is adequately controverted by the counter-affidavit of the defendant. It is true that an advocate is an officer of the Court but he is required to act with due diligence and care in the discharge of his professional duties as a client always reposes confidence in the counsel that his interests shall be fully protected and looked after with diligence and circumspection. It is pertinent to note that the suit was listed for hearing on 17-1-1995, it did not occur to the counsel despite a lapse of more than five months to take care of the brief and find out from the office of the Court as to the fate of the suit. The ground advanced for setting aside the decree is, thus, neither bona fide nor tenable at law. It would be unjust and inequitable to deprive a decree-holder of his right under a decree such plea which is not substantiated by adequate evidence and manifestation of conscious discharge of duties. Since a valuable right has accrued to the decree-holder by reason of negligence and default on the part of the defendant, it cannot be lightly snatched.
5-A, In support of her case learned counsel has cited Riazur Rehman & Co. v. Province of Punjab 1987 M LD 2355, Hassan Din v. Jalaluddin 1991 CLC 33 and Ajmal Hussain v. K.M. Darabu 1992 CLC 1073.
' In the first case from Lahore High Court counsel was busy before some other Court and he had appeared in witness-box to support his version whereupon the Court observed that there was no reason to disbelieve such evidence as a sufficient cause for recalling ex parte proceedings was made out. In this case High Court was exercising its revisional jurisdiction against the order passed by the trial Court which is definitely distinguishable on facts and of no assistance.
' In the Hassan's case again a case from Lahore jurisdiction dealing with a revision application Court took the view that application for setting aside ex parte decree which involved decision on disputed questions of fact and law ought not to have been disposed of summarily without proper inquiry by the Court. Learned Single Judge held that defendants were entitled to an opportunity to substantiate averments made by them in application for setting aside of ex parte decree and also the opposite-party to a like chance for rebutting the material brought against him. Course adopted by trial Court for deciding such application on hearing arguments only was not approved.
There is no cavil with the proposition of law laid down in the reported case, defendant did not ask for leading any evidence .On his application. Learned counsel having chosen to submit her arguments at length reliance on the judgment is misplaced.
' In Ajmal Hussain's case, learned Single Judge of this Court expressed the view that the defendant was prevented by sufficient cause from appearing when suit was called for hearing. Absence of counsel before the lower Court due to his pre-occupation in five cases fixed before, High Court was taken to be a sufficient ground for setting aside ex parte decree. The facts are definitely distinguishable and the case not relevant in the circumstances of the present case.
6. In Muhammad Hanif v. Baqa Muhammad PLD 1979 SC (A J & K) 120 Full Bench of the Azad Jammu and Kashmir Supreme Court expressed the view that defendant failing to appear at the time of hearing of case in spite of being personally served was not entitled to have a decree set aside as a matter of course even if the application for setting aside decree was made on same day.
7. In Nawab Din v. Sultan Ahmed Awan (1989 SCMR 328) honourable Supreme Court expressed the view that where ex parte money decree was passed against the petitioner who was duly served, re-agitated the case for setting aside ex parte decree after period of limitation and did not deposit amount of decree in accordance with law and contended that he had an arguable case and declined to. Interfere with the exercise of discretion by High Court.
8. In Muhammad Anwar Birlas v. Muhammad Ismail Bhatti (1989 SCM R 1091) where the High Court had dismissed the application on question of limitation as well as for insufficiency of cause, Supreme Court expressed the view that although it might be possible to ultimately hold that his application for setting aside decree decree was not time-barred yet no possibility existed to set aside the finding of fact that the defendant had failed to satisfy the conditions with regard to sufficiency of cause and declined to grant leave to appeal.
9. Learned counsel lastly contended that the learned Single Judge while decreeing the suit ex parte did not dispose of defendant's application under Order VII, rule 11, C.P.C., moved on the ground that the plaintiff being a private limited company could not file the suit inasmuch as Director of the Company Mr. Suhail Carim failed to file Articles of Association. Apart from the fact that the plaintiff- company had filed Memorandum and Articles of Association and a resolution by the Board of Directors before filing of the suit authorising Mr. Suhail Majeed Carim to institute the suit on behalf of the company, the fact remains that the defendant did not pursue this application despite the lapse of more than two years. There is, thus, no merit in the contention that the plaint was liable to be rejected.
(a) For the aforesaid facts and circumstances, there is no merit in the above applications which are accordingly dismissed.