' This suit was decreed as prayed on 12th August, 1991 by this Court. Against this decree, the defendant has filed an application under Order IX, rule 13 read with section 151 of the Civil Procedure Code, 1908 praying that the ex parte judgment/decree dated 12-8-1991 be set aside.
2. At the initial stage of this suit, Mr. Sohail Muzaffar, Advocate was appearing on behalf of the defendant. He filed vakalatnama on 5-4-1979. Perusal of this vakalatnama shows that it belongs to Mr. Javed Jalal, Advocate Lahore High Court having office at 4-Farid Court Road, Lahore. Which was also signed by Mr. Sohail Muzaffar. For the first time this suit came up for evidence on 11-2-1991 when it was adjourned at the request of Mr. Sohail Muzaffar subject to payment of cost of Rs,2,000.
Again on 9-3-1991 regular hearing of this suit was adjourned on the request of the Advocate then appearing for the defendant against the payment of costs of Rs,2,000. On 10-4-1991, which is the crucial date for the determination of this application, Mr. Sohail Muzaffar, Advocate filed a statement disclosing therein that he has returned case file to the defendant at Lahore and that the notice be issued to the defendant to appear and defend his case. Alongwith this statement he has also filed receipt of air courier service, namely, T.C.S. And copy of letter dated 19-3-1991 addressed by him to the defendant. This Court examined the plaintiff and adjourned the matter to 25-4-1991 for arguments. No order was passed by this Court on the statement field by Mr. Sohail Muzaffar. On 7-8-1991 case was partly heard and on 12-81991 judgment was passed. In background of these facts, the defendant has filed application for setting aside the ex parte judgment/decree.
3. I have heard Mr. Abdul Hafeez Lakho, Advocate for the defendant in support of this application. I have also heard Mr. Mansoor-ul-Arfin, Advocate for the plaintiff who has vehemently opposed the grant of this application. It is contended by Mr. A.H. Lakho, Advocate for the defendant that the defendant did not receive any intimation from his previous Counsel for the then date of hearing viz. 10-4-1991. That after discharge of vakalatnama of Mr. Sohail the defendant and his other Counsel who was from Lahore were entitled for intimation. That the absence of the defendant on 10-4-1991 and thereafter, on subsequent dates was neither deliberate nor wilful. He has referred to Rule 50 of the Sindh Chief Court Rules (O.S.) and has relied upon the following cases:--
(1) Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others (1989 SCMR 883).
(2) Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21).
(3) Messrs Eastern Steels, Karachi v. National Shipping Corporation (1984 CLC 2778) and
(4) Mst. Hussain Jan and 8 others v. Muhammad Suleman through Legal' heirs and 16 others (PLD 1994 Peshawar 95).
4. Mr. Mansoor-ul-Arfin has strenuously contended that this application is time-barred in view of Article 164 of the Limitation Act, 1908. That the instant application is misconceived as the decree passed by this Court was not an ex parte decree but a decree passed on merits. He has referred to Order XVII, rule 3, C.P.C. He has further argued that the defendant or his Counsel, namely, Mr. Javed Jalal of Lahore were not entitled for any intimation or notice from this Court for every date of hearing. He has prayed for dismissal of this application with costs. Mr. Mansoor-ul-Arfin has also referred to the following cases:---
(1) Asim Khan v. Muhammad Fazil Khan (PLD 1983 SC 387) and
(2) Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434).
5. In para-7 of his supporting affidavit the defendant has clearly stated about the filing of statement by his previous Counsel on 10th April, 1991 seeking leave of this Court to withdraw vakalatnama. The plaintiff in its counter-affidavit had not denied this fact. Mr. Sohail Muzaffar has also filed his affidavit on 14-5-1992. In this affidavit, he has stated that on 10th April, 1991 he filed the above-mentioned statement in Court and that this Court had orally permitted him to withdraw from the case and that this Court further observed that the order would be passed on the said statement. None of the parties have disputed this statement. In view of the circumstances as narrated herienabove, it is established that Mr. Sohail Muzaffar did appear before this Court on 10th April, 1991 and filed his statement in writing praying for discharge of his vakalatnama and issuance of intimation to the defendant. It is also established that no order was passed on such statement.
The question which emerges for determination is whether the defendant or his another Counsel, namely, Mr. Javed Jalal, Advocate who is from Lahore were entitled for any intimation from this Court. According to Mr. Mansoor-ul-Arfin, there is no such provision in the Sindh Chief Court Rules (O.S.) providing issuance of intimation to the parties appearing in person or to an Advocate appearing outside Karachi Division.
6. Perusal of orders dated 11-2-1991 and 19-3-1991 indicates that the adjournments were sought by the then advocate for the defendant for the purpose of seeking instructions from the defendant.
The order dated 10-4-1991 shows that the plaintiff was examined by the Court and thereafter, he closed his side of evidence. Presence of Mr. Sohail Muzaffar, Advocate is not shown. Neither anything is mentioned about filing of the abovementioned statement by Mr. Sohail Muzaffar. This order dated 10-4-1991 does not show whether any opportunity was granted to the defendant or to his counsel for producing evidence or whether they were called during the proceedings on that day. In my humble view, I say so with most respect and with deference that this Court ought to have passed some order on the statement filed by the then Advocate appearing for the defendant which has resulted in the present controversy. It is now settled law that an appointment of an advocate remains in force until determined with leave of the Court or until the party or the pleader dies or until all proceedings in regard to his client are ended. ##TSE# (For any reference see the cases of Pakistan through General Manager, Pakistan Railway v. Messrs Q.M.R. Expert Consultants (PLD 1990 SC 800), Kamal Din and others v. Nazir Ahmed (1987 CLC 1208) and also the case of Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan (1990 CLC 1473).
7. There exist two possible eventualities in case an order would have been passed by this Court on the statement of Mr. Sohail Muzaffar, Advocate. One that he might have been allowed to withdraw from the case, then in such event there remained in field the Vakalatnama of Mr. Javed Jalal of Lahore who was not aware of the proceedings. In case of second possibility, i,e, rejection of request for discharge of Vakalatnama, it was the duty of the learned Advocate then appearing for the defendant to seek proper instructions from the defendant and to produce him in evidence.
Whatever the result would have been, it was a difficult task for the then Advocate appearing for the defendant to make arrangement for evidence as the other counsel as well as defendant both were residents of Lahore. One should not loose sight of the fact that this suit pertains to the year 1977 and the Vakalatnama filed by Mr. Sohail Muzaffar and Mr. Javed Jalal, Advocates date back to March, 1979. All these circumstances indicate that this Court acted in haste in passing ex pane judgment without affording reasonable opportunity to the then counsel and to the defendant to produce evidence.
8. Mr. Abdul Hafeez Lakho has referred to the case of Mst. Begum and others (1989 SCMR 883) wherein the question. Involved was the interpretation of term "sufficient cause" in reference to a suit dismissed in default under Order IX, Rule 9, C.P.C. In this 'reported case a suit was filed before this Court by the appellant and on 24-5-1984 the appellant (plaintiff) was called absent, as such the suit dismissed by a learned Single Judge of this Court. The application for restoration of suit was also dismissed by the Court, whereafter High Court appeal was filed which also resulted in its dismissal. The appellants were granted leave to appeal by the Hon'ble Supreme Court. The ground urged by the applicants for restoration of the suit was the illness of their counsel. It was held by a Full Bench of the Hon'ble Supreme Court while interpreting the term "sufficient cause" that no hard and fast rules can be laid down and if nonappearance is not intentional, it should not be viewed very strictly. It was further held that the rules and procedure are not to be technically applied but are construed to foster the cause of justice. Appeal was allowed and the orders of this Court as well as of the Appellate Court were set aside subject to the payment of Rs,10,000.
9. In the case of Messrs Rehman Weaving Factory (Regd.) Bahawalnagar (PLD 1981 SC 21) it was held, inter alia, that when any cause is shown for nonappearance at the first hearing whether it is non-service of summons or any other sufficient ground, such as, an accident on the way, an act of God or act of State beyond . Human control, then only Article 164 would apply and when the summons were not duly served then the limitation would run from the date of, knowledge of decree. It was further held by the Hon'ble Supreme Court that in remaining cases (other than mentioned earlier) which falls within the category "other than those of first hearing" would be governed by residuary Article 181 which provides three years time from accrual of the right to apply.
At page 39 of the said case reported as PLD 1981 SC 21, the Hon'ble Supreme Court held:-- "It is not essential here to examine the effect of 'null and void order' on the question of limitation; is simple that where the defendant makes an application for setting aside an ex pane decree, which is not covered by Article 164, it would be governed by residuary Article 181 and the period of limitation would be three years from the accrual of the right to apply."
10. A learned Division Bench of this Court in the case of M/s. Eastern Steels Karachi (1984 CLC 2778) after considering several cases held that in a matter where the parties are not at fault and not found guilty of negligence or carelessness and where grave injustice or great hardship may result in penalising a party for the negligence of his advocate, the Courts are not powerless to grant relief to the aggrieved party. It was further held by the learned Division Bench of this Court after referring to the cases of Sh. Muhammad Anwar v. Ch. Sultan Muhammad Khan (1974 SCMR 371), Chiragh Din and 4 others v. Mst. Jannat Bibi and 6 others (1976 SCMR 399) and the case of Rafiq Ahmad Khawaja v. Abdul Haleem (1982 SCMR 1229), that no absolute rule with any exception was laid down by the Supreme Court of Pakistan that where the counsel of a party was found negligent his client must always suffer-(underlining is mine). In the. Last case of Mst. Hussain Jan and 8 others (PLO 1994 Peshawar 95), it was held by a Single Judge of Peshawar High Court after following the rule laid down in the case of Messrs Rehman Weaving Factory (supra) that the application filed under Order IX, rule-13, C.P.C. Was not time-barred in view of Article 181 of the Limitation Act.
11. Mr. Mansoor-ul-Arfin, learned counsel for the plaintiff has placed reliance on the case of Asim Khan (PLD 1983 SC 387) to support his contention that in the circumstances of the case Article 164 of the Limitation Act is attracted and, therefore, application under reference being time-barred is liable to be dismissed. In this case appeal against the order of ex parte decree was dismissed by the Hon'ble Supreme Court. However, the question regarding the scope of word "knowledge" for which leave was granted was not considered nor the rule laid down in the case of Messrs Rehman Weaving Factory (supra) was considered on the ground that leave was not granted on such question. In the case of Moulvi Abdul Aziz (PLD 1971 SC 434) it was held that the Order XVII, rule 3, C.P.C. Applies to a case where time has been granted to a party at his instance, to produce evidence. Or to cause attendance of witnesses or to perform any other act necessary for the progress of suit and that such rule will not apply unless default has been committed by such party in doing the act for which the time was granted.
12. There are other cases where, under peculiar circumstances, the High, Courts have either restored a suit dismissed in default or has set aside an ex parte decree on the satisfaction that the party was not at fault or where there was no wilful or deliberate absence of the party. In the case of Masud Zain v. Lt. Col. Muhammad Tariq Ahmed Malik and 2 others (PLD 1988 Kar. 154) an application under Order XXXIX, rules 1 and 2, C.P.C. Was dismissed. Thereafter, the plaintiff filed an application for restoration under section 151, C.P.C. Which was allowed. This application was restored by this Court on the ground, inter alia, that it is a common practice that when two Advocates, one local and the other from outside Karachi are engaged by a party then the Advocate from outside is not required to attend the court on every date of hearing. Against this order defendant went into appeal, which was argued by Mr. Mansoor-ul-Arfin Advocate, now appearing for the plaintiff. These above quoted observations of the learned Single Judge were not approved by the Appellate Court. However, a learned Division Bench of this Court while following the rule laid down in the cases of Wali and 2 others v. Manak Ali and 2 others (PLD 1965 SC 651) dismissed the appeal and maintained the order of restoration of the Injunction application.
Following observation is relevant for the determination of this application:--- "....Such lapses, as in the instant case, on the part of the parties or their counsel are not uncommon.
However, if such lapses do occur, the same can be compounded by imposition of costs. Under the circumstances in our opinion, the ends of justice can be sufficiently met if costs are imposed upon the respondent No,1 for this lapse."
' A learned Single Judge of this Court, Mr. Saleem Akhtar, J. (as his lordship then was) in the case of Mst. Qamar Sultana alias Qamar-un-Nisa v. Abdul Hussain and another (1982 CLC 767) held:- "It is well-settled that if the rules proved an act to be done in a particular manner then compliance of such mandatory provision is essential to the validity of the act or proceedings."
13. It was further held in the reported case that a statement made by an Advocate in absence of his client reporting no instructions would not in fact amount to withdrawal of Vakalatnama and that in absence of compliance with the prescribed procedure, the Vakalatnama existing on the file shall be deemed to be valid and for all intent and purposes the Advocate shall be deemed to represent his client in the proceedings. The learned Judge while following the rule laid down by this Court in the case of Municipal Corporation of the City of Karachi v. Daimia Cement Limited (PLD 1959 Karachi 395) further held that the duty of the Court is to do justice between the parties and that in absence of any express bar, merely on technical grounds, the Court should not hesitate to grant relief.
14. Yet in another case of Mst. Sardaran Bibi and another v. Allah Dino (PLD 1990 Karachi 227), the appeal was dismissed by the. Appellate Court, as the Advocate appearing for the appellant pleaded no instructions. In this reported case, the appellant's .Were residents of Punjab and were perusing their appeal through an Advocate of Nawabshah. A learned Division Bench of this Court while following the rule laid down in the case of Mst. Qamar Sultana alias Qamar-un-Nisa v. Abdul Hussain and another (1982 CLC 767), held that the Advocate for the appellant did not obtain discharge of his Vakalatnama and was present before the Appellate Court, therefore, the appeal could not have been dismissed for default in his appearance. The dismissal order, passed by the Appellate Court, was held to he void and inoperative in law. It was further held that in case where the order sought to be set aside is a void order then Article 181 of the Limitation Act would be applicable. In a recent case of Ali Muhammad v. Murad Bibi (.1995 SCMR 773) leave to appeal was refused by the Hon'ble Supreme Court to the petitioner, who was aggrieved from the order of the First Appellate Court which set aside an ex parte judgment and decree passed by the Trial Court and remanded the same for trial on merits. In this reported case the defendants Advocate had requested for an adjournment before the Trial Court which was disallowed. His right to cross- examinae was closed and the judgment was announced by the Trial Court on the same day. It was held in the first appeal by the learned Additional District Judge that the learned Trial Court acted in haste, thus, prejudicing the rights of the appellant/defendant. The Hon'ble Supreme Court refused to grant leave and approved the observation of the Additional District Judge.
15. The present trends of this court as well as of the Supreme Court of Pakistan are in favour of adjudicating a cause on merits and not to non-suit a party on mere technical grounds. (For reference see the case of Thal Engineering Industries Limited v. The Bank of Bahawalpur Limited and another (1979 SCMR 32), Allah Ditta v. Barkat Ali and 3 others (1992 SCMR 1974) and the case of Noor-ul-Amin and another v. Muhammad Hashim and 27 others (1992 SCMR 1744). In the case of United Bank Limited v. Mohib Ali Tannery' Limited and 8 others (PLD 1994 Karachi 275), this Court held that the law favours disposal upon due hearing and there is little room for mere technicalities and that all procedure is designed to secure advancement of justice. Recently, Supreme Court in the case of Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555), held that all rules and procedure framed for regulating the proceedings before a Court or Tribunal are meant for advancing the cause of justice and that such procedural laws and rules cannot be used as means for denying the relief to an aggrieved party on the ground of technical or nonobservance of the rule or procedural laws.
16. Since I am of the view that the ex parte judgment was resulted due to non-passing of any order by this Court on the application made on 10-4-1991, which resulted in causing serious injustice, hardship and inconvenience to the defendant and in view of the fact that no party should suffer because of mistake on part of the Court (for reference see Namdar Khan v. Muhammad Akram Khan, 1993 SCMR 434) I grant this application and recall the ex parte decree/judgment dated 12-8- 1991 on the following terms and conditions:--
(i) That the defendant shall pay Rs,20,000 as costs to the plaintiff within 15 days.
(ii) Since this case pertains to year 1977 it is to be fixed for regular hearing within three months.
1998. With the above observation Civil Miscellaneous Application No,2175 of 1991 stands granted and the ex parte judgment/decree is hereby set aside subject to the above terms.