HAMID ALI MIRZA, J.- This is a High Court Appeal under Section 3 of Law Reforms Ordinance, 1972 as amended by Ordinance X of 1980 against the order of learned Single Judge dated 16-10-1997 dismissing an application under Section 12(2) CPC filed by the appellant against the judgment and decree dated 17- 1-1995 passed by this Court in Suit No. 1200/89 (M/s. AMA (Pvt.) Limited v. Riyaz Qasim).
2. Brief facts of the case are that the respondents/plaintiffs filed suit for recovery of Rs. 13,60,967/- against the appellant/defendant on 21-10-1989, the appellant/defendant filed written-statement on 16-1-1990, and the issues were settled by this Court on 7-10-1990. The appellant/defendant filed an application under Order 7, Rule 11, CPC on 14-9-1992 as CMA No. 1447/92 which was dismissed on 29-11-1992 thereafter the suit was fixed for evidence on 29-3-1993, 19- 4-1993, 26-5-1993. 29-11-1993 and 19-1-1994, however, on 17-1-1995 respondents' witness Azmat Ali was present in the Court for cross-examination when neither the appellant/defendant nor his counsel was present and they were also absent on the last date of hearing and the respondents/plaintiffs stated not to produce any other witness consequently their side was closed and as the appellant/defendant and his counsel were absent therefore their side was also closed am1 on the basis of unrebutted affidavit- in-evidence of the' respondents/plaintiffs, the suit was decreed. The appellant/defendant filed CMA No. 3475/95 under Section 5 of Limitation Act, CMA No. 3475/95 under Order 9, Rule 13, CPC and CMA No. 3477/95 for stay of execution No. 23/95 which applications were heard by the learned Single Judge of this Court and all the three applications were dismissed on 18-11-1996 thereafter the appellant/defendant filed J.M. Apple. No. 471/96 under Section 12(2) CPC on 4-12-1996 which was also dismissed by this Court on 16-10-1997 and then present appeal has been preferred on 30- 10-1997 against the order dated 16-10-1997 and judgment and decree dated 17-1-1995.
3. We have heard the learned counsel for the parties and perused the record and proceedings of the case.
4. The appellant in his application under Section 5 of Limitation Act sought condonation of delay on the grounds that the appellant and his counsel had no knowledge about the judgment and decree dated 17-1-1995 till 20-6-1995 and that the appellant/defendant had been seriously ill from December, 1994 to June, 1995 and his doctor had advised him to resume his work from 20-6-1995 on which date he filed the said application. The appellant/defendant in his application under Order 9, Rule 13, CPC has sought setting aside of decree passed against him on the grounds that learned counsel for the appellant/defendant could not attend the Court due to over-sight as she missed the case mentioned in the cause list and that she bona fide believed that the case was likely to be fixed for evidence and further learned counsel could not contract the appellant till 20-6-1995. The learned Single Judge in the order dated 18-11-1996 has observed:- "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 prate 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 wheres the instant application was moved on 20-6-1995 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 not ring true and seems to be after-thought 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.
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 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."
The learned Single Judge in the order dated 16-10-1997 reasons of which were given on 20-10-1997 has observed:- "I have considered the submissions of the learned counsel for the parties and have gone through the material placed with the case as well as the applications and orders mentioned hereinabove.
The suit of the plaintiff was decreed by the Court. The evidence so adduced was considered by the Court. The applications for condonation of delay, for setting aside the ex parte order and for stay of the execution proceedings filed by the defendant/JD were already rejected by the Court. The forum available to the defendant was actually to file appeals against the orders but he did not file the appeals against the orders which have attained finality. The evidence of Azmat Ali as recorded by the Court who produced the authority in the Court, therefore, contention of Mrs. Salima Nasiruddin that the person who has appeared in Court was not authorised by the company is not tenable in law. The purpose of the application, according to me, is only to delay the proceedings so that the plaintiff/DH may not be able to get fruits of the decree which was prepared on 13-3-1995. Learned counsel for the defendant has not substantiated his contention that any. Tengible material has been produced to show that any fraud has been committed with the Court or there was any mis- representation of facts."
5. The appellant/defendant has not given particulars of fraud and misrepresentation in his application moved under Section 12(2) CPC and had not stated about fraud and mis- representation in the application under Order 9, Rule 13, CPC. Admittedly, the appellant was served with the summons, put in his appearance, filed written statement, issues were settled by the Court, he moved an application under Order 7, Rule 11, CPC for rejection of plaint on the ground which he has agitated before us but the said application was dismissed as said above and thereafter he moved an application under Order 9, Rule 13, CPC for setting aside the judgment and decree dated 17-1-1995 which too was dismissed alongwith an application under Section 5 of Limitation Act as said above. The facts stated above do not reel that any fraud or mis-representation was practiced or committed by the respondents/plaintiffs in procuring the judgment and decree from this Court therefore application under Section 12(2) CPC would not be competent.
6. The judgment and decree in the instant suit was passed on 17-1-1995, the application under Order 9, Rule 13, CPC alongwith application under Section 5 of Limitation Act was filed on 20-6-1995 which applications were dismissed on 18- 11-1995 and the application under Section 12(2) CPC was filed on 4-12-1996, which has been held to be not maintainable as neither fraud nor mis- representation nor want of jurisdiction could be proved therefore, the extended period of limitation on-the said grounds as provided under Article 181 of Limitation Act would not be available to the appellant, as through the said application under Section 12(2) CPC appellant has asked for review or setting aside of the judgment and decree as well as order passed on an application under Order 9, Rule 13, CPC for which Article 162 of Limitation Act would be attracted, which application could be filed within the period of 20 days from the date of decree or order but the same was not filed within prescribed period hence it would be time-barred under Article 162 of Limitation Act. Reference may be made to Muhammad Iqbal and another v. Muhammad Alamagir and others (1990 SCM R 1377) wherein their Lordships have observed:- "As regards the fraud and misrepresentation, the Court held that neither fraud, nor mis- representation was made out and hence the extended period of limitation on that ground under Article 181 of the Limitation Act was not available. This finding would amount in fact to rejection of the application on merits so far as the claim under Section 12(2), C.P.C, was concerned. The other prayer for review of the order was held to be barred by time by applying Article 173 of the Limitation Act."
Reference may also be made to Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197) at page 201, para 13 their Lordships of Supreme Court have observed:- "Further, as will appear from the above-quoted paragraph, the appellants did not plead any such fact s or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under Section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under Section 12(2), C.P.C, because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of Section 12(2), C.P.C, for their on acts of negligence or omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court. This could not be the intention of the legislature as the same would be against public policy."
7. In the circumstances no exception to the orders passed by the learned Single Judge could be taken in this appeal as the appellant has no case on merits as well as the applications moved by him were time-barred. Accordingly we do not find merits in this appeal which is dismissed' in limine alongwith the listed application. These are the reasons in respect of short order pronounced on 4- 6- 1998.