On 2-6-1994, plaintiff filed the above suit for damages in the sum of Rs,33 Lakhs together with interest at 18 per cent. Per annum for nondelivery of goods by Maersk Line of Gothenburg, Germany, defendant No,1 and Maersk Agency (Pvt.) Limited, the local agents who are defendant No,2. The defendants filed their written statement on 11-1-1996 and consent issues were adopted by the Court on 11-5-1998. The matter was then fixed in Court for evidence of the parties on 4-3-1999 when the plaintiff's counsel requested for time as his witness was out of Pakistan. The matter was accordingly adjourned to a date in office after two weeks. It was again fixed for evidence on 24-3- 1999 when Mr. Muhammad Ali Jan, learned counsel for plaintiff, again requested for further time to produce his witness as he had not returned to Pakistan. The learned Judge did not accept the request and dismissed the suit for non-prosecution. On 21-4-1999 plaintiff filed an application under Order IX, Rule 9, C.P.C. Read with section 151, C.P.C. Supported by an affidavit stating that the witness had gone to Dubai and thereafter to Astonia and U.S.A. In connection with his business engagements and as the counsel did not know the exact address of the plaintiff in U.S.A. He could not contact him and had consequently requested for adjournment. Along with the application the plaintiff filed copies of the plaintiff's passport to show that he was out of the country on the relevant dates and also a general power of attorney given by him on 13-4-1999 to one Mr. Shaikh Abdur Rehman to pursue the matter. The power of attorney bears the seal of Embassy of Pakistan in Stockholm and the signature of the counselor dated 13-4-1999. Mr. Agha Faquir Muhammad, learned counsel for defendants, did not file any counter-affidavit to the application but opposed the grant of the application on legal grounds only as follows:--
(i) Application under Order IX, Rule 9, C.P.C. Is not maintainable to the present case as the provisions of C.P.C. Have been excluded in respect of Admiralty and Vice-Admiralty matters by virtue of section 112(2), C.P.C.
(ii) The application is incompetent as an appeal before a Division Bench of the High Court against an order of dismissal passed by a learned Single Judge in exercise of his admiralty jurisdiction is provided by section 7 of the Admiralty Jurisdiction of High Courts Ordinance, 1980. ('Admiralty Ordinance').
(iii) The Court of Admiralty (Pakistan) Act, 1891 provided an appeal subject to the rules of the Code under the said Act which has been repealed by section 9 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980. No provision similar to section 7(1) providing an appeal against an order is found in the repealed Act which indicates that the Legislature in the present statute intentionally added such a provision to stop delays in matters relating to admiralty jurisdiction of the High Court.
All orders under the present Admiralty Ordinance whether final or interlocutory are appealable and, therefore, the present application to set aside the order of dismissal is not competent.
(iv) Section 8 of the Admiralty Ordinance, 1981 empowers the Federal Government to make rules for carrying out the purpose of the Ordinance and until such rules are made in provisions of the Sindh Chief Court Rules (SCCR) shall prevail. There is no provision for setting aside an interlocutory order of dismissal of a suit in SCCR and, therefore, the Special Law i,e, the provisions of Admiralty Ordinance, 1980 which provides an appeal from a judgment passed or an order made by a Single Judge of that Court. In the exercise of its admiralty jurisdiction excludes the possibility of an application for restoration of a suit dismissed for non-prosecution.
2. In reply to the above arguments, Mr. Muhammad Ali Jan, learned counsel for the plaintiff, submitted that:
(i) The provisions of Civil Procedure Code are applicable to proceedings in admiralty jurisdiction of the High Court and have been applied by this Court in Admiralty Jurisdiction of administration of justice and cited the following cases in support of his arguments:
(a) Dada Steel Mills (Pvt.) Ltd. v. m.v. Ivan and others 1997 MLD 866, wherein an application under section 12(2), C.P.C. Filed by the plaintiff in respect of an admiralty suit was allowed and the order of withdrawal of the suit on an application under Order XXIII, Rule 1, C.P.C. Was set aside on the ground of fraud.
(b) Twaha v. The Master m.v. Asian Queen PLD 1982 Karachi 749 where the Court considered applicability of Order VII, Rule 10, C.P.C. On an action in admiralty jurisdiction pending before it.
(c) Sphinx Shipping Agency v. m. v. Justice and others PLD 1997 Karachi 216 where the provisions of Order XXXIX, Rule 1 and 2, C.P.C. Were applied in an admiralty suit.
(ii) Chapter XXXII of the SCCR contains Rules under the Colonial Courts Admiralty Act, 1890 framed by the Chief Court of Sindh which indicate that the provisions of C.P.C. Are applicable to admiralty proceedings. In this connection, he referred to Rules, 729, 730, 738, 741, 742 and 759, SCCR.
(iii) Even though the superior Courts have held that in cases where the previsions of C.P.C. Are not applicable the principles of Civil Procedure Code would be applicable for the conduct of the proceedings and referred to the following two judgments, namely Muhammad Hanif v. District Judge/Election Tribunal, 1983 CLC 2965 (DB) relating to Election Laws) and Muhammad Aslam Mirza v. Mst. Khurshid Begum PLD 1972 Lahore 603 relating to proceedings under the Rent Restriction Ordinance.
(iv) In any case under section 21 of the General Clauses Act, the Court has inherent power to set aside an order of dismissal, if sufficient grounds are made out by the party.
3. I have heard and considered the arguments advanced by Mr. Agha Faqir Muhammad, learned counsel for the defendants and Mr. Muhammad Ali Jan, learned counsel for the plaintiff.
4. The Honourable Judges of the Chief Court of Sindh exercising power under section 122 of the Code of Civil Procedure (C.P.C.) to regulate their procedure in place of the First Schedule of C.P.C.
Framed theSindh Chief Court Rules which after approval of the Provincial Government as required by section 126, C.P.C. Were published in the Sindh Government Gazette of 12th October, 1944 and accordingly became applicable to all civil proceedings on the original side of the then Chief Court of Sindh which later became the High Court Sindh.
5. Rule 7 of the Sindh Chief Court Rules (O.S.) states that:- "7. The rule contained in the First Schedule to the Code shall, so far as they are inconsistent with or contrary to these rules, be deemed to have been thereby altered or superseded."
Now the Sindh Chief Courts Rules consist of several chapters which deal with various aspects and stages of civil proceedings in the High Court. The same procedure is also applied and followed in respect of suits filed in the Admiralty Jurisdiction of the High Court e.g. Affidavits and Security Procedure (Chapter IV), Institution of Proceedings (Chapter V), Processes (Chapter VI), Appearances by Defendants--Written Statement--Counter Claim (Chapter VIII), Directions and Discovery (Chapter XII), Commissions for examination of witnesses (Chapter XIII), Witnesses (Chapter XIV), Adjournment (Chapter XV, Originating Summons (Chapter XVI), Proceedings at the hearing of suits (Chapter XVII) and Taxation of Costs (Chapter XVIII) Rule 14 of SCCR authorizes the Registrar to dispose of all contested or uncontested applications or applications for consent orders, a long list of which is given in the said Rule. Any party dissatisfied with the order passed by the Additional Registrar may file a petition under Rule 15 of SCCR before the Court.
6. Rule 774 of Sindh Chief Court Rules relating to proceedings under the Colonial Courts'of Admiralty Act, 1890, reads as follows:-- "774. The other proceedings in suits brought in the Court in exercise of its jurisdiction under the Colonial Courts of Admiralty Act, 1890, not provided by these rules, shall be regulated by the rules and practice of the Court in suits brought in it in the exercise of its original civil jurisdiction."
Thus all the rules relating to civil proceedings referred to above are also applicable to the proceedings in suits filed in Admiralty Jurisdiction of the High Court so long as they are not in conflict with or contrary to the SCCR. However, the SCCR do not contain any provision for making an application to set aside an order dismissing a suit for non-prosecution. Though section 112(2), C.P.C. States that nothing herein contained applies to any matter of criminal or admiralty or vice admiralty jurisdiction..." in light of Rules 7 and 774 of Sindh Chief Court Rules, the provisions of C.P.C.
Would be available to a plaintiff if he wants an order of dismissal for non-prosecution to be set aside provided they do not delay the expeditious disposal of the admiralty suit which is of urgent nature.
Therefore, if an order is passed by a Single Judge dismissing an application for discovery, seeking further and better particulars, requesting for time to pay the process fee, requesting adjournment on ground of illness or some other emergency, for Issue of Commission for Examination of Witnesses, an aggrieved party would have two remedies available to him, one under SCCR of C.P.C.
And the other under section 7 of Admiralty Jurisdiction of High Courts Ordinance, 1980 which provides for an appeal against an order passed by a Single Judge. He may either file an appeal before Division Bench against the order or file an application before the same Judge/Court under the provisions of SCCR or C.P.C. It is an established law that when two remedies are available a party may adopt either of the two. In such situation the remedy which is faster and would not involve too much time and interference with already overloaded work of the High Court should be preferred. Therefore, in my opinion, in the present case, the plaintiff had two remedies available to him against the order passed by the learned Single Judge rejecting his request for adjournment and consequently dismissing the suit. He could either file an application under Order IX, Rule 9, C.P.C. To set aside the order of dismissal or an appeal under section 7 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980 to be heard by Division Bench of the High Court. The plaintiff wisely preferred the former which apparently would not result in increasing the load of the already overburdened High Court.
7. Further, it is apparent that SCCR does not provide the procedure for conducting the trial of a suit.
In the absence of such procedure the Court would be justified in applying the principles of C.P.C. Or following the provisions of C.P.C. To conduct the proceedings as long they are reasonable and not contrary to principles of equity and natural justice. It is pertinent to mention that the suit was first listed for recording to evidence on 24-3-1999 and was adjourned on the request of the plaintiff counsel as the witness was out of Pakistan. This adjournment was obviously granted under Order XVII, Rule 1, C.P.C. But no day was fixed for further hearing of the suit by the Court as required by Order XVII, Rule 1(2), C.P.C.. Thereafter the suit was listed again for evidence when the plaintiff's counsel again requested for adjournment on the ground that the witness was still out of Pakistan.
In this situation the Court could have exercised the powers either under Order XVII, Rule 2 or Order XVII, Rue 3 which read as follows: "2. Procedure if parties fail to appear on day fixed.--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
3. Court may proceed notwithstanding either party fails to produce evidence, etc.---Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." In the circumstances, the Court in the absence of any evidence could not proceed to decide the suit forthwith under Order XVII, Rule 3, C.P.C. And, therefore, chose to dismiss it for non-prosecution under Order IX, C.P.C. Which is one of the modes for dealing with the matter under Order XVII, Rule 2, C.P.C. The Court did not commit nay error in following the aforesaid procedure even though the provisions of C.P.C. Have been excluded by section 112(2), C.P.C. The remedy available against dismissal of the suit for non-prosecution is to file an application under Order IX, Rule 9, C.P.C. For setting aside the order of dismissal which was done in the present case.
8. Now, section 7 of the Admiralty Ordinance reads as follows:-- "7. Appeals.--(1) An appeal shall lie to a Bench of two or more Judges of a High Court, from a judgment passed or an order made by a Single Judge of that Court in the exercise of its Admiralty Jurisdiction.
(2) An appeal shall be preferred within thirty days from the date of judgment of order appealed against.
(3) ..... The terms "Judgment" and "Order" used in section 7(1) of the Admiralty Ordinance have not been defined in the Admiralty Ordinance. We must, therefore, find out the- sense and meaning in which the two words have been used in the said section. The said terms are defined in Civil Procedure Code as follows:-- "Section 2(9). "Judgment" means the statement given by the judge of the grounds of decree or order."
"Section 2(14). "Order" means the formal expression of any decision of a Civil Court which is not a decree." The meaning of these two words have been .Considered by the superior Courts in a number of cases which can be referred to resolve the issue. One of the cases relates to section 12(2) of the Limitation Act which provides that in computing the limitation period for an appeal, an application for leave to appeal and an application for review of the judgment, the date on which the judgment or order complained of was pronounced and the time requested for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. In Ghulam Hussain Shah v. Ghulam Muhammad PLD 1974 SC 344, 350 while discussing the meaning of the words "order" and "judgment", the Honorable Supreme Court of Pakistan observed as follows:-- "If the words 'order' and 'judgment' are considered in this light, in my opinion, they carry the same meaning. According to Shorter Oxford Dictionary, in law, the word 'order' means 'a decision of a Court or Judge made or entered in writing'. According to the same Dictionary, the meaning of the word 'judgment' is 'a judicial decision or order of a Court'. If these meanings are taken into consideration, it is quite clear that the two words are interchangeable." Further in Bakhtawar v. Amin and others 1980 SCMR 89 the learned Judges of the honourable Supreme Court observed as follows:-- "9. At this place reference may be made to section 2(14) of C.P.C. Which defines an 'order' and states that 'order' means the formal expression of any decision of a Civil Court which is not a decree. As a general rule an order by a Court of law is founded on objective consideration and as such is a judicial order which contains discussion of the question in issue and the reasons which prevailed with the Court to pass it." Similarly, in Syed Muhammad Raza Shah v. Syeda Salima Jillani, PLD 1976 Lahore 1015 while discussing the meaning of the term "decision" in section 14 of the West Pakistan Family Courts Act, 1964, the Lahore High Court also observed that the word 'decision' must means a state of facts judicially determined.
In light of the aforesaid decisions, it appears that the word "Order" means an order given by a Judge on merits and would not include an order passed by a Court dismissing the suit without discussing the evidence on record or an order dismissing the suit for non-prosecution. As the order dated 24-3-1999 passed by the Court was not given on the merits of the case it would therefore not be regarded as an order contemplated under section 7 of the Admiralty Ordinance, 1980 and consequently an appeal was not available and the application under Order IX, Rule 9 was a proper remedy.
9. There are occasions during the proceedings of the suit when the Court passes an order which may require correction or review of the order e.g. (i) the Court passes an order for payment of costs of Rs,5,000 for adjournment which is mistakenly typed as Rs,50,000; (ii) on the basis of an admission by the defendant a suit is decreed for Rs,1,50,000 which is inadvertently typed as Rs,50,000 and (iii) the Court inadvertently overlooks a judgment of the honourable Supreme Court of Pakistan which is on all four and binding on the High Court and decides an issue or a suit on the basis of a reported judgment which has been overruled. In the first two examples the mistake can ordinarily be corrected by filing an application under section 153, C.P.C. While in the third example the order or judgment can be corrected by filing an application for review under section 114, C.P.C.
Similar errors or situation could arise in admiralty proceedings which would require orrection. If the arguments of learned counsel for the plaintiff are accepted then in admiralty proceedings if an error as described above takes place an aggrieved party would be required to file an appeal against the order or judgment under section 7 of the Admiralty Ordinance before a Bench of two.
Judges of the High Court for rectification of a minor inadvertent mistake which can be easily corrected by filing an application under the relevant provision of C.P.C. This would unnecessarily take time and increase the burden of the Court which is already overburdened because of shortage of Judges and staff and nigh number of pending matters before it. It would, therefore, be unreasonable and unjust to require a party to file a High Court Appeal against an order passed in the first two examples. In the third example one could argue that instead of filing a review application the party must file an appeal before a Division Bench of the High Court. In such a situation also a more appropriate, expeditious and a just remedy would be to file an application under section 114, C.P.C. For review of the order or judgment. In my humble opinion the Legislature did not intend to put unnecessary burden either on the party or to the Court. It used the terms "judgment" and "order" in the same sense i,e, an order or judgment on merits. As the order of dismissal of the suit was not on merits, the application under Order IX, Rule 9, C.P.C. Was competent.
10. Section 21 of the General. Clauses Act, 1897, states that the authority which has the power to pass an order also has the power to add, amend, vary or rescind she same. In Bashir Khan v.
District Magistrate PLD 1957 Lahore 892, 897, Mr. Justice B.Z. Kaikaus of the Lahore High Court (as he then was) unequivocally confirmed that the authority which can pass an order is entitled to vary, amend, add to or rescind that order. This principle was again reiterated in different terms by a Division Bench of the High Court of Sindh in the case of Firdous Spinning and Weaving Mills Ltd. And others v. Federation of Pakistan and 2 others PLD 1984 Karachi 522, 537 in the following words: "(iv) If unconditional power is vested in an authority by taxing or fiscal statute to grant exemption from tax, under section 21 of the General Clauses Act, 1897, the said authority will also have unconditional power to withdraw the exemption."
In the present case the order of dismissal of the suit for non-prosecution was passed by this Court, therefore, in light of the provisions of section 21 of the General Clauses Act, 1897 and the judgments referred to above, this Court has the power to vary, amend, withdraw or rescind the order.
Consequently, the application to set aside the order of dismissal for non-prosecution has been rightly filed in this Court which has the powers to withdraw or rescind the said order.
11. The arguments of Mr. Agha Faqir Muhammad, learned counsel for the defendant that the Legislature intentionally provided an appeal against an order under section 7(1) of the Admiralty Ordinance, 1980 to stop delays in admiralty suits thereby ensuring their expeditious disposal does not appeal to reason. If a party in admiralty proceedings is compelled to file an appeal before a Division Bench against every interlocutory order which would include innocuous orders like not allowing sufficient adjournment in spite of illness of counsel or witness or dismissing a suit for non- prosecution early in the morning etc., the proceedings would not be expedited but on the other hand would be unnecessarily delayed. If parties are constrained to file appeals against non- speaking orders or involving minor procedural matters as argued by the plaintiff's counsel and admiralty suits would be decided in 10 to 15 years when in all civilized countries of the world admiralty actions are treated as urgent matters and decided within a short time ranging from two months to two years up to the appellate stage.
12. In view of the conclusion reached by me it is not necessary to dilate upon the various judgments cited by Mr. Muhammad Ali Jan, learned counsel for the plaintiff, wherein the Court applied the provisions of Civil Procedure Code in proceedings pending in the admiralty jurisdiction of the High Court. All of them are good examples and several more can be added in support of the proposition.
13. In light of the above discussion, it is abundantly clear that there is no legal defect in the application under Order IX, Rule 9, C.P.C. Filed by the plaintiff which is competent and maintainable in law. The factual grounds for setting aside the order have not been challenged by the defendant who opposed the restoration of the suit on legal grounds only which were prima facie vexatious to the knowledge of the defendant. The application is, accordingly, allowed with special costs of Rs,5,000, the order dated 24-3-1999 dismissing the suit is hereby set aside and the suit is restored to its original number. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.