1. SYED DEEDAR HUSSAIN SHAH, J.---Brief facts of the matter are that respondent filed Suit bearing No,101 of 1992 before the Banking Court No,3 against the appellants which was decreed in favour of the respondents vide judgment and decree, dated 9-2-1998. Being aggrieved and dissatisfied with the judgment the present appeal has been filed. On 26-5-1998 for Katcha Peshi and for stay application pre-admission notice was issued to the respondent. On 17-6-1998 learned counsel for the appellants submitted before the Court that in this matter execution application has already been filed and, unless further proceedings of the execution application are stayed the appellants would suffer irreparable loss and the appeal would become infructuous. Considering the contention of the learned counsel for the appellant the Court issued notice to the respondent for second week of July 1998 with the following observations:-- "We stay till the next date. Further, proceedings of the execution application on the appellants furnishing security to the satisfaction of the Nazir of this Court equivalent to the decretal amount, within one week." On 21-8-1998 learned counsel for the appellants sought time for furnishing additional surety/fresh surety. On 1-9-1998 the matter was adjourned to 9-9-1998. On 9-9-1998 learned counsel for the appellants submitted that the appellants would furnish another surety before the Nazir on 11-9- 1998. On 11-9-1998 by consent the matter adjourned to 16-9-1998 and the interim order was ordered to continue till then. On 15-10-1998 learned counsel for the appellants submitted that the security has been submitted by the appellant and the same has been accepted by the Nazir. The matter was adjourned to 17-11-1998. Interim order was ordered to continue till then. Thereafter, on 11-2-1999 at the request of the learned counsel for the appellants the matter was adjourned. On 2- 3-1999 the Nazir was directed to submit his report with advance copies to the counsel for the parties with the direction to appear before the Court on the next date. On 18-3-1999 the Court passed the following orders: "Mr. K.A. Wahab has submitted a slip for adjournment on the ground that Mr. Arif Hussain Khilji is on general adjournment. Although we are not satisfied with the ground of adjournment as the Vakalatnama bears the signature of Mr. K.A. Wahab rather than Mr. Arif Hussain Khilji, adjournment is allowed as a matter of indulgence. To come up on 24-3-1999." On 24-3-1999 the following order was passed: "Appeal has been listed in the additional Daily Cause List though the date was fixed by Court. For want of time at the instance of the counsel for respondent the hearing is adjourned to 21-4-1999. On 21-4-1999 the following order was passed: "As none is present for the appellants whereas Mr. Riaz Kadir Brohi, Advocate is present for respondent and the appeal was adjourned time and again at the request of the appellants' counsel, we are inclined to dismiss the same for non-prosecution." On 16-6-1999 Mr. Shahab Sarki, Advocate was present. Notice of C.M.As. 993 and 998 of 1999 was issued to the respondent for 6-7-1999. On the above applications we have heard Mr. Kamal Azfar, Advocate alongwith Mr. Saalim Salam Ansari, Advocate for the appellants and Mr. Mansoorul Arfin, ' Advocate for the Intervenor and Mr. Riaz Kadir Brohi, Advocate for the respondents. Both the C.M.As were heard together by us and this order will dispose of both the said C.M.As. 'They arise out of the same order and same set of facts and circumstances and case-law.
2. C.M.As. Nos.993 and 988 of 1999 The application for condonation of delay under section 5 of Limitation Act read with section 151, C.P.C., has been filed by the appellants with the prayer to condone the delay in filing application under Order XLI, Rule 19 read with Rule 5 and section 151, C.P.C., Mr. Kamal Azfar, learned counsel for the appellants, contended that Mr. Shahab Sarki was engaged as Advocate on 24-3-1999, Vakalatnama was presented on 31-3-1999. Mr. Shahab Sarki due to his marriage was on general adjournment since 4th April to 5th May, 1999. In support of the application cause list has also been annexed thereto. That as the appellant's counsel was on general adjournment and the matter was fixed in Court on 21-4-1999 on which date neither the appellants nor their counsel had got any knowledge and the appeal was dismissed for non-prosecution. That on 9-6-1999 the Nazir of the trial Court went to take possession of one of the mortgaged properties of the appellants and it is only then for the first time the appellants came to know that the above appeal has been dismissed for non-prosecution. That since the appellants came to know about dismissal of the appeal they have filed application bearing C.M.A. 988 of 1999 with the prayer to allow the application and restore the appeal and stay the execution proceedings. In support of the application Mr. Shahab Sarki, Advocate filed his affidavit and cause list showing that he was on general adjournment from 3-4-1999 to 4-5-1999. Mr. Kamal Azfar, Advocate, contended that the absence of the learned counsel for the appellants as well as appellants themselves was neither wilful nor deliberate. It is settled law that technicalities are not to be seen but it is better if the matters are decided on merit.
3. Learned counsel for the appellants cited plethora of case-law:
(1) Abdul Rehman v. Pakistan (PLD 1955 Sindh 248),
(2) Shirvattan Mohatta v. Muhammadi Steamship (PLD 1965 SC 669 at 670-B),
(3) Jan Muhammad v. Abdul Ghafoor (PLD 1966 SC 466 Note E),
(4) Muhammad Haleem v. H.H. Muhammad Naim and others (PLD 1969 SC 275-B),
(5) Sardar Muhammad v. Habib Khatoon (1982 CLC 281 at 282-B),
(6) Qamar Sultana v. Abdul Hussain (PLD 1982 Karachi 355 at 359-E),
(7) Muhammad Saleh v. Muhammad Shafi (1982 SCMR 33 at 36-B),
(8) Municipal Committee, Rawalpindi v. Muhammad Sarwar Khan (1968 SCMR 817 at 819-A),
(9) Goswa mi Krishna Murlilal Sherma v. Dhan Parkash (1983 PSC 355-Para-7 at page 356),
(10) Rafiq v. Munshi Lal ((1981) 2 SCC 788),
(11) Lithocraft Corporation v. A. Habib (1987 CLC 1730 at 1733-E),
(12) Farman Ali v. Muhammad Yousuf Ali (PLD 1992 SC 330 at 332-B),
(13) Syed Ashfaq Ali Shah v. Syed Akhtar Ali Shah (1993 MLD 889),
(14) Ghulam Mustafa Sha v. Haji (1993 SCMR 256 at 257-B)
(15) Mehmood and others v. Chief Administrator, Auqaf (1996 SCMR 1508), and
(16) Abdul Latif v. Muhammad Yousuf (PLD 1996 Karachi 365 at 370-B). Mr. Mansoorul Arfin, learned counsel for the Intervenor/Auctionpurchaser, submitted that in this matter M/s. K.A. Wahab and Arif Hussain Khilji, Advocates, filed appeal and pursued the same and got interim orders in favour of the appellants. Thereafter, Vakalatnama of M/s. Nooruddin Sarki & Co. Was filed which bears signatures of M/s. Nooruddin Sarki and Shahab Sarki, Advocates. That the Vakalatnama of M/s. K.A. Wahab and Arif Hussain Khilji, Advocates, was not discharged. Mr. Shahab Sarki, was on general adjournment and in his absence other counsel should have appeared in the matter though sufficient time was granted by the Court in adjourning the matter. The appeal was dismissed on 31-4-1999 and according to Article 168 of the Limitation Act restoration application should have been filed within 30 days from the date of the order but the same was filed on 11-6- 1999 which is hopelessly time-barred. The auction-purchaser has substantial vested right in the matter by purchasing the property in the auction. That a panel of Advocates was engaged by the appellants but none appeared on 21-4-1999. Mr. Mansoorul Arfin in support of his contention has filed casual list of the day in which names of M/s. K.A. Wahab and Noor-ud-din Sarki, Advocates are mentioned. The absence of the appellants as well as their counsel was wilful and deliberate. The appellants are 8 in number who could have pursued their matter in which they have miserably failed because interim order was in operation in favour of the appellants. Mr. Mansoorul Arfin, Advocate, cited the following case-law:
(1) Haji Ghulam Sarwar v. Daya Ram (1975 SCMR 179),
(2) M.A. Latif Faruqui v. National Bank of Pakistan (PLD 1981 Karachi 645),
(3) Hudaybia Textile Mills Ltd. And others. v. Allied Bank of Pakistan Ltd. And others (PLD 1987 Supreme Court 512),
(4) Shah Wali v. Allah Bakhsh (1999 CLC 45), and
(5) Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem (PI,D 1995 Supreme Court 396). Mr. Riaz Kadir Brohi, learned counsel for the respondents, adopted the arguments of Mr. Mansoorul Arlin, Advocate. We have gone through the material and minutely examined the same. The order-sheets mentioned hereinabove and referred to, clearly show that Vakalatnama of M/s. K.A. Wahab and Arif Hussain Khilji as well as Nooruddin Sarki & Co., Advocates was not discharged as required under the rules. The appellants who are 8 in number also did not pursue their matter so that same could come to logical end. The appeal was dismissed on 21-4-1999 and the application under Order XLI, rule 19, C.P.C. Should have been filed within 30 days but the same was filed on 11-6-1999 whereas application seeking condonation of delay was filed on 15-6-1999 which is after filing of the application under Order XLI, Rule 19, C.P.C. Also delayed by more than 1-1/2 months. In the above background of the matter we would like to discuss the case-law referred to by the learned counsel for the parties.
4. With due respect, the case-law cited by Mr. Kamal Azfar, learned counsel for the appellants, is on different footings and is not applicable to the facts of the present appeal. Whereas the case-law cited by the learned counsel for the Intervenor/Auction-purchaser, is discussed as under:
(1) Haji Ghulam Sarwar v. Daya Ram (1975 SCMR 179): In this case their lordships have observed that the time for readmission of appeal dismissed for want of prosecution runs from date of dismissal and not from date of knowledge of dismissal.
(2) M.A. Latif Faruqui v. National Bank of Pakistan (PLD 1981 Karachi 645): A learned D.B. Of this Court held that counsel and client are duty bound to keep themselves aware of date of hearing fixed by Court.
(3) Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others. (PLD 1987 Supreme Court 512): In this case their lordships have held as under: "It cannot, therefore, be argued that the auction-purchaser had no interest whatsoever before confirmation of the sale and the Court could disregard the same by merely looking at the arrangement made between the decree-holder and the judgment-debtor about the satisfaction of the decree. In Mian Muhammad Abdul Khaliq v. M.
5. Abdul Jabbar Khan and others PLD 1953 Lah. 147, similar view was taken and it was held that confirmation of sale cannot be withheld merely on the ground that the decree was wiped out or reversed before confirmation of the sale.'
(4) Shah Wali v. Allah Bakhsh (1999 CLC 45): The dictum laid down in this case is that the appellant was obliged to be vigilant in prosecution of appeal after engaging a counsel and was not absolved from his duty to see that his appeal was properly and diligently prosecuted. On the same point in 1974 SCMR 162 it has been observed as follows: "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."
5. Government of the Punjab through Secretary (Services), Services, General Administration and Information Department, Lahore and another v. Muhammad Saleem (PLD 1995 Supreme Court 396): In this case their lordships have held as follows: "Delay of each day had to be explained and Government could not be treated differently than private litigant on question of limitation under section 5, Limitation Act, 1908."
6. Admittedly in this appeal the appellants are 8 in number and they engaged a panel of learned Advocates in this matter. Vakalatnamas of M/s. K.A. Wahab & Co., Advocates, and M/s. Noorduddin Sarki & Co., Advocates, were not discharged. According to Article 68 of the Limitation Act application is to be filed with 30 days but in this case the same was filed after more than 30 days without any plausible explanation. In the foregoing circumstances it is quite clear that absence of the learned counsel for the appellants and appellants was wilful and deliberate. The perusal of the case dairies mentioned in the earlier part of this order show that the Court granted sufficient time to the appellants so that they may pursue the appeal. The application under section 5 of the Limitation Act for condonation of delay was filed even after application under Order XLI, Rule 19 bearing C.M.A. No,988 of 1999 was filed on 11-6-1999. By now it is settled that the party is to pursue the matter carefully and diligently. For the facts, circumstances and case-law as mentioned hereinabove, we are of the considered opinion that both these applications are devoid of merits and substance and must fail, same accordingly are dismissed with no order as to costs.