1. ' This Revision has been filed challenging the order passed by the 3rd Senior Civil Judge dated 4-3- 2000 in Suit No, 387 of 1979. It seems that a suit was filed in the High Court for recovery for Rs, 4,88,000. This suit was filed in the year 1979. It became for ripe of evidence several years latter. It was fixed in Court on 10-4-1995 when the counsel appearing on behalf of the plaintiff pleaded no instruction of the spit and it was dismissed for non-prosecution. In this order it was also observed that the plaintiff's Advocate had written a letter to the plaintiff which had returned undelivered.
2. ' According to the applicant on failing to obtain any information about the fate of this case he requested Mr. Yaqoob Kapadia to inquire from the office and he was informed in March, 1996, that the suit had been dismissed. Thereafter an application was filed under section 151, C.P.C. Alongwith the application, affidavit were filed. Counter-affidavit was filed by the defendant and a rejoinder was also filed. During this time the pecuniary jurisdiction of this Court changed and this suit was transferred to the Court of Senior Civil Judge and there the matter was heard and a detailed order was passed on 4-3-2000 whereby the application under section 151, C.P.C. Was dismissed for want of limitation under Article 163 of the Limitation Act.
3. ' Against this order this revision application was filed. I have heard both the counsel at length. The line of arguments put forward by the applicant is that the suit was not dismissed under Order 9 and hence Articles 163/164 of the Limitation Act would not be applicable but Article 181 of the Limitation Act would be applicable therefore, the application under section 151, C.P.C. Would be within time and the matter could be restored. The learned counsel on behalf of the respondent, however, insisted that it was dismissed under Order 9 and hence Article 163 is applicable.
4. Accordingly the application under section 151, C.P.C. Is grossly barred by limitation. Both the learned counsel have relied on case-laws in support of their respective contentions.
5. ' The learned consul for the plaintiff has relied on the following case-laws:---
1. PLD 1997 Peshawar 55 (Jamila Begum and others v. Abdullah Jan and others): Dismissal of suit in default---Restoration---Suit filed by plaintiff was dismissed in default and application for restoration of suit filed by plaintiffs was also dismissed by Trial Court as time-barred, but in appeal filed by plaintiffs against order of Trial Court---Appellate Court below set aside order of trial Court and allowed restoration of suit---Defendants had challenged order of Appellate Court below contending that application filed by plaintiffs for restoration of suit was to be governed by Article 163 of Limitation Act, 1908 which provided thirty days for filing such application whereas application was filed by plaintiffs after seventy-seven days from dismissal of suit---Defendants also alleged that application for restoration of suit having not been accompanied by an application for condonation of delay such application was not maintainable---Date on which suit was dismissed for non-prosecution having been given by Reader of the Court and not by Presiding Officer, such date could not be treated as a date of hearing within contemplation of Order IX, Rule 8, C.P.C.--- Period of limitation for filing application for restoration of suit thus was to be determined in the light of Article 181 of Limitation Act, 1908 which provided period of three years for filing application and not Article 163 of that Act---Application for restoration of suit filed after seventy-seven days from dismissal of suit, therefore, was well within time---Even otherwise cause for non-appearance, highlighted by plaintiffs in their application for restoration of suit being a."sufficient cause" within contemplation of Order IX, Rule 9, C.P.C., suit was rightly restored---In absence of any delay in filing application for restoration of suit there was no need to file application for condonation of delay and delay in filing application for restoration of suit there
2. Station filing personal affidavit stating that he did not receive notice of date of hearing--- Contents of counsel's affidavit could not be lightly disbelieved, therefore, it was quite plausible that he never received notice of date of hearing---Ample justification thus existed for setting aside order of dismissal of suit---Order of dismissal having been passed without notice to parties, or on date which was not date of hearing---Court would have inherent power under section 151, C.P.C., for restoration of suit---Application for restoration of suit was although tiled beyond prescribed period of 30 days in terms of Article 163, Limitation Act, 1908 but such provision would be applicable only where suit was validly and properly dismissed under Order IX, C.P.C.--Where order of dismissal itself suffered from some irregularity or infirmity, Court could exercise its inherent power to restore suit under section 151, C.P.C. And in such case Art. 163, Limitation Act, 1908 would have no application, National Bank of Pakistan v. Additional District Judge PLD 1985 Lah. 326; Abdul Latif v.
6. Muhammad Yousuf PLD 1996 Kar. 365; Province of East Pakistan v. Abdul Hameed Darji 1970 SCMR 558 Zahoor Ellahi v. S. Fazlur Rehman 1969 SCMR 274; Ahmeduddin v. Rasool Bibi PLD 1968 SC 21; Muhammad Swaleh v. Messrs United Grain and Fodder PLD 1964 SC 97 and Manager, Jammu and Kashmir Estate Property v. Khuda Yar PLD 1975 SC 678 ref.
3. Was no need to file application for condonation of delay and delay was condonable without formal application in view of fact that act of Court should prejudice no one. A.M. Shafique Shah and another v. Mst. Irshad Begum and 8 others 1981 CLC 369; Abdul Rehman and another v. Mukhtar Ahmed and another 1985 CLC 1072 and Muhammad Qasim and others v. Mouluddin and others 1995 SCMR 218 ref.
(2) 2000 MLD 466 (Muhammad Bakhsh etc. v. Ghulam Yasin etc.): Section 151 read with Order XLI, Rule 1---Provisions of section 151 are intended for advancement of justice as all rules in First Schedule of C.P.C. Do not allow the defeat of ends of justice. It is always the duty of a Judge to apply law and satisfy himself for just application of law-- Court must always avoid technicalities to defeat the ends of substantial justice---Court has inherent power under section 151 to do justice and to redress a wrong instead of heading to objections and trying to dispose of a case on mere technicalities.
(4) 1997 CLC 1080 (Muhammad Afzal v. Small Business Finance Corporation and 4 others): Dismissal of suit for non-prosecution Application for restoration of suit filed beyond period of 30 days--Entitlement---Counsel from out-PLD 1981 SC 21 (Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan and Messrs Rehman Weaving Factory (Regd.), Bhawalnagar v. Punjab Small Industries Corporation Lahore---Words "sufficient cause"--- causes to be treated as sufficient.
(C) Articles 164 & 181---Ex parte decree, setting aside of Limitation---Any cause shown for non- appearance at first hearing, whether non-service of summons, or any other sufficient cause, e.g., accident or act of God---Article 164 applies to such case and limitation commences from date of knowledge of decree (when summons not duly served) otherwise from date of decree--- Application for setting aside ex parte decree not covered by Art.164---Governed by residuary Art.181 giving period of limitation as three years from accrual of right to apply---Ex parte decree passed on a date after initial service of summons, on fresh hearing after return of records form High Court, and defendants having no notice of date of hearing when such decree passed---Application for setting aside ex parte decree made within three years of ex parte decree as also from date of knowledge of decree, held, within prescribed limitation period.
(5) Section 115---Dismissal for non-prosecution is not legally well-recognized for reason that jurisdiction under section 115 is invoked by an aggrieved person to point out illegalities or irregularities or jurisdictional defects in orders passed by subordinate fora.
7. ' Therefore, on entertaining a revision petition Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings of subordinate Courts do suffer or not from any illegality or irregularity---In other words after filing of a revision matter rests between revisional and subordinate Court---Thus, it is advised that Court after having entertained a civil revision instead of dismissing it in default may make efforts to dispose it of in accordance with parameters laid down in section 115.
(6) (i) Limitation Act (IX of 1908)- ' Art. 181---Three years' limitation time provided in residuary Art. 181 would apply to application filed under section 151, C.P.C.
8. ' The respondent has relied on the following case-laws: ' 1995 CLC 461 (Messrs Ciba Geigy (Pak) Limited v. Muhammad Safdar.) ----Art. 163---Civil Procedure Code (V of 1908), O.IX, R.3---Dismissal of suit in default---Limitation for setting aside order of dismissal of suit for default is thirty days.
(b) Dismissal of suit for default of appearance---Plaintiff's plea that Court should have proceeded to frame issues and not dismissed the suit would be of no avail for it was incumbent on parties to be present on the day of settlement of issues---Provision of O.XVII, R.2, C.P.C. Was also not attracted for such provision could be resorted to only where suit was adjourned to a fixed date and the parties, or any one of them failed to appear on that date---Duty is cast upon plaintiff to pursue his case diligently and where he neglects or fails to do so, provision of O.IX, R.3, C.P.C. Would become operative...Suit was thus, rightly dismissed for default in appearance on specified date under O.IX, R.3, C.P.C.
(c) O.IX, R, 9---Object and scope of O.IX, R.9, C.P.C.---Only consideration before Court under provision of O.IX, R.9, C.P.C. Would be to do justice between the parties and in absence of any express bar, it should not hesitate to grant proper relief on mere technical grounds---Plaintiff, however, must satisfy the Court that there was sufficient cause for his nonappearance.
(d) S.5---Dismissal of suit for default of appearance---Application for restoration of suit filed after about one year of dismissal of suit i.e, beyond period of limitation---No application for condonation of delay was filed by plaintiff---Effect---Even if ground for non-appearance (i.e, wrong noting of date) of plaintiff were accepted there being no application for condonation of delay or any ground in support thereof, and substantive right having accrued to defendant, Court was left with no alternative but to dismiss application for restoration of suit.
(b) Engagement of an advocate by a liti,gant---Does not absolve litigant of his responsibility in proper and diligent prosecution of matter for which Advocate is engaged---Litigant is also under duty to see that his matter is prosecuted properly and diligently by Advocate engaged---He cannot seek recall of an order passed by Court on basis of statement made by his counsel.
9. ' 1974 SCMR 162 (Zulfiqar Ali v. Lal Din and another): ----O.XLI, R.19---Appeal, re-admission of--- Appeal dismissed for non-prosecution--Restoration sought on ground of default due to negligence of counsel and no negligence on appellant's part---Contention without force---Mere engagement of counsel does not absolve litigant of all his responsibilities---Party as well as counsel both bound to see appeal properly and diligently prosecuted---Counsel engaged, if lacking in his sense of responsibility to Court, opposite-party cannot be made to suffer on that account.
10. ' PLD 1954 Baghadad-ul-Jadid 53 (Shaikh Abdul Rahman v. Mal Bhagwan Das through Custodian of Evacuee Property, Bahawalpur):
(a) Civil Procedure Code (V of 1908), Section 151----Inherent power not to be resorted to even if other remedy is time-barred.
11. ' Application under Order IX, Rule 9, Civil Procedure Code for restoration of suit had become time- barred. The plaintiff applied for restoration under section 151, C.P.C.: ' Held, the petitioner could not legally invoke the inherent powers of Court when a specific procedure has been provided by the Code under Order IX, rule 9, C.P.C. The application for setting aside the dismissal of the suit, which was obviously time-barred, was incompetent. Any subsequent application for the restoration of a previous application shall also be deemed to have been made under Order IX, rule 9 read with section 141 and not under Order IX, C. P. C .
12. 'Considering the above and the facts of the case I am of the considered opinion that it would be an unfair proposition on the part of the Court to dismiss the suit for non-prosecution if the counsel pleads no instructions. If the counsel wants to seek discharge from the case then there are proper provisions available which if strictly followed would not lead to a situation where gross in justice may be done to party purely because he is unaware of his case having been fixed in Court. In this matter an affidavit of the previous counsel also shows that a letter was written but it remained unsaved. On the other hand the plaintiff has pointed out that there was a change of address. If this is true then it would be logical that the plaintiff would not be aware as to when this case was fixed.
13. It is an acknowledged fact that the cases on the original side become ripe after years and there would be certain difficulties faced in contacting the parties by the lawyers. As observed earlier when a lawyer pleads no instructions then instead of dismissing the suit it is necessary to issue notice to the parties.
14. ' Under the circumstances this revision is allowed and the order dated 4-3-2000 is set aside. The matter to be fixed for recording of evidence after due notice to both sides and as it is an old case, therefore, the recording of evidence may be completed1A within six months.