ABUL HUSSAIN vs TARIQ CASTING PROPRIETORSHIP and another

ORDER

1. ' AZIZULLAH M. MEMON, J.---Heard learned counsel for the appellant and for respondent No,2.

2. ' Learned counsel for the appellant has argued that the previous counsel for the applicant/appellant did not inform him (appellant) about the dismissal of the two applications filed by the appellant before the trial court, viz. One under section 12(2), C.P.C. And other under Order I, Rule 10(2), C.P.C. And for such a reason the appellant could not get certified copy of the impugned order in time and, therefore, the delay of about one year occurred in filing of the present appeal against the impugned order passed by the trial court, whereby the said two applications were dismissed.

3. It is a settled principle of law that for any mistake, which may be said to have been committed by the counsel of a party, or the question as to whether or not the Advocate failed to communicate proper information to his client as to the proceedings of his case, the only remedy available to such a client/party is to file suit for damages against such a delinquent counsel, with other legal remedies, which may be available to him, and further that the orders, so passed by the competent court of law, would not get affected on such a plea, as now being raised on behalf of the appellant.

4. ' It is further a settled principle of 113 law that each and every day of delay occurring in filing of the proper remedy/appeal is to be adequately explained by the concerned party, as such a delay brings about legal benefits to the other B party, and that where the party fails to show any cogent reason for the purpose of seeking condonation of delay in filing the relevant proceedings against the impugned order, the delay, so occurred, cannot be condoned.

5. ' The other aspect of the case is to the effect that the appellant was afforded with repeated chances by learned trial court to provide him due opportunity to pursue the cause in respect of the subject-matter involved in this appeal, yet he did not prove diligent for his ownself to avail such chances in a befitting manner; the relevant observations passed by learned trial court in the impugned order read as under:-- "The plaintiff Advocate Mr. Muhammad Rasheed Khan in his arguments has submitted that earlier the above said 2-applications moved on behalf of the Intervenors by their Advocate Mr. Umer Farooq were dismissed for non-prosecution by this court vide order dated 29-3-2007. It has been pointed out that thereafter the Intervenors Advocate Mr. Umer Farooq moved an applications under Order IX, rule 13 C.P.C. Read with section 151, C.P.C. For restoration of application under section 12(2), C.P.C. And under Order I, rule 10, C.P.C. Read with section 151, C.P.C. On behalf of the intervenors and by consent the order dated 29-3-2007 was set aside by the court and the matter was restored for hearing of the applications under section 12(2), C.P.C. And under Order I, rule 10, C.P.C. Vide order, dated 22-5-2007. The plaintiff Advocate further submitted that on 24-7-2007 the intervenors and their Advocate Mr. Umer Farooq remained absent without intimation and therefore, failed to argue out the application moved under section 12(2), C.P.C. And under Order I, rule 10, C.P.C. According to the arguments of the plaintiff Advocate the intervenors have moved the applications in order to defeat the judgment passed in the suit dated 22-4-2006 and decree dated 16-5-2006 and the facts disclosed in the above-said 2-application's are false and concocted and therefore, both the applications moved on behalf of intervenors are liable to be dismissed.

6. ' I have considered the arguments advanced by the plaintiff Advocate also perused the facts on record and the facts disclosed in the above-said 2-applications I am of the opinion that both the applications have been moved just to defeat the judgment and decree passed in this suit with the result I dismiss both the applications viz. Under section 12(2), C.P.C. And under Order I, rule 10 C.P.C.

7. Read with section 151, C.P.C. Moved on behalf of the intervenors."

8. ' Thus, the record itself is indicative of the fact that more than sufficient opportunities were provided to the appellant to pursue the above-said two applications viz. One under section 12(2), C.P.C. And the other under Order I, rule 10(2), C.P.C., yet he failed to properly pursue the same and for such a reason it does not lie in his mouth, at this stage of the proceedings of the case, to say that he was denied of any opportunity to pursue his cause.

9. ' Yet one more aspect involved in the appeal is to the effect that the appellant claims himself to be the owner of the property, which was mortgaged by him with respondent No,2 against the loan amount, which is said to have been advanced to respondent No,1 and, on his failure to repay the same along with mark up, the respondent No,2 put the property to auction, for the purpose of recovery of the said amount with mark up thereon, and the sale itself has been confirmed by the trial court and, therefore, in case the impugned order is disturbed, even to the least possible extent, the legal rights, having been accrued to respondent No,2, are likely to get infringed to a very great extent.

10. ' Under the circumstances, the appellant has not made out any case for the purpose of setting aside of the impugned order. The appeal does not carry any merits therein; the same is hereby dismissed in limine along with listed applications.