BABAR HUSSAIN SHAH and anothers vs MUJEEB AHMED KHAN and another

' MUHAMMAD ATHAR SAEED, J.---These appeals with the leave of this Court have been filed impugning the judgment of the learned Islamabad High Court, Islamabad dated 27-10-2008 whereby C.M. Nos.824 of 2008 and 825 of 2008 in R.F.A. No,,38 of 2004 filed by the respondents were allowed and the order dated 26-3-2008 whereby the Regular First Appeal No,,38 of 2004 was dismissed for non-prosecution was re-called and RFA was restored and the delay in filing the application for restoration was condoned.

2. Leave to appeal was granted to consider whether the time for filing appeal of the application will run from- the date of impugned order or from -the date of getting knowledge of the same by the respondent.

3. Brief facts of the case are that present respondent had filed RFA before the learned Lahore High Court against the judgment of Additional District Judge,. Islamabad dated 28-6-2003 in Civil Suit No,,03 of 2000 whereby the suit for recovery of Rs,17,00,000 was decreed in favor of the appellants.

Initially as stated above, the RFA was filed in the Lahore High Court, Rawalpindi Bench. According to the order sheet, on 30-1-2008 the case was being proceeded there, however, after the formation of the Islamabad High Court, the case was transferred to the Islamabad High Court but no notice of the transfer of the case to the appellant or his counsel either by the Lahore High Court or Islamabad High Court was issued and the case was fixed for hearing on 26-2-2008 when none was present for the appellant and it was directed that the case be re-listed after notice to the learned counsel for the appellant i.e. Present respondent. On 26-3-2008 when the case was fixed before Islamabad High Court, no one was again present for the respondent and therefore the Court dismissed the RFA for non-prosecution.

4. On 16-9-2008, the present respondent filed an application for restoration of the RFA before the Islamabad High Court along with an application for condo nation of delay which was allowed by the impugned judgment. Hence these appeals.

5. We have heard Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court learned counsel for the appellant in C.A. No,,1990 of 2008, Mr. M. Ilyas Sheikh, Advocate Supreme Court learned counsel for the appellant in C.A. No,,1991 of 2008 and respondent No,,2 in C.A. 1990 of 2008 and Ch. Musthaq Ahmed Khan, Senior Advocate Supreme Court learned counsel for respondent No,,1 in both cases.

6. Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court learned counsel for the appellant in C.A.

1990 of 2008 pointed, out that the name of the appellant's counsel before the High Court was Ch. Naseer Ahmed, Advocate which appeared in the cause list on 26-2-2008 and also on 26-3-2008 and if the name of the counsel appears on the cause list it is deemed to be notice to such counsel and the effect of his nonappearance can lead to the dismissal of the appeal for non-prosecution.

He took us through the documents of the proceedings in the execution application before the trial Court to substantiate his contention that the present respondent had gained knowledge that his RFA before the learned High Court had been dismissed as early as 28-6-2008 and even if the limitation starts from the date of his gaining knowledge of the dismissal then also the last date for filing application would have been 28-7-2008 and therefore the application filed on 16-9-2008 was time barred. He submitted that the case falls under the provisions of Article 168 of the Limitation Act and not under Article 181 which is residuary Article and caters only to those orders/judgments, limitation of which has not been provided in any of the other Articles. In support of his contentions, he relied upon the following judgments:--

(i) Sindh Industrial Trading Estates v. West Pakistan Water and Power Development Authority (PLD 1991 SC 250),

(ii) Haji Ghulam Sarwar v. Daya Ram (1975 SCMR 179);

(iii) (2007 SCMR 1570),

(iv) Messrs.' Texzone v. The Additional Collector of Customs, Export Collect orate, Custom House, Karachi and another (2006 CLC 1434),

(v) Akhtar Nawaz and another v. Muhammad Nazir and 3 others (2005 YLR 2277)

(vi) Ch. Muhammad All v. Hail Feroz Din (2003 CLC 1218) and

(vii) Naeem Ullah Khan v. Abdul Muneem Karrak and 3 others (2001 YLR 590)

' He therefore, prayed that the impugned judgment may be set aside and the order dated 26-3- 2008 dismissing RFA for non-prosecution may be restored.

7. Mr. M. Ilyas Sheikh, Advocate Supreme Court learned counsel for the appellant in CA No,,1991 of 2008 and respondent No,,2 in C.A. 1990 of 2008 adopted the arguments of Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and took us through the auction sheet and the bid sheet of the property and pointed out that the mala fide of the present respondent is apparent from the fact that despite gaining knowledge earlier he waited till the auction proceedings and deposit of bid made by him and then filed application for restoration of the RFA. He therefore submitted that he was a bona fide purchaser in good faith without notice and therefore the appeal may be allowed and the impugned judgment may be set aside.

8. The arguments of the learned counsel for the appellants have been strongly opposed by Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court learned counsel for respondent No,,1 in both appeals. He submitted that appeal has been filed in the Lahore High Court, Rawalpindi Bench and was transferred to the Islamabad High Court without any notice to him or his counsel. He further submitted that on 26-2-2008 when the case was first fixed, the Court had directed that the case may be re-listed after issuance of notice to the respondent's counsel but admittedly no such notice was issued, as at that stage the Islamabad High Court was in teething period and case was re-fixed without complying with the earlier order and without issuing notice to him or his counsel and therefore order of dismissal for non-prosecution on that date was a void order as it was passed ignoring the principles of natural justice and without following the earlier direction of the Court. He further, submitted that although the name of his counsel appeared in the cause list but he had only authorized his counsel to appear before the Lahore High Court and he was not authorized to appear before the Islamabad High Court and therefore presence of the name of the learned counsel in the cause list issued by the Islamabad High Court was of no consequence whatsoever. He submitted that order dismissing the RFA for non-prosecution was a void order and no limitation runs against such order. Without prejudice to the above arguments, learned counsel submitted that he first acquired knowledge of dismissal on 2-9-2008 when auction notice was posted at his house and denied that he gained knowledge of the dismissal of the appeal in June 2008 during execution proceedings. Learned counsel in the alternative also submitted that in the circumstances of the case the delay if any has to be condoned. He further argued that the Courts have always held that lis should be decided on merits and Courts are expected to refrain from disposing of the lis on technicalities or default. In respect of his contentions, he relied upon the following judgments:-

(i) Mahmood and another. v. Chief Administrator Auqaf Punjab, Lahore and others (1996 SCMR Page 1508),

(ii) M. Saadullah and 28 others v. Tahir Ali and 2 others (1986 CLC Page 2643),

(iii) Messrs Rehman Weaving Factory (Regd.), Bahawalnagar v. Industrial Development Bank of Pakistan (PLD 1981 SC 21),

(iv) Muhammad Siddique and 8 others v. Hameedullah and 5 others (1993 SCMR 451), National Bank of Pakistan v. The Additional District Judge, Lahore and 2 others (PLD 1985 Lahore 326-327) and

(vi) Muhammad Sadiq v Mst. Bashiran and 9 2000 SC 820)

' He, therefore, supported the impugned judgment and prayed that the appeals may be dismissed.

9. We have examined the case in the light of the arguments of the learned counsel and have carefully gone through the records of the case including the impugned order and have also perused the judgments relied on by the learned counsel.

10. Leave to appeal was granted in this case to consider whether the limitation under section 168 of the Limitation Act ran from the time of dismissal of the order or from the date of getting knowledge of the same. However, none of the counsel argued on this aspect of the case except that the learned counsel for the appellants relied on the judgment of this Court in the case of Haji Ghulam Sarwar v. Daya Ram quoted (supra) wherein this Court had held that the limitation under section 168 begins from the date of dismissal and not from the date of the knowledge of dismissal, however, appraisal of the judgment reveals that this is just a passing observation and basically the matter to condone the delay or not was decided on the basis of the facts of the case.11A perusal of the facts of this case reveal that the case was fixed in Islamabad High Court after its transfer from the Lahore High Court, Rawalpindi Bench without any notice being issued to the counsel or the present respondents or of such transfer from Rawalpindi Bench by the Lahore High Court or of fixing of the case by the Islamabad High Court on 26-2-2008, the order passed on that day shows that the Court had directed the office to re-list the case after issuance of notice to the present respondent and his counsel. However, the office of the Islamabad High Court re-fixed the case without fulfilling the directions given by the Court in its earlier order for issuance of notice to the present respondent and his counsel and on the date of re-fixing -of the case i.e. 26th March, 2008, the case was dismissed for non-prosecution. Even in hearing of the case if the date is given in the presence of the parties' counsel then his non-appearance can be taken notice of and the case, may be dismissed for non-prosecution but wherever the date is not given in his presence and his name does not appear in the cause list then usually such order of dismissal are not considered to be legal. Although in the present case, the name of the authorized representative, who had filed his Vakalatnama in the Lahore High Court, Rawalpindi Bench at the time of filing of the petition appeared in the cause list but we are of the view that it is of no consequence whatsoever because the Vakalatnama was given to him to appear before the Lahore High Court, Rawalpindi Bench and not for Islamabad High Court, therefore, the issuance of notice to the petitioner was necessary before the case could be dismissed for non-prosecution. Therefore, the order of dismissal for non- prosecution has all the ingredients of an order passed in violation of the principles of natural justice. Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void. In a very old judgment of this Court reported as Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCM R 681)", this Court went on to hold as under:-- "This Court has gone to the extent of pointing out that the mere absence of a provision in a statute as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with, this requirement renders the order void and the entire proceedings which follow also become illegal."

' As far as due process is concerned, this Court in the case of "New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi (PLD 1999 SC 1126)", while summarizing the term due process of law relied on the judgment of this Court in the case of "Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863)", wherein this Court held as under:-- "(1) A person shall have notice of proceedings which affect his rights.

(2) He shall be given reasonable opportunity to defend.

(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and ' That it is a Court of competent jurisdiction. Above are the basic requirements of the doctrine "due process of law" which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him."

' We may at this stage also refer to another, judgment of this Court in the case of "Mehmood and another v. Chief Administrator Auqaf, Punjab, Lahore and others (1996 SCMR 1508)", wherein this Court held as under:-- '3. We have heard the learned counsel for the parties. We have also perused the Vakalatnama which was filed by Hakim Muhammad Sardar Khan, Advocate, on behalf of the appellants, which indicates that it was expressly stated that he would appear in the above appeal only at Rawalpindi. In view of the above factual position, it was incumbent on the office of the High Court to have issued notice to the appellants in person for the above date of hearing instead of sending a postcard to Hakim Muhammad Sardar Khan, Advocate. We are, therefore, of the view that the learned Judge in Chambers should have allowed the above restoration application though it was filed after the expiry of limitation period for obvious reason that the appellants had no knowledge about the dismissal of the appeal."

12. From the perusal of the extracts of the judgments of this Court reproduced above and after examining the facts of the case in the light of these judgments, we are of the view that the impugned order of 26th March, 2008 has been passed in complete violation of the rules of natural justice as it has been admitted in the judgment impugned before us that no notice was issued and the case was transferred to Islamabad High Court and no notice was issued either to the counsel or the petitioner i.e. The present respondents for any of the dates including the date on which the order of dismissal for non-prosecution was passed and therefore, the order dismissing the RFA for non-prosecution is not sustainable.

13. We are of the considered opinion that even if the case falls within the ambit of section 168 of the Limitation Act and even if it is for a minute assumed that the appellants had acquired the knowledge earlier on, it is a fit case for the condo nation of delay, if any, as the order passed is in our opinion void and of no legal effect.

14. We, therefore, have no hesitation in upholding the impugned judgment of the Islamabad High Court and dismissing the appeal with the directions to the Islamabad High Court to treat the matter pending and fix it for hearing after issuance of notice to all the parties at an early date and dispose it of in accordance with law as soon as possible.

' No order as to costs.