Wamiq Muhammad Yousif Versus Xith adj, (EAST) Karachi
Arshad Hussain Khan, J .--- The appellant by means of this Appeal under Section 96 C.P.C. has assailed order dated 09.07.2021 passed by XIth Additional District Judge, Karachi (East) in Summary Execution No.1/2018, arising out of Summary Suit No.27/2017 whereby application under Section 151 read with Order XXXVII Rule 4 C.P.C seeking stay of the execution proceedings filed by the present appellant/judgment debtor was dismissed.
2. Concisely, the facts giving rise to the present appeal are that respondent No.2 [plaintiff] filed Suit No.27/2017 under Order XXXVII Rules 2 and 3 C.P.C for recovery of amount of Rs.10,000,000/- against the present appellant. Upon filing of that suit notices and summons of the case were issued through all modes including Superintendent, Central Prison, Karachi, as the appellant at the relevant time was confined to Central Prison, Karachi. Pursuant to the notice, present appellant was produced by the concerned jail authorities before the court, who received copy of the plaint. Thereafter, the counsel on behalf of the appellant / defendant filed Vakalatnama in the case and application under Section 10 of the Financial Institutions [Recovery of Finances] Ordinance, 2001, however, said application was subsequently, dismissed for non-prosecution. Thereafter, respondent No.2 pursuant to the directions filed affidavit in ex-parte proof and since the stance taken by respondent No.2 had gone unrebutted, as such, keeping in view the evidence produced by respondent No.2, the suit was decreed in the sum of Rs.10,000,000/- along with costs of the suit. However, prayer with regard to the profit at the prevailing rate from 11.03.2016 till realization of the decretal amount was declined.
Thereafter, Execution Application bearing No.01/2018 was filed by respondent No.2, which was allowed, vide order dated 10.01.2019. Subsequently, the property of the judgment debtor [present appellant] was put on auction, however, during pendency of the auction proceedings present appellant filed the application seeking stay of the execution proceedings. The executing court after hearing learned counsel for the parties dismissed the said application, vide order dated 09.07.2021, which is impugned in the present proceedings.
3. Learned counsel for the appellant while reiterating the contents of the memo. of appeal has contended that the order impugned in the present proceedings is not sustainable as the same is bad in law and facts both in as much as the trial / executing court has failed to apply her judicious mind and also failed to consider the fact that the judgment and decree as well as the orders, which were passed in the suit / execution proceedings, the appellant was behind the bars. It is also contended that the trial / executing court also failed to take into account that the previous counsel appeared on behalf of the appellant has failed to discharge his professional obligations / duties under the Legal Practitioner Act as he has failed to proceed with the matter diligently. It is also argued that unprofessional/negligent attitude / conduct of the appellant's erstwhile counsel can be gauged from the fact that he initially filed application under Section 10 of the FIO, 2001, instead of leave to defend application under the Civil Procedure Code and subsequently, he also failed to proceed with the said application resulting which the said application was dismissed for non-prosecution and the judgment and decree were passed by the trial court and for satisfaction of the said decree execution was filed, which too was decided ex-parte. However, when the appellant came to know the above decisions, he immediately filed application under Section 151 C.P.C read with Order XXXVII Rule 4 C.P.C for staying the execution proceedings. It is also contended that the trial /executing court has miserably failed to consider the contention of the appellant in its true perspective as such it was unjustified in passing the impugned order. It is also contended that the trial / executing court while passing the judgment and decree has failed to take into account that the original Promissory Notes were never produced before the trial court. It is also contended that the impugned order suffers from material irregularities and illegalities as such the same is liable to be set-aside. It is also contended that the impugned order is purely based on technicalities and it is against just and fair dispensation of justice. Lastly, he has contended that the impugned order may be set-aside and the instant appeal may be allowed as prayed.
4. On the other hand, learned counsel for respondent No.2 while arguing the matter has contended that the impugned order is in accordance with law and equity and does not warrant any interference by this Court. It is also contended that the appellant despite having knowledge neither contested the suit nor the execution proceedings as such, at this belated stage, when the auction proceedings are under process; filing of application for stay of the same is untenable. It is also contended that if the appellant has any grievance against his previous counsel, who did not proceed with the matter diligently, he may file the proceedings against the advocate under the applicable law. Lastly, he has prayed that the appeal being devoid of any merit may be dismissed.
5. We have heard learned counsel for the parties, perused the record and considered the relevant laws.
Indeed the proceedings under Order XXXVII rules 2 and 3 C.P.C. are summary in nature and where the defendant does not submit an application for leave to appear and defend within the statutory period of 10 days, as envisaged by Article 159 of the Limitation Act from the date of service, the allegations in the plaint shall be deemed to have been admitted and the suit so instituted shall be decreed. We are also aware of the fact that at the same time the court ceased of the matter is not relieved of the responsibility to see and ensure before decreeing the suit that the person proceeded against was not only served but was also made to understand the nature of the proceedings. It was pre-eminently in this context that the Legislature in its wisdom prescribed a form for the plaint and a form for the summons to be served on the defendant of such proceedings.
6. In the present case, it is an admitted position that the appellant despite having knowledge of the suit did not pursue the matter diligently, consequently his leave to defend application, though filed under wrong provision, was dismissed for non-prosecution. There is nothing available on the record, which could show that the appellant has ever inquired about the case (suit) from his erstwhile counsel and further after coming to know about the negligent conduct of his counsel what action he has taken against him. The record is also silent with regard to his action upon notice of the execution proceeding. It is a well settled principle of law that the parties are bound by the acts and omissions of their counsel, and in case of any negligence on the part of the counsel, the parties cannot claim that they are not to be held responsible. Another well-settled principle of law is that when a matter is dismissed or any adverse order is passed, valuable rights accrue in favour of the other side which cannot be taken away unless a justifiable, strong or sufficient cause is shown. In this regard, reliance can be placed on the cases of Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore, [1970 SCMR 76], Khalid Saigal v. National Investment Trust Ltd and 2 others, [1984 CLC 182] and Zahid Ahmed v. Deputy Director Adjudication and 2 others [PLD 2006 Karachi 252],
Besides above, the Supreme Court of Pakistan in the case of Zulfiqar Ali v. Lal Din and another [1974 SCMR 162], inter alia, held that mere fact that a litigant engaged a counsel on his behalf does not absolve him of all responsibilities; it was as much his duty as that of the counsel engaged by him to see that the case was properly and diligently proceeded. 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.
In another case of Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others [1974 SCMR 223], the Supreme Court held that the initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence; and, even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents 1 to 3. We are not satisfied that the petitioners were diligent or took due care in the matter.
7. Moreover, the record reflects that instant appeal was filed by the appellant through his attorney as he was confined to the prison. When the counsel was asked that if present appeal can be filed by the appellant through his attorney during his judicial custody then why the judgment and decree passed in the suit were not appealed against by the appellant through his attorney during his confinement, to which learned counsel has failed to give any plausible justification.
8. Besides above, the appellant did not file either copy of application for leave to defend or application under Order XXXVII Rule 4 C.P.C along with present appeal whereby it could be ascertained that the grounds objections taken in the said applications were plausible, justified and attracted to the provisions of law for stay of execution proceeding especially when the judgment and decree thereof have attained finality as the appellant despite having knowledge did not file any appeal against the said judgment and decree.
9. It is now well settled law that when a defendant fails to/appear or obtain a leave to appear and defend in response to a summons served through Form No.IV, provided in Appendix 'B' to C.P.C, or where the court refuses to grant leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. In such an event, the court shall pass a decree in favour of the plaintiff against the defendant. Reliance in this regard can be placed on the cases of Haji Ali Khan and Company. Abbottabad and 8 others M/s. Allied Bank of Pakistan Limited, Abbottabad, [PLD 1995 SC 362], Naeem Iqbal v. Mst. Zarina [1996 SCMR 1530] and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim [1999 SCMR 2832].
10. The upshot of the above discussion is that we do not find any infirmity or irregularity in the impugned judgment, and the learned counsel has also failed to point out any illegality, which could warrant any interference by this Court and as such the Appeal, being devoid of any merit, is liable to be dismissed.
Foregoing are the reasons of our short order dated 14.03.2023 whereby the instant appeal was dismissed in limine with no order as to cost.
SA/W-5/Sindh Appeal dismissed.