JINNAH SPORTS CLUB (REGD.) Versus PAKISTAN CRICKET BOARD

ORDER

1. Brief facts out of which the present revision petition arises are that the petitioner filed suit for declaration against the respondents before the Civil Judge 1st Class, Wazirabad behalf of the Club. On 12 5‑1998, the ex parte order was passed against respondent No. to 4. Subsequently, defence of respondents ,Nos. 5 and 6 was struck off by the trial Court vide order, dated 16‑6‑1998 and the case was adjourned for recording ex parte evidence for 27th June, 1998. On 27‑6‑1998 petitioner failed to bring a evidence and the case was adjourned for recording ex parte evidence for 1‑7‑1998. On 1‑7‑1998 case was adjourned due to the transfer of the Presiding Officer till 2‑1‑1999, when the case was entrusted to Mr. Badar ud‑Din, Civil Judge First Class. On 4‑2‑1999 Ch. Badar‑ud‑Din, Civil Judge First Class adjourned the case for recording ex parte evidence in presence of the learned counsel of the petitioner for 5‑3‑1999. On 5‑3‑1999 the petitioner failed to bring the evidence and the case was adjourned with last opportunity to the petitioner to bring evidence and the case was adjourned for 22‑3‑1999. The petitioner failed to bring the evidence and the case was decided ex parte and dismissed for non‑prosecution on 27‑3‑1999. The petitioner being aggrieved by the aforesaid order filed application for restoration of the case on 1‑5‑1999 alongwith the application for condonation of delay under section 5 of the Limitation Act. The learned Civil Judge dismissed both the applications vide order, dated 19‑5‑1999. The petitioner being aggrieved filed appeal before the Additional District Judge, who dismissed the same vide order, dated 26‑5‑1999, hence the present revision petition.

2. The learned counsel of the petitioner submits that it is the duty and obligation of the transferee. Court to send fresh notice to the petitioner for appearance but the transferee Court did not do this, therefore, basic order is without lawful authority and in violation of principle of natural justice. He further submits that Presiding Officer was erred in law to mark the presence of the clerk of the petitioner on 5‑3‑1999. He further submits that petitioner is a General Secretary of the Club and was injured on 28‑10‑1998 and was admitted in the hospital. The petitioner filed application under section 5 of the Limitation Act for condonation of delay which was Backed by F.I.R. and affidavit of the petitioner and Medical Certificate of the doctor but both the Courts below did not consider this aspect of the case. He further submits that the trial Court did not dismiss the suit for non‑prosecution but dismissed the same under Order 17, Rule 3, C.P.C. which is not in accordance with the spirit of Order 17(3) of the C,T.C. as there was no material on the record. He further submits that it is the duty and obligation of the trial Court to frame the issue and then decide the application of the petitioner after recording the evidence of the parties. He further submits that case was adjourned on various dates due to the non‑availability of the Presiding Officer from 1‑7‑1998 to 2‑1‑1999 but both the Courts below did not consider this aspect of the case.

3. The learned counsel of the respondent No.l submits that the suit was dismissed for non‑prosecution on 22‑3‑1999 and the petitioner filed application for restoration of the same on 1‑5‑1999 which was highly time barred. He further submits that petitioner failed to file affidavit of the Advocate and both the Courts below were justified to dismiss the application of the petitioner. He further submits that the suit was filed by the club but nobody entered appearance on behalf of the club to inform the counsel of the petitioner or the Court that the Secretary was injured in the aforesaid incident on 28‑10‑1998. He further submits that both the Courts below have given concurrent finding of fact against the petitioner and this Court has no jurisdiction to disturb the finding of fact while exercising power under section 11.5, C.P.C.

2. The learned counsel of the petitioner in rebuttal submits that superior Courts insisted that cases must be decided on merits instead of technicalities.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the material facts in chronological order pp. resolve the controversy between the parties:‑‑

(i) Petitioner filed suit for declaration with permanent injunction on 9‑2‑1998.

(ii) Ex parte order was passed by the trial Court against respondents Nos. l to 4 on 12‑5‑1998.

(iii) On 16‑6‑1998 defence was struck off qua respondents Nos.5 and 6 by the trial Court.

(iv) Case was adjourned for ex parte evidence for 27‑6‑1998.

(v) On 27‑6‑1998 case was adjourned due to transfer of the Presiding

3. Officer.

(vi) Subsequently, case was adjourned for the said reason till 2‑1‑1999.

(vii) On 2‑1‑1999 case was entrusted to Ch Badar‑ud‑Din, Civil Judge Ist Class and case was adjourned for recording ex parte evidence for 4‑2‑1999.

(viii) On 4‑2‑1999 case was adjourned for, recording ex parte evidence in presence of the counsel of the petitioner for 5‑3‑1999.

(ix) On 5‑3‑1999 clerk of the petitioner's counsel was present and case was adjourned for recording ex parte evidence and provided last opportunity to the petitioner to bring his evidence and the case was adjourned for 22‑3‑1999.

(x) On 22‑3‑1999 case was dismissed in the following terms‑‑

(xi) Petitioner filed application for restoration of the suit on 1‑5‑1999 alongwith application for condonation of delay under section 5 of the Limitation Act.

(xii) The contents of para 2 for the application for condonation of delay reveal that petitioner could not appear on the said date of hearing because he sustained injuries through fire‑arms and case was also registered in this respect vide F.I.R. No.549 of 1998 on 30‑10‑1998 at Police Station Wazirabad.

(xiii) Application was also backed by the medical certificate.

(xiv) The application was dismissed by the trial Court vide order, dated 19‑5‑1999.

(xv) Appeal filed, the same was also dismissed vide order, dated 26‑5‑1999.

4. The aforesaid facts are put in juxtaposition then it shows that case was entrusted to Ch. Badar‑ud‑Din, Civil Judge 1st Class and petitioner's counsel was present on 2‑1‑1999 before the learned Presiding Officer and case was adjourned in his presence for 4‑2‑1999. Therefore, contention of the learned counsel for the petitioner that petitioner has not notice that the case has been entrusted to Ch. Badar‑ud‑Din, Civil Judge Ist Class has no force. Even otherwise after the Law Reforms Ordinance, 1972 it is the duty and obligation of the party to find out a date when the case is fixed before 1p, the Court to whom the case was entrusted as per principle laid down by the Honourable Supreme Court in the following judgment:‑‑

5. S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCMR 150.

6. Order, dated 5‑3‑1999 also reveals that clerk of the petitioner's counsel was present on 5‑3‑1999 when the case was adjourned forf 22‑3‑1999. It is settled proposition of law that a lawyer is fully responsible 19 for the acts of his clerk. In arriving to this conclusion I am fortified by the following judgments:‑‑

7. In the matter of Sh. Abdul Karim and Advocate PLD 1956 Lah. 439.

8. National Bank of Pakistan v. Champhar (Pakistan Ltd.) 1988 MLD 984.

9. Therefore, contention of the learned counsel for the petitioner that learned Presiding Officer was erred in law to mark the presence of the clerk of the petitioner's counsel is not sustainable in the eyes of law. It is no doubt that petitioner has brought sufficient material on record to justify his non appearance but the petitioner failed to bring on record any material for non appearance of his counsel on the said date. It is also settled principle of law that petitioner has to explain the cause of non‑appearance of his counsel as C per principle laid down by the Honourable Supreme Court in the following judgments:

10. Rafiq Ahmad v. Abdul Haleem 1982 SCMR 1229,

11. Chiragh Din and 4 others v. Mst. Jannat Bibi etc. 1976 SCMR 339, and

12. Zulfiqar Ali v. Lal Din and another 1974 SCMR 162.

13. The word sufficient cause mentioned in section 5 of the Limitation Act is also interpreted by the superior Courts and defined the word sufficient cause means a cause beyond control of party. It is a question of fact that varies from case to case and ultimately it rests on the decision of the Court and it should receive liberal construction so as to advance cause of substantial justice. The aforesaid facts clearly reveal as mentioned above that the petitioner did not bring on record any sufficient material for non‑appearance of his counsel on 22‑3‑1999 but the petitioner has brought sufficient material for his non‑appearance on the said date. The application was supported by the medical certificate, affidavit and F.I.R.; the respondents failed to file counter‑affidavit. The parameter of each case would primarily be its own facts, which would have to be taken into consideration for determining as to whether the sufficient cause is shown or not. The Honourable Supreme Court in Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat 1989 SCMR 883 has laid down the following principle:‑‑

14. "This Court has also emphasized that the rules of procedure are not to be too technically applied but are construed to foster the cause of justice."

15. It is established that the appellant sustained injuries by fire‑arms on 28‑10‑1.998 and remained under treatment till 5th May; 1999. This fact brings the case in the area that the possibility cannot be ruled out that petitioner did not receive intimation well in time from his counsel. It is a sufficient cause for non‑appearance in arriving this conclusion I am fortified by the judgment of this Court in Muhammad Sharif v. Settlement Department 1989 MLD 3342. As mentioned above the respondents failed to file any counter‑affidavit to challenge the authenticity of the medical certificate and in rebuttal of the affidavit. In absence of that both the Courts below were not justified in not condoning nine days delay in filing the application for restoration.

16. In a judgment reported in Abdul Karim v. Muhammad Ibrahim 1976 SCMR 79, the Honourable Supreme Court held as. follows:‑‑

17. "Limitation Act (IX of 1908), S.5‑‑‑Condonatior; of delay‑‑ Respondent filing affidavit explaining reason preventing him from filing appeal within time and such allegation not refuted by a counter‑affidavit‑‑‑Delay held, rightly condoned. "

18. After Addition of Article 2A in the Constitution, the Honourable Supreme Court insisted that cases must be decided on merits instead of technicalities in Sher Muhammad's case PLD 1989 SC 532. The relevant observation is as follows:‑

19. "A party should not be denied a relief on account of technicalities in the procedural law as the same is formed for the purpose of regulating the legal proceedings through their design extended and design of foster the cause of justice rather than to defeat it. "

20. Subsequently, the aforesaid judgment was also considered in Mst. Sardaran's case 1993 SCMR 363 and followed the same principle.

21. In view of what has been discussed above, the revision petition is allowed. The impugned decisions are set aside and the case is remanded to the original Court with direction to proceed with its trial in accordance with law. Petitioner‑plaintiff shall deposit amount of costs Rs.5,000 in the trial Court within two months and shall also pay Rs.1,000 as costs of this revision to the respondents within the same period as per principle laid down by the Honourable Supreme Court in Mst. Begum and others v. Mst Kaniz Fatima Hayat 1989 SCMR 883. In default of compliance as to the payment of above sets of costs, the remand order shall not operate and the revision shall be deemed to have been dismissed with costs. Parties are directed to appear before the trial Court on 18‑4‑2000. The trial Court is directed to conclude the trial as expeditious as possible.

22. H.B.T./J‑4/L Case remanded.