SHAGUFTA SARWAR Versus SHUJAUDDIN HYDER

ORDER

1. This appeal is directed against the order of ejectment passed on 11‑6‑1983. The respondent filed ejectment application against the appellant on the grounds of non‑payment of rent from March, 1982, damage caused to the building and for personal bona fide use and occupation. The appellant appeared through her Advocate and filed written statement on 10‑3‑1983 in which it was alleged that she had been the tenant of the disputed flat, but in 1982 the respondent entered into a sale agreement with the appellant. The appellant paid Rs.40,000 as advance, and it was agreed that the appellant will enjoy the right of ownership from the date of agreement.. It was also pleaded that the respondent had agreed that the rent was to be Rs.250 p.m. In this way, the appellant denied the relationship of landlord and tenant and the entire claim of the respondent‑. After filing written statement, appellant and her Advocate did not appear and the respondent filed affidavit of evidence on 17‑4‑1983. The matter was fixed on 15‑5‑1983 for cross‑examination of the respondent, but as no one appeared on behalf of the appellant, the respondent's statement remained unchallenged and his side was closed. Thereafter, the matter was again fixed on 30‑5‑1983, but as the appellant did not appear and file any affidavit of evidence, her side was closed. The matter was then fixed for argument on 8‑6‑1983, and finally, the judgment was pronounced on 11‑6‑1983.

2. It is the allegation of the appellant that when notice of execution was served, she filed an application for setting aside the ex parte order on 8‑2‑1984. This application was dismissed by the impugned order. The main ground of the appellant in that application was, that she had engaged one Shamsher Ahmed Khan, Advocate who did not appear in her case, did not inform her about the proceedings, and played fraud upon her and in this regard she has moved an application before the Bar Council for professional misconduct.

3. Mr. Rashid Rizvi, the learned counsel for the appellant has contended that ' as the appellant had engaged an Advocate, who had been negligent in the performance of his duty, the appellant should not be penalised. From the facts of the case, if seems that after filing written statement on 10‑3‑1983 no step seems to have been taken by the appellant or her counsel. For a period of about three months, when the order, dated 11‑6‑1983 was passed no action was taken by the appellant. She could have made proper enquiries from her Advocate about the date of hearing. Even till 8‑2‑1984 when the application for setting aside the order was made no steps were taken from her side. It therefore, seems that from 10‑3‑1983 upto 8‑2‑1984 almost about a year the appellant has not taken any step to defend the matter or to prosecute it. The only ground stated by her is that on every occasion her Advocate used to tell her that the matter is proceeding alright. Silence of one year is sufficient to alarm a person that the matter is not proceeding in the normal course. It is true‑that the party should not suffer for the negligence of his Advocate, but this rule is not applicable where it is clear that the party himself is not diligent and interested in prosecuting the case. The learned counsel has referred to Eastern Steel v. National Shipping Corporation 1984 C.L.C. 2778 where after referring to various authorities, of the Supreme Court, the following observation was made:‑

4. "With all humility, we may observe that in none of the cases cited, the Supreme Court of Pakistan has laid down as an absolute rule with ‑no exceptions that where the counsel of a party has been negligent, his client must always suffer. No doubt a party can be made to suffer for the negligence of his Advocate but generally the Court also examines the conduct of the party. If the party is also at fault or guilty of carelessness or negligence, he suffers for his fault and for the fault of his Advocate. But where the party is not at all at fault and is "not guilty of any carelessness or negligence, in view of the special circumstances of the case and to save the party from suffering grave injustice of hardship, the Court may not penalize the party for the negligence of his Advocate."

5. In this regard it is pertinent to refer to Mohammad Anwar v. Sultan Mohammad Khan 1974 9 C M R 162, where it was observed as follows:‑

6. "The mere fact that litigant has engaged a counsel to appear on his behalf does not absolve himself all responsibilities. It was as much his duty as that of the counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engages a counsel who was lacking in his sense of responsibility to Court, it is he, who should suffer and not the other side."

7. Mr. Rashid Rizvi then contended that as the appellant had raised an objection denying the relationship of landlord and tenant, the Controller was bound to frame a preliminary issue and decide it before deciding the case on merits. In this regard the learned counsel has relied on PLD 1973 Quetta 1., It is not every objection, which should be treated as a preliminary objection, and be heard and decided by the Controller. First the Controller has to see the merit of objections pressed by the parties. In the present case a very vague allegation was made thatAG1 has been purchased for Rs,000, and no document was filed property to rove the alleged sale. Even today the appellant has not been able to produce any agreement or even the receipt showing payment. Rs.40,000 to the respondent. In such state of pleadings, it was not possible for the Controller, to have framed a preliminary issue. Where objections are raised in a frivolous manner and may be intended to delay the proceedings the Controller is not bound to take note of such objections and frame a preliminary issue. A preliminary issue can be framed only if a party seeks to press that objection. In the present case, even the appellant did not appear after filing the written statement to press this so‑called preliminary objection. In the result on this ground also no exception can be taken to the order passed by the Controller. The appeal is dismissed in limine. The appellant is alled three months time to vacate the premises. All other applications filed by the appellant are also dismissed.

8. H.B.T. Appeal dismissed