MUHAMMAD AFZAL Versus SMALL BUSINESS FINANCE CORPORATION

ORDER

The above suit was fixed for settlement of issues on 21‑4‑1996 when only counsel for the defendant appeared and no appearance was made on behalf of the plaintiff. Consequently the suit was dismissed for non‑prosecution.

2. On 26‑6‑1996 i.e. nearly two months after the aforesaid dismissal, the plaintiff submitted an application for restoration under Order IX, Rule 9, C.P.C. (CMA 3324/96) and another application (CMA 3323/96) for condonation of delay in filing the restoration application. Both the applications came up for hearing today and have been seriously contested on behalf of the defendant.

3. Mr. Mansoorul Haq Ansari learned counsel for the plaintiff, in the first instance, contended that as stated in the affidavits in support of the applications neither the plaintiff nor his counsel had notice of the hearing on 21‑4‑1996. He further stated that only on 19‑6‑1996 when the attorney. of the plaintiff Fazal Muhammad went to inquire about the matter he came to know of the dismissal and consequently the‑above applications were submitted on 26‑6‑1996. He has referred to the affidavits of Mr. Hakim Ali Siddiqui, the then counsel for the plaintiff, as well as that of the plaintiff's attorney Fazal Muhammad and has relied upon a judgment of the Lahore High Court in the case of National Bank of Pakistan v. Additional District Judge (PLD 1985 Lah. 326). In this case it was .held that when a party had no notice of hearing, limitation for the purpose of application for restoration was three years under Article 181 from the date of knowledge and not thirty days from the date of the dismissal under Article 163 of the Schedule of the Limitation Act. Mr. Ansari further relied upon a judgment of my brother Rasheed Ahmed Razvi, J. in the case of Abdul Latif v. Muhammad Yousuf (PLD 1996 Karachi 365). In this case, the suit was dismissed for default on 28‑3‑1987. An application for restoration was filed on 3‑5‑1987 i.e. 39 days after the dismissal and no application under section 5 of the Limitation Act for condonation of delay was submitted. Nevertheless his Lordship held that in view of the affidavits of the plaintiff as well as his counsel to the effect that they acquired knowledge of dismissal on 3‑5‑1987, the application for restoration was within time and there was no need to file one for condonation of delay. In the same case his Lordship emphasised that the Courts have always attached a great deal of sanctity to an affidavit filed by an Advocate.

4. Mr. Ghulam Ali Khokhar learned counsel for the defendant vehemently contended that the application for restoration was barred by limitation and no sufficient cause for condonation of delay has been furnished. He referred to the judgments of the Hon'ble Supreme Court in the cases of Province of East Pakistan v. Abdul Hameed Darji (1970 SCMR 558) and Zahoor Ellahi v. S. Fazlur Rehman (1969 SCIVMR 274).

5. In the case of Zahoor Ellahi a writ petition was dismissed on 27‑1‑1966. The petitioner was not a party but as soon as he came to know of it, he filed an application for review on 21‑3‑1966 which came to be dismissed on 1st December, 1967. Yet he did not prefer a petition for leave to appeal within 30 days and such petition was filet'. on 6th February‑, 1968. No application for condonation of delay was made and was contended that he was advised that the period of limitation was 60 days from disposal of the petition for review. The Hon'ble Supreme Court relying upon an earlier judgment in the case of Ahmeduddin v. Rasool Bibi (PLD 1968 SC 213) was pleased to hold that limitation runs from the date of the final order of the High Court and if a party chooses to delay the matter by adopting the option of review application, he cannot be given a fresh lease of limitation. In this context, it was observed that in a civil matter it is a duty of the parties to explain each day's delay as valuable rights had accrued to the other parties. In Province of East Pakistan v. Abdul Hameed Darji (1970 SCMR 558) an appeal against the award of an arbitrator under the Town Improvement Act was to be filed by 15‑3‑1968 and was actually filed more than 14 moDths thereafter i.e. on 31‑5‑1969. It was contended in the application for condonation of delay that the file had been lost but it transpired that proper instruction to file an appeal had been given within the relevant time and the matter was delayed because of bureaucratic inaction, including delivery of a ‑letter from one offce to another within range of 3 miles after 11 days. The Hon'ble Supreme Court found the matter to be of utter negligence and in this context observed that an application under section 5 of the Limitation Act required the applicant to explain each day's delay. At the same time it was observed:‑‑

"It is manifest that no hard and fast rule can be laid down nor is it desirable that this should be done. Each case has to be considered on its own facts. What may be sufficient in one case may well not be sufficient in another case, but this much is certain that where by lapse of time a valuable right has been accrued to the other side, it should not be lightly taken away."

It was further held that the question condoning delay was one in respect whereof High Court was entitled to exercise its discretion and the Supreme Court will not generally interfere.

6. 1 have carefully considered the respective contentions of the parties. It is a matter of common knowledge that notices of hearing of cases (not adjourned to a specific date by itself) are invariably issued to counsel residing out of Karachi, while those in Karachi appraise themselves of such dates through the daily cause list. The record also indicates that for the hearing on 21‑4‑1996, notice was issued by office on 25‑3‑1996 by registered post A/D to the counsel for the plaintiff Mr. Hakim Ali Siddiqui at his Hyderabad address but no postal acknowledgment of such notice appears to be available. This notice however, apparently due to a mistake of the office staff, mentioned that the matter was fixed on 21‑4‑1996 for hearing of application instead of settlement of issues. Mr. Hakim Ali Siddiqui however, has filed a personal affidavit stating that he did not receive such notice. In view of the above circumstances and dictum of p Rashid Ahmed Razvi, J. in the case of Abdul Latif cited above. the contents of Mr. Siddiqui affidavit cannot be lightly disbelieved. As such it is quite plausible that Mr. Siddiqui never received the notice and consequently there is ample justification fni setting aside the order of dismissal.

7. As to the question of delay in filing the application for restoration, it is indeed correct that Aiticle 163 of the Schedule to the Limitation Act prescribes the period of 30 days from the date of dismissal for setting aside a dismissal for 8 default. The superior Courts in Pakistan, however, have consistently ruled in favour of the principle that adjudication of disputes should be premised on merits rather than technicalities and statutes of limitation should be strictly construed. The provisions of Article 163 of the Limitation Act have been held to be applicable only where a suit was validly and properly dismissed under Order 9 of the, C. P.C. However, when the order of dismissal was passed without notice to the parties, or on a date which was not a date of hearing otherwise legal for some reasons, suits had been restored under the inherent power of the Court under section 151, C.P.C. Indeed this appears to be the principle on B which the cases of National Bank of Pakistan and Abdul Latif cited at the Bar.by the learned counsel for the plaintiff have been decided. Upon a reading of Order 9 Rule 9, C.P.C. and Article 163 of the Limitation Act and the case‑law, I am inclined to take the view that the aforesaid Article 163 could only apply when a valid and proper order of dismissal has been passed and after the passing of such order the plaintiff appears and shows sufficient cause for his non appearance on the date of hearing. However when the order of dismissal itself suffers from some irregularity or infirmity, the Court could exercise its inherent power to restore the suit under section 151, C.P.C. and in such cases Article 163 will have no application.

8. I am fortified in the above view by the principles of law laid down by the Hon'ble Supreme Court in the cases of Muhammad Swaleh v. M/s. United Grain and Fodder (PLD 1964 SC 97) and Manager, Jammu and Kashmir Estate Property v. Khuda Yar (PLD 1975 SC 678). In the first case, Article 164 of the Limitation Act was held to be not applicable when a suit was decreed ex parte without proper notice to the defendant and the application for setting aside such decree was made more than three months after the decree, it was held that the decree itself was illegal. In the second case, an appeal was decided in the absence of the appellant and the Court took the view that the decision was illegal because no order disposing of the appeal ex parte could be passed without ascertaining whether the parties had notice of hearing and therefore, Article 169 did not apply. In view of the above, I am of the opinion that the plaintiff having had no notice of hearing the dismissal in default was unwarranted and the suit could be restored in the exercise of powers under section 151, C.P.C. As such the provisions of Article 163 of the Limitation Act are not attracted.

9. On the other hand if it be assumed that the notice of hearing on 21‑4‑1996 dispatched by registered post was duly served on the counsel for the plaintiff it is evident that such notice only purported to refer to the date of hearing of an application and not the main suit. It is a settled law that a suit cannot be dismissed on a date fixed for hearing of an interlocutory application. D Thus even a such notice be deemed to have been served on the plaintiff the fact remains that he was not notified the date of hearing and suit itself i.e. the date of settlement of issues and as such the suit was not dismissed on a date of hearing notified to the plaintiff.

10. I may add that assuming the dismissal having been effected strictly E under Order 9 and assuming Article 163 to be applicable, it cannot be inferred that the plaintiff was grossly negligent. Keeping in view that both the plaintiff and his counsel reside in Hyderabad, it cannot be said that the case was not being followed up. The plaintiff came to know of the dismissal within two months of the order and filed an application for restoration within seven days thereafter. In view of these circumstances and the principle upheld by the L superior Courts that disputes should be generally adjudicated on merits, sufficient cause for condonation is also made out.

11. In view of the above, I am of the opinion that ends of justice could be served if the suit is restored subject to payment of costs of Rs.2,000 for the inconvenience sustained by the defendant. Applications are disposed of accordingly.

A.A./M‑161/K Order accordingly.