ABBAS KHAN Versus DIANAT FATIMA

TANZIL-UR-REHMAN, J.-- This is a High Court Appeal against the order dated 27-4-1981 passed by a learned Single Judge of this Court in C.MA. No.4835/80. The suit was filed against the appellants by the respondents under Fatal Accidents Act on account of the death in the sum of Rs.60,000, which was decreed in the sum of Rs.40,080 by judgment and decree dated 19-3-1979. On 1-11-1980 an application under Order 9, Rule 13, C.P.C. was filed by the appellants for setting aside the said decree. Learned counsel for the appellants raised following pleas in support of the above appeal:-

(i) That the learned Single Judge has not considered that the counsel for the appellants who stated no instruction at the time of evidence on behalf of the respondents, amounted to withdrawal or discharge from the suit, and therefore it was incumbent for the Court to issue notice to the appellant before proceeding further in the suit.

(ii) The application under Order 9, Rule 13 C.P.C. was not time-barred in any case, the learned Single Judge, ought to have condoned the delay in filing the said application.

2. As regards the first contention, it is misconceived. Rule 49 of the Sind Chief Court, as applicable to Original side of this Court relied on by the learned, counsel for the appellants, is reproduced as under:-

"49.- A party desiring to obtain an order for change of his Advocate on record in a suit or matter, shall first give notice of his intended application for change to that Advocate, and the fact of such notice having been served shall be stated in the affidavit in support of such application."

We may, however, also quote below Rule 50, which reads as under:-

"50.- An advocate-on-record in a suit or matter desiring to obtain an order for his discharge, shall first give notice of his intended application for discharge of his client, and the fact of such notice having been served shall be stated in the affidavit in support of such application."

3. On plain reading of the above rules, it is manifest that the duty is cast on the party and the Advocate and not the Court unless an application is moved to the Court and order of discharge of the Advocate whose Vakalatnama is on record is discharged by the Court. In that case too, the Advocate is duty bound to first intimate the date of hearing, if already fixed. However, as long as the A Vakalatnama of the counsel appearing in the case remains on record and is not discharged by the Court, the counsel will be deemed to be briefed on behalf of the party. It is apparent in the present case that no such application was made to the Court by the party for change of his Advocate or for discharge by the Advocate appearing in this case. The provisions of Rules 49 & 50 of the Sind, Chief Court having not been complied with, the first plea of the counsel, is unfounded.

4 The second plea was to limitation has also no merit. Admittedly the defendants were served with the summons, they appeared through counsel and filed written statement and the issues were settled on 7-4-1975. The suit came up for evidence on 23-2-1979 when counsel for the appellants/defendants was also present. The matter was, however, adjourned to 25-2-1979 for evidence with an observation that "no further adjournment will be granted". On 25-2-1979 three witnesses were examined on behalf of the respondents/plaintiffs, in presence of the counsel for the appellants. The matter was then adjourned to 11-3-1979 for further, evidence of both the parties. On 11-3-1979 P.Ws. 4 and 5 were examined. The case was then adjourned to 12-3-1979 in presence of the Advocate for the appellant for further evidence of both the parties. On 12-3-1979 the evidence of P.Ws. 6 and 7 were recorded and, their side was closed by their counsel. Appellants' counsel was also present on that date and the matter was adjourned on 18-3-1979 for arguments. On 18-3-1979 the arguments were heard and the case was adjourned to 18-3-1979 for further arguments at the request of the counsel for defendant No.3 (Insurance Company), who has not preferred any appeal. The matter was adjourned to 19-3-1979. However, DW-1 (on behalf of defendant' No.3) was examined and after recording the evidence of the said witness, the learned counsel for the parties completed their arguments; thereupon the judgment was dictated in the presence of the learned counsel for all the parties and the suit was partly decreed against defendants Nos.1 & 2, who have preferred the above appeal.

5. Submission of the counsel before us that the appellants were not intimated by the counsel about the date of hearing is entirely misconceived. The appellants were represented all along, on all the dates of hearing, in the suit and if at the last stage of hearing/arguments, the counsel appearing for the appellant stated no instructions, perhaps for the reason that he was not contacted by the appellants in connection with proceedings of the case, it furnishes no valid explanation for setting aside the decree. A notice to the counsel, who represents a party in the suit is deemed to be sufficient notice to the party. If the counsel does not inform his client about the date of hearing, it will be a matter between the counsel and his client. However, a litigant who engages a counsel is not absolutely absolved of all the responsibility to pursue the case in a diligent manner. It is also the duty of a litigant to keep in touch with the counsel to know about the progress of his pending case. For this preposition reliance is placed by us on the case of Rafiq Ahmed Khawaja v. Abdul Haleem reported in 1982 S C M R 1229.

6. Further submission of the counsel for the appellants that the appellants came to know of the decree, having been passed in their (personal) absence, only in October, 1980 and thus application under Order- 9, Rule 13, C.P.C. was not time-barred and that Article 164 of the Limitation Act is not applicable, is, entirely misconceived. We are clear in our mind that, in the facts and in circumstances of the case, Article 164 of the Limitation Act did apply. In support, we reproduce below paragraph 12 of the judgment reported as Farid Khan v. Gulzar Khan and 10 others P L 1935 S C (AJ&K) 74, as relied on by the learned counsel for the respondents, which reads as under: -

"12. We have given our earnest thought to the proposition now under consideration and have examined the case law on the point relating to the period, both before and after independence. Barring the cases wherein order directing ex parte proceeding/ex parte decree could be termed as coram non judice, there appears to be a general judicial consensus on the point that Article 164 of the Limitation Act would apply to all the cases of ex parte decrees, whether passed in pursuance of the ex-parte proceedings taken directly under rule 6(1) of Order IX of the Code or by reference, due to non-appearance. of a defendant on an adjourned date of hearing under rule 2 of Order XVII of the Code of Civil Procedure. There is however, divergence of opinion as regards the scope and meanings of the word `summons' used in column 3 of Article 164 of the Act. According to the strict line of interpretation as was adopted in Mian Kamal-ud-Din's case P L D 1952 Lah. 456, Netal Sikar and others PLD 1962 Dacca 60, Sahdi Harnam Singh A I R 1954 Pb. 137 and Col. Atta-ur-Rehman P L D 1989 Lah.

181. The word 'summons' used in Article 164 of the Act refers to the first summons issued under Order V, rule 1 to ' a defendant after institution of the suit. In an application for setting, aside the ex parte decree, a defendant, if he is to be benefited under second part in column 3 of the Article, must prove that the first summons was not duly served and on doing so he will then be able to reckon the period of 30 days from the knowledge of the decree. If on the other hand the first summons was found to have been duly served then mere non-issuance or non-service of notice to the defendant about the adjourned date of hearing would not furnish him a valid ground to claim a' count of limitation from the date of his knowledge of the ex parte decree passed against him. The period of limitation in such case would, instead, be 30 days from the date when the decree was passed. The reasons for this strict approach, it appears, is based on the reason that a party when once duly served with the summons and-intimated about the action it was then for him to keep himself abreast about the progress of the proceedings either personally or through an Advocate." .

6. Reliance is also placed by us on two D.B. Judgments of this Court of which one of us (Tanzil-ur-Rehman, J.) was a member, reported as Joint Secretary, Ministry of Religious and Minority Affairs v. Mubina Begum 1985 C L C 231 and the case of Sabzwal v. Bingoo P L D 1989 Karachi 1. Learned counsel-for the appellants submitted lastly that the learned Single Judge ought to have condoned the delay in-making the said application. Reliance is also placed by him on the case of Zabita Khan and others v. Saleh Muhammad and others 1989 S C M R 141. This submission too is ill-founded, for the reasons, firstly, that there was no application made by the appellant under Section 5 of the Limitation Act for condonation of delay and, secondly that no explanation in the application under Order 9, Rule 13, C.P.C. was offered by the appellant as to the delay in 1 filing the application except that they came to know of the passing of the said decree against them in October, 1980. This explanation, for the reasons recorded in the impugned order, was rightly held as not sufficient. The case cited by the counsel referred to hereinabove is distinguishable on its own facts, as it was observed in the cited judgment that delay in filing the civil revision was not due to negligence on the. part of the appellants. Furthermore, Section 14 of the Limitation Act was perhaps taken into consideration by the Honourable Supreme Court, which is not the case here.

7. For the aforesaid reasons, we do not find any substance in the appeal, which is dismissed with costs.

These are the reasons for our short order of even date, dismissing the appeal with costs.

H.B.T./A-576/K

Appeal dismissed