CAPITAL DEVELOPMENT AUTHORITY (CDA), through Chairman, Islamabad Versus Dr. SHEIKH MUHAMMAD SHOAIB SHAFI

MUHAMMAD ALI MAZHAR, J.--- This Civil Petition for leave to appeal is directed against the Judgment dated 15.04.2025 passed by the Islamabad High Court in First Appeal against Order (F.A.O) No.171/2024 whereby the appeal was dismissed.

2. The transient facts of the case are that the respondents/plaintiffs filed a suit for declaration, permanent and mandatory injunction. According to the pleadings of the petitioners/defendants, the Capital Development Authority (CDA) allotted Plot No. 40, Orchard Scheme, Murree Road, Islamabad, (Subject Property) to Manzoor Hussain on 31.12.1999. The respondents/plaintiffs wanted to purchase the subject property from him, hence they approached the CDA for verification of documents and met the officers, including petitioner/defendant No.03. After due verification and satisfaction including the vetting of the minutes of the Allotment Scrutiny Committee , the respondents/plaintiffs No. 1 and 2 purchased the subject property. Subsequently, CDA Board cancelled the said plot on the ground of alleged tampering in the revenue record. The respondents challenged the cancellation of the subject property by means of civil suit which was decreed ex-parte on 21.06.2021. The petitioner moved an application in the learned trial Court on 23.02.2024 for setting aside the ex-parte judgment and decree but their application was dismissed vide order dated 30.09.2024. They challenged the order through aforesaid F.A.O which was also dismissed by the Islamabad High Court by dint of impugned Judgment.

3. The learned counsel for the petitioners argued that the High Court ignored the illegality in the ex-parte Judgment and decree. According to the learned counsel, CDA was not given proper right of audience and no notice of the proceedings was ever issued to the CDA. He further argued that the counsel was appointed by the CDA but he failed to perform his professional duties to represent the CDA in the Court, as a result thereof, ex-parte judgment and decree was passed. He further contended that the transferee Court had a legal obligation to serve notice, even in the case of ex-parte proceedings. It was further contended that the limitation for filing of application under Order IX Rule 13 Civil Procedure Code (C.P.C.) is three years when a party appears and disappears from the proceedings, therefore, it is outside the purview of Article 164 of the Limitation Act, 1908 but it is to be dealt with under Article 181 of the Limitation Act, 1908.

4. The learned counsel for the respondents Nos. 1 and 2 argued that CDA was represented by their advocate who filed his power of attorney on 22.06.2017 and sought many extensions for submitting the written statement but despite many opportunities, no written statement was filed. Ultimately, the defence was struck off. When the matter was transferred to another Court, where also the presence on behalf of the CDA was marked but the counsel for the petitioners again absented thereafter, ex-parte proceedings were initiated and ex-parte decree was passed after submitting the affidavit in ex-parte proof and production of all relevant documents of subject property as evidence of perfect title.

5. Heard the arguments. If we look into the nitty-gritty of Order IX Rule 13 of the C.P.C., it unequivocally expounds that in case an ex-parte judgment/decree is passed, the defendant may apply to the Court for setting it aside and if he satisfies that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit. However, according to the attached proviso, no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim. The expression "sufficient cause" so as to grant relief has been left to the wisdom, good sense and discretion of the court. The word "sufficient cause" is not susceptible to any exact definition and no hard and fast rule can be laid down. As to what is "sufficient cause" depends on the facts and circumstances of each case. Parameter of each case would primarily be its own facts and it would have to be taken into consideration for determining as to whether "sufficient cause" was shown or not. The court is to be satisfied as to the sufficiency of good cause and it has to be subjective satisfaction. Mere engagement of counsel does not absolve the party of his responsibility as it was as much his duty as that of counsel engaged by him to see whether the case was properly and diligently prosecuted or not and if counsel was lacking in his sense of responsibility, it is the party who engaged him who should suffer and not the other side.

6. Under Article 164 of the Limitation Act, thirty days' time is provided for setting aside an ex-parte decree and the starting point of limitation is from the date of decree or where the summons was not duly served, when the applicant has knowledge of the decree. Though under Order IX Rule 13, C.P.C., Section 5 of the Limitation Act is made applicable by virtue of an amendment made in C.P.C. in the year 1980 but it is clear without any shadow of doubt that a party who seeks condonation of delay under Section 5 of the Limitation Act is bound to offer plausible explanation constituting sufficient cause in approaching the Court. The Court is required to dilate upon essentials, which requires condonation of delay and the same cannot be decided in a cursory manner. Delay in filing proceedings cannot be condoned lightly unless it is shown that there are sufficient reasons causing delay. Law of Limitation reduces an effect of extinguishment of a right of a party when significant lapses occur and no sufficient cause for such lapses, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses. So far as Order IX Rule 13, C.P.C. is concerned, though it is a remedy for setting aside ex parte decree but again in this Order also, sufficient cause is to be shown. Though the court may condone delay under Section 5 of the Limitation Act but counsel s failure to inform the client of progress of the case or his failure to attend the proceedings is not considered in general a sufficient cause. Rather, the delay of each and every day should have been explained with convincing proof of good faith. In the case at hand, the petitioners have completely shifted the entire burden on their counsel.

7. In the application moved for setting aside ex-parte judgment and decree, the petitioners alleged that the case was initially assigned to M Shafaqat Ch. Advocate, who filed his power of attorney on 22.06.2017; subsequently the case was assigned to Muhammad Khalid Zaman, Advocate who filed power of attorney on 07.03.2018; the learned trial Court vide order dated 17-03-2018, struck off the defence, thereafter the case was transferred to another learned civil judge on 19.05.2018, where the court clerk of advocate appeared and the case was adjourned for 02.07.2018 but on that date, nobody appeared on behalf of petitioners/defendants and the case was adjourned to 21.07.2018. Again on 21.07.2018, only counsel for plaintiff appeared and local commission was appointed for recording evidence of the plaintiff/respondent side and the case was adjourned for 28.07.2018 which was further adjourned for 04.09.2018 but on that date also only counsel for plaintiff/respondents was present and no one appeared on behalf of petitioners/defendants and the case was adjourned for 08.10.2018. Many other dates are also mentioned so on so forth when the matter was adjourned with full knowledge of proceedings but the conduct of the petitioners and their counsel remained reckless and indolent. Ultimately, the ex-parte judgment and decree was passed on 21.06.2021 and the application under Order IX Rule 13, C.P.C. for setting aside the ex-parte judgment and decree was filed on 23.02.2024.

8. The Public authorities are obligated to contest the Court cases vigilantly with due diligence. Failure to do so amounts to the breach of their duty. In the case at hand, serious lapses, negligence and reckless conduct is apparent from the record. Despite various opportunities and change of counsel, CDA failed to actively defend the civil suit in question. In spite of availing various opportunities, neither any written statement was filed nor even after declaring ex-parte did the counsel appear to avail the opportunity of cross-examination to the plaintiff, heedless demeanour which debilitated their case and endorsed the case of plaintiff. Engaging counsel does not absolve or exonerate a party leaving the case at the mercy of counsel, rather the negligence or laxity of a lawyer is by and large considered the negligence of the client seemingly as the principal and agent. In the scarcities of the sense of responsibility of counsel who disappear from Court despite engagement by his client, the court has no control over but as a consequence of such callous conduct, it is the client who suffers the adverse repercussions and not the opposing party. Every litigant should have a sense of duty to follow up his case with due attentiveness. On passing ex-parte decree, a valuable right accrues in favour of the successful party and ex-parte decree cannot be recalled unless the defendant proves sufficient cause which should not be simply based on irresponsible conduct of counsel. If the counsel negligence is treated so sacrosanct, this will become a much loved and most favourable elected device of a litigant to intentionally delay the proceedings and after declaring ex-parte in every case, adopt this strategy and shift the entire burden on the shoulders of counsel, exonerating himself from the responsibility of seriously pursuing the Court case to safeguard his interest. A party cannot relegate whole accountability on his lawyer or the court but it is supposed to make inquiries for regular update in the progress of the lawsuit. However in the interest of justice, the Courts may intervene if the absence of counsel was due to circumstances beyond the control, such as the death or incapacitation of the lawyer or owing to some other force majeure circumstances, which can be distinguished from species of ordinary or gross negligence.

9. It is worthwhile to mention that the CDA has submitted a report (CMA.No.12963/2025) in compliance of this Court Order 30.06.2025, wherein they admit to have 120 lawyers on its panel including legal advisor and 04 additional legal advisors; they have developed computerized data; established a counsel office at District Court where assistant Director law is Incharge along with admin officer and 04 parokars to make sure the supervision and timely intimation about status of cases; they have also deputed Assistant Director law along with 4 parokars for coordination with the counsels to attend the cases in Islamabad High Court and to intimate well in time about the status/decision of the cases. It is further alleged that the complaint against professional misconduct of counsel is pending before Islamabad Bar Council, while the Incharge at District Courts CDA Office is facing inquiry due to negligence and inefficiency.

10. It is quite strange, rather inexplicable, that despite having a huge team of lawyers/legal eagles, the overall conduct of CDA and its officials was very reckless and unmindful. Nothing was mentioned in the report that the CDA legal department even sent parawise comments to their advocate for preparing written statement nor anything was mentioned that they ever called the report from their counsel either on the date of hearing, weekly update or any periodic report for awareness of the case status and stage of proceedings. It is the onerous duty of a statutory body, when sued, that it should furnish comments timely to the counsel with point to point reply/defence for incorporating in the written statement. When public authorities are found to fail in the discharge of their duty to effectively defend the court cases in the best interest of their department, it is envisioned as an insignia of dwindling administrative system to all intents and purposes which should have been cured and alleviated robustly. The lackadaisical attitude or disinterest of CDA officials in the case in hand cannot be deemed to be a personal failure of some but in our view it is not only a signpost of maladministration but intolerable laxities of legal department which turned a blind eye, remained indolent and filed application for setting aside judgment and decree dated 21.06.2021, vide application dated 23.02.2024.

11. At this juncture, another important aspect cannot be lost sight of that though the petitioners were declared ex-parte and their defence was struck off but in the application moved for setting aside ex parte judgment and decree, they have shown various dates when the court clerk of their counsel was present and marking his attendance obviously on behalf of his master but no sincere efforts were made by them. It is well settled exposition of laws that the defendant may join the proceedings and even conduct the cross examination, no matter that he is declared ex parte. According to Order IX Rule 07, C.P.C, it is clearly accentuated that where the Court has adjourned the hearing of the suit ex-parte and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on the day fixed for his appearance. The logic is that despite declaring ex-parte, the defendant or defendants shall remain the adverse party and their status will not be changed merely for the reason that their defence was struck off or they have been declared ex-parte. It does debar the defendant from participating in the proceedings from the stage at which he re-joined. Even such defendant may also avail the right to cross-examination as an adverse party under Article 133 of the Qanun-e-Shahadat Order, 1984.

12. In the case of Muhammad Yousuf Bhindi v. Messrs A.G.E. & Sons (Pvt) Ltd. and others (PLD 2024 SC 864) (one of us), while speaking for the bench held that even if the proceedings are ordered ex-parte the defendant may join proceedings at any subsequent stage. A person nevertheless declared ex-parte, continues as party to the proceedings and even can cross-examine the witnesses. If good cause is shown to the satisfaction of the Court to justify his previous absenteeism, the ex-parte proceedings may be set aside by the Court and the defendant may then be restored to the position he held on the date when he was proceeded against ex-parte. This rule invests the court with the wide-ranging potential discretion to allow the application if the defendant who was declared ex-parte assigns good cause for previous absence. In the case of Police Department through DIG Police and another v. Javid Israr and others (1992 SCMR 1009) , this Court held that even if he has not filed a written statement, he may be in a position to secure the dismissal of the suit by raising an objection, orally, to the jurisdiction of the Court, limitation etc. after the order of ex-parte proceedings, following which he can appear and defend the suit if somehow his application for setting aside the ex-parte proceedings does not succeed on account of his failure to show good cause for his previous non‑appearance. It was further held that the defendant who had been proceeded against ex-parte can take part in the subsequent proceedings as of right.

13. In the wake of the above discussion, we do not find any illegality, irregularity or perversity in the impugned Judgment passed by the learned Islamabad High Court. This Civil Petition is dismissed.

UN/C-3/SC Petition dismissed.