IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
R.A. No.109 of 1985.
Date of hearing: 25.3.2011.
Applicants: Ali Bux through his legal heirs & others
Respondents: Mst. Bhagbhari through her legal heirs & others
Mr. Sundardas, Advocate for the Applicants.
Nemo for the Respondents.
Muhammad Ali Mazhar,J- This Revision Application has been brought to assail an order dated 27.5.1985, passed by First Additional District & Session Judge, Mirpurkhas in Civil Misc. Appeal No.35 of 1984 and the Judgment and Decree dated 26.3.1983 and 3.4.1983 passed by the Senior Civil Judge, Mirpurkhas in Suit No.97 of 1980.
1. The brief facts as narrated in the case are that the applicants are the owners of agricultural land measuring 33.01 acres, situated at Deh Chelaro, Taluka Mirpurkhas, which is in their possession for last 40 years. The main thrust of the argument of the learned counsel for the applicant is that the suit was decreed ex-parte without any service upon the applicants in the trial court. Neither the applicants had ever engaged any advocate nor instructed to file any Vakalatnama nor any notice was served upon them through bailiff or substituted service.
2. After passing the ex-parte judgment and decree, the defendants No.1 and 2 i.e. (deceased applicants No.1 and 2), moved an application under Order 9 Rule 13, C.P.C for setting aside ex-parte judgment and decree. In the supporting affidavit, the applicant No.2 specifically stated that they were totally unaware about the pendency of the suit and they only came to know the factum of suit when the alleged attorney of the plaintiff disclosed that the suit land has been mutated in their favour on the basis of decision obtained from the Civil Court.
3. The application moved under Order 9 Rule 13, C.P.C was dismissed by the trial Court on 20.11.1984. The main reason for dismissing the application was that Mr. Muhammad Jabir Khan, Advocate caused his appearance for representing the defendant No.1, 2 and 5 in the suit therefore, the assertion of the applicants/defendants that no notice was served upon them was incorrect.
4. The learned counsel for the applicants invited my attention to a statement filed by Mr. Muhammad Jabir Khan, Advocate in the trial court on 24.6.1980 (Page No.61 of the Revision Application), in which, he simply requested to the court for adjournment enabling him to file objections to the injunction application and in the same statement, he also undertook to file Vakalatnama on behalf of defendant No.1, 2 and 5.
5. Besides above, the learned counsel further referred to another statement filed by the same learned counsel in the trial court on 7.10.80, in which, he intimated the trial Court that he remained absent for want of instructions from defendant No.1,2 and 5. The learned counsel averred that this was the sole reason for which the application under Order 9 rule 13, CPC was dismissed by the trial Court.
6. Against the order whereby the application under Order 9 Rule 13. C.P.C was dismissed, an appeal was filed by the applicants, which was also dismissed for the same reason that the applicants No.1 and 2 were being represented by Mr. Muhammad Jabir Khan, Advocate, therefore, plea of non service could not be taken.
7. In the grounds of the present revision application, the learned counsel has taken specific plea that the applicants never engaged Mr. Muhammad Jabir Khan, Advocate, nor he filed any Vakalatnama on their behalf in the trial court nor the applicants were ever served through summons to cause appearance and file written statement in the suit.
8. In the order of the appellate Court, on one hand, the application under Order 9 Rule 13, CPC was dismissed while on the other hand, the learned appellate Court advised the applicants to file an application under section 12(2) C.P.C, but an important aspect has been overlooked by the appellate court whether the service was effected on the applicants or not. The learned appellate Court simply relied upon the findings of the trial Court and dismissed the appeal without adverting to the bone of contention between the parties for the just and proper conclusion of the application moved for setting aside an ex-parte order. In support of his arguments, the learned counsel for the applicant relied upon the following case law:
1. 1975 SCMR 387, (Nazar Muhammad versus Govt. of Pakistan & others). In this matter, the honorable Supreme Court considered O. IX, Rule 8 & 9 and held that counsel obtaining time on condition that if Vakalatnama was not filed by next date petition would be dismissed but still not filing Vakalatnama nor appearing. Counsel's being engaged in matters of pressing urgency concerning arrest of students actually appearing in examinations, held no excuse for failure to file Vakalatnama. No Vakalatnama having been given to counsel he had no business to appear in Court nor had he any locus standi even to ask for adjournment until he filed. Vakalatnama.
2. 1981 C L C 550 (Abdul Rashid versus Abdul Shahim & another). In this case, the learned single judge of this court while considering Order V, Rule. 17 & O. 1X, Rule. 13 C.P.C, observed that neither bailiff filed affidavit in support of his endorsement on summons nor Court examined him on oath. Service, held, not effected and being invalid, ex parte decree founded thereupon set aside.
3. PLD 1990 Karachi 227, (Mst. Sardaran Bibi versus Allahdino). In this matter, the learned divisional bench of this court held that once a pleader is appointed to act on behalf of a client in a Civil Court under Rule 4 (1) of Order III, C.P.C. his appointment continues till all proceedings in the suit come to an end as provided by sub‑rule (2) of Rule 4. For the purpose of this, sub‑rule, sub‑rule (3) further provides that among other things an appeal arising out of a judgment and decree in a suit shall be deemed to be proceedings in the suit and power filed in the suit will be considered to be valid in the appeal. The appointment of a pleader once made in a suit can only be determined by the leave of that Court. The Sindh Civil Court Rules also regulate the filing of Vakalatnama and the discharge of an Advocate. Rule 42 of the Sindh Civil Court Rules will apply when the client terminates his authority given to a pleader to appear and act on his behalf. Similarly, Rule 43 of the Sindh Civil Court Rules makes it incumbent on a pleader to give notice of his intention to withdraw his power to his client and thereafter file an application for the leave of the Court. Such applications need to be supported by an
affidavit stating that compliance of the provisions of the said rule has been duly made. It is only after such leave is granted by a Court that an Advocate can seek his discharge from the responsibilities of appearing in matter before a Civil Court. Rule 4 (2) of Order III of Civil Procedure Code and Rules 42 and 43 of the Sindh Civil Court Rules are mandatory rules and an Advocate duly appointed by his client to appear and act on his behalf is charged with a duty to continue to act in that matter till he actually obtains leave of the Court as laid down by law. An Advocate once appointed by a party in a suit will not be released from his duties to act and appear in such capacity merely by reporting no instructions. Advocate appointed by appellant was present in Court and stated that he had no instructions but made no effort to obtain his discharge by the leave of the Court. Appeal thus could not have been dismissed for default in appearance on behalf of appellant. Order dismissing the appeal in default of appearance, therefore, was void and inoperative in law. An Advocate for appellant shall be taken to be present as his power was not determined by the Court and provisions of O. XLI, R. 19 would not be attracted. Application for restoration of the appeal could only be dealt with under S.151, C.P.C.
9. It appears from the previous order sheets that the Respondents No.1 and 2 were being represented by Mr. Rochi Ram, Advocate, but on 1.6.2006, Mr. Ashok Kumar, Advocate appeared along with Haji Khan, legal representative of Respondent No.1 and requested for some time to file Vakalatnama. Court file is further showing that Muhammad Jabir Khan advocate had also filed Vakalatnama in the year 1997 for the Respondent No.5, 8 & 9. In the year 1998, Mr.Anwar Jamal and Mr.Muhammad Hanif advocates had filed their Vakalatnama for respondent No.5,8 & 9, thereafter, in the year 2010, Mr.Salahuddin Panhwar Advocate filed his Vakalatnama for various respondents but it is highly astonishing that in spite of engaging various counsel from time to time, nobody appeared to represent the respondent and the matter was being adjourned. Even for the today’s date of hearing, office note shows that notices were issued to all the respondents and copy of intimation notice is available in the court file but neither any advocate or respondent appeared nor any intimation was received which shows the negligent and reckless attitude of the respondents.
10. Though different advocates filed their powers in the case but since 18.8.2006, no body appeared. It has been observed from the record that at least this matter has been fixed for nine times for regular hearing, but nobody appeared to represent the respondents.
11. The case law relied upon by the learned counsel for the applicants are quite applicable so far as the role and professional responsibility/conduct of advocates is concerned. The learned divisional bench of this court held supra that once a pleader is appointed to act on behalf of a client in a Civil Court under Rule 4 (1) of Order III, C.P.C. his appointment continues till all proceedings in the suit come to an end as provided by sub‑rule (2) of Rule 4. For the purpose of this sub‑rule, sub‑rule (3) further provides that among other things an appeal arising out of a judgment and decree in a suit shall be deemed to be proceedings in the suit and power filed in the suit will be considered to be valid in the appeal. The appointment of a pleader once made in a suit can only be determined by the leave of that Court. The Sindh Civil Court Rules also regulate the filing of Vakalatnama and the discharge of an Advocate. Rule 42 of the Sindh Civil Court Rules will apply when the client terminates his authority given to a pleader to appear and act on his behalf. The honorable supreme court has also held supra that no Vakalatnama having been given to counsel, he had no business to appear in Court nor had he any locus standi even to ask for adjournment until he filed Vakalatnama.
12. In the present case, it has been categorically stated that the applicant never engaged Mr.Jabir Khan Advocate to represent them in the trial court. In one statement, he requested for adjournment to file objections to injunction application and also undertook to file Vakalatnama while in his another statement, he informed the court that he remained absent for want of instructions from defendant No.1,2 and 5.
13. The learned trial court as well as the appellate court both have failed to give any findings or reasoning on the crucial point whether the applicants were ever served on or not. Neither any Vakalatnama was filed by Mr.Jabir Khan advocate nor any notice was issued by the trial court to the applicants after taking the statement of learned advocate on record that he remained absent for want of instructions. Even the appellate court while dismissing the appeal ignored to decide an essential issue whether Mr.Jabir filed any Vakalatnama in the matter or not and if no Vakalatnama was filed then why notice was not issued to the applicants if they were not duly served through bailiff. Instead of deciding the appeal on its own merits, the learned appellate court advised the applicant to file an application under Section 12 (2) C.P.C which was not the right approach.
14. At this juncture, I would like quote a judgment reported in 2000 SCMR 296, (Mrs. Amina Bibi v. Nasrullah), in which, the honorable supreme court has discussed the remedies and options available to an aggrieved person for his redress against ex parte judgment and decree. The honorable court has held that where civil suit was decreed ex parte, various remedies available to aggrieved person are firstly, filing application under Order IX, Rule 13, C.P.C.; secondly, appeal under section 96 (2), C.P.C, thirdly, petition for review under section 114 read with Order XLVII, C.P.C. and fourthly, petition under section 12(2), C.P.C. Petitioner having exhausted remedy by filing an application under Order IX, Rule 13, C.P.C.
15. In the landmark judgment reported in PLD 1963 SC 382, (Imtiaz Ahmed versus Ghulam Ali & others), the honorable supreme court held that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his.
16. For the foregoing reasons, this revision application is allowed and the order dated 27.5.1985 passed by First Additional District Judge, Mirpurkhas in Civil Misc. Appeal No.35 of 1984 and the ex-parte judgment and decree passed by the Senior Civil Judge, Mirpurkhas in Suit No.97/1980 are set aside. The matter is remanded to the trial Court to decide the suit on merits after allowing ample opportunity to defendants. The learned counsel for the applicants averred that both the applicants Ali Bux and Mureed have expired after filing this revision application and now they are being represented by their legal heirs, which fact is transpiring from the amended title. It appears from the amended title filed in the revision that the plaintiffs in suit (Respondent No.1 and 2) have also died during the pendency of the revision application. Since the right to sue survives, therefore, the legal heirs of the plaintiffs/respondent No.1 and 2 in the above suit are to be impleaded. The trial court is directed to issue notice to the legal heirs of the plaintiffs/respondent No.1 and 2 and direct them to file amended title and also implead the legal heirs of the applicants within three weeks, thereafter, the legal heirs of the applicants shall file their written statement within one month. Since the matter is very old, therefore, the learned trial Court shall expedite the matter and after fulfilling the procedural formalities as stated above, decide the suit within a period of six months.