IN THE HIGH COURT OF SINDH AT KARACHI

 

C. P. NO.3213/2012

       PRESENT:   MR. JUSTICE FAISAL ARAB, &

                           MR. JUSTICE SALAHUDDIN PANHWAR

 

Petitioner          :      Muhammad Mustafa,

                                through Mr. Yasin Ali, Advocate.

 

Respondent s    :      Syed Azfar Ali and others  

Mr. Umer Hayat Sandhu, Advocate for respondent No.1.

 

 

Date of hearing :      17.09.2013.

 

 

O R D E R

 

SALAHUDDIN PANHWAR, J.  By the dint of this order we intend to dispose of the instant petition, whereby the petitioner has called in question the judgment and decree and order (s), recorded by the learned lower court (s) in relation to a suit filed by respondent No.1 for recovery of Rs.1500,000/- against the petitioner.

2.                             The brief facts, leading to instant petition, are that respondent No.1 filed a suit bearing No.29/2009 against the petitioner for recovery of Rs.15,00,000/- for damages wherein he pleaded that he was appointed as Naib Qasid in Port Qasim Authority as a permanent employee and served honestly as he received certificates of excellence from head of the department. Petitioner with malafide intention and to harass respondent No.1 moved an application on 08.4.2000 to D.G Administration leveling false and frivolous allegations against respondent No.1. It is further pleaded that in consequence of inquiry he was compulsory retired by authority which he challenged departmentally but same was dismissed. He then filed appeal before Federal Services Tribunal Karachi which was allowed with order to reinstate the respondent No.1 and to conduct de-novo disciplinary proceeding against the respondent No.1. In de-novo proceedings the statement of the petitioner was also recorded and consequent to such de-novo inquiry the respondent No.1 was found innocent.

3.                             Thus the respondent No.1, claimed Rs.15,00,000/- as damages by classifying same in following manner :-

“Rs. 5,62,000/- for mental torture, agony, stress and loss of health;

Rs.198,000/- as loss of unnecessary litigation expenditure; and

Rs.740,000/- for loss towards his prestige, name, fame and reputation.”

4.                             Record reveals that just after institution of the suit the petitioner / defendant filed an application before  the  learned trial  Court;  wherein it was mentioned that:

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                   On such application the respondent No.1 did not agree to forgive the petitioner and prayed to the trial court for ex-parte order. On such endorsement the petitioner filed his written statement denying the assertions and claims of the respondent No.1. Later, the respondent No.1 filed an application U/O XII Rule 6 CPC for recording decree on admission of the petitioner which was objected by the petitioner, however, on 28.01.2010, the learned trial court decreed the suit of the respondent No.1 under Order 12 R 6 CPC.

5.                             The petitioner filed appeal against such decree but same was dismissed on non-compliance of office objections and non-prosecution vide order dated 04.04.2010. The respondent No.1 then filed an Execution application No.139 of 2010 whereas petitioner filed application U/s 12(2) CPC. The learned Executing Court allowed the execution application while dismissing application of the petitioner, made under section 12 (2) CPC vide order dated 09.12.2011. The learned Executing Court also attached salary, increase of salary on account of charter of demand pay scale 2011 and leave encashment etc of the petitioner in favour of respondent No.1 vide orders dated 08.11.2010, 23.11.2011 and 28.11.2011.

6.                             As per petitioner, after total deductions on said account nothing is left to his credit for his family so he has filed the instant petition with following prayer :-

(a)          Set aside the impugned judgment and decree both dated January 28, 2009 (Annexure P/12 & P/12(a)) passed by the learned respondent No.3;

(b)         Set aside all subsequent impugned order dated 19.12.2011 (Annexure P/17), 08.11.2010(Annexure P/18), 23.11.2011 (Annexure P/19), 28.11.2011 (Annexure P/20) and 05.04.2010 (Annexure P/14).

(c)          Pass orders for refund of entire amount to the petitioner already recovered from him in compliance of impugned orders.

(d)         Grant stay order in respect of further recovery from the petitioner till the final disposal of the present petition.

7.                             Learned counsel for the petitioner has argued that very basic decree recorded by the learned Trial Court Judge is illegal, void, and not sustainable under the law hence whole structure raised, thereon is of no substance; the Rule-6 of Order-XII of the Code has not been understood properly by the learned trial Court Judge hence such failure on part of learned trial court has resulted in serious miscarriage of justice; the petitioner was never read out and explained the contents of allegedly moved application of admission; he submitted that mistake of court should not be allowed to continue causing prejudice to one. He concluded his arguments with prayer for allowing petition.

8.                             On the other hand, learned counsel for the respondent No.1 has argued that since it is a matter of record that the petitioner did not challenge the order of executing court in time and allowed deduction of amount in satisfaction of the decree therefore, at such belated stage he is not legally justified from questioning the legality of the judgment / order, particularly when such stand is hit by laches. In the end he prayed that petition, being not maintainable, be dismissed.

9.                             We would like to take the objection, so raised by the learned counsel for the respondent No.1, that the petition is not maintainable as this is a question which goes to the root of the case. To attend this objection properly we would like to add here that there is a marked distinction between limitation and laches. In the former case the delay of each day has to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of Section 5 of the Limitation Act, whereas in the later case lapse of time or the question of laches has to be examined on equitable principles. On this proposition, it will be conducive to refer the case of Jawad Mir Mohammadi V Haroon Mirza (PLD 2007 SC 472) wherein full Bench of Honourable Supreme Court has held that:-

“Laches per-se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case”..……. and it is further held “that no party should be made to suffer on account of the act of the public functionaries or of a Court.”

                   We may also add here that the writ jurisdiction, being discretionary and extraordinary, has not been restricted by time factor hence issue of limitation is not attracted in the issues involved in writ jurisdiction however question of laches has to be examined but this does not deny the grant of right or the remedy unless the grant of relief in addition to being delayed, must also perpetuate injustice to another party. (under lining is added for emphasis). In the instant case the petitioner has called in question the very legality of the very procedure, adopted by the learned trial court, in recording the judgment under order XII R 6 CPC and its subsequent consequences while asserting that consequences of impugned judgment / order is continuing upon the petitioner in shape of deduction of the amount therefore, suffice to say cause is continuing to the petitioner. Moreover the petitioner has questioned the legality of procedure, so adopted by learned trial court, in recording the judgment under order XII R 6 CPC, which falls within meaning of writ of Certiorari and needless to mention that on an application to such complaint, this court can legally examine the order / judgment of inferior court being the court of supervisory jurisdiction.

10.                         Having attended to the above question of maintainability of the petition, now, we would revert to merits of the case. There can be no denial to the well settled principle of law that if the law and procedure requires a thing to be done in a particular manner then that has to be done in that manner and not otherwise. What we find from perusal of the application of the petitioner (which he denies to have made voluntarily) that in such application the petitioner has nowhere admitted the claim of the respondent No.1 but only stated to have made a mistake and sought pardon. The petitioner did not admit to have caused any damage to the respondent No.1 nor admitted to be ready to pay the claimed compensation but he was seeking only pardon. Moreover, the quantum of the claim for damages was not admitted. The perusal of the Rule-6 of the Order-XII of the Code shows that it speaks about admissions of the fact which should also be clear, unambiguous, unqualified and unequivocal else the same shall not qualify for grant of a decree under order XII rule 6 of the Code, else the court is required to frame issue(s). Reference if any, can be made to the case of Col. Javed Iqbal Lodhi V. Lt. Col. Nadeem Ahmar & others reported in 2007 CLS 831.

11.                         The requirement for an admission to be clear, unambiguous, unqualified and unequivocal, apparently are not available in this case. It is pertinent to mention that an admission is likely to bring penal consequences which cannot be inflicted on ambiguous and unclear things. The contents of the application no where speaks that petitioner admitted claim of respondent No.1 regarding his entitlement to recover an amount of Rs.1500,000/- hence in such eventuality the application cannot be legally termed to have qualified for grant of a decree in favour of the respondent No.1 more particularly when the petitioner has denied to have made an admission in his counter affidavit to application U/O XII Rule 6 CPC.

12.                         Hence, the failure of the learned trial court judge to have itself satisfied about genuineness of such an application or contents thereof within parameter of settled norms is sufficient to bring it out of the scope of Rule-6 of Order-XII CPC. From very inception the concept of fair trial and due process has always been the golden principles of administration of justice and after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void.  It is significant to add there that where things have not been done in the manner, as required by the law and procedure, the same cannot be given legal sanctity particularly when the same are resulting in penal consequences or causing rights of an individual, therefore, we safely hold that basic judgment of the learned trial Court judge has not been in accordance with meaning and objective of Order XII Rule 6 CPC hence the same cannot sustain.

13.                         Needless to add here that absence of the defendant (s) or their admission (s) towards claims of the plaintiff shall not absolve the court (s) from their legal obligation (s) to examine the claim of the plaintiff and his / her entitlement for relief, claimed far. Let this case be examined on this touch stone. There can also be no denial to well settled principle of law that to succeed in a case for damages the plaintiff is legally required to establish two different facts i.e:-

i)    that proceeding, if any, launched against him / her were causeless and malafide;

 

ii)   His / Her entitlement for General and Special damages in consequence of first part;

 

14.                         Thus, even if the plaintiff succeeds in establishing first part yet before insisting the decree he has to establish his / her entitlement for recovery of damages. In the instant case even if it is believed for a minute that there was an admission yet the plaintiff (respondent No.1) was required to prove his entitlement for recovery of claimed amount as damages which is prima facie lacking in the instant case yet the learned trial court recorded the impugned judgment which is a patent mistake on part of the learned trial court judge. Needless to refer to well settled principle of law that none should suffer for an act or mistake of a court.

15.                         The perusal of the impugned judgment of the learned trial court, recorded under order XII rule 6 CPC further speaks that the learned trial court considered the application of the petitioner as an admission equal to allegation / claim of the respondent No.1 to the effect that petitioner moved a false application  against him. However, contents of the application of the petitioner nowhere speaks that petitioner admitted that his application was false. In such a situation the application of the petitioner, if any, was not sufficient to qualify for a decree in a case for recovery of damages.

16.                         In result of what has been discussed above, we are of the considered view that basic judgment of the learned trial court is not sustainable under the law, thus petition in hand was allowed by short order dated 17.09.2013, which is :-

“For reasons to be recorded later on this petition is allowed. The decision of the Appellate Court and the judgment passed by the civil Court are set aside. The case is remanded to the trial Court to decide the case of defamation afresh after affording full opportunity to parties to adduce evidence. The amount that has been recovered by private respondent shall remain with him and shall be subject to the decision in the suit.”

 

                                                                                       J U D G E

Imran/PA                                              J U D G E