IN THE HIGH COURT OF SINDH KARACHI
Suit No. B – 117 of 2011
Order with signature of Judge
1. For hearing of CMA No.2517/2013 (U/S 5 of the Limitation Act) :
2. For hearing of CMA No.2518/2013 (U/O VII R 11 R/W Sec. 151 CPC) :
3. For hearing of CMA No.2519/2013 (Leave to defend) :
30.10.2013 : Mr. Manzoor-ul-Haq, advocate for the plaintiff.
Mr. Jaffer Raza, advocate for the defendants.
1. This application has been filed under Section 5 of the Limitation Act, 1908, by the defendants, whereby they have sought condonation of the delay in filing their application for leave to defend. This Suit was filed on 15.11.2011. Summons were published in newspapers on 21.11.2011, and simultaneously, summons were also issued through the other modes prescribed in Section 9 of the Ordinance of 2001. The statutory period of 30 days provided in Section 10 of the Ordinance for filing an application for leave to defend, expired on 20.12.2011. Mr. Murtaza Wahab Siddiqui advocate filed power on behalf of defendant No.1 / principal borrower on 09.02.2013, and on 08.03.2013 on behalf of defendant No.2 / guarantor. The application for leave to defend bearing CMA No.2519/2013 was filed on behalf of both the defendants on 08.03.2013. Admittedly, there was a delay of about 14 months and 16 days in filing the application for leave to defend. The grounds on which the defendants are seeking condonation of the delay are that there was a change in the internal management of the defendant No.1 company, due to which the company was unable to defend itself ; the defendants engaged a counsel to represent them in the present Suit, but the said counsel failed to discharge his duties despite having received his fee from the defendants ; and, the defendant No.1 company and its officers were unaware of the mismanagement relating to the present Suit.
It is to be noted that the name of the counsel purportedly engaged by the defendants, as claimed by them, is not disclosed in the application and / or the affidavit filed in support thereof. Likewise, the date on which the said counsel was engaged, has also not been disclosed. It has also not been disclosed as to when the defendants came to know that the said counsel had failed to discharge his duties. As the said counsel had been admittedly engaged by the defendants, the defendants were certainly aware of these proceedings. It is a well established principle of law that, while seeking condonation of delay, the applicant has to submit explanation for the delay of each and every day, which has not been done in this case. As observed above, the present counsel filed his power on behalf of defendant No.1 on 09.02.2013, but the application for leave to defend was filed after about a month, that is, on 08.03.2013. If the justification given by the defendants for the delay prior to 09.02.2013 is accepted for the sake of argument, the delay of about a month after 09.02.2013, has not been explained at all. Learned counsel for the plaintiff has strongly opposed this application by submitting that it is well-settled that any negligence on the part of the counsel does not absolve the party from prosecuting or defending the matter. He has relied upon (1) Messrs S. Malik Traders and another V/S Saudi Pak Leasing Company Ltd., 2009 CLD 171, (2) Yasir Chaudhry V/S Zarai Taraqiati Bank Limited (ADBP) through Branch Manager, 2005 CLD 1701, (3) Messrs Simnwa Polypropylene (Pvt.) Ltd. and others V/S Messrs National Bank o Pakistan, 2002 CLD 1510, (4) Messrs Waqas Enterprises and others V/S Allied Bank of Pakistan and others, 1999 SCMR 85 and (5) Abdur Rehman V/S Farooq, 1989 MLD 951.
The explanation / justification given by the defendants cannot be accepted. Similarly, the submissions made by their learned counsel also cannot be accepted. It is a well established principle of law, which has been consistently held and followed by the Superior Courts, that the parties are bound by the acts and omissions of their counsel, and in case of any negligence on the part of the counsel, the parties cannot claim that they are not to be held responsible. The above views expressed by me are fortified by the following authorities :
i. In the case of Muhammad Sharif Khan and 4 others V/S Board of Revenue, West Pakistan, Lahore, 1970 SCMR 76, it was held by the Hon'ble Supreme Court that even if counsel was at fault, the other side could not be deprived of valuable right accrued to him by lapse of time.
ii. In the case of Zulfiqar Ali V/S Lal Din and another, 1974 SCMR 162, the Hon'ble Supreme Court was pleased to hold that mere fact that a litigant engaged a counsel on his behalf did not absolve him of all responsibilities ; it was as much his duty as that of the counsel engaged by him to see that the case was properly and diligently prosecuted ; and, if he engaged a counsel who was lacking in his sense of responsibility to the Court, it was he who should suffer and not the other side.
iii. In Zahid Ahmed V/S Deputy Director Adjudication and 2 others, PLD 2006 Karachi 252, a learned Division Bench of this Court was pleased to hold that any negligence on the part of the advocate of the party is binding upon him, and if he engages a counsel who is lacking sense of responsibility to the Court, it is he who should suffer and not the other side.
For the foregoing reasons, I do not find any merit in this application, which is dismissed with no order as to costs.
2. This application under Order VII Rule 11 CPC has been filed by the defendants for rejection of the plaint on the grounds mentioned therein. It is now well settled that unless the defendant is granted leave to defend the Suit, he cannot seek rejection of the plaint or file any interlocutory application. This view expressed by me is supported by the following reported cases :
i. In Manzoor Ahmed V/S Agricultural Development Bank of Pakistan, 2005 CLD 653, a learned Division Bench of the Lahore High Court was pleased to hold that the Banking Court was not completely divested of exercising powers under Order VII Rule 11 CPC, but such powers could not be exercised before deciding leave application ; and, the plaint was wrongly rejected before the grant of leave.
ii. In Sh. Nazir Ahmed V/S House Building Finance Corporation, 2002 CLD 1634, it was held inter alia by a learned Division Bench of the Lahore High Court that rejection of plaint without deciding leave application was against the provisions of law ; and, defendant as a matter of right could not defend the Suit unless leave is granted upon filing of proper leave application.
iii. In Waheed Corp. V/S Allied Bank Limited, 2003 CLD 245, it was held inter alia by a learned Division Bench of the Lahore High Court that the Banking Court had to first decide the leave application on merits in either way, and if the Banking Court was of the view that defendant had raised any substantial question of law or fact, then at best could grant leave to defend, but could not dismiss Suit or reject plaint ; the defendant was within its right to have filed application under Order VII Rule 11 CPC after grant of leave and treating leave application as written statement ; and, the defendant could not even file interlocutory / ancillary application and had no right to defend the Suit unless he was allowed by the Court to defend the Suit.
iv. In Sheikh Mohd. Kashif V/S Askari Leasing Ltd., 2004 CLD 1645, it was held inter alia by a learned Division Bench of the Lahore High Court that the defendants, after grant of leave, were within their right to file application under Order VII Rule 11 CPC for rejection of plaint, and if the Court could have reached the conclusion that the case fell under any of the clauses of Order VII Rule 11 CPC, only then the plaint could have been rejected ; and, rejection of the plaint prior to the grant of leave was in conflict with the provisions of Ordinance of 2001.
v. In Habib Bank Limited V/S The English Engineering Co. & others, 2005 CLD 292, the Banking Court rejected the plaint without deciding the leave application, for the reason that the plaintiff did not produce written finance agreement with the plaint. The order of rejection of the plaint was set aside by the learned Division Bench of the Lahore High Court.
vi. In Mohd. Husain V/S SME Bank Ltd., 2005 CLD 323, the Banking Court, without deciding the leave application, rejected the plaint on the ground that the plaint did not disclose any cause of action. It was held by a learned Division Bench of the Lahore High Court that while rejecting the plaint for non-disclosure of cause of action, ordinarily the facts stated in the plaint were to be considered as correct and no data or material provided by defence should be looked into ; and, as the Banking Court had not allowed leave application, plaint could not have been rejected.
vii. In Falcon Ventures (Pvt.) Ltd. V/S Punjab Banking Court–II, 2004 CLD 726, it was held by a learned single Judge of the Lahore High Court that the defendant could not even file interlocutory application in order to raise point of jurisdiction of Court till such time leave to defend was granted ; and, defendant could not file application under Order VII Rule 11 CPC, without securing leave to defend suit.
In view of the well-settled law discussed above, this application, being misconceived, is dismissed with no order as to costs.
3. As this application for leave to defend under Section 10 of the Ordinance of 2001 is miserably barred by time, and the application listed today at serial number 1 for condonation of the delay has been dismissed, this application is dismissed with no order as to costs.
The learned counsel for the defendants has invited my attention to the statement of account filed along with the plaint. The said statement of account has been signed and verified by one Syed Muhammad Farhan, the Senior Officer of the plaintiff. The special power of attorney granted by the plaintiff in favour of Syed Muhammad Farhan is on record. The learned counsel submits that, under Section 9(2) of the Ordinance of 2001, the statement of account ought to have been certified as per the provisions of the Bankers’ Books Evidence Act, 1891. He has specifically relied upon Section 2(8) of the said Act, which provides that the statement of account must be certified by the principal accountant or the manager of the bank with his name and official title. He submits that in case the application for leave to defend filed by the defendants is dismissed, even then the Court has to ensure that the statement of account filed by the plaintiff is in accordance with the above provision. He submits that if the statement of account is not in accordance with the said provision, no decree can be passed in favour of the plaintiff, and in such an event, the Suit should be dismissed. In support of this submission, he relies upon Apollo Textile Mills Ltd. V/S Soneri Bank Ltd., 2012 CLD 337. In view of the law discussed by me while deciding the defendants’ application for rejection of the plaint listed today at serial number 2, the Court cannot look into the objections raised by the defendants, unless leave to defend is granted to them. However, the learned counsel for the plaintiff is put to notice to satisfy the Court on the next date of hearing as to whether or not any relief can be granted on the basis of the statement of account filed and relied upon by the plaintiff. The learned counsel for the defendants is also put to notice to satisfy the Court on the next date of hearing as to whether his objection can be entertained / examined or not.
By consent adjourned to 12.11.2013.
J U D G E