application
was filed on 03.10.2011 almost after two years and since the restoration
application was admittedly time barred, therefore, the plaintiff has also filed
application under section 5 of Limitation Act with the prayer that delay in
filing application under order 9 rule 9 C.P.C may be condoned.
3. The
learned counsel for the plaintiff in support of his application moved under Section
5 of the Limitation Act argued that the plaintiff had no knowledge regarding the
dismissal of the suit as the same was ordered to be fixed along with Suit
No.B-808/99 and Suit No.B-1222/99. It was further contended that since previous
counsel had withdrawn his Vakalatnama, therefore, a direct notice should have
been issued to the plaintiff for each and every date but office failed to
comply with this requirement. It was further averred that the plaintiff came to
know about dismissal of the suit through a letter dated 29th August,
2011 received by Chairman of the plaintiff on 02.09.2011 from National
Accountability Bureau Islamabad in which it was inter alia stated that terms of
MOU have been turned down and creditor banks have reactivated their suits. On
this the plaintiff contacted its new counsel Mr. Abdul Bashir Memon advocate who
inquired from Mr. Anwar Tariq advocate when it disclosed that Suit No.B-808/99
and Suit No.B-1222/99 were fixed in court on 13.09.2011 but board was
discharged. On further enquiry it was revealed that present suit was dismissed
on 06.10.2009. So far as the application moved under Order 9 Rule 9 C.P.C is
concerned, learned counsel argued that on 28.8.2001 all three suits were
tagged, and Suit No.B-808/99 became leading suit. On 14.10.2008 counsel for the
plaintiff Mr. Mansoor-ul-Arifeen filed an application for withdrawal of his
vakalatnama which was allowed and order was passed to issue intimation notice
directly to the plaintiff for next date of hearing. It was further averred that
on 05.11.2008 Intekhab Sayed attorney of the plaintiff appeared and requested
for adjournment to engage some other advocate or to pursue Mr.
Mansoor-ul-Arifeen to represent the plaintiff in the matter and on his request,
matter was adjourned for 23.12.2008. Learned counsel also referred to the order
dated 28.05.2009 which shows that on 23.12.2008 matter was fixed but board was
discharged. Thereafter matter was again fixed at least three times in court but
position was same and plaintiff was not present, however, on 28.05.2009 again
this court passed the order as a last opportunity to issue intimation notice to
the plaintiff. Learned counsel argued that in view of order notice was required
to be issued to the plaintiff at Islamabad address but in the whole record
there is no confirmation whether any such notice was received or otherwise
acknowledged by the plaintiff or his representative though in the office note
it is stated that notice was issued. He also took the plea that due to PCO and
induction of new Judges under it, the protest and strikes were being called by
Bar Association and the Judges were restored in the year 2009 and in this
intervening period, regular work was not taken up. In support of his arguments,
learned counsel relied upon following case-law:-
(1)1987 SCMR 732
(Muhammad Ismail v. Faiz Bakhsh and others). It was held that suit
dismissed for non-appearance of plaintiff on date fixed for filing of
replication. Order was set aside on ground that it was not date of hearing of
suit at which either evidence was to be taken or arguments heard, or questions
relating to determination of suit considered, but was merely for some
interlocutory matter to be decided.
(2) 1995
SCMR 218 (Muhammad Qasim and others v. Moujuddin and others). Dismissal of
appeal for non-prosecution on the date which was given by Reader of the court
and not by the Presiding Officer. Order of dismissal of appeal being nullity,
Case was remanded for rehearing of appeal on merits.
(3) 2003
CLD (Lahore) 898 (Muhammad Aslam v. Agricultural Development Bank of Pakistan).
Case was fixed for arguments on application for leave to defend the suit, when
due to absence of the plaintiff as well as his counsel, the Banking Court
dismissed the suit for non-prosecution. If the plaintiff or his counsel was
absent on the day, at the best, the Banking Court could have accepted the application
for leave to defend the suit but was not competent to dismiss the suit on that
date.
(4) 2011
MLD Karachi 266 (Al-Waqar Corporation v. Rice Export Corporation and another). This
is my own judgment in which plaintiff filed application under order IX rule 9
CPC for restoration of suit which was dismissed for non-prosecution. Plaintiff,
along with the said application, filed an application for condonation of delay.
Plaintiff in his restoration application had taken ground that due to ailment
his counsel could not appear to argue the matter and pleaded that he came to
know the factum of dismissal on 25.1.2010 and moved restoration application
immediately on 27.1.2010. Evidence was already recorded in the matter. High
Court allowed applications of the plaintiff subject to payment of cost of
Rs.20,000/- to the defendant and restored suit to its original position.
(5)
SBLR 2012 (Sindh) 1021 (Province of Sindh & another v. Anwar).
Applications seeking restoration were filed within a period of limitation,
whereas no objection in this regard was filed by the respondent. For the
purpose of disposal of restoration application it was to be seen as to whether
the applicant had shown sufficient reason for non-appearance on the fateful
date.
(6)
2012 CLC (Sindh) 229 (M/s. United Bank Ltd. & others v. M/s. Plastic
Pack (Pvt) Ltd. & others). It was held that Court has inherent powers
under Section 151 CPC to make such orders as may be necessary for the ends of
justice and to prevent abuse of the process of the court. Such are enabling
provisions and powers thereunder can be exercised by Court to cover ostensibly
impossible situations for complete dispensation of justice, for which CPC,
1908, has been designed but despite the best efforts of draftsman to cater for
all possible situations, if it is found lacking in meeting some eventualities,
the court can act ex delicto justitiae, supply the omission in the procedure,
adopt methodology for effectually carrying out the purpose in view.
(7) 2012
CLC (Sindh) 556 (Jangoo v. Fasahatullah Khan & others). No substantive
step or proceedings in the suit itself was contemplated or required to be
undertaken on that date. Court at the most could deal with the interlocutory
matters and not the suit itself in its entirety. Unless the suit had been fixed
for some substantive hearing or proceedings, it could not have been dismissed
for non-prosecution.
(8) PLD
2012 Sindh 110 (Pehalwan Goth Welfare Council v. District Co-ordination Officer
(DCO), Karachi & others). Plea raised by plaintiff was that when suit
was dismissed for non-prosecution, it was fixed for deciding of application and
not for issues, evidence or otherwise for hearing of the main case, therefore,
it could not be dismissed or non-prosecution. Suit was not fixed either for
settlement of issues nor it was fixed for evidence of plaintiff and such suit
could not be dismissed for non-prosecution.
4. The
learned counsel for the defendant No.1 argued that applications are not
supported by proper affidavit as required under Sindh Chief Court Rules. It was
further contended that applications are hopelessly time barred. The plaintiff
failed to lead evidence and sought number of adjournments on different grounds.
In compliance of order dated 14.10.2008 intimation was issued to the plaintiff for
05.11.2008 on which date attorney appeared and sought adjournment to engage
counsel. Thereafter the suit was fixed numerous times but no one appeared for
the plaintiff nor was any counsel engaged by the plaintiff. Due to withdrawal
of vakalatnama by earlier counsel, it was duty of the plaintiff to engage
another advocate. Learned counsel denied that there was any disturbance in the
court on that particular date due to PCO or induction of Judges. On the
contrary he argued that courts were functioning normally. It was further
averred that the plaintiff has taken contradictory plea regarding date of
knowledge of dismissal of suit. On one hand it was stated that the plaintiff
came to know on 01.10.2011 while in Paragraph-2 of application under section 5
of Limitation Act, it is stated that plaintiff came to know about dismissal of
suit through a letter dated 29.08.2011 which was received by Chairman of the
plaintiff on 02.09.2011. In support of his arguments he relied upon following
case-law:-
PLD 2003 Supreme
Court 628 (Sheikh Muhammad Saleem v. Faiz Ahmad). It was held
that person seeking condonation of delay must explain delay of each and every
day to the satisfaction of the court and should also establish that delay had
been caused due to reasons beyond his control. When the delay in filing the
appeal was seemingly due to mere negligence and carelessness of the appellant
who failed to pursue his case with due diligence, he was not entitled to any indulgence.
Door of justice was closed after the prescribed period of limitation had
elapsed and no plea of injustice, hardship or ignorance could be of any avail
unless the delay of each day was properly explained and accounted for.
5. The
learned counsel for the defendant No.4 argued that no power of attorney or
board resolution is attached with the applications to show that Intekhab A.
Sayed was authorized to file application for restoration of suit on behalf of
the plaintiff. The learned counsel also referred to various dates of hearing
and argued that earlier counsel withdrawn his vakalatnama and on 05.11.2008
alleged attorney of the plaintiff was present in Court but he failed to engage
counsel. Thereafter notices were issued but the plaintiff was called absent and
ultimately suit was dismissed for non-prosecution. Learned counsel further
argued that the plaintiff has attached copy of letter written by NAB on
29.08.2011 in which reference of their previous letter dated 13.06.2011 is
mentioned which shows that the plaintiff was fully aware in the month of June
2011 regarding dismissal of suit and there was no occasion to wait for further
letter or correspondence of NAB if the plaintiff was so keen and interested to
file the application for restoration or revival of the suit. He further argued
that under Section 27 of Financial Institutions (Recovery of Finances)
Ordinance, 2001, suit cannot be restored and proper remedy was to file an appeal
under Section 22. Learned counsel also referred to Article 163 of Limitation
Act which provides 30 days’ time for applying the setting aside the dismissal
of suit on default of appearance and time for applying the setting aside the
order starts from date of dismissal of the suit. In support of his arguments,
he relied upon following case-law:-
(1)
2006 C L D 52 (Kar) (Messrs Makran Fisheries (Pvt.) Limited v.
Platinum Co). Provision of Section 27, Financial Institutions (Recovery of
Finance) Ordinance, 2001 are subject to Section 22 of the Ordnance under which
an appeal is provided against final order of the Banking Court. Procedure as
laid down in Order IX Rule 9 read with Section 151 CPC is not applicable. Banking
Court, in the present case had finally disposed of the suit as dismissed for
non-prosecution, as such after passing said order, the suit was no more pending
before the Banking Court.
(2) 2006
CLC 163 (Kar.) (Shaikh Kamran Maqbool v. Bolan Bank Limited through Manager
& another). Procedure to decide suit in the manner provided in Order
XVII Rule 3 CPC was available with Banking Court and order passed by Banking
Court, could only be attacked by filing an appeal and not otherwise since
Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001,
had specifically barred Banking Court from revising or reviewing its own order,
in particular when order would operate as decision of suit in terms of Order
XVII Rule 3 CPC. Impugned order though was passed on account of non-appearance
of plaintiff, but such order being clothed with mandatory provisions of Order
XVII Rule 3 CPC, it would amount only to considering of merits of impugned
order which exercise could only be undertaken in appeal.
(3) 1991
MLD 63 (AJ&K HC) (Abdul Karim and 2 others v. Rehm Ali). In order to
seek condonation of delay, the plaintiff was under a heavy duty to satisfy the
judicial mind of the Court that he was restrained by force of circumstances
beyond his control to move the Court within the stipulated period for
restoration of his suit.
(4)
PLD 1970 (Lahore) 412 (Mst.Ghulam Sakina & others v. Karim Baikhsh
& others). Section 151 cannot be invoked to set aside dismissal
(obiter). Expression ……..when the suit is called on for hearing. Word “hearing”
implies taking down of evidence or hearing arguments or where question relating
to the determination of suit considered. Court can dismiss suit under Order IX
rule 8 only on date which is fixed for hearing of suit.
(5)
PLD 1989 (Karachi) 1 (Sabzal and others v. Bingo and others). For
restoration of suit Article 163 applies while in case of setting aside decree
Article 164 is applicable. Application for restoration of suit, therefore, has
to be filed within thirty days from date of its dismissal. Article 181
contemplates a situation where no period of limitation is prescribed in the
Schedule of the Limitation Act or Section 48 of CPC and does not apply in case
of restoration of suit.
(6)
2009 SCMR 1030 (Mian Muhammad Asif v. Fahad & another). Dismissal
of suit for non-prosecution. Article 181 of the Limitation Act, 1908 in
circumstances, was not attracted and courts correctly applied Article 163 of
the Limitation Act, 1908 while considering the application for condonation of
delay in moving the application for restoration of the suit. Issue of limitation
lost its importance when party failed to show any cause for his absence and
that of his counsel on the relevant date. Even otherwise, the court was not
bound to restore the suit merely because the restoration application was within
time.
(7)
2009 SCMR1435 (Abdul Rashid v. Director General, Post Offices, Islamabad
& others). It is duty and obligation of aggrieved person to pursue his
legal remedy with diligence and to satisfy conscience of Court or Quasi-Judicial
Authority for approaching respective forums beyond prescribed limitation. In
case aggrieved person does not avail remedy within prescribed period then
vested right accrues to other side which could not be taken away lightly even
if objections to that effect were not raised by opposite party.
6. Heard the arguments.
Learned counsel for the plaintiff Mr.Mohammad Anwar Tariq made much emphasis
that this suit was being fixed with Suit No.808/1999 and Suit No.B-1222/1999.
In order to verify this fact I called record and proceedings of both the suits
to examine this fact. No doubt the instant suit was being fixed along with
aforesaid suits. It is also a fact that the present plaintiff is defendant No.1
in both the aforesaid suits and their directors/guarantors have also been
impleaded. On 14.10.2008, the earlier counsel for the plaintiff withdrawn his
Vakalatnama and it is also a fact that the suit in hand was dismissed on
6.10.2009 for non-prosecution. The record and proceedings of all three suits
clearly demonstrate that this suit along with Suit No.B-808/1999 and Suit
No.1222/1999 was being fixed continuously from 14.10.2008 to 6.10.2009. Since
in the suit in hand the plaintiff failed to lead evidence or to produce witness,
the suit was dismissed for non-prosecution. I also noted that this suit was
being fixed for evidence of plaintiff since 7.5.2003, but the plaintiff failed
to adduce any evidence till the date of the dismissal of the suit for
non-prosecution. This fact is also reflecting from the record that the Suit
No.B-808/1999 and Suit No.1222/1999 in which the plaintiff was defendant No.1
though fixed on 6.10.2009, but these two cases were discharged which is transpiring
from Reader’s diary. It is also a fact that the leave to defend application
filed by the plaintiff in Suit No.B-808/1999 was dismissed for non-prosecution
on 23.5.2000 which was subsequently, restored on 29.8.2000 by consent and the
leave to defend application is still pending and nobody was appearing to
represent the plaintiff in that suit also. However, on 13.10.2011 Mr.Mohammad
Anwar Tariq, Advocate filed his Vakalatnama for defendant Nos.1 (plaintiff) and
defendant Nos.2 and 3.
7. Now I would
like to take up the Suit No.B-1222/1999, in this case also the Vakalatnama was
withdrawn on 14.10.2008 and as I observed earlier this suit was also being
fixed together and even on 6.9.2009 when the suit in hand was dismissed, this
suit was fixed but it was discharged. In this case also the present plaintiff
is defendant No.1 and leave to defend application (CMA No.9606/1999) was
dismissed vide order dated 25.8.2004 and the plaintiff was directed to file
statement of account showing the liabilities of defendants within two weeks. In
this case also after discharging the Vakalatnama of Mr.Mansoor-ul-Arfin, Advocate
vide order dated 14.10.2008, Mr.Anwar Tariq, Advocate has filed Vakalatnama for
defendant Nos.1 (plaintiff) defendant No.2 on 13.10.2011. After analyzing the
Order Sheet/Reader’s diary etc. there is no germane or nexus to show that since
the present suit was being fixed along with two other suits in which the
present plaintiff was defendant, the present suit could not have been dismissed
for non-prosecution, when it is clear that on 6.10.2009 all suits were fixed in
court and out of which two were fixed for hearing but the board was discharged
and the suit in hand in which the plaintiff was to lead evidence was dismissed
for non-prosecution. This is not the case of the plaintiff that on the date of
dismissal his advocate was present in two other suits but in all three suits
there was no appearance for and behalf of the plaintiff or in the capacity of
defendant in two other suits.
8. At this
juncture, I would like to point out that CMA No.7273/1999 was filed by the
plaintiff for consolidation of this suit with Suit No.808/1999, which
application was dismissed. Though the order sheet does not transpire any date
when this order was passed, however, the Reader diary shows that this order was
passed on 8.5.2002, therefore, this argument of the learned counsel is also
misconceived that the Suit No.808/1999 was being treated as leading suit. On
the contrary there was no consolidation order passed by this court.
9. So far as
the other allegations that there was a heavy rain or there was some disturbance
in the judiciary on account of PCO on that particular date i.e. 6.10.2009 the
plaintiff has failed to point out any disability which prevented him not to
appear and or lead evidence. The case of the plaintiff is that after withdrawal
of Vakalatnama by the earlier counsel no notice was issued to the plaintiff to
cause appearance of plaintiff. It is evident from the order dated 5.11.2008
when one Intekhab Sayed attorney of the plaintiff appeared in court in person
and requested for adjournment to engage some other advocate or to pursue
Mr.Mansoor-url-Arfin to proceed the matter and in his presence fixed date was
given to him. However, on 23.12.2008 the board was discharged. Again on
28.5.2009 order was passed to issue intimation notice to the plaintiff. Again
intimation was issued for 18.8.2009 on which date the matter was discharged for
want of time. The crux of the arguments of the learned counsel for the
plaintiff is that for each and every date notice should have been issued to the
plaintiff is a misconceived argument. If the plaintiff was so serious to pursue
and prosecute the case then it was their sole responsibility and obligation and
or duty to engage counsel so that their case may be decided on merits. No
burden can be shifted upon the court to send notice for each and every date,
when the specific date and reasonable time was given to their attorney either
to engage counsel or to pursue their earlier counsel to proceed the case.
10. It was the
responsibility of the plaintiff to vigilantly pursue the case and not to act
recklessly which has been done in this case. Though the suit was dismissed on
6.10.2009 but the restoration application was filed on 3.10.2011, which is
admittedly time barred. Article 163 of the Limitation Act provide 30 days’ time
for setting aside the order dismissing the suit in default of non-appearance
and right to apply accrues from the date of dismissal. In order to seek
condonation of delay the plaintiff has also filed the application under Section
5 of the Limitation Act and pleaded the knowledge of dismissal of the suit from
the letter dated 29.8.2011, which was written by NAB to the Chairman of
plaintiff. In the letter of NAB violation of a MOU was attributed to the
plaintiff with the direction to pay balance amount by 15.9.2011 failing which
NAB will reinitiate investigation proceedings against the plaintiff. Along with
this letter a letter of NBP dated 29.7.2011 is also attached to show that
Executive Vice President of NBP informed the NAB that the plaintiff failed to
fulfill the terms of MOU and the creditor Bank have also re-activated their
recovery suits. The NAB letter does not refer any suit, but it is merely relate
to re-initiation of investigation against the plaintiff. While in the NBP’s
letter also no particular suit number is mentioned, but it is mentioned that on
account of non-fulfillment of MOU the creditor Banks have decided to reactivate
the recovery suit. On plaintiff’s own showing Suit No.808/1999 and Suit
No.1222/1999 are being fixed in court regularly out of which in one suit the
leave to defend application of the plaintiff is pending and in another suit the
leave to defend application was dismissed, so the question of reactivation of
suits does not arise when they are already activated.
11. So far as
the condonation of delay is concerned, the plaintiff on its own pleaded that on
came into knowledge of dismissal of this suit, through letter dated 29.8.2011,
which was allegedly received to them on 2.9.2011 and the condonation
application along with restoration application both were filed on 3.10.2011. It
is quite strange to note that the suit was dismissed on 6.10.2009 and the
plaintiff came to know the dismissal on 29.8.2011, but in the intervening
period no efforts were made by the plaintiff to watch or to take care of their
suit. Almost two years lapsed but the plaintiff was so reckless and careless to
find out the fate of the suit and their conduct shows that in these two years
period they never bothered to pursue or verify the status of their own suit. This
cannot be treated a sufficient cause that a party who is himself a plaintiff has
to wait for the information of dismissal of their suit through different source
and only the letter of NAB they awakened which is otherwise not at all relevant
to the dismissal rather its parameters are merely confined to the alleged MOU
and it is non-fulfillment on the part of the plaintiff.
12. There is
no strait-jacket formula for determining what ‘sufficient cause’ is. The
expression sufficient cause so as to grant relief under Order 9 Rule 9 CPC has
been left to the wisdom, good sense and discretion of the court. The word
‘sufficient cause’ for restoration of suit is not susceptible of 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, 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. Where suit is dismissed for default it is the duty of that party
or counsel to show sufficient cause as to why case was not prosecuted on the
relevant date. It is well settled that 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 should suffer and not the other side. In this case
the earlier counsel withdrawn his Vakalatnama and on subsequent date attorney
of the plaintiff appeared and sought time to engage counsel and thereafter,
became out of scene and at least for two years did not take any pain to watch
out or find out the stage or status of the suit and now after considerable time
when valid right accrued in favour of the defendant, applied restoration with
application for condonation of delay. There are two different aspects involved
in this case for the purposes of restoration of suit and condonation of delay, the
plaintiff has to demonstrate the sufficient cause whereby he was prevented not
to diligently pursue the suit while for the purposes of condonation of delay
under Section (5) of the Limitation Act, delay of each and every day has to be
explained. If condonation is allowed even then it does not mean that
restoration of suit will also be achieved, but this remedy is subject to the
proof of sufficient cause, which plaintiff has failed to establish.
13. Learned
counsel for the plaintiff relied upon various case law which are
distinguishable to the facts and circumstances of the present case. In the case
of Mohammad Ismail, the matter was fixed for filing replication and for
deciding interlocutory application, but the whole suit was dismissed. In the
case of Mohammad Qasim & others the appeal was dismissed for
non-prosecution on the date which was given by the Reader. In another case of
Mohammad Aslam the matter was fixed for hearing of leave to defend application
but due to absence of plaintiff the suit was dismissed. In my own judgment in
case of Al-Waqar Corporation the evidence was already recorded and the matter
was fixed for arguments only but the suit was dismissed for non-prosecution on
18.2.2009, as the plaintiff failed to adduce evidence, but the restoration
application was filed with short delay on 27.01.2010 and not after two years.
In the case of Province of Sindh (supra) the court held that for the purposes
of disposal of restoration application it was to be seen as to whether the
applicant had shown sufficient reason for non-appearance on the fateful date
and such application has been filed within a period of limitation. In the case
in hand no sufficient cause has been shown except that after two years the
plaintiff came to know the dismissal through NAB letter and admittedly the
application is barred by time. In the case of United Bank Ltd., the court held
that the inherent powers under Section 151 CPC may be exercised to meet the
ends of justice and to prevent abuse of process of court. In the case of
Jangoo, the court held that when the suit was dismissed the matter was fixed
for interlocutory nature and the suit was not fixed for some substantive
hearing of proceedings and lastly in the case of Pehalwan Goth Welfare Council
it was held that when the suit was dismissed for non-prosecution it was fixed
for deciding the application and not for issues, evidence or otherwise. In all
aforesaid cases it was never held that when plaintiff failed to lead evidence
repeatedly the suit cannot be dismissed for non-prosecution rather most of the
cases in which restoration application was allowed were fixed for hearing of
interlocutory application and not for settlement of issues or
evidence/arguments.
14. The case
of Shaikh Mohammad Saleem relied upon by the counsel for the defendant No.1,
the hon’ble Supreme Court expounded the guideline that person seeking
condonation of delay must explain delay of each and every day to the
satisfaction of the court and should also establish that delay had been caused
due to reasons beyond his control, which the plaintiff has failed to make out
in the case in hand.
15. Learned
counsel for defendant No.4 referred to the cases of Abdul Karim, Mst.Ghulam
Sakina, Sabzal, Mian Mohammad Asif and Abdul Rashid (supra), in which the court
held that while seeking condonation, the plaintiff is under a heavy duty to
satisfy the judicial mind that he was restrained by force of circumstances
beyond his control. The Word “hearing” implies taking down of evidence or
hearing arguments and the Court can dismiss the suit under Order IX rule 8 only
on date which is fixed for hearing. It was further held that for restoration of
suit Article 163 of the Limitation Act applies and application for restoration
should have been filed within thirty days from the date of its dismissal. In
one case it was held that it is the duty and obligation of aggrieved person to
pursue this remedy with diligence and to satisfy conscience of court for
approaching respective forums beyond prescribed limitation. In case aggrieved
person does not avail remedy within prescribed period then vested right accrues
to other side which could not be taken away lightly even if objections to that
effect were not raised by opposite party.
16. Learned
counsel for the defendant No.4 further referred to two more case law reported
in 2006 CLD 52 and 2006 CLC 163 (supra) in both case law learned Single Judges
of this court held that provision of Section 27 of Financial Institutions
(Recovery of Finances) Ordinance, 2001 are subject to Section 22 of the
Ordinance under which an appeal is provided against final order of the Banking
Court. Hence, procedure laid down under Order IX Rule 9 CPC read with Section
151 CPC is not applicable. The ratio of both judgments cited above is that the
order passed by the Banking Court could only be attacked by filing an appeal as
Section 27 of the aforesaid Ordinance has specifically barred the Banking Court
from revising or reviewing its own order in particular when order would
operate as decision of the suit in terms of Order 17 Rule 3 CPC.
17. In this
regard I would like to point out that the present suit was filed under the
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act,
1997, which was repealed by Financial Institutions (Recovery of Finances)
Ordinance, 2001. Under sub-section (6) of Section 7 of the 2001 Ordinance, it
is clearly provided that all proceedings pending in any Banking Court under the
repealed Ordinance shall stand transferred or to be deemed to be transferred
and heard and disposed of by the Banking Court having jurisdiction under 2001
Ordinance. Under sub-section (2) of 2001 Ordinance it is clearly provided that
the Banking Court shall in all matters with respect to which the procedure has
not been provided, follow the procedure laid down in the CPC. Section 27 of
Financial Institutions (Recovery of Finances) Ordinance, 2001 relates to the
finality of order and provides that subject to the provision of Section 22 no
court or other authority shall revise or review or call or permit to be called
into question any proceeding, judgment, decree, sentence or order of the
Banking Court or legality or propriety of anything done or intended to be done
by the Banking Court in exercise of jurisdiction under this Ordinance. The
provision of appeal against the judgment, decree, sentence or final order
passed by Banking Court is provided under Section 22 of the Financial
Institutions (Recovery of Finances) Ordinance, 2001. With great respect in my
opinion Section 27 of the Ordinance does not restrict Banking Court itself but
it clearly provides that subject to Section 22 no court or other authority
shall revise or review or call in question any proceedings, judgment or decree
or sentence or order of Banking Court. The dismissal of suit in non-prosecution
as done in this case did not decide the rights of parties on merits and even
this order cannot be considered a decision under Order 17 Rule 3 CPC, but the
suit was only dismissed due to default and or non-adducing the evidence. Under
the Article 37 of the Constitution of Pakistan, it is the responsibility of
State to ensure inexpensive and expeditious justice. If Section 22 of
Financial Institutions (Recovery of Finances) Ordinance, 2001 is read in a way
that after dismissal of suit for non-prosecution a Banking Court cannot restore
the suit then this would be very harsh and irrational interpretation which lead
to an absurdity that the order dismissing the suit for non-prosecution which is
neither a judgment nor decision or decree should be challenged in appeal in
which also there would be only probability that the appellate court after
hearing the parties at best either would dismiss the appeal or restore the suit
on sufficient cause and remand the matter back to the banking court to proceed
the case on merits as no conclusive decision/decree and or judgment of the
trial court would be before the appellate court to decide the rights of the
parties except that the suit was dismissed for non-prosecution without touching
merits of the case. In the case in hand I am Banking Court as defined under
sub-clause (ii) of clause (b) of Section 2 of the Financial Institutions
(Recovery of Finances) Ordinance, 2001 and in my humble opinion there is no bar
under Section 27 of the said Ordinance that the Banking Court cannot restore the
suit dismissed for non-prosecution. Though it is a different aspect that while
restoring the suit it is incumbent upon the Banking Court to see whether
sufficient cause has been made out or not and in case of application barred by
limitation, the Banking Court has also to see whether delay of each and every
day has been explained or not to the satisfaction of the court, which in my
understanding the plaintiff has failed to make out in this case. Sufficient
cause has been given a meaning to embrace all relevant circumstances. The
question would be whether the plaintiff honestly intended to be in court and
did his best to get there in time, but for intervention of some inevitable
cause he failed to appear which is sufficient cause inviting order for restoration.
No sufficient cause has been shown therefore, I am not inclined to restore the
suit.
18. As a
result of above discussion, both the applications are dismissed.
Karachi:-
Dated 27-02-2013 Judge
Date Order with signature of Judge