ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

Suit No. B – 06 of 2008

Date	Order with signature of Judge

Plaintiff : Transmission Engineering Industries Limited,

through Mr. M. Siddique Shahzad Advocate.

Defendant : Industrial Development Bank of Pakistan,

through Mr. Nabeel Kolachi Advocate.

Date of hearing : 03.12.2013

…………

ORDER ON C.M.A. No. 6793 of 2013

NADEEM AKHTAR, J. – This application under Order IX Rule 9 CPC has been filed by the plaintiff-company for restoration of its CMA No.5271/2013, which was filed for restoration of the Suit, but was dismissed for non-prosecution on 13.05.2013.

2. This Suit was filed by the plaintiff / customer against the defendant / financial institution under Section 9 of the Ordinance for rendition of accounts, recovery of money and damages in the banking jurisdiction of this Court. The Suit was fixed for the plaintiff’s evidence on 28.03.2013, when it was dismissed for non-prosecution as the learned counsel and the witness of the plaintiff were absent. CMA No.5271/2013 was filed by the plaintiff for restoration of the Suit, which came up for orders before the Court on 13.05.2013. On that date also, no one was present on behalf of the plaintiff. Due to this reason, the said application was dismissed for non-prosecution. The present application was filed by the plaintiff on 29.05.2013 praying that the order passed on 13.05.2013 be recalled, and its CMA No.5271/2013 for restoration of the Suit be restored. The application is supported by the affidavit of the learned counsel, wherein he has stated that though the Suit was listed in the cause list of 13.05.2013, but due to oversight it was not noticed by him and due to this reason he failed to appear before the Court on 13.05.2013. He has further stated that CMA No.5271/2013 for restoration of the Suit was filed by him on 15.04.2013, and since the said application did not come up before the Court for quite some time, he checked its status from the office on 28.05.2013 when he came to know that the said application was fixed in Court on 13.05.2013 and was dismissed on the same day for non-prosecution. He has also stated that he came to know about this fact on 28.05.2013 and the instant application was filed by him on the very next day. According to the learned counsel, his absence on 13.05.2013 was not willful and there was no negligence on his part.

3. In support of the application, Mr. M. Siddique Shahzad, learned counsel for the plaintiff, reiterated the contents of his affidavit. He contended that the plaintiff is pursuing its claim against the defendants since the year 2002 ; the plaintiff has a good case on merits ; the Suit was at the stage of evidence ; and, it should be decided on merits rather than non-suiting the plaintiff due to bonafide mistake of its counsel. He submitted that the Superior Courts have consistently held that disputes between the parties should be decided on merits, especially when the Suit has proceeded to an advanced stage. No other submission was made by the learned counsel, nor did he cite any law in support of his submissions.

4. Mr. Nabeel Kolachi, learned counsel for the defendant, opposed the application and the submissions made by the learned counsel for the plaintiff. At the very outset, he raised a preliminary objection with regard to the maintainability of the application by submitting that the same is barred under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance of 2001 (‘the Ordinance’). He contended that the order of dismissal of the Suit was a ‘final order’ in terms of Section 22 ibid against which only an appeal could be filed by the plaintiff, and as such no further proceedings could be taken in the Suit by this Court. The learned counsel relied upon Messrs Makran Fisheries (Pvt.) Limited V/S Platinum Co., 2006 CLD 52, and Shaikh Kamran Maqbool V/S Bolan Bank Limited through Manager and another, 2006 CLD 163, in support of his above submission.

5. Learned counsel for the defendant contended that in the alternative and without prejudice to his above submission, his additional submission would be that the reason given by the plaintiff’s counsel for not attending the Court on the relevant date, does not fall within the ambit of “sufficient cause” contemplated in Rule 9 of Order IX CPC, and as such the application cannot be restored on such ground. According to him, the plaintiff has not pursued this case in a responsible and vigilant manner, as it did not take the matter seriously even after dismissal of the Suit. He contended that the conduct of the plaintiff and its counsel has disentitled the plaintiff from the discretion and indulgence that is exercised by the Courts while considering an application for restoration. In support of this submission, the learned counsel cited and relied upon the cases of (1) Zulfiqar Ali V/S Lal Din and another, 1974 SCMR 162, (2) Muhammad Yousuf V/S Shamsuddin, 1980 SCMR 519, (3) Kh. Ghulam Qadir and another V/S Muhammad Sharif and 11 others, 2000 MLD 2047 (Supreme Court AJ&K), (4) Haji Ahmad Hassan V/S Dr. Mian Aziz Ahmad and 5 others, 1979 CLC 629, and (5) Muhammad Farid V/S Mst. Shahnaz Begum and 5 others, PLD 1987 Azad Jammu & Kashmir 44.

6. I have heard the learned counsel for the parties and have also examined the material available on record. I have also examined the cases cited by the learned counsel for the defendant, two of which are briefly discussed below :

A. In the case of Messrs Makran Fisheries (Pvt.) Limited (supra), a Banking Suit was dismissed for non-prosecution by this Court in its banking jurisdiction as the plaintiff and its counsel were absent. On the next day, the plaintiff filed an application under Order IX Rule 9 CPC read with Section 151 CPC for recalling the order of dismissal of the Suit, on the ground that due to oversight the plaintiff’s counsel could not notice the Suit in the cause list, therefore he did not inform the plaintiff, and due to this reason, they did not appear before the Court. It was held by this Court in the cited case that the Banking Court had finally disposed of the Suit by dismissing it for non-prosecution ; after passing of such order, the Suit was no more pending before the Banking Court ; the order of dismissal was a final order in respect of the parties concerning the Suit ; where procedure to deal with the matter is provided in the Ordinance, the procedure prescribed in CPC is not required to be followed ; under Section 22 of the Ordinance, final order of Banking Court is appealable, therefore the procedure has been provided in the Ordinance to deal with the final order, and as such the procedure laid down in CPC is not applicable ; and, the plaintiff should have challenged the order before the appellate Court and not before the Banking Court. The application for restoration of the Suit was dismissed in view of the above findings.

B. In Shaikh Kamran Maqbool (supra), a banking Suit, which was at the stage of the plaintiff’s evidence, was dismissed for non-prosecution by this Court in its banking jurisdiction, whereafter an application for its restoration was filed by the plaintiff. It was held inter alia that though similar provision as that of Order XVII Rule 3 CPC is not available in the Ordinance, but Section 7(2) thereof provides that in all matters with respect to which the procedure has not been provided in the Ordinance, Banking Court shall follow the procedure laid down in CPC ; by virtue of Section 7(2) ibid, the procedure to decide the Suit in the manner provided in Order XVII Rule 3 CPC was available with Banking Courts ; an order passed under Order XVII Rule 3 CPC could only be attacked by filing an appeal and not otherwise, more so when Section 27 of the Ordinance specifically bars Banking Court from revising or reviewing its own order in particular when the order operates as decision of the Suit in terms of Order XVII Rule 3 CPC ; and, the Suit was dismissed for non-appearance of the plaintiff, but such order being clothed with the mandate of the provisions of XVII Rule 3 CPC, it will only amount to considering of merits of the said order, which exercise could only be done in appeal. In view of the above findings, the application for restoration of the Suit was dismissed.

7. Adverting to the facts of the instant case, the record reflects that on 07.03.2013, time was sought by the plaintiff’s counsel to produce another witness as the witness had passed away, and the matter was adjourned to 20.03.2013 at his request as the last chance ; and, on 20.03.2013 the plaintiff’s counsel again requested for adjournment on the ground that he could not seek instructions from the plaintiff despite his best efforts, and the matter was again adjourned to 28.03.2013 at his request with a caution that if the plaintiff fails to appear on the next date, the Suit will be dismissed for non-prosecution. It is relevant to note that when the Suit was dismissed on 28.03.2013, it was fixed before the Court for the plaintiff’s evidence. In the said order of dismissal, the last chance and the warning given to the plaintiff on 07.03.2013 and 20.03.2013, respectively, were noted, and it was observed that despite fixed date, the plaintiff’s counsel and witness were absent. After noting and observing as above, the Suit was dismissed on 28.03.2013.

8. Rule 2 of Order XVII CPC provides that where on any day to which the hearing of the Suit is adjourned the parties or any of them fail to appear, the Court may proceed to dispose of the Suit in one of the modes directed in that behalf by Order IX CPC, or make such other order as it thinks fit. Order IX of CPC deals with the appearance of parties and consequences of their non-appearance, and there are several Rules in Order IX which empower the Court to dismiss the Suit on the grounds enumerated therein. A Suit can be dismissed under Rule 2 of Order IX CPC if it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court fee or postal charges (if any) chargeable for such service ; under Rule 3 where neither party appears when the Suit is called on for hearing ; under Rule 5 where after a summons issued to the defendant(s) is returned un-served and the plaintiff fails for a period of three months from the date of the return made to the Court to apply for the issue of fresh summon ; under Rule 8 where only the defendant appears and the plaintiff does not appear when the Suit is called on for hearing ; and, under Rule 12 where a plaintiff who was ordered to appear in person does not appear in person or show sufficient cause to the satisfaction of the Court for failing so to appear.

9. It is my considered opinion that this Suit was not dismissed under any of the above mentioned Rules of Order IX CPC or under Rule 2 of Order XVII CPC because, unlike the said Rules of Orders IX and Rule 2 of Order XVII CPC, Rule 3 of Order XVII CPC specifically deals with the situation when either party to a Suit fails to produce evidence. The said Rule 3 provides that where any party to a Suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the Suit, for which time was allowed, the Court may notwithstanding such default, proceed to decide the Suit forthwith. The basic difference between Rules 2 and 3 ibid is that Rule 3 is applicable where adjournment is granted on the application or at the request of the party to do some particular or specified act ; whereas, in case of other adjournments, Rule 2 will be applied. As laid down by the honourable Supreme Court in the cases of Sufi Ghulam Mohyuddin V/S Khushi Muhammad and 2 others, 1997 SCMR 924 and Munawar Hussain V/S Additional District Judge, Jhelum, and 3 others, 1998 SCMR 1067, action under Rule 3 ibid should be taken only if the party acts contumaciously, and despite repeated opportunities, fails to produce its evidence.

10. In the instant case, as observed above and as noted in the order of dismissal of the Suit, time was granted at least on two occasions at the request of the plaintiff to produce evidence, but the plaintiff failed to produce evidence and to comply with the orders passed in this behalf by the Court. Thus, the consequences for failure on the part of the plaintiff in producing its evidence, causing the attendance of its witnesses, performing any other act necessary to the further progress of the Suit, for which time was allowed by the Court, as specifically enumerated in Rule 3 of Order XVII CPC, were fully attracted at the time when this Suit was dismissed. Though it is mentioned in the order dated 28.03.2013 that the Suit was dismissed for non-prosecution, however in the light of the above discussion, I am of the view that for all legal intent and purposes the said order of dismissal was an order of dismissal of the Suit under Order XVII Rule 3 CPC, which was to be deemed to be a judgment on merits and an adjudication in which the rights of the parties with regard to the matters in controversy in the Suit were conclusively determined by the Court. This view expressed by me is supported by the case of Shahid Hussain V/S Lahore Municipal Corporation, PLD 1981 Supreme Court 474, which was followed by this Court in the case of Shaikh Kamran Maqbool (supra). In the cited authority, the Suit was dismissed by the trial Court under Order XVII Rule 3 CPC as the plaintiff had failed to produce evidence when the Suit was fixed for his evidence. The honourable Supreme Court was pleased to hold inter alia that it is clear from the wording of Rule 3 of Order XVII CPC that on the failure of a party to produce its evidence or to do any other act necessary for the purpose of the case, for which time had been allowed to him, the Court shall proceed to decide the Suit forthwith ; an order dismissing the Suit under Order XVII Rule 3 CPC would be deemed to be a judgment on merits unlike an order under Rule 2 of Order XVII CPC ; the decision is obviously an adjudication in which the Court conclusively determines the rights of the parties with regard to the matters in controversy in the Suit between the parties ; that is why it has been held to operate as res judicata between them barring any other Suit relating to the same controversy ; remedy against such an order would be an appeal against the decree ; and, this view is clearly supported by the language of Rule 3 of Order XVII CPC read with the definition of ‘Decree’ in Section 2(2) CPC. The order of dismissal of the Suit under Order XVII Rule 3 CPC was maintained by the honourable Supreme Court in view of the above, and also on the ground that the appeal against the said order was filed by the plaintiff without the certified copy of the decree.

11. Since I have held that the order of dismissal of the Suit was a judgment on merits and an adjudication in view of Shahid Hussain (supra), the only remedy for the plaintiff was to file an appeal against the said judgment under Section 22 of the Ordinance, which specifically provides that any person aggrieved by any judgment, decree, sentence, or final order passed by a Banking Court may, within thirty days from such judgment, decree, sentence, or final order, prefer an appeal to the High Court. This being the position, CMA No.5271/2013 filed by the plaintiff for restoration of this Suit was barred under Section 22 of the Ordinance ; and as the said application was barred, the present application for its restoration is not maintainable and is liable to be dismissed. The cases of Messrs Makran Fisheries (Pvt.) Limited (supra) and Shaikh Kamran Maqbool (supra) relied upon by the learned counsel for the defendant, support the view expressed by me above. In view of the above findings, it is not necessary to discuss the cases cited by the learned counsel for the defendant on the point that sufficient cause has not been shown by the plaintiff for restoration of its application.

12. Foregoing are the reasons of the short order announced by me on 03.12.2013, whereby CMA No.6743/2013 filed by the plaintiff was dismissed with no order as to costs.

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J U D G E