Find a Lawyer

Writ Petition No. 752/R of 1972, decided on 11th March, 1980.

____Chap. 3-A r. 8 ___Daate of hearing, notice of ___Parties not represented by counsel Intimation of pacca hearing fixed ___To be sent by registerea post acknowledgement due to such parties _____Applicants, counsel dying before fixation of case ______Applicants ordered to be informed through registered post ____Neither provision of r. 8 not order of Court complied with ____Held, parties cannot suffer due to act of office-Ex parte proceedings set aside in circumstances of case---Civil Procedure Code (V of 1908), S. 151.

Art. 181-Limitation-Order passed against applicants without notice-Belated filing of application, held, covered by Art. 181 and no delay caused in filing of same.-[Delay].

Raja Azizuddin Ahmad for Writ-Petitioner.

Zafar Iqbal Khan for Respondent No. 1.

This order will dispose of C. M. 1/80 and C. M. 2/80 in W. P. No. 752-R/72 as well as C. M. 1/80 and C. M. 2/80 each in the connected W. P. No. 753-R/72 and W. P. No. 454-R/72.

C. M. I in each of these three writ petitions is for recalling of orders dated 30th June, 1979 and 4th July, 1979 passed in them, whilst C. M. 2/80 is an application for condonation of delay in filing C. M. 1/80.

2. The circumstances leading to the filing of these civil miscellaneous petitions, briefly stated, are that the writ petitions aforementioned in which applicants were respondents were fixed for hearing on 10th June, 1979 ; the respondents had been served for a farzi date some time in 1973 whereupon they engaged late Mian Faqir Muhammad Advocate as their counsel who submitted his power of attorney in each of the three writ petitions.

On 10th June, 1979, no one appeared for the respondents and in view of the demise of late Mian Faqir Muhammad Advocate, counsel for the respondents, an order was passed that since the respondents had not been informed about the fixation of the case on 10th June, 1979, intimation be sent to them through registered post cards for 24th June, 1979. The case was not listed on 24th June, 1979 but appeared in the cause list of 30th June, 1979. It was taken up on 30th June, 1979 and the applicants-respondents were proceeded against ex parte. The case was directed to be heard on 1st July, 1979. It was, however, heard on 2nd July, 1979 and judgment announced on 4th July, 1979.

The applicants-respondents filed the present applications on 23rd January, 1980 alleging that neither they were sent any intimation cards for 24th June, 1979, or for that matter 30th June, 1979 nor were they aware of the order passed on 30th June, 1979 proceeding ex parte against them or had come to know of the hearing of the writ petitions on 4th July, 1979 and that they learnt about the ex parte proceedings and ex parte order only now and have thus made the applications for recalling the aforementioned orders dated 30th June, 1979 and 4th July, 1979.

It has also been prayed that after recalling the orders aforemention ed, the writ petitions may be decided on merits.

In C. M. 2/80, it has been asserted that the applicants-respondents came to know of the orders sought to be recalled only a week ago and after ascertaining the correct position and contacting the counsel they filed the petitions without any delay.

3. The learned counsel for the applicants-respondents contended.

that the applicants-respondents had no notice of the fixation of the case on 10th June, 1979 or 24th June, 1979 and that no intimation even was sent to them by registered post as directed by the Court on 10th June, 1979,

that the case was not listed on 24th June, . 1979 and even if it be assumed that the applicants-respondents should have known of the date, fixed in the matter, viz. 24th June, 1979, they possibly could not know of the listing of the case on 30th June, 1979 when they were proceeded against ex parte and for that matter on the date on which the matter was heard and decided ex parte against them,

that even the name of late Mian Faqir Muhammad Advocate, counsel for the applicants-respondents never appeared in any of the cause lists i. e. The cause list dated 10th June, 1979 or 30th June, 1979. Had the name of the learned counsel appeared in the cause lists even then the present counsel who is looking after the cases of the late counsel would have come to know of the fixation of the cases and would have appeared.

4. In reply, the learned counsel for the writ-petitioners submitted that the application has been filed belatedly and therefore the same cannot be entertained. He further submitted that the cases had been fixed properly and that the applicants-respondents had full knowledge of the fixing of the cases but intentionally avoided to appear.

5. The learned counsel for the applicants-respondents submitted that the question of the application having been filed belatedly did not arise as the application had been made under section 151 of the Code of Civil Procedure and Article 181 of the Limitation Act would apply to the case in hand. He relied in this regard on Malik Muhammad Nazir v. Mian Abdur Rahim and another (P L D 1968 Lah. 79;). He also argued that the allegation that the applicants-respondents had knowledge of the date of bearing is wholly false which is clear from the fact that the respondent in one of the writ petitions had been abroad for the last two years and the affidavit filed by the writ petitioner with his reply shows the deponent having met him.

6. I sent for the Branch Register of the Writ Branch as also the Despatch Register to ascertain as to whether intimation cards had been sent to the applicants-respondents as directed by the Court on l0th June, 1979. Examination of these registers shows that the Writ Branch issued only three intimation cards in each of the three writ petitions on 12th June, 1979 which were addressed to the respondents who are officials of the Settlement Department. Similarly in the Despatch Register at Serial Nos. 99, 100 and 101 three intimation cards had been sent to the official respondents in W. P. No. 752-R/72, whilst Serial Nos. 89, 90 and 97 show despatch of intimation cards to the official respondents in W. P. No. 753-R/72 and at Serial Nos. 91, 92 and 93, the cards have been shown despatched to the official respondents in W. P.' No. 754-R/ 72. No card has been sent to any of the applicants in each of the three writ petitions.

7. The cause list of 10th June, 1979 has been examined. The cause list for the week commencing 9th June, 1979 shows that these writ petitions were fixed at Serial Nos. 14, 15 and t6. The name of Raja Azizuddin Ahmad Advocate, learned counsel for the writ-petitioners only appears in this cause list, whilst the name of Mian Faqir Muhammad Advocate the late counsel for the applicants-respondent;, do not appeal therein. . It has also been correctly asserted by the learned counsel for the applicants-respondents that the cases did trot appear is the cause list of 24th June, 1979 but were tested in the cause list of 30th June. 1979 at Serial Nos. 5, 6 and 7. In this cause list also the name of counsel for the applicants-respondents does not appear

8. In view of the above state of the record the contentions raised by the learned counsel for the applicant- respondent No. 1 obviously have force.

9. It may also be pointed out here that role 8 as added by Item (3) of Correction Pamphlet No. 3 dated Ist April, 1943 in Chapter 3-A. Vol. V of High Court Rules and Orders lays down that intimation of the pacca hearing fixed in a case will be sent by registered post care, acknowledgment due to such parties as are not represented by counsel. The learned counsel for the applicants-respondents who previously represented them having since died, the applicants were relegated to the position of a party not represented by a counsel and thus entitled to be sent intimation cards which was also directed to be done by order of the Court dated 10th June 1979. The: order dated 30th June, 1979 was passed of the basis of a note on the tablak of the cases that intimation cards had been sent to the respondents. The position in this regard has now been clarified and it has been found on examination of the record that no intimation cards were sent to the applicants-respondents. As a result not only Rule 8 of Chapter 3-A of Vol. V of High Court Rules and Orders was not adhered try but the order of this Court dated 10th' June, 1979 was also not complied with. It is a well-settled principle of law that no party can be put to a loss or caused prejudice by an act of the Court. The act of the office of the Court would equally not prejudice any party. In the above view of the matter it is apparent that the applicants-respondents had no notice, or, for that matter, knowledge of the case having been fixed on 10th June, 1979 or 30th June, 1979 or thereafter. The orders dated 30th June, 1979 proceeding ex parte against them and consequently the ex parse orders dated 4th July, 1979 deciding the writ petitions thus cannot stand and must necessarily be recalled.

10. Before parting with the case it would be appropriate to deal with the contentions raised on behalf of the writ-petitioner about the belated filing of the application. Suffice it to say that the authority cited by the learned counsel for the applicants-respondents squarely answers this contention. The applicants-respondents having no notice of the date of hearing, the application would be covered by Article 181 of the Limitation Act and there was thus no delay caused in tiling the same.

11. In view of the foregoing discussion, the orders dated 30th June, 1979 proceeding ex parte against the applicants-respondents as also the ex parte orders dated 4th July, 1979 are recalled in each of the writ petitions and it is directed that the writ petitions be set down for hearing in the first week of May, 1980 after properly listing them by publishing the names of both the learned counsel in the cause list.

M. A. K. Application accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.