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P L D 2003 Supreme Court 828

 

Present: Iftikhar Muhammad Chaudhry, Rana Rhagwandas and Syed Deedar Hussain Shah, JJ

 

DUR MUHAMMAD and others—Petitioners

 

Versus

 

ABDUL SATTAR—Respondents

 

C.R.P. No.139 of 2002 in C.A. No.1463 of 1996, decided on 23rd May, 2003.

 

(On review from the judgment dated 27-9-2002 passed by this Court in Civil Appeal No. 1463 of 1996).

 

Per Rana Bhagwandas, J.; Syed Deedar Hussain Shah, J. agreeing; Iftikhar Muhammad Chaudhry, J., Contra–

 

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Salahuddin Shaikh, Advocate-on-Record for Review Petitioners.

 

Shaikh Zameer Hussain, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent/Appellant.

 

Date of hearing; 5th May, 2003.

 

 

JUDGMENT

 

RANA BHAGWANDAS, J. —Respondents in C.A. No.1463 of 1996 seek review of the judgment dated 27-9-2002 passed in the above Appeal No. 1463 of 1996 which was heard on 10-9-2002 and the judgment announced on 27-9-2002.

 

2. At the very outset, it may be pertinent to note that the petition for review of the judgment is barred by six days and the principal ground urged in the application under section 5 of the Limitation Act, 1908 read with Order XXXIII, Rules 6 of the Supreme Court Rules 1980 (hereinafter referred to as the Rules 1980) appears to be that the Advocate-on-Record is based in Lahore. The cause list notifying the hearing of the appeal on 10-9-2002 was circulated to him on Saturday i.e. 7-9-2002 whereafter he tried his level best to inform Ch. Mushtaq Ahmed Khan learned Senior Advocate Supreme Court about the fixation of the case but it transpired that he had already left for Islamabad to appear in various cases on 9th and 10th September, 2002 before different Benches. Essentially, emphasis of the counsel is that the Advocate-on-Record cold not establish contact with the learned Advocate Supreme Court and he bona fide believed that as the counsel was already in Islamabad, he might appear in the titled case as well on the date fixed. Next ground agitated in support of the prayer for enlargement of time is that the judgment was announced on 27-9-2002 for which date no due notice under the provisions of Rules 1980 was served either upon the respondent or his Advocate-on-Record. The petitioners before us according to their stance came to know on 28-10-2002 that the appeal had been decided in favour of respondent/appellant when he approached them for delivery of the suit property. On 30-10-2002 petitioners enquired from the office when it transpired that the appeal was heard on 10-9-2002 ex parte and reserved judgment was announced allowing the appeal on 27-9-2002. They submitted application for certified copy on the same day which was delivered to them on 2-11-2002 on which date this review petition was filed.

 

3. Pursuant to the notice, learned counsel for the respondent/appellant has filed parawise objections and reply to the application for extension of time and the review petition.

 

4. We have heard learned counsel .for the parties on the limited question of limitation in order to determine whether sufficient cause has been shown for enlargement of time in the facts and circumstances of the case. It may be noted that earlier Mr. Asif Saeed Khosa, learned Advocate Supreme Court had been engaged to represent the respondent through Sheikh Salahuddin learned Advocate-on-Record. Mr. Khosa was elevated to the Bench of Lahore High Court, Lahore on 21-5-1998 whereafter no Advocate was engaged by the respondent as there is no nomination on record by the Advocate-on-Record. However, it appears that on 11-6-2002 Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court had appeared before the Court and sought an adjournment on behalf of the petitioners/respondents but admittedly he did not turn up on the date of hearing of the appeal. Undoubtedly cause list was issued in advance and admittedly it was noted by the learned Advocate-on-Record at least on 7-9-2002 that the appeal was listed before the Court for hearing on 10-9-2002. Since he had not nominated any Advocate in writing, it is difficult to believe that he tried his best to keep in touch with the learned counsel through whom instant petition has been filed. Even otherwise, it is hard to believe that he could not establish any contact with the learned counsel for four days. In this highly developed stage of satellite communication and advanced technology, learned Advocate-on- Record as well as learned counsel are connected by phone, fax and by mobile phone, therefore, it should not to be difficult to convey the information regarding listing of the appeal to the counsel at Islamabad. To out knowledge, even the Supreme Court Bar Association has adequate arrangement of receiving messages on telephone and passing on the same to the members of the association at Islamabad. Alternatively, Registrar or the fixture branch of this Court could have been intimated about the inability of the learned Advocate-on-Record to inform the learned counsel accordingly (who was yet to be nominated). Having said all this, it was incumbent upon the learned Advocate-on-Record to appear himself and to apprise the Court of the situation. According to longstanding practice of this Court an Advocate-on-Record is required to be prepared with the case in presence as well as in absence of his counsel. We are in no manner of doubt that in all probability. Ch. Mushtaq Ahmed Khan learned Senior Advocate Supreme Court had not been engaged otherwise we are fully convinced with his sense of responsibility and devotion of duty obliging him to keep a track of the proceedings if actually engaged more particularly when he happened to be available at Islamabad. See Altaf Hussain v. Muhammad Nawaz (2001 SCMR 405).

 

5. An argument was raised that after the reservation of the judgment the respondent and his Advocate-on-Record had no due notice of the date of announcement of judgment in terms of Order X, rule 1 of the Rules, 1980 in that no notice was personally served on him or his learned Advocate-on- Record. Suffice it to say office record unequivocally contradicts the belated plea in that supplementary cause list issued by the office on 26-9-2002 for announcement of judgment on the next day was duly fixed to the Assistant Registrar, Branch Registry at Lahore and in the normal course of business the list was duly affixed on the notice board of the Court which is deemed to be sufficient notice to all concerned. There is no requirement of law that a party who has chosen not to prosecute the cause even after intimation of listing of the case and lapse of more than two weeks keeping away from the proceedings should necessarily be personally sewed with the notice of announcement of the judgment. Notice to Advocate-on-Record in line with the provisions of Order XIX, rule 6 of the Rules would be sufficient compliance with the requirement of law.

 

6. We are firmly of the view that notice to Advocate-on-Record through cause list was sufficient and adequate within the meaning of the Rules, 1980. Having known the listing of the hearing of the appeal on 10-9-2002 it was incumbent and obligatory upon the respondents to enquire about the fate of the appeal and on coming to know that the judgment had been reserved to make an honest endeavour for rehearing of the appeal on merits. We are not unmindful of the principle of law that a cause must be decided on merits after affording an opportunity of hearing to all the parties but it is equally well recognized principle of law that the law and equity help those who are diligent and vigilant in the prosecution of their remedy rather than the indolent and careless litigants. Since the respondents manifestly demonstrated an attitude of complete indifference and inattention by their conduct, we are certainly of the view that no good ground has been made out for the exercise of discretion for enlargement of time. In any event no sufficient cause has been shown within the contemplation of the term for extension of time in the instant case.

 

7. There is another angle of the case namely the appeal in, which leave to appeal was granted as far back as 10th July, 1996 and heard after the passage of more than seven years finally setting at rest the controversy between the parties. After all finality is attached to the judgments of the Courts in order to avoid a state of uncertainty and indecisiveness. Since the appeal was finally decided and rights of the parties determined on merits it would not be in the fitness of things to unsettle the settled law and encourage the hearing of cases after the lapse of period prescribed for setting the law into motion.

 

8. Learned counsel for the petitioners relied upon Hyderabad Development Authority v. Abdul Majeed (PLD 2002 SC 84) but it is hardly applicable in the circumstances of the case. Likewise definition of the term “due notice” in Words and Phrases, Volume 13-A, Corpus Juris Secundum, Volume 28 and “Black’s Law Dictionary”, Sixth Edition is equally not attracted in the facts and circumstances of the case.

 

9. For these reasons application for condonation of delay is devoid of any merit. Resultantly, the review petition is dismissed.

 

(Sd.)

RANA BHAGWANDAS, J.

 

IFTIKHAR MUHAMMAD CHAUDHRY, J.-–I had an opportunity to go through the proposed judgment authored by my brother Mr. Justice Rana Bhagwandas but, I failed to persuade myself to agree with the findings recorded therein for declining to enlarge period of filing instant review petition.

 

2. Facts of the case need not to be mentioned in detail except noting that, petitioners, by appending an application alongwith review petition, sought condonation of delay of 6 days in filing the petition, on the premises of lack of knowledge about pronouncement of judgment under review dated September 27, 2002.

 

3. The application for condonation of delay has been contested squarely by the respondent, agitating therein that cause list issued by the office on September 26, 2002 notifying announcement of the judgment on September 27, 2002 was duly circulated at the office of Sub-Registry of this Court at Lahore, and as per prevailing practice Advocate-on-Record of the petitioners, based at Lahore, must have noted the date for the announcement of the judgment thus petition merits dismissal as no ground for condonation of the delay has been made out.

 

4. Admittedly, office issued cause list on September 26, 2002 notifying the date for announcement of the judgment on September 27, 2002 and except guess hypothesize that Advocate-on-Record of the petitioners might have noted the date at Lahore on September 26, 2002 about the announcement of the judgment on September 27, 2002 at Islamabad, there is no material on record to infer that petitioners or their Advocate Supreme Court and Advocate-on-Record had acquired knowledge in this behalf. It is a settled position that limitation in adversery system of justice does create a right in favour of one but of the two parties, therefore, onerous duty is cast upon the Courts to construe relevant provisions of law on the subject, strictly and refrain from recording factual findings on the question of limitation loosely.

 

5. In the above background, it is to be seen “whether petitioner had knowledge about the announcement of the judgment dated September 27, 2002, if so to what effect?” There are two provisions of pronouncement of judgment under the Supreme Court Rules, 1980 [hereinafter referred to as “the Rules, 1980”]; one is embodied in Order X, Rule 1, which reads as under:–

 

“The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall be given to the parties or their Advocate-on-Record and the decree or order shall be drawn up in accordance therewith.”

 

In this provision, expression “on some future day, of which due notice shall be given to the parties or their Advocate-on-Record” is of greater importance. Therefore, to understand the meaning of ‘due notice’ reference may be made ‘Words and Phrases’ (Permanent Edition), Volume 13A, where it has been defined as under:–

 

“DUE NOTICE

 

———-Statute requiring writ of certiorari to be issued and served upon adverse party within 60 days after ‘due notice’ or proceedings sought to be reviewed requires service of written notice in order to set statutory time limitation in operation————-“

 

Similarly in ‘Black’s Law Dictionary’ word ‘due notice’ has been defined as under:–

 

Due notice.–Sufficient, legally prescribed notice. Notice reasonably intended, and with the likelihood of reaching the particular person or public. No fixed rule can be established as to what shall constitute ‘due notice’. ‘Due’ is a relative term and must be applied to each case in the exercise of the discretion of the Court in view of the particular circumstances.”

 

Above definition of the word “due notice” persuades me to hold that in a case in which a Bench of this Court had postponed the pronouncement of the judgment for a future date, then it must ensrue that cause for announcement of the judgment on a particular date, well within time, is notified either to the party or Advocate-on-Record, so adequate arrangement could be made by the party for attending the Court to hear announcement of the judgment and if need be to determine whether service has been effected upon the parties, there must be cogent material available on record to hold that service of notice upon Advocate-on-Record or party has been duly effected and in absence thereof adverse conclusion is bound to emerge because merely on conjectural assumption of facts, rights of the parties cannot be denied nor they can be made to suffer on account of acts of the Court or its officers. As. in instant case sufficient time was not given by the office for effecting service upon the Advocate-on-Record of the petitioners to know about the date of announcement of the judgment as possibility cannot be overruled that Branch Registry, Lahore might had received cause list from Islamabad after working hours and similarly, presumption of not attending the office by the Advocate- on-Record on September 26, 2002 can also be kept out of consideration.

 

6. Second provision of announcement of judgment is contained in Order XIX. Rule 6 of the Rules, 1980, which reads asunder:–

 

“Where the Court, after hearing an appeal, decides to reserve its judgment therein, the Registrar shall notify the parties concerned of the day appointed by the Court for the announcement of the judgment. “

 

It may be noted that above provision specifically deals in respect of pronouncement of judgments reserved in appeal. Under this provision the Registrar is obliged to issue notice to the parties. In instant case admittedly no notice has been issued to the petitioners by the Registrar for which they were entitled as a matter of right.

 

7. Thus in view of above noted two provisions of the Rules, 1980 one can conclude that Order X, Rule 1 relates to announcement of the judgments other than the judgments in the appeal, being a general provision, whereas Order XIX, Rule 6 of the Rules, 1980 deals specifically with the announcement of the reserved judgments in appeals as it has been incorporated in the chapter which deals with the subject of “Hearing of Appeals”. Therefore, it, would be deemed to be special provision, as it deals with a particular subject. It is a known principle of interpretation of statutes that special provisions will prevail upon general provisions and it is to be applied strictly.

 

8. I have noticed convincingly that Order XIX, Rule 6 of the Rules 1980 does not envisage service of notice upon Advocate-on-Record concerning announcement of judgments in appeals, therefore, by implication, word “Advocate-on-Record” cannot be read into it in the place of word “parties” as in view of the principle enshrined in maxim “expressum facit cessare tacitum”, when a deed or statute contains express covenants or specific mention of things or contingencies no implication of any covenant or contingency on the same subject-matter can be raised. Therefore, while interpreting Order XIX, Rule 6 of the Rules, 1980 word “party” cannot be substituted with the word “Advocate-on-Record”. There is yet another principle of interpretation of statutes concerning non-compliance of procedure which provides that if a statute prescribes a procedure for doing things in a particular manner, such thing should be done in that manner or not done at all. In this behalf reference can be made to the case of Atta Muhammad Qureshi v. Settlement Commissioner, Lahore (PLD 1971 SC 61). Relevant para. therefrom is reproduced hereinbelow for convenience:–

 

“It is well-settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question, which thus arises for consideration, is when an enactment is to be considered absolute at he merely directory?

 

It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provisions couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may, be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language …. … ………. … “

 

Following, above observation, I am convinced to hold that without issuing notice to petitioners, well within time about the announcement of the judgment, it would be presumed that they had no knowledge that on September 27, 2002 judgment has been announced.

 

9. Thus in absence of service of notice upon petitioners, in terms of Order XIX, Rule 6 of the Rules, 1980, time for filing review petition shall run against them from the date of knowledge and not from the date of pronouncement of judgment.

 

As a result of above discussion application seeking condonation of delay in tiling review petition is allowed. Consequently, review petition is deemed to have been filed within time.

 

(Sd.)

IFTIKHAR MUHAMMAD CHAUDHRY, J

 

ORDER OF THE BENCH

 

Application for condonation of delay in filing of review petition is devoid of merit, as such review petition is dismissed with majority view of two to one.

 

M.B.A./D-38/S Petition dismissed.

 

 

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