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Official Citation: 2022 LHC 9675
Court / Jurisdiction: Supreme Court / High Court of Pakistan
This judicial decision was delivered by the Supreme Court / High Court of Pakistan. The matter involves proceedings between Petitioner and Respondent, officially reported as 2022 LHC 9675. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2022LHC9675
Stereo. H C J D A 38 Judgment Sheet IN THE LAHORE HIGH COURT LAHORE Judicial Department R.F.A.No.216563 of 2018 Astex (Pvt.) Ltd, etc. Versus Faysal Bank Limited. JUDGMENT Date of hearing: 06.04.2022 Appellants by: Mr. Hafeez Saeed Akhtar, Advocate Respondent by: Mr.Jehan Zaib Inam and Ahmad Jamal, Advocates ----------------------------------- MUZAMIL AKHTAR SHABIR, J: Through this Regular First Appeal filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, (“Ordinance”) the appellants/judgment debtors have called in question judgment and decree dated 09.04.2018 passed against them by a learned Single Judge of this Court in a suit for recovery of money filed under Section 9 of the Ordinance by the respondent/decree holder bank. 2. It is contended by the learned counsel for the appellants that the suit filed by the respondent-Bank had been adjourned sine die on 19.04.2012 and application for its revival could only be filed within 3- years of the said order in terms of limitation provided under Article 181 of the Limitation Act, 1908, whereas such application was filed on 23.05.2016 beyond the said period, hence, the same was barred by time and not maintainable and in view thereof claims that the learned Single Judge in Chambers could not have revived the suit and passed decree against the appellants, which order and decree are liable to be set aside. 3. Learned counsel for the respondents, on the other hand, has defended the impugned judgment and decree by controverting the arguments raised by the learned counsel for the appellants.
R.F.A.No. 216563 of 2018 Dated 06.04.2022 2 4. Heard. Record perused. 5. The respondent-Bank had filed a suit for recovery of Rs.140,700,693.41 alongwith markup/costs of funds, compensatory charges and liquidated damages against the appellants on account of Finance against Packing Credit (FAPC) facility, etc. granted to appellant No.1-company with the remaining appellants as its guarantors, however, during the pendency of the said suit, settlement was arrived between the parties on 30.04.2011 for payment of agreed amount in installments and adjourning the suit sine die during subsistence of agreed payment schedule, whereupon a joint application bearing C.M.No. 593-B of 2011 was filed in the court for passing order in terms of said settlement and in view thereof the suit was disposed of on 19.04.2012. Thereafter on a note put up by the office for seeking permission to prepare decree sheet, the learned Single Judge in Chambers on 20.04.2012 ordered for preparation of decree sheet. Subsequently, the respondent-Bank filed C.M.No. 856-B of 2014 on 14.12.2014 for restoration of the suit on account of default in fulfilment of obligation for payment of agreed amount committed by the appellants under the afore-said settlement agreement. As suit instead of being adjourned sine die, in terms of agreement between the parties had been decreed by the court, the said application was withdrawn on 23.01.2015. The appellants then filed C.M.No. 483-B of 2015 for correction of error appearing in orders dated 19.04.2012 and 20.04.2012 on the ground that the parties through clause 14 of settlement agreement had agreed for the suit to be adjourned sine die whereas the learned Single Judge in Chambers had inadvertently without taking into consideration the effect of said clause of the agreement disposed of the suit and ordered for preparation of the decree sheet on the basis of the settlement agreement. The said application was allowed on 08.10.2015 by holding as follows:- “Learned counsel appearing on behalf of the plaintiff bank does not seriously contest this application. It is also apparent from the reading of clause 14 of the
R.F.A.No. 216563 of 2018 Dated 06.04.2022 3 aforementioned agreement that the suit was to be adjourned sine die. The suit was accordingly disposed of by this Court on 19.04.2012 without determination of right and liabilities of the parties. Accordingly the office note put up before this Court for preparation of decree was not correct. The suit shall be treated as having been adjourned sine die with all the legal consequences following therefrom. Order dated 20.04.2012 is accordingly recalled.” 6. The aforesaid order was not challenged any further and attained finality. On 23.05.2016 C.M.No. 591-B of 2016 for resurrection of the suit was filed by respondent Bank, which was allowed on 21.04.2017 and the suit was restored to its original number and further proceedings were initiated, which resulted in passing of decree dated 09.04.2018 and the same is under challenge through this appeal mainly on the ground that after the suit had been adjourned sine-die, the same could only be revived within three years. 7. It is pertinent to mention here that as per the settlement agreement dated 30.04.2011, the liability of the appellants was fixed at Rs. 120 Million and out of the same Rs. 100 Million were agreed towards the principal amount whereas Rs. 20 Million represented the outstanding mark-up and the amount agreed as due was made payable in installments. It is available on the record that the appellants have paid Rs. 61 million as principal amount and have also slightly reduced the mark up liability by making payment of Rs. 1,980,549/-. The total amount under the settlement agreement overdue against the appellants at the time of final hearing of suit was Rs. 49,388,861.30. The appellants do not specifically dispute either the settled amount, repayment made by them or the amount outstanding against them under the settlement agreement and mere challenge against revival of suit has been agitated as the main ground. 8. The perusal of record shows that this Court on 19.04.2012 had ordered for disposing of the suit and erroneously directed the office to prepare the decree sheet on 20.04.2012 despite the fact that the parties
R.F.A.No. 216563 of 2018 Dated 06.04.2022 4 through Clause 14 of the settlement agreement had stipulated for getting the suit adjourned sine die. The joint application filed by the parties bearing C.M.No. 593-B of 2011 and the prayer made therein also reflected the intention of the parties for getting the suit adjourned sine die instead of having the same decreed. This error on the part of the Court stood rectified vide order dated 08.10.2015 passed in C.M.No. 483-B of 2015, which was filed for seeking rectification of orders dated 19.04.2012 and 20.04.2012 and consequently the suit was ordered to have been treated as adjourned sine die with all the legal consequences flowing therefrom. 9. Although the phrase “adjournment sine die” is not mentioned in the CPC, however the same has a definite meaning in legalese i.e. legal terminology in vogue in the courts. Latin phrase „Sine die‟ means „without day‟ and in legal language means „indefinitely‟. „Adjournment sine die‟ is a phrase from Latin language meaning „adjournment without a day‟ or „adjourned indefinitely‟ which in other words means that the next date for fixation of the case has not been mentioned by the court or the case has not been fixed for any particular future date. During the time a case is kept under adjournment even though without a further date, the same is still alive before the Court and cannot be declared to have come to an end as for example where a case is dismissed in default, where the case had come to an end on technical ground and has to be got restored before the same can proceed further. Moreover an application seeking hearing of a case earlier adjourned sine die was not an application for review and at the most may be treated as a request for fixation of case for a date of hearing or an early hearing. Either of the parties has the right to file such an application and the court has the jurisdiction to fix the case on the basis of such an application or of its own accord. If it is assumed that only a party can make an application within the limitation period provided under Article 181 of the Limitation Act, 1908 and thereafter cannot file application for fixation of the same,
R.F.A.No. 216563 of 2018 Dated 06.04.2022 5 the same would result in ridiculous results and objection may be raised that the Court itself cannot also in such eventuality fix the case for hearing which interpretation if fixed on the same would result in absurdity. Needless to observe that the purpose of filing such an application is to inform the court that due to the reasons mentioned in the application that case may be taken up for hearing for a date to be fixed by the Court and nothing else. Moreover, the power of the Court to fix a case for hearing which was earlier adjourned without a date cannot be taken away on the aforementioned ground raised by the appellants. 10. The Court rightly resurrected the matter by treating the case as adjourned sine die as an act of Court should not prejudice any one and all efforts are to be made to restore parties to a position pertaining prior to passing of such an order. Reliance may be placed on the judgments reported as Sikandar Hayat and another versus The State and another, (PLD 2020 SC 559), Muhammad Mansha and others versus Sabir Ali (1999 SCMR 1782), Abdul Majid versus Muhammad Afzal Khokhar (1993 SCMR 1686), Abdul Rashid versus Abdul Salam and others (1991 SCMR 2012). For clarity reference may also be made to principles laid down in judgment of the Honourable Supreme Court of Pakistan reported as Muhammad Ijaz and another versus Muhammad Shafi through L.Rs. (2016 SCMR 834), wherein it is provided as under:- “There is a well-known maxim "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man) thus, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not with the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law.”
R.F.A.No. 216563 of 2018 Dated 06.04.2022 6 In view thereof, an order for adjourning any case sine die does not mean that it has been terminated rather the case is simply taken out of the active list of the Court and remains pending with the Court which can be resurrected at any time by a party by filing an application or upon order by the Court itself without any application and the order for resurrecting the suit does not amount to fresh initiation of proceedings which would be governed by Article 181 of the Limitation Act, 1908 providing for three years limitation and no limitation would be applicable for revival of matter by the Court whether by itself or on application filed by either party. 11. The contention that the suit does not come within the pecuniary jurisdiction of this Court on account of some payments having been made by the appellants has no merit in it and has been rightly dealt with by the learned Single Judge while holding that the pecuniary jurisdiction of the Court is ascertained from the contents of the plaint which was filed against the appellants seeking recovery of Rs. 140,700,693.41. The learned Single Judge in Chambers had rightly held that this Court had the pecuniary jurisdiction at the time the suit was filed and the Court shall continue to retain the pecuniary jurisdiction notwithstanding any payments made during the pendency of the suit. 12. As the appellants have not denied the settlement agreement or the settled amount payable by them and there is also no dispute regarding amounts said to have been paid by them under the settlement agreement as already stated above, consequently, the learned Single Judge in Chambers rightly decreed the suit in favour of the respondent-Bank and against the appellants, jointly and severally, in the sum of Rs. 49,388,861.30 together with costs of funds as contemplated by Section 3 of the Ordinance along with costs of the suit, which do not suffer from any illegality, misreading and non- reading of record or jurisdictional defect for this Court to warrant any interference.
R.F.A.No. 216563 of 2018 Dated 06.04.2022 7 13. For what has been discussed above, this Regular First Appeal being devoid of any merits is dismissed. (ABID AZIZ SHEIKH) JUDGE (MUZAMIL AKHTAR SHABIR) JUDGE *Zeeshan Khan*