1988 PLP 1143 (MLD)

Mr.S.Hamid Ali Rizvi learned counsel appearing for the respondent No.3 has adopted arguments of Mr.Mohsin Tayebaly. We have considered the contentions of the learned counsel and have gone through the documents produced alongwith the appeal and the impugned order. So far as the first contention of Mr.Habibur Rehman learned counsel appearing for the appellant was concerned, she. present appeal arises out of the order passed by the learned Single Judge refusing to restore the suit which was dismissed in default of appearance, and therefore, it will not be appropriate to consider the respective contentions of the parties with regard to the merits of the case. It has only to be seen whether the sufficient cause was shown by the plaintiff for his absence acid that of his counsel, in order to justify restoration of his suit. Adverting to the next contention of Mr.Habibur Rehman that no notice was served on the appellant regarding the date fixed on 20-8-1985, as ordered by the Court on 5-2-1984, the diary of the Court shows that even before 5-2 1984 the learned Single Judge had ordered on 4-12-1983 "that the Advocates fur the parties are directed to be present in the Court alongwith their clients on 18-12-1983". Thereafter the suit came up for fearing of C.MA. No.4667 of 1982 and for issues on 22-1-1984 but on this date also the plaintiff and his Advocate were called absent, therefore, the case was adjourned to 5th February, 1984 and the parties were directed to be present as ordered on 4-12-1983. On 5-2-1984 Mr.Raja Qureshi was busy before another Court, while the plaintiff was not present, and therefore, it was ordered that notice be issued 'o the plaintiff to be present in Court on 19-2-X984 when his statement under Order X, Rule 1, C.P.C. would be recorded. Mr. Raja Qureshi and the plaintiff appeared before the Court on 19-2-1984 and the case was adjourned by consent, on the ground that there was likel-hood of compromise as stated by the counsel of the parties. On 21-2-1984 the case was again adjourned and plaintiff was directed to appear in person in the Court on that date, and in case there is any compromise between the parties it should on that date. On 29-12-1984 the plaintiff and his counsel were calls absent and, therefore, the suit was dismissed for non-prosecution. Again on 16-4-1984 when the learned counsel appearing for the plaintiff had to file further affidavit, the plaintiff and his Advocate were absent and no affidavit was filed. From the above case diary it is clear that plaintiff had appeared before the Court on 19-2-1984 after directions from the Court on 15-2-1984, therefore, the contention of Mr.Habibur Rehman that plaintiff was not served with the notice was untenable. As far as the question of absence of plaintiff and his counsel on 20-8-1985 was concerned the diary dated 18-8-1985 shows that the case was fixed for hearing of C.MA. No.4667 of 1982 and also for issues, the plaintiff was called absent, while Mr-Raja Qureshi was busy in some Election Petition, and therefore, the case was adjourned to 20-8-1985 for issues and also for hearing of the application. It was ordered that the case will be taken up at 8.30. a.m. sharp on 20-8-1985. The plaintiff should be present in person. On 20-8-1985 the plaintiff and his Advocate were called absent, and the learned Single Judge while looking to the background of the case and the conduct of the plaintiff dismissed the suit. On 18-9-1985 an application for restoration of the suit was filed in which no grounds were mentioned nor it was supported by any affidavit. However, the plaintiff/appellant filed his affidavit in Court on 26-1-1986 in which he has made allegations against Mr. Raja Qureshi regarding his negligence to inform him about the dates of hearing. The affidavit further shows that the plaintiff/appellant was not informed by Mr.Raja Qureshi about the dates of hearing fixed on 18-8-1985 and 20-8-1985. It was only on 20-1-1986 that when he went to the office of this Court, he was informed by clerk that the suit was dismissed on 20-8-1985 for non-prosecution. It was further stated in the affidavit that he was not negligent and his absence was neither intentional nor deliberate. He had also 'produced a letter dated 16th November, 1985 sent to him by Mr.Raja Qureshi. The respondent No.1 Haji Habib filed counter-affidavit in which he has given the background of the case, and the negligence shown by the plaintiff/appellant in prosecuting the case. He has also denied the factual contentions raised by the appellant in his affidavit that on several occasion this Court had required the presence of the appellant arid it was unblievable that the counsel of the plaintiff had riot informed him that his presence was required. That on 19-2-19134 the plaintiff was present in Court alongwith the counsel and was fully aware that his presence on each date of hearing was required in terms of the orders of this Court. That suit was dismissed twice before, on one occasion the plaintiff had to pay cost for restoration but still he remained negligent and therefore, no sufficient cause was shown for the restoration of the suit. As far as the decisions relied upon by the learned counsel appearing for the appellant are concerned, in the case of Seth Shivrattan G.Mohatta and others v. M/s.Muhammadi Steamship Co. Ltd. P L D 1965 S C page 669, the suit of the plaintiff was dismissed in default of appearance and the order was reversed in L.PA. by the L.PA. Bench, as it found that the counsel for the plaintiff had been negligent in prosecution of the suit, but thought it would be wrong to make the plaintiff suffer on account of his professional misconduct. The Supreme Court, while hearing the appeal against the said order of the L.PA. Bench concurred with L.PA. Bench, and further observed that there were other sufficient and good reasons for restoration of the suit. In the case of Babu Jan Muhammad and others v. Dr.Abdul Ghafooe and others P L D 1966 S C page 461 it was observed that:- "Again the fact that this was second occasion on which they were asking for restoration of their suit which had been dismissed for default could hardly be of weight in determining the merits of their second application for restoration. It was further observed that determination of sufficient cause is a matter within the discretion of the Court, to be exercised judicially in relation to all the circumstances of the case. That the learned Advocate had gone to attend the High Court and this was not the only reason for restoration but it was further explained that his clerk had tried to estimate the probable time at which the suit was likely to be called, and had left himself what he thought was reasonable margin to fetch the lawyer from the Court, where he knew that he would be present. His judgment proved wrong and before he could reach the Court with the learned Advocate the suit was dismissed, and therefore, the suit was restored to file. With utmost respect, the facts of the above case are distinguishable inasmuch as in the present case the plaintiff as well as his counsel were absent. There was no affidavit filed by the learned counsel appearing for the plaintiff/appellant, and the affidavit filed by the plaintiff clearly shows that he himself was also negligent in prosecuting the case". In the case of Muhammad Haleem, a Miscellaneous Application under section 247(6) of Companies Act, 1913 was dismissed in default by a learned Single Judge of this Court. Letters patent appeal was filed against the order of dismissal but the same was also dismissed by a Division Bench of this Court. The appellant filed a petition before the Hon'ble Supreme Court and the miscellaneous application was restored to file with the following observations:- "The main reason which has compelled us to allow this appeal is the fact that, in our view, the High Court had not exercised its discretion on sound judicial principles in dismissing the matter for non-prosecution. It should have proceeded under Order XVII, Rule 3, C.P.C. and directed that since the learned counsel for the petitioners was not present, his argument must be taken as closed, then called up the learned counsel for the respondents to address the Court and given a decision on the merits of the case. We, therefore, feel that this appeal should be allowed, for, otherwise it would result in inflicting a very harsh penalty upon the parties for no fault of their own. At the same time, however, we wish to record our disapproval of the conduct of the Attorney concerned by directing that the costs of this appeal, both of the petitioners and the respondents, should come out of his pocket, but since there are several respondents in this appeal, the respondents will be allowed only one set of costs". In the above case the evidence had already concluded and the matter was fixed only for arguments, and therefore, with utmost respect the present case is distinguishable. In the case of M/s.Eastern Steel the suit was decreed ex parte, and an application was filed for setting aside the ex parte decree which was allowed and suit was restored to file, as the suit was fixed for regular hearing for the first time after six years. That the Advocate who was originally engaged by the defendant migrated to Uganda, and at his place another Advocate Mr. Abdullah Shah was engaged. The application was supported by an affidavit but no counter-affidavit was filed, and therefore, the suit was restored to file. An appeal was filed before a Division Bench of this Court but the same was dismissed on the ground that till framing of issues the suit was properly and diligently attended to by and on behalf of the respondent. The affidavit filed by the respondent/defendant in support of his application showed that his Advocate MrAbdullah Shah was under detention and this was not controverted by the other side. It was further observed that the order setting aside ex parte decree, was discretionary and it was neither perverse nor arbitrary, and therefore, the interference was declined. On the other hand so far as cases relied upon by Mr.Mohsin Tayebaly are concerned, in the case of Zulfiqar Ali v. Lal Din and another 1974 S C M R page 162 it was observed that:- "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking m his sense of responsibility to the Court, it is he who should suffer and not the other side." In this case, the case of Shivarrtan was also considered. In the case of Chirgah Din and 4 others v. MstJannat Bibi and 6 others 1976 S C M R page 399 it was observed by their Lordships of the Supreme Court that: "To have briefed an advocate on record did not absolve the petitioners of their obligation to appear and to ensure that their case is properly conducted, and therefore, the application to restore the petition was dismissed although on additional ground of merits as well". In the case of Rafiq Ahmed Khawaja v. Abdul Haleem 1982 S C M R page 1229 it was observed by their lordships of the Supreme Court that: "In the facts and circumstances of this case, we are not impressed with the contention that the appellant was under no obligation to pursue his case and that his case has gone by default entirely due to the negligence of his counsel. Since the High Court on a thorough re-examination of the explanation furnished by the appellant in support of his non-appearance has come to the conclusion that the appellant himself was negligent in not keeping in touch with his counsel, when circumstances indicate that he was available at Karachi, therefore, while relying upon the cases reported in 1974 S C M R page 162 and 1976 S C M R page 399, the appeal was dismissed." In the case of M/s. National Bank of Pakistan v. Mst.Parveen Akhtar P L D 1985 Karachi page 60 it was observed by a Division Bench of this Court that: "It has been repeatedly pointed out by the superior Courts in our country that it is the duty of a party to litigation to keep himself informed of the proceedings and progress of the case by keeping in touch with his counsel and if the counsel is negligent, it is he who should suffer", and therefore, the order by which the learned Single Judge of this Court refused to restore the execution applications which were dismissed in default was not interfered with". In the case of Muhammad Rahim and 16 others 1986 C L C page 178 the same view was taken by a Division Bench of this Court. In view of the above factual as well as legal position it is clear that the appellant was himself negligent. Even letter of Mr.Raja Oureshi produced by him clearly shows that the appellant was negligent and had failed to attend the Court in spite of the intimation given to him by his counsel. In the present case no affidavit has been filed by the Advocate nor his absence has been explained. The appellant was directed to appear in the Court as his statement was to be recorded under Order X, Rule 1, C.P.C, and therefore, the absence of the counsel as well as the plaintiff/appellant had to be explained. The allegation of the plaintiff/appellant that his counsel was negligent could not absolve him of his obligation to appear to ensure that his case was properly conducted. In view of the above circumstances we are of the considered view that the learned Single Judge had rightly refused to restore the suit on file and order does not call for interference. The appeal is accordingly dismissed. AA./M-468/K Appeal dismissed.