1989 PLP 1239 (MLD)

The application for setting aside the decree was contested by the plaintiff/respondent on the ground that no sufficient cause had been shown for not preferring the application for setting aside. The ground take, by the petitioner that after engaging a counsel he did not attend the Court as after engaging counsel he was not supposed to appear before the Court. This ground did not appeal to reason. The trial Court found that application was moved after lapse of eight months, the petitioner had shown his negligence, which could be presumed to be deliberate to prevent the execution of decree as the petitioner was in full knowledge of the proceedings of the case pending against him. The appellate lower Court 'found that neither the petitioner nor any of his employees made any efforts to contact the counsel or the Court for having the knowledge of the. progress of the case. The appellate lower Court found that the allegation that his counsel assured him on two or three occasions regarding the progress of the case is belied from the record of the case as on one date Mr. Naushad Shafqat was out of station whereas on the other date the petitioner himself appeared before the trial Court. Thus between the date of service and date: of ex parte order only two adjournments were allowed by the trial Court and during which the petitioner had no occasion of seeing his counsel, which shows his negligence. The petitioner being aggrieved filed the above revision. I have heard Mr. Farooq H. Nack in support of the Revision. The respondent though served remained absent. Mr. Farooq H. Nack learned counsel for the petitioner contended that Mr. Naushad Shafqat, Advocate gave up his practice and after leaving up his law practice, he did not give any notice either to the petitioner or to the Court. Hence his responsibility to conduct the case or present the case of his client in Court had not come to an end and for his iron‑appearance. It was he to be blamed and not the petitioner. This contention was rejected by the Louver appellate Court on two grounds. Firstly this ground was not taken in the application for setting aside the ex parte decree and secondly Rule 3 of the Sind Civil Court Rules is not applicable in the facts of the case. The learned counsel for the petitioner urged the same point before me. It. is an admitted position that this ground was not taken in the application or in the affidavit. Secondly Rule 43 of the Sind Civil Court Rules is not applicable to the facts of the instant case. Reliance is placed on 1974 S C M R 162, 1976 SCMR399and1982SCMR1229. In 1974 S C M R 162? a second appeal was dismissed in default by a learned Single Judge of Lahore High Court and the Division Bench of the Lahore High Court dismissed in limine the appeal filed against the order, The matter came up before the Supreme Court in a petition for special leave to appeal and it was argued on behalf of the petitioner that the dismissal of the appeal in default was due to the negligence of the counsel and not due to the negligence on the part of the petitioner and, therefore, the restoration should have been allowed This contention was not accepted and the Supreme Court observed:‑‑ "........?? 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 in his sense of responsibility to the Court, it is he who should suffer and not the other side. Ir. the circumstances of this case, when no one appeared when the appeal was called on the Court had no alternative but to dismiss the appeal in default. The refusal to restore was also fully justified in view of the fact that the ground made out in the petition for restoration was found to be untrue. The petitioner could not legitimately take any exception to this order. The appeal was, therefore, rightly dismissed by the Division Bench and we see no reason to interfere. In 1976 S C M R 399, a petition for special leave to appeal had been dismissed‑for non‑prosecution by the Supreme Court and an application for restoration was also dismissed in spite of the fact that the Advocate for the petitioner was ill on the date of hearing, for the reason that neither the Advocate on record nor the petitioners appeared on the date of hearing. In 1982 S C M R 1229, the Supreme Court was not impressed with the contention that the appellant was under no obligation to pursue his case and his case had gone by default entirely due to the negligence of his counsel. The Supreme Court took note of the fact that the High Court on a thorough re?examination of the explanation furnished by the appellant in support of his non?appearance had come to the conclusion that the appellant himself was negligent by not keeping in touch with his counsel when circumstances indicated that he was available in Karachi. A reference was also made in P L D 1965 S C 669 and it was observed that the decision in that case did not proceed solely on the basis that the party should not suffer on account of the professional misconduct of his Advocate but further reasons were given in support of the order of the High Court. It was, therefore, observed that P L D 1905 S C 669 has no authority for the proposition that a party cannot be made to suffer on account of the negligence of his counsel in the conduct of proceedings before the Court. A party can be made to suffer for the negligence of his Advocate but generally the Court also examines the conduct of the party. If the party is also at fault or guilty'of carelessness or negligence, it suffers for its default and for the fault of its Advocate. But where the party is not at all at fault and is not guilty of any carelessness or negligence, in view of the special circumstances of the case and save the party from suffering grave injustice or hardship, the Court may not penalise the party for the negligence of its Advocate. It is in the light of the principles that I propose to dispose of this revision. In this case in the affidavit in support of the application for setting aside the ex parte judgment, the petitioner has stated that "since after having engaged the said Advocate I was not supposed to appear before the Court, I was not aware of the proceedings which was the responsibility of my Advocate". He has further stated that 'it appears that the suit proceeded ex parte after the initial appearance of my Advocate and the judgment was delivered without any notice to me". I have perused the diary sheet dated 25‑9‑1983, 10‑10‑1983, 20‑11‑1983 and 21‑12‑1983. A perusal thereof shows that Mr. Naushad Shafqat filed Vakalatnama on 25‑9‑1983. On 10‑10‑1983 the petitioner did not file written statement. On 20‑11‑1983 application was moved for extension of time as petitioners counsel was out of station. The case was adjourned to 21‑12‑1983. The petitioner filed affidavit in support of the application. There is no assertion in the affidavit that Mr. Naushad Shafqat had abandoned his practice. There is no assertion that the petitioner had instructed him to prepare the written statement. It has already been noted that the suit was not properly and diligently attended by the petitioner. It is an admitted position, as observed earlier, that from 10‑10‑1983 till 21‑11‑1983 no step was taken by the petitioner to inquire or instruct him to prepare the written statement. The learned Civil Judge as well as the learned Additional District Judge have stated in their orders that the petitioner did not give any attention to the filing of written statement. They have further found that no step was taken for filing of the written statement by the petitioner and it was incumbent on him to make inquiries as to the progress of the proceedings and that he had not acted with reasonable diligence and was negligent in defending the suit. The learned Civil Judge dismissed the application. The learned District Judge dismissed the appeal. I have referred at some length to the reasons upon which the learned Additional District Judge based his conclusion because it must, in my opinion, be borne in rnind that I have been asked to interfere in this case with orders made by .the Courts below in the exercise of their discretion. That discretion must, of course, be exercised judicially and not arbitrarily but if it has been exercised judicially, this Court cannot, in my opinion, substitute its discretion for that of the Civil Judge or Additional District Judge. In the present case, the Courts below have seriously considered the matter in detail and have held that there was no sufficient cause shown for setting aside the ex parte decree. It is not possible to hold that their views are absurd or perverse and in these circumstances, even if I were of the opinion that there was sufficient cause shown for setting aside the ex parte decree, I would not interfere. This revision application is dismissed. In the circumstances of the case, I make no order as to costs. The record will now be returned to the executing Court without delay. M.Y.H./R‑87/K?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.