1989SCMR883 (PLP)

Laws Cited

Representation

• ---Art.185(3)--Leave to appeal was granted to examine contention that some of appellants in the case were minors and absence of counsel on date of hearing was sufficiently explained through a personal affidavit of counsel who had been engaged by appellants for conducting the case.
• Fakhruddin G.Ebrahim, Senior Advocate Supreme Court and Shabbir Ghaury, Advocate-on-Record for Appellants.
• Akhtar Mahmud, Advocate Supreme Court for Respondents.
• Date of hearing: 5th May, 1988.
• Fakhruddin G.Ebrahim, Senior Advocate Supreme Court and Shabbir Ghaury, Advocate‑on‑Record for Appellants.
• 3. Learned counsel for the appellants has argued that the facts established by the appellants in support of their application for setting aside the dismissal of the suit and for condonation of delay m submitting application for the said relief made out sufficient cause within the meaning of Order IX rule 9, C.P.C. and were, therefore, entitled to relief as prayed by them. It may be pointed out that the same set of facts was relied by the appellants for purposes of their application for setting aside the dismissal of the suit and for condonation of delay. According to them an application was moved on their behalf on 4th March, 1984, for earlier hearing of the suit which was granted by the Court vide order, dated 15th April, 1984, directing that the suit should be fixed for hearing within one year. Ismail the attorney for the appellants, in his supporting affidavit, stated that after the aforesaid order was passed by the Court he approached his Advocate Mr. GA. Brohi to get a suitable date fixed for evidence, so that witnesses may be summoned in time. The Advocate took him to the relevant branch of the High Court office, and while he was waiting outside, the Advocate made inquiries m the office. After some time the Advocate came out and informed him that as the order for fixing the suit within one year had been recently passed, the concerned branch will try to fix the matter later on. He met the Advocate after three days and as the latter was busy with some professional work, he directed his clerk Mr. Farid Khan to help the attorney in the matter. Thereupon Mr. Farid Khan went to the same branch and told the attorney to wait for few days more before seeing him again as the office people were not yet able to fix the date of hearing. According to the attorney he again met the clerk of the Advocate after two days and accompanied him to the branch office and later informed him that the suit will be fixed in Court some time after 15th September, 1984. This information was then conveyed to the Advocate. In the circumstances the attorney met the Advocate on 16th September, 1984, to inquire about the date of hearing in the 9 suit. Capon inquiries made by the Advocate, the file of the case was not traceable in the office. The attorney and the Advocate again went to the office on 17th September, 1984, when the file was searched and traced out. It was on that date that the Advocate learnt that the suit had been dismissed in default on 24th May, 1984. These statements of the attorney for the appellants were fully supported through an affidavit by Mr. GA. Brohi who appeared as Advocate for the appellants. Additionally GA. Brohi deposed in his affidavit as under:
• A counter‑affidavit was filed by Zilur Rehman Shah, respondent No.4, in reply to the affidavit of the attorney. In regard to the assertions made in the affidavit of the attorney, respondent No.4 merely stated that the contents of the affidavit were vague, as particulars of date when the attorney met his Advocate and went to the Court branch were not mentioned, nor the name of the clerk of the Court whom the Advocate had contacted. In reply to the averments made by the Advocate, respondent No.4 in his affidavit asserted that the Advocate was guilty of negligence, but the allegations to the effect that the Advocate was informed by his clerk and the attorney that the branch office of the Court had stated that the suit will be fixed after 15th September, 1984, was not specifically denied. A rejoinder affidavit was also, filed by Mr. GA. Brohi in which he reiterated the facts already stated by him in his earlier affidavit and he also produced a medical certificate in support of his assertion that he was suffering from eye disease at the relevant time and even thereafter. On this basis the learned Advocate repudiated the allegations of carelessness and lack of diligence on his part.
• 4. The learned Single Judge, upon considering the affidavits of the parties, took the view that the version of events disclosed by the appellants was indeed unreliable due to vagueness, because the name of the Court officer who had conveyed the information that the suit cannot be fixed for hearing before September, 1984, was not disclosed. Besides in the opinion of the learned Judge such information could not have been conveyed by any responsible officer of the Court, since the suit could be fixed at any tune within one year. Notice was also taken of the fact that the weekly and daily cause lists mentioned the posting of the suit for hearing, which were sufficient notice to the parties. The learned Judge also disbelieved the assertion of Mr. GA. Br ohi that due to eye disease at the relevant time he assigned the work of scrutinizing the cause list to his clerk who did not notice the fixation of the case. It was observed that the affidavit of the clerk of the Advocate was not filed. On these grounds the learned Single Judge held that the attorney of the appellants and the Advocate were negligent in duly prosecuting the suit. The Division Bench affirmed the view taken by the learned Single Judge on identical reasons.
• 5. It has been argued on behalf of the appellants on the basis of the precedents that the ground of illness of the counsel which partially impairs his faculties and reduced his efficiency and alertness to notice a case in a cause list has been found to be sufficient ground for setting aside an ex parte decree Dhanjishaw Behramji Ghadially and others v. Abdul Latif Khan (1983 S C M R 1003). It was pointed out that m a case of mere neglect not amounting to gross negligence; the application for restoration of suit, was allowed by the Court. Learned counsel also pointed out that out of the 17 plaintiffs in the suit 14 were women or widows and one was a minor and the attorney of the plaintiffs was an r illiterate and old man of 85 years of age. It was submitted that this consideration should have weighed with Court keeping in mind the principle that suits should ordinarily be decided on merits and parties should not be penalized except where they are found to be guilty of contumacious negligence. On the other hand it has been urged on behalf of the respondents on the basis of a number of precedents that where the Advocate of a party or his clerk had been grossly negligent in keeping track of the case, there would be no sufficient ground for condoning delay or restoring the cause. On the basis of these decisions the impugned order has been supported and it has been urged that the finding of carelessness and negligence against the appellants was justified in the circumstances of this case.
• 7. Be that as it may the question is whether the facts relied upon by the appellants can be accepted as established by the evidence produced. Mr.GA. Brohi is a senior counsel for the High Court and has filed his own affidavit supported by medical certificate, the genuineness of which has not been called in question. Indeed the assertion in the affidavit that he was suffering from serious eye trouble has not been controverted. Mere oral denial of all these facts by respondent No.4, is not sufficient, in our opinion, to hold that a senior Advocate of the Court had committed perjury in order to support his clients. At least there is no reason to hold so in the circumstances on record. There is nothing on the record to contradict Mr. GA. Brohi's assertion that he had gone away to Lahore to see his ailing father‑in‑law and was not at Karachi. If the facts asserted by the attorney of the appellants and Mr. GA. Brohi were seriously disputed, they could be subjected to cross‑examination under Order XIX rule 2, C.P.C., but no such request was made by the respondents in order to test the veracity of their testimony.
• 8. In a civil case issues of fact are to be decided on the principle of pre ponderance of evidence. The facts relied upon in support of the two applications were sought to be proved by the affidavits of the attorney of the appellants and the Advocate. On the other side was a bold denial on the part of respondent No.4, whose affidavit mostly consists of matters of opinion to the effect that the explanation of the appellants was vague and insufficient. We arc of the firm opinion that in a matter of this nature the finding of the High Court that the facts relied upon were not sufficiently established is unsustainable. The learned Division Bench was conscious of the rules laid down by this Court in this behalf and we can only reassert them. It has been laid down by this Court that the words "sufficient cause" for restoration of suit dismissed for default are not susceptible of any exact definition and no hard and fast rules can be laid down and if non appearance is not intentional it should not be viewed very strictly. This Court has also emphasised that the rules of procedure are not to be too technically applied but are reconstructed to foster the cause of justice. It, therefore, follows that a party is to be visited with the penalty of being deprived of a fair trial on merits not by way of penalty except when there is positive evidence of negligence beyond explanation. In the light of these principles the facts on record do not make out a case of gross negligence on the part of the Advocate or the appellants, even if their conduct leaves something to be desired in the matter of meticulous care in ascertaining the date for the fixation of the suit.
• 9. It is a matter of common knowledge that Advocates make inquiries from the court clerk in the concerned branch and do not necessarily approach the Additional Registrar in order to ascertain whether date for the trial of the suit has been fixed. Therefore, we find no negligence on the part of the Advocate if he relied upon the information received from the clerk working in the branch office and it is also possible that the name of such clerk may not have been remembered. It is on the record that the Advocate's clerk belonged to N.W.F.P. and did not return to resume his duty with the Advocate after the vacation. Therefore, there was no question of failure on the part of the appellants to file his affidavit. The affidavits of the attorney of the appellants and their Advocate, in the circumstances of this case, were sufficient to establish the facts relied upon, which make out a valid ground for restoration of the suit. The circumstances of this case do not establish negligence or carelessness on the part of the appellants.

Headnotes / Summary

Judgment & Decree