1990 PLP 206 (CLC)

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0. IX, R.13 & O.VII, R.11‑‑‑Sind Chief Court Rules (O.S.), R.168‑‑‑Setting aside of ex parte decree‑‑‑Merits of controversy‑‑‑Consideration of‑‑‑In proceedings for setting aside an ex parte decree under O.IX, R.13, C.P.C. consideration of merits would not normally be relevant, except, where a suit was barred by time or there was some other patent bar, which could be considered under provisions of O.VII, R.11, C.P.C.‑‑Inadvertent omission of a Court whose duty it was to examine the merits of a case before decreeing it, is a matter, which can be considered‑‑‑Weighty questions having been raised in the application for setting aside ex parte decree, which can be dealt with when the whole case comes up for consideration‑‑‑Ex parte decree was set aside and suit stood revived. Mansoor Ahmad Khan & Co. for Petitioner. Kamal Azfar, Moinud Din Ahmed Ch., Khurshid Ahmad and Kazim Hassan for Defendants. Date of hearing: 21st December, 1988. In this suit, which was decreed on 14‑10‑1982 applications under Order IX Rule 13 read with Section 151, C.P.C (CMA No.1387/83) and under Section 5 of the Limitation Act (CMA No. 1386/83) were filed on 6‑4‑1983. In so far as the application under Section 5 of the Limitation Act is concerned, learned counsel for the plaintiff consents to its grant. Therefore, and as a result, the delay in filing the application under Order IX Rule 13 C.P.C. shall stand condoned, making such application available for disposal on merits.

2. Setting aside of the ex parte decree under Order IX Rule 13 C.P.C. has been sought by the defendants Nos.2 to 5 on pleas that such defendants had engaged Mr. Moinuddin Ahmad a learned Advocate of this Court, and a written statement in the case was submitted through him on 6‑8‑1980. It is pointed out that, in J.M. 4 of 1977, winding up order had been passed in respect of the defendant No.6, Grace Industries Limited, resulting in appointment of official Liquidator, and, as such, this suit could not be prosecuted and/or decreed without the permission of the Company Judge and or without impleading the Official Liquidator. Connected case J.M. 1 of 1977, pertaining to the winding up of the said Grace Industries Limited, shows that on 17‑2‑1977 Grace Industries Ltd was ordered to be wound up and the Official Assignee was appointed as the Liquidator. J.M. 1 and J.M. 4 of 1977 were governed by common orders. The present suit itself was filed on 24‑9‑1977 and, presumably, because the defendant No.6 Company was under Liquidation no decree was sought against that defendant. Record of this case indicates that the defendants Nos.1 to 5 were served by publication and that when the case was fixed for final disposal the learned Advocate for the defendants was ordered to be supplied with a copy of the statement of accounts, Annexure `F to the plaint, and, subsequently, written statement was filed for the defendants Nos.2 to

5. Reverting back to the application for setting aside the ex parte decree, it is maintained that after the conclusion of the winding up proceedings in J.M.4/77,relating to Grace Industries Limited, which was said to be the recipient of the amount in suit, the defendant No.1 approached Mr. Kamal Azfar, to appear and act as counsel in the present case. A cross reference to the disposal of J.M. 4/77 indicates that the said J.M. was disposed of on 12‑5‑1981, A day prior to 6‑4‑1983, (Date of application under order 9 R 13 C.P.C. it is said that, Aslam Saeed, deponent, came to the office of this Court with Aba Sayeed, Court Clerk of Mr. Kamal Azfar, and was surprised to discover that this suit had been decreed ex parte on 14‑10‑1982 on a plea of no instructions by the counsel for the defendants Nos.3 to 5 on the ground that such learned counsel had tried to contact his clients from whom there was no response. It is maintained by the said deponent that he had not received any letter or communication or even a telephone call nor had the defendants Nos.3 to 5 received any communication from their counsel. It is further maintained that the defendants Nos.2 to 5 have a good defence, as reflected in the written statement, and that they have been deprived of their valuable right to defend the suit. It is urged that, in the circumstances of the case, it would have been fit, proper and in the interest of justice if notices had been issued, before passing the Ex Parte decree, particularly, in view of the fact that the defendants Nos.3 to 5 were residing at Lahore. It is maintained that the defendants 2 to 5 had been prevented from appearing in the case because of want of information from their advocates. Recall of the decree is sought on the foregoing grounds.

3. In the counter‑affidavit, affirmed J.M. Perera, Deputy Manager (Investment), State Life Corporation of Pakistan, it is deposed that the defendants were keeping out of the way from being served and it was for this reason that publication has to be resorted to. It is said that this case was placed for final disposal on 7‑4‑1980, 5‑5‑1980 and again on 1‑6‑1980, on the last of which dates, at the request of the counsel for the defendants, this Court was pleased to order the plaintiff to supply statement of accounts, Annexure `F to the plaint, to the said counsel of the defendants and time for filing written statement by the defendants was deferred. Such statement of accounts was, accordingly, supplied. Cross reference to the case diary indicates that on 7‑4‑1980 the Official Assignee had pointed out that the case against the defendant No.6 could not proceed without the permission of the Company Judge, as required under Section 171 of the Companies Act, 1913, and time was allowed to the counsel for the plaintiff to obtain instructions. On the next date in Court namely, 5‑5‑1980, an appearance was made for the defendants and application for extension of time for filing of written statement was moved in regard to which the plaintiff's counsel sought time to file counter‑affidavit. Time was allowed by the Court but a direction was issued to supply copies of the plaint and Annexures thereof, in the meantime, to the counsel for the defendants. On 1‑6‑1980, by consent, 15 days time for filing of written statement was allowed. However, since copy of the statement of accounts had not been supplied such copy was directed to be supplied. Written statement was, however, filed on 9‑8‑1980, apparently, on reopening of the Court after Summer Vacations, since time during intervening vacations did not run. Taking up the counter‑affidavit, filed on behalf of the plaintiffs, again, it is next maintained therein that while the defendant No.6 was a pro forma defendant and no relief had been claimed against it in the prayer clause of the plaint, yet, by way of abundant caution, on plaintiffs' request, such defendant was dropped by the Court on 28‑3‑1982. As such, it is contended that the position taken as regards the defendant No.6 and the cover sought under that defendant is not available to the defendants Nos.2 to

5. A reference to the case diary for 28‑3‑1982, however, shows that on that date the case was next placed in Court after 1‑6‑1980 for hearing of C M A 634/81, which was an application under Order 23 Rule 1, C.P.C. for dropping of the defendant No.6 with permission to seek relief against it, through proper forum, after observing due formalities, as prescribed, on the ground that the said defendant was a pro forma defendant against whom no relief was directly claimed and, as that defendant had gone in liquidation, the suit was likely to be hit by Section 171 of the Companies Act. Preceding this, on 12.2‑1981, the Additional Registrar (O.S.) ordered notice of this application (C M A 634/81) only to the Official Assignee, as Official Liquidator. Such notice was, ultimately, reported served on 10‑3‑1982 and the application was thus placed for hearing in Court on 28‑3‑1982 when, apart from the counsel for the plaintiffs, none else was present. Such application was allowed; as there was no opposition, with a direction that the name of the defendant No.6 be struck off and permission was, simultaneously, granted to the plaintiff to seek relief, if any, against the defendant No.6 through any other forum, if permitted by law. However, the case file neither shows the defendant No.6 to have been struck off on the record nor was any amended plaint submitted, as perhaps may have been expected, which then could have led to the service of such amended plaint on the remaining defendants and their consequential amended written statement, if they chose to file one. Going back to the counter‑affidavit again, plaintiffs then urge that the defendants Nos.2 to 5 knew and/or with due diligence could have gathered the information much earlier. It is further said that after adjournments from time to time, when the defendants remained absent, the suit was, ultimately, called for final disposal on 14‑10‑1982 when both the parties were supposed to lead evidence. On such date the learned Advocate for the defendants Nos. 2 to 5 made a statement at the Bar that his clients had taken away the case papers from him, that they could not be contacted and that he had little option but to plead no instructions. The case diaries of the corresponding period show that after 28‑3‑1982, when the defendant No.6 was ordered to be dropped, the case was listed for final disposal under Rule 22 the Original Side Rules on 5‑10‑1982. On such date, while the Advocate of the defendants Nos.2 to 5 was called absent, the case was Adjourned at the request of plaintiffs counsel to 7‑10‑1982, on which date, it was adjourned again in similar circumstances, to come up on 14‑10‑1982. On 14‑10‑1982 the Court recorded that the case was fixed for final disposal, that the learned Advocate for the defendants Nos.2 to 5 stated that he had tried to contact his clients but there was no response, that he stated no instructions and that the defendants Nos.1 to 5 were found absent when called. It was further recorded that the plaintiffs' learned Advocate, had filed an affidavit in ex parte proof, which was supported by documents and besides, it was observed, the plaint itself was verified on solemn affirmation, on all of which basis, it was ordered that the plaintiff was entitled to a decree against defendants Nos.l to 5 which decree was passed in the sum of Rs.13,55,625.67 with interest at 14% per annum from the date of suit till realization against the defendants, Nos.1 to 5 jointly and severally. Costs were also awarded. In such context the deponent of the counter‑affidavit points out that the Court, having been empowered to pass judgment and decree against the defaulting defendants straightaway, yet, fittingly, the plaintiffs were called upon to submit an affidavit in ex parte proof, which was duly filed, supported by the original documents, whereafter judgment was delivered, in the foregoing terms. As regards the averments regarding absence of contact by the Advocate of the defendants with the defendants 2 to 5 it is maintained that their Advocate was the best person to throw light on the matter. On the other hand, it has been urged that the deponent Aslam Saeed, who was admittedly a resident of Karachi, did not so aver nor did he try to contact his counsel and that such aspect of the case had significance in the context of the statement of the learned counsel at the Bar that the defendants had taken away the case papers from him. However, as seen above, such statement of counsel, if any, is not reflected on the record. It is next urged, but on advice, that delinqents, defaulters and those sleeping over their causes can have no cheek to claim any concession or indulgence at the cost of those who are prompt, vigilant and victims of defendants' craft. Strong language But, perhaps, such privileges being peculiar to counsel (who draft such material), cannot, by convention, be denied to them.

4. In the Affidavit in Rejoinder, submitted on behalf of the defendants Nos.2 to 5, it said that the plaintiffs at the outset of the proceedings never intended to serve the defendants as the address cited in the plaint was that of Grace Industries Limited and the latter's Managing Agents namely, M/s. Ibrahim Managements Limited, the first of which parties was in liquidation, the Official Liquidator having taken over that office and the other was defunct‑pursuant to determination of managing agencies under President's Order 2 of 1972. It is urged that the plaintiffs had neglected to enforce their rights to recover from Grace Industries Limited from whom even unsecured creditors had been paid and surplus funds were still lying with the Official Liquidator. As regards the order dated 28‑3‑1982 deleting Grace Industries, the defendant No.6, it is mai tained that the defendants were not aware and had no notice of such proceedings. 'It is then said that the defendants Nos.2 to 5 have good defence and that the principal liability is of Grace Industries Limited. As to the defendants' counsel pleading no instructions, they say he did not communicate the date of hearing as undertaken by him, that taking away of the brief from him was an afterthought and that no notice was given by the said learned counsel before pleading no instructions. On facts, it is pointed out that if only the written statement had been examined the substance of a valid defence could have been seen.

5. Mr. Sheikh Khursheed Ahmed, appearing for the defendants, has raised the following questions in the context of the application under Order 9 Rule 13 C.P.C. (1) Whether defendants were prevented by sufficient cause from appearing in the case? (2) Whether this suit could proceed in the absence of defendant No.6? (3) Whether the Court in decreeing the suit could overlook the question of limitation and the question of maintainability of the suit in the context of the defendant No.6, being under liquidation? (4) Whether the defendants are entitled to re‑hearing of the suit? On the other hand, Mr. Anwar Mansoor, appearing for the plaintiffs, has raised the following questions, in opposition to the move for setting aside of the ex parte decrec:‑ (1) Whether the decree in the suit was passed in exercise of powers under Order 17 rule 3 C.P.C.? (2) Whether the Court is competent to examine merits of the controversy in relation to an application for setting aside of the ex parte decree? Both the learned counsel have referred to a number of authorities on these questions but only those necessary and some others, on which I have been able lay hands, may be considered.

6. The question of sufficiency of cause is inextricably connected with the question raised, on behalf of the plaintiffs, that the decree in this suit is one passed under Order XVII Rule 3 C.P.C. If this be the case, then such decree cannot come up for recall under the provisions of Order 9 C.P.C., the only possible remedies remaining being a review or appeal. Now, the distinctive aspect between an ex parte decree under Order XVII Rule 2 C.P.C. and a decree on merits under Order XVII Rule 3, of the same Code, consists of a party having been allowed time to do something in furtherance of the progress of the suit and its failing to do so, pursuant to which failure, irrespective of the party being present or absent on the next date, the Court may pronounce judgment, on such material as be available on the record before it. On the other hand, an ex parte decree on an adjourned date of hearing, under Order XVII Rule 2 C.P.C., is solely based on absence. The essential requirements of a decree under Order XVII Rule 3 C.P.C. are that the case should be duly fixed in Court, the defendant should ask for time to do something necessary for the progress of the case, and should fail in that behalf. In so far as the application of mind on the merits of the controversy is concerned the same appears to be common to decrees passed under rules 2 and 3 of Order XVII except, perhaps, while in the context of rule 2 A the Court restricts itself to what the plaintiff avers in the plaint and what he deposes in an ex parte affidavit, if any, in relation to a decree under Order XVII Rule 3 C.P.C. it is required to examine such material by way of claim or defence, as be available before it in the suit.

7. Taking into account all the above prerequisites for the exercise of power under Order XVII Rule 3 C.P.C. I find that the suit was wrongly fixed for final disposal before the Court when it came to be decreed. The purported placement of the case under Rule 22 of the Original Side Rules of this Court seems to have been misconceived as apparently the office proceeded on the notion that the suit fell under such Rule since the title of the plaint postulated that situation. Speaking relevantly to context the present suit could have been placed for final disposal, under rule 22, if it was ex parte or undefended or the written statement did not disclose any defence or it was a mortgage suit or it had been directed to be tried as a short cause matter under special orders of the Court. It was, obviously, none of those species. There are some elements of relevant shares in the suit being, purportedly, denominated as security by way of pledge etc. but that does not make the action based on a mortgage for a mortgage is clearly defined in Section 58 (a) of the Transfer of Property Act, 1882, as pertaining to an interest in specific immovable property and no such property was involved in the suit. It seems that at the time when the suit was registered short cause summons under rule 22 aforesaid were ordered by the Additional Registrar (OS) but then that must be a mistake based, as adverted to above, on the misconceived title of the plaint, for on his own, under such Rule 22, the Additional Registrar was not competent to treat the suit as one to be tried as a short cause action, that power being vested only in a judge of this Court, as expressly provided. Even if such notice were issued, which the record does not clearly show, that fact should make no difference, as no one can be allowed to be prejudiced on account of mistake of officers of the Court. The irresistible conclusion, therefore, is that the suit was incorrectly placed for final disposal and, if that be so, it was improperly called for hearing. As such, since the hearing itself was bad on the date when the suit came up for consideration the question of invocation of power under Order XVII Rule 3 C.P.C., which also postulates proper hearing, did not arise. There is abundance of case‑law on the point that a Court cannot resort to a decree, on merits or no unless the suit is duly fixed for hearing. But here, only a recent decision of my learned brother Saleem Akhtar, J, in the case of Qamar Sultana v. Abdul Hussain (P L D 1982 Kar. 355) may be referred.

8. In addition, the other requirement of Order XVII rule 3 C.P.C. is that the defendant should ask for time to do something towards the further progress of the case, the Court should grant such time and, correspondly, there should be a failure of compliance. No such time was asked for by the defendants and none was granted. In fact, on 14‑10‑1984 itself defendants' counsel stated no instructions. On that basis also the order in questions could not have been one under Order XVII rule 3 C.P.C.

9. Even if all the relevant factors were present and the essential requirements of Order XVII rule 3 were satisfied, the Court still remains obliged to pronounce judgment on the basis of the material available on the record. Indeed the rule of due application of mind applies with equal force to ex parte dccrees as observed by Cornelius, CT, in the case of East & West Steamship Co. v. Queens Land Insurance Co (P L D 1963 SC 663). See also Inayatullah v. Abbas Ahmad Khan (1970 S C M R 130). This, also, does not seem to have been done, for there were several pleas in the written statement which could be considered, solely, on the basis of the documents in the case but none were so considered implying that the order was, at least, one other than under Order XVII rule 3 B C.P.C. In fact the current legal trend, as declared by the Supreme Court in the case of Md. Haleem v. H.H. Md. Naeem (P L D 1969 S.C. 270), is that where material is available on record the same must be fully resorted to and a Court should preferably proceed under Order XVII Rule 3 C.P.C. rather than resorting to an ex parte order, thereby driving the parties to another round of litigation. Since merits were not duly touched, the conclusion is that the decree in this case was, and wits calculated to be, an ex parte decree and, therefore, its recall can be considered under the provisions of Order IX rule 13 C.P.C. for which , the defendants have made out application.

10. This, accordingly, brings me to the question of sufficiency of cause for setting aside the ex parte decree. On the question of sufficiency of cause it is to be noted that when the defendant No.6 was ordered to be deleted by the Court such deletion did not in fact take place on the record. Neither was any amended plaint submitted nor were any fresh summons issued to the remaining defendants to, submit their amended written statements, if any. Normally, all this may be expected. In the instant case this seems to have been essential, as the defendants in their existing pleas, by way of defence, had clearly indicated that it was the efendant No.6 alone, which was since deleted, that was liable, if at all, for the claim in suit. Even under the original Side Rules of this Court, and particularly under rule 168 thereof, a defendant who claims as against any person not already a party to the suit that he is entitled to contribution or indemnity from such person, the defendant may make an application for third party notice to be issued to that person. Here, unfortunately, the converse of the proposition has come to g be true. Somebody, who was already a party and from whom the other defendants claimed contribution, was deleted, without notice to such other defendants and no opportunity whatever was given to the defendants either to apply under rule 168 aforesaid or otherwise to recast their defence. It follows, therefore, that neither the Rules were, in substance, duly followed nor were the remaining defendants provided adequate opportunity to advance their modified defences, if any, in the altered circumstance of the non‑existence of the defendant No.6 in these proceedings. These errors, for which the plaintiffs are not responsible in a small, measure, unsettle the very foundation of the order.‑'`

11. The e is another aspect to this case which requires mention in view of the prohibitory provisions in Section 171 of the Companies Act, 1913, (identical to Section 316 (1) of the Companies Ordinance, 1984) which, then, applied to these proceedings. When a winding up order has been made in respect of a Company or a provisional liquidator has been appointed in respect of such Company, no suit or other legal proceedings can be proceeded with or commenced against it, except by leave of the Court and subject to such terms as may be imposed. In the context of this case such an order had already been passed in relation to the defendant No.6 before even the institution of the suit. It is immaterial whether in the suit, as seen above, any decree was or was not sought against that defendant. Irrespective of any claim against Grace Industries Limited that defendant could not be proceeded against nor any proceedings commenced in a suit against it except by the leave of the Court. No such leave seems to have been obtained. In view of this situation and the prohibition under Section 171 of the Companies Act, 1913, the defendants justly say that they were under the impression that the case could not proceed in view of Grace Industries Limited being a party thereto and on facts, as has been seen above, the remaining defendants were never informed of the deletion of such defendant. Accordingly, in my view, sufficient cause for non appearance on that basis alone would seem accrue to the defendants for setting aside the exparte order. "Sufficient cause" has, repeatedly been held to be non‑susceptible to any precise definition. Without embarking upon a definition of such cause, in terms of Order IX Rules 9 and 13 and Order XLI, Rule 19 C.P.C. "Sufficient cause" may include any honest, just fair, due or lawful cause which, in the circumstances of a given case, a Court regards as sufficient to explain the absence or default on the part of a party to the proceedings. See the decisions in the cases of Farid Sons Ltd. v. Abdul Ali Moosa Bhoy & Sons PLD 1963 Kar. 424 and Md. Haleem v. H.H. Md. Naeem (P L D 1969 S.C. 270).

12. This takes us to the further question whether "No Instructions" by the learned counsel for the defendants were properly stated before the Court when the above suit came up for consideration. The practice of stating "No Instructions" by advocates in Court has come up for consideration in some cases (See Alico Civil Engineers and Contractors v. Syeda Mushtri (1980 C L C 466), Mst. Oamar Sultana v. Abdul Hussain (1982 C L C 767) and Shams Uddin v. Nisar Ahmad (1988 C L C 1016) and I have myself opined on the subject in the case of Hussain Nasir v. Shamim Yaqub (Suit No.888 of 1986). The view, which follows below, is in line with the foregoing citations. It seems to me that a serious responsibility rests on counsel who represent the parties in civil litigation and this is more so in relation to proceedings in superior Courts where only rarely dates by Court are given which may be directly known to the concerned parties. Normally, a case for regular hearing comes to be listed in Court after quite sometime of its institution and then too no notices are issued either to counsel or to the litigants and the fixation of the matter is apprised through circulation of cause lists to counsel and by placing it on the Court Notice Board to verify which, if a litigant were to launch upon due exercise, the same would take periodic and even daily visits to Court house, which is neither physically feasible nor in practice at all except, perhaps, and then too, rarely, when a case starts getting listed, its turn for hearing F having matured in the meantime. Without detracting from the responsibility of a liligant from diligently pursuing his cause, it is, therefore, plainly the implied duty of counsel to inform the concerned party whom he represents about the fixation of a case particularly in a superior Court as and when it starts coming up for consideration. Such duty was recognised by Md. Haleem, J., as he then was, in the case of Abdul Latif v. Jamaldin (1979 S C M R 183). The case of the defendants is that no such information was communicated to them by their learned counsel. On the other hand, the plaintiffs contend that such learned counsel was absolved from all responsibility, the case file having been taken away from him. For one thing, there is nothing in counsel's statement to show that such file was taken away, Even if it were so, the Vakalatnama in his favour remained operative and in force. This is conceded by Mr. Anwar Mansoor. If, therefore, the Vakalatnama was in force it carries with it a responsibility of communicating with the defendants and, it least, to represent them in Court. If the learned counsel thought that the defendants were not interested in continuing his engagement in the case, for their losing interest in relation to a heavy claim could not be conceived of, it obviously remained for the learned counsel to inform the defendants that he was withdrawing his Vakalatnama, that the date of hearing in the case was such and such and that thenceforth the defendants should either, personally, pursue the matter or engage some other counsel. On such intimation having been given counsel could apply to the Court and obtain his discharge from the case. This is clearly the effect of Order III Rule 4 (2) C.P.C.and Rule 50 of the Original Side Rules of this Court. None of this was done. The statement of "No Instructions" on the crucial date was, therefore, meaningless and deprived the defendants of an opportunity to appear in the case and to face the claim, such as it was on their own. That is not all, and I say so with utmost respect, in that such G bald statement of "No Instructions" was accepted, made the Court a party to the misconception and none can be exposed to suffer on error of or mistake by Court. This, also, would furnish sufficient cause for seeking the recall of the decree in this case.

13. While the learned counsel for the defendants contends that the latter should not be penalised for the want of care on the part of counsel, it is urged for the plaintiffs that engagement of counsel does not absolve a litigant from pursuing his cause duly and diligently. Much can be said for and against these seemingly divergent propositions. The cases of Satyapal v. Sant Ram (A I R 1934 Lah 91), Motichand v. Antram (A I R 1952 Bhopal 33), Abdur Rehman v. Allah Ditta (P L D 1957 Lah 619), Abdul Hamid Ismail v. M/s. Abdul Rehman Abdul Ghani (P L D 1959 Kar. 376), Farid Sons Ltd v. Abdul Ali Moosa Bhoy (P L D 1963 Kar. 424), Shivrattan G. Mohatta v. Mohammadi Steamship Co. (P L D 1965 SC 669), Jan Mohd v. Abdul Ghafoor (P L D 1966 SC 461), Salamat Bibi v. Setl, & Reh. Commissioner (P L D 1966 SC 467), Md. Haleem v. H.H. Md. Naim (P L D 1969 SC 270), and Eastern Steal v. National Shipping Corp. 1984 C L C 2778 may be cited in support of the first proposition whereas the dicta in Mustrafa v. Settlement Commissioner (1974 S C M R 104), 7ulfiqar Ali v. Lal Din (1974 S C M R 162), Mohd. Nawaz v. Sakina Bibi (1974 S C M R 223), Chiragh Din v. Jannat Bibi (1976 S C M R 399), Abdul Latif v. Jamaldin (1979 S C M R 183) and Jhanda v. Maqbool (1981 S C M R 126), may be referred in support of the second, In reality these propositions are not as irreconcilable as would, at first sight, appear. The principle is that, basically, it is the duty of a litigant to pursue his case with due promptitude and diligence. Where he engages counsel the responsibility comes to be shared. As a rule, in the absence or on default of counsel and client, both should show sufficient cause. There are exceptions, however, as pointed out by Hamoodur Rehman, C.J., in the case of B Md. Haleem (P L D 1969 S C 270) that where arguments alone remain to be heard presence of parties in such a case is not necessary". Like may be the situation where it was the duty of counsel to inform of the date of hearing to a party, which remained un-discharged, and the party failed, in spite of due care and caution on its part. In all such cases, a party cannot be penalised for the conduct wanting as it may be, of counsel. Here, a distinction must be brought out, obvious that the expression "sufficient cause" is common in Section 5 of the Limitation Act and in Order IX Rules 9 and 13 and Order XLI rule 19 C.P.C. but while condonation of delay through Section 5 of the Limitation Act, is discretionary, the discretion being conferred by the legislature employing the word "may" in that provision it is not discretionary to re‑activate a lis once "sufficient cause" is shown under Order 9 Rules 9 and 13 and Order 41 Rule 19 C.P.C, since the legislature, apparently, advisedly, has, therein, chosen to use the word "shall". This I say, even though in some context "shall" can mean "may". Here it does not seem to so mean. Accordingly, all dicta touching upon condonation has also to be looked at in this, legislative background and, in my humble view, may also be dis-Unguishable. Bulk of the case‑law cited for the plaintiffs, as above, pertains to the genus of condonation of time rather than of purging defaults.

14. Now, reference may be made to the question whether merits of the controversy can be gone into in the proceedings for setting aside of ex parte decrees under Order IX rule 13 C.P.C. Authorities seem to be to the effect that, normally, considerations of merits are not relevant. This, however, is subject to well recognised exceptions. Thus where a suit is barred by time or there is some other patent bar, which can be considered under the provisions of Order VII rule 11 C.P.C. the inadvertent omission of a Court, whose duty it is to examine the merits of a claim before decreeing it, is a matter, obviously, which can be considered. Likewise, when an omission to appear on the part of the defendant on the crucial date of decree is, to a degree explainable, the fact that the claim is a substantial one and the subsistence of the decree would cause serious prejudice to the defendant .are matters which can be examined, as opined by a Division Bench of this Court in the case of Eastern Steels v. National Shipping Corporation 1984 C L C 2778. It is, in this background, urged by the learned counsel for the defendants in that the suit 'was barred by limitation etc. that there was no due cause of action against the defendants, as such, and that apart from the defendant No.6 having improperly been deleted, the procedure under rule 168 of the Original Side Rules of this Court never became available to the defendants are matters, which can come up for consideration, on which all that I can say is that may or may rent be so. However, these: are weighty questions and would be dealt with in due course, when the whole suit comes up for consideration as, on the facts, and circumstances of this case, as dilated upon above, I am inclined to set aside the ex parte decree.

15. It remains to be seen that this is a very old suit and I have had to glue very serious thought before reaching the conclusion that it should be revived, and that being the case, it has to be the endeavour of this Court to have it disposed of at the very earliest. It goes without saying that due to heavy workload, it may not be possible to give priority for irecording of evidence in the suit and, in spite of every effort, the lis may remain pending indefinitely. As such, with a view to ward of that possibility, and in exercise of powers under Order 26 Rules 2 & 3 read with Section 151 C.P.C. I would appoint a Commissioner to record evidence in this case within four months of framing i.e Issues and the communication of this Mr. Mahmud is appointed such Commissioner. Tentatively, his fees is fixed at Rs.30,000, initially, to be paid by the defendants Nos. 2 to

5. Payment shall be made directly to the learned Commissioner. Bill of Costs shall, however, reflecit it. It will be the duty of the parties to provide the learned Commissioner with copies of the pleadings and Issues in this suit. Original documents, if filed in Court, will be forwarded to the Commissioner but if not filed or any additional documents are required, the same may be filed before the Commissioner. The suit would be set down for framing of Issues on the 20th of August, 1989, on which date both the sides would submit their draft Issues and, if possible, the same shall be framed on such date itself. As regards the position of the defendant No.6, which presently stands deleted, the parties would be free to pursue such remedies in Court as be relevant but that exercise would not come in the way of proceedings before the learned Commissioner. Resultantly, CMAs 1386/83 and 1387/83 stand allowed, the first by consent and the second for the reasons recorded above and, as a consequence, Id the ex parte decree is recalled and the suit stands revived. A.A./S‑461/K Ex parte decree set aside.