1979 PLP 373 (CLC)

Jan Muhammad v. Abdul Ghafoor P I, D 1966 S C 461 and Muhammad Haleem v. H. H. Muhammad Nalm P L D 1969 S C 270 ref. Hassan A. Shaikh for Appellants. Date of hearing : 27th November 1978. The facts leading to this Revision Application are that on 6-8-1974 the respondents Nos. 12 and 13, namely, Parya Khan and Moosa, filed a suit against the respondents Nos. 1 to 11, 14 and the applicant Amir Ali for declaration and injunction in respect of certain survey numbers of agricul tural land in Manghopir, Karachi. This suit was decreed by the learned 8th Civil Judge Karachi by his Judgment and decree dated 31-10-1968 after proceeding ex parte against the applicant Amir Ali. The applicant Amir Ali thereafter made an application under Order IX, rule 13, C. P. C. for setting aside the decree passed ex parte against him. The learned Civil Judge however dismissed the application by his order dated 25-3-1969, holding that the application apart from being without merit was also time barred. Applicant Amir Ali then filed appeal being C. A. 66/69 before the learned ill Additional District Judge, Karachi, who dismissed it in default on 8-5-1970, due to the absence of the appellant and his counsel on the said date. The applicant _thereafter, on 21-5-1970, filed an application under Order XLI, rule 19, C. P. C. for setting aside the order of dismissal of appeal in default and restoring the appeal. This application was supported by a personal affidavit of one Mr. Maziuddin, junior counsel of Mr. Hassan A. Shaikh. The learned Counsel appearing in the case, wherein the learned Junior counsel explained that as his senior counsel was busy in the High Court he came to the Court of the learned Additional District Judge and presented an application for adjournment on that ground but since the Court was busy with some other matter he left it with the reader for placing it before the Court and came to the High Court where he attended the matter and thereafter rushed to the Court of the learned Additional District Judge but on way his car broke down near the Women College and therefore he could not reach the Court in time and accordingly prayed that his absence at the time of appeal being called be excused and the appeal be restored. The learned Additional District Judge however did not feel inclined and dismissed the application holding that no sufficient cause had been made out although the statement of the junior counsel in his affidavit that he had appeared in Court and presented an application for adjournment was not disputed by him. Hence this revision application. After the initial service on the respondents by registered post and through bailiff' proved ineffective the service was made on the respondents by publication which was held good. Thereafter notices were issue to all the respondents individually for the actual dates of hearing before this Court but no one appeared and number of envelopes sent. to the. respondents by registered post A. D. for the previous dates of hearing show that the same were refused by the respondents. The file also shows that notice for today's hearing, was also issue to the respondents but none has appeared even today. As none has cared to appear in spite of repeated notice, and this is a very old matter, I see no justification in adjourning the matter further and proceed ex parte against the respondents. Mr. Hassan A. Shaikh, learned counsel for the applicant, contended that inasmuch as his junior counsel had appeared before the learned Additional District Judge on 8-5-1970, when the appeal was fixed for hearing, and made an application for adjournment on the ground that he was busy in the High Court in a matter which fact was not disputed even by the learned Additional District Judge, it was only appropriate that the learned Additional District Judge should not have dismissed the appeal in default but ought to have adjourned the appeal. The learned counsel next contended that m any case when the application for restoration of the appeal was made on the above grounds clearly showing that the absence of the learned counsel on the said date of hearing was unintentional and due to the learned counsel appearing in the case being busy in the High Court sufficient cause had been made out and the learned Additional District Judge was wholly unjustified in refusing that application and non-suiting the appellant due to no fault of his. The contention raised by the learned counsel is not without force. Indeed, it is not denied that on the date of hearing of the appeal before the learned A. D. J. junior of Mr. Hassan A. Shaikh did appear in Court and made an application for adjournment on the ground that his senior counsel who was conducting the appeal was busy in the High Court and had request the Bench clerk to place the application before the Court as be could not present personally due to the Court being busy in hearing some other matter. This is confirmed even by the impugned order itself. , Perusal of the order would further show that no counter affidavit was filed by any party disputing the above assertion made in the affidavit filed by the learned counsel. In the above circumstances, sufficient cause had been made out by the learned counsel for the appellant for his absence on the date of hearing, and the learned Additional District Judge was indeed not justified in rejecting the application for restoration of the appeal. It has been the consistent view o the superior courts, as expressed in P L D 1966 S C 46(?) P L D 196 S C 461 and P L D 1969 S C 270, that where it is shown to the Court that the absence of the counsel was not deliberate and that genine efforts were mad by him for appearing on the date of bearing, strict view should not be taken, particularly when the counsel is shown to be professionally busy in a superior Court. Further, the Courts have always favoured adjudication of cases on merits. For the aforesaid reasons, I accept this revision application, set aside the order dated 21-12-1970 passed by the learned Additional District Judge Lad remand the appeal to the appellate Court below for deciding it on merits after ensuring service on the concerned affected parties. In the circumstances of this case, I make no order as to costs. M. A. R. Appeal dismissed.