1986 PLP 209 (MLD)

(2) Has the Court jurisdiction? (3) Is the suit insufficiently stamped? (4) Has the plaintiff any cause of action to bring this suit? (5) Did the plaintiff carry out the work as per contract and according to the specifications and revised estimate made on 19‑5‑1967? (6) is the plaintiff entitled to the claim filed by him? (7) Has the plaintiff overdrawn the bill to the extent of Rs.69,972? (8) What should the decree be?

3. The plaintiff examined Abdul Latif P.W.1 (Exh. 42), he produced Measurement Book Exh. 42/1, Zaheeruddin P.W.2 Ex h. 54 plaintiff's own son, Muhammad Farid P.W.3 Exh. 57, who worked as an Engineer from 1962 to January, 1967 with the appellant (District Council) and Ghulam Shah P.W.4, Exh.66 overseer employee of the appellant who used to measure the work and enter in the Measurement Book. The last witness was examined on 28th January, 1971 by the plaintiff who then closed his side. 4. (i) The defendants examined Mr. Mobin Ahmed D.W.1, Exh. 81 on 9th October, 1971. The said witness was Deputy Collector and S.D.M. Hala at the relevant time. (ii) It appears from the record that after a number of adjournments on 4th July, 1972 the case was taken up at 9‑00 a.m. by the Court and thereafter at 11‑20 a.m. but on both the occasions neither the defendants nor their Advocates were present. In the circumstances the defendants' side was closed. 5. (i) Application under section 151, C.P.C. (Exh. 99), however, was filed by the Advocate for the defendants on the same day in which it was stated that Mr. Kazi Tufail Ahmed Junior Advocate to the plaintiff's Advocate Mr. Suleman Memon, had appeared in Court when he was informed by the Reader of the Court that summons issued to the witnesses were not served but the plaintiff's Advocate refused to consent to adjournment. It was further stated that Mr. Kazi Tufail Ahmed, Advocate informed his senior Mr. Suleman Memon, Advocate of this stand of plaintiffs Advocate whereupon Mr. Suleman Memon reached the Court and had a talk with the plaintiff's Advocate and thus it was mutually decided by the two counsel, that defendant's Advocate (Mr. Suleman Memon) shall come at 1 O' Clock to attend the matter by which time the learned trial Court would be free from other cases. It was further stated that Mr. Suleman Memon had specifically informed the counsel for the plaintiff that in case the matter is taken up in the meantime he would inform the learned Judge about this mutual arrangement and that on the assurance of the plaintiff's Advocate he went to attend other Court where he had some cases. According to, the application, the defendants' Advocate returned at 12‑15 p.m. when he learnt that the matter was taken up earlier and the defendants' 'side was closed. On the pleas raised in the application it was prayed that the Court may set aside the order closing the side of the defendants and to permit them to produce evidence. This application was supported by the affidavit of Mr. Kazi Tufail Ahmed who however did not assert in the affidavit that in his presence the mutual arrangement referred to in the application by Mr. Suleman Memon was arrived at between the latter and Mr. Obaidullah. 5(ii) Mr. Obaidullah, Advocate for the plaintiff, however, in his own counter‑affidavit to the application denied the allegations made in the application moved for reopening of the side. He expressly denied that any mutual arrangement as stated in the application was arrived at between him and Mr. Suleman Memon, the Advocate for the defendants. It was further stated that Mr. Suleman Memon, Advocate for the defendants had not intimated him (Mr. Obaidullah) that he was going to attend any matter in other Court. It was also stated that Mr. Suleman Memon should first record his statement as to what actually was the talk between the two Advocates, so that thereafter he (Mr. Obaidullah) may rebut by stating correct facts if need so arose. Mr. Suleman Memon, Advocate however, neither, filed his affidavit nor recorded his statement to rebut the stand taken in the counter affidavit. The learned trial Court by order, dated 27th July, 1972 dismissed the said application. The case thereafter was adjourned.

6. Before arguments, on the issues could be heard the Presiding Officer was transferred and thus the said suit for arguments was adjourned from time to time.

7. A perusal of the Court diary shows that on 28th February, 1973 the suit was received in the Court of the First Additional District Judge, Hyderabad by transfer and that the said Court adjourned the case to 20th March, 1973, when the Advocates for both the sides appeared before the transferee Court. Thereafter, on 6‑4‑1973, 26‑4‑1973, 19‑5‑1973, 14‑7‑1973 the case was adjourned on the applications made by the defendants' Advocate. On 27th July the case was adjourned by consent, while on 28‑7‑1973 it could not proceed due to want of time and was adjourned to 31‑7‑1973. Orr the last mentioned date again an application for adjournment was moved by the Advocate for the defendants whereupon the learned Court granted last chance and adjourned. Thus on 17th August, 1973 the arguments were heard and on 31‑8‑1973 the judgment was announced and the suit was decreed against the defendants as mentioned earlier. It may be pointed here that before the learned lower Court issues 1 to 3 were not pressed, while issues Nos. 4 to 6 were answered in the affirmative and Issue No.7 was answered in the negative and decree accordingly was passed.

8. Aggrieved by the above judgment and decree the defendants preferred this appeal which was filed in this Court on 29th March, 1975.

9. At the time of arguments before this Court Mr. P.M. Amar who appeared for the appellants submitted that the only point which required consideration was as to whether the trial Court was justified to close the side of the appellants /defendants on 4th July, 1972. The counsel for both .the sides were accordingly heard on the only point thus pressed before this Court on behalf of the plaintiffs /defendants. Mr. P.M. Amar, learned counsel for the appellant in support submitted that the appellant had made application for summoning his witnesses for 4‑7‑1972 but the same were returned unserved and that the absence of the counsel for the appellant /defendant when the case was called out before the Civil Judge was due to an express understanding reached between Mr. Suleman Memon, Advocate and Mr. Obaidullah, Advocate for the plaintiff /respondent. In support of the submission thus made the learned counsel placed reliance upon the affidavit filed by Mr. Tufail Ahmed Kazi, Advocate. He further submitted that the learned Civil Judge was legally not entitled to close the side of the defendants because of their absence or that of their Advocate on 4‑7‑1972 for the reason that on the said date Court could have proceeded under Rule 2 of Order XVII, C.P.C. and that Rule 3 of the said Order was not attracted. The learned counsel relied‑upon the case reported as Abdul Majid v. Wali Muhammad PLD 1963 Kar. 171 wherein it was held that the provisions of Order IX would not be applicable to ex parte decree passed under Order XVII, Rule 3, C.P. C. unless the case was adjourned upon a request being made by the party concerned. No such question, however, arises in the present case for the reason that the impugned judgment was passed by the trial Court after recording of evidence produced by the plaintiff /respondent and one witness had been examined on behalf of the defendants/ appellants. The side of the plaintiff was closed on 4th July, 1972 as the defendants and their Advocate also, were absent on the said date when the case was called out at 9 a.m. and even thereafter at 11‑20 a.m. The decree passed in the circumstances on merits by no stretch of imagination could be called a decree ex parte. It is important to take notice of the fact that the suit was filed in 1968, the side of the plaintiff was closed on 28th January, 1971, thereafter the defendants /appellants examined one witness, but on 4th July, 1972 due to absence of the defendants/ appellants and also their counsel, their side was closed and the application made for reopening the side was dismissed by order passed on 27th July, 1972. No step thereafter was taken by the appellants /defendants to challenge the said order. On the contrary, they continued to take part in proceedings, even appeared before the transferee Court (1st Additional District Judge, Hyderabad) on 20th July, 1973, 26th April, 1973, 14th July, 1973, 27th March, 1973, 28th July, 1973 and 31st July, 1973 and after the arguments of both the Advocates were heard on 17‑8‑1973 the judgment was pronounced on 31st August, 1973. We are now in 1985 and almost 17 years have passed since the suit was instituted. The plaintiff who originally filed the suit in the meantime died and his legal representatives have been brought on the record. 9‑A. In the circumstances of the case the defendants /appellants who did not care to attend the Court on 4th July, 1973 (even if their Advocate was not present) I find nothing on record to justify the absence of the defendants, having a vast establishment. The settled law is that a party by merely handing over or entrusting the case to the Advocate cannot remain indifferent and is not absolved from pursuing the matter and attending the Court on the dates fixed for hearing/ evidence. Reference if need be made to the case of Zulfiqar Ali v. Lal Din and another 1974 S C M R 162 and Ahmad Hussain v. Aziz Ahmed 1979 C L C 629.

10. Mr. P.M. Amar learned counsel for the defendants/ appellants then argued that an understanding was reached by Mr. Suleman Memon, Advocate for the appellants/ defendants with Mr. Obaidullah, Advocate for plaintiff/respondent to the effect that the former would come at 1 O'clock to the Court of Civil Judge where the suit was fixed for hearing on 4th July, 1973 and that in case the matter was called out earlier the Advocate for the plaintiff /respondent would inform the learned Judge about the mutual arrangement arrived at between the two Advocates. It was submitted by Mr. Amar that on this assurance the Advocate for the appellant had left to attend another Court. I am, afraid this submission of the learned counsel cannot be accepted as Mr. Suleman Memon, did not file any affidavit of his own in support of the assertion .made in his application for reopening the case whereas Mr. Obaidullah, the Advocate for the plaintiff /respondent filed his own affidavit and denied expressly that any such arrangement was agreed upon. He further challenged and called upon Mr. Suleman Memon, the Advocate for the defendants to record his statement so that the same may be rebutted by stating the correct facts if need be. To the counter, affidavit thus filed, neither any affidavit in rejoinder was filed nor Mr. Suleman cared to record his statement. In the circumstances the assertions made in the application which were not supported by the affidavit of the concerned Advocate Mr. Suleman Memon was rightly ignored by the trial Court while rejecting the application. I may refer here to the case of Islamic Republic of Pakistan v . Amjid Ali Mirza PLD 1977 S C 182 wherein the Honourable Supreme Court accepted the principle that statement made in affidavit would be accepted where n counter‑affidavit has been filed on the record to controvert the statement made by the other side. For the abovementioned reason I am of the view that the absence of the Advocate for the appellant /defendant was not for sufficient cause and that in any case there is nothing on the record to explain as to why the defendants having a big establishment, sent no one from their office to attend the Court on 4th July, 1973. It was their obligation to attend the Court on the dates of hearing notwithstanding the fact, that they had entrusted the case to the Advocate.

11. The upshot of the above discussion is that in this litigation which arises out of contract entered into on 1st April, 1966 I find that no valid reasons have been made out to interfere with the impugned judgment and decree passed on 31st August, 1973. Learned counsel for the appellant has not challenged the findings given on merits by the learned trial Court. This appeal is dismissed with costs. The appellant shall also pay interest @ 6% per annum on the decretal amount from the date of filing of this appeal till the amount is paid, besides the interest awarded by the trial Court. A. A.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.