1984 PLP 347 (MLD)

The two applications C.M.A. No. 1710/83 and 1711/83 fixed today are dismissed for non-prosecution." Thereafter, the present C.M.A.No.1950/83 was filed on 27-10-1983 for restoration of appeal by setting aside the orders in regard to non-prosecution. In support of this application the appellant has filed his affidavit in which he states that his previous Advocate, Syed Farid Alam Rizvi, being indisposed and besides illness, for reasons best known to the Advocate defaulted in making appearance before this Court more than once and therefore the appellant appointed another Advocate. Another affidavit dated 16-11-1983 had been filed in support of this application and this is the affidavit of Mr. S. Farid Alam Rizvi, Advocate, in which he states that he had accepted the brief from the appellant and he was conducting this case for the appellant until October, 1983. He further states in his affidavit that in the month of May he became seriously ill and he could not appear on 25-5-1983 in this case for the reason that owing to his illness he could not even go through the cause list and as such it was beyond his control to put up appearance. Another affidavit dated 16-11-1983 of one Ishaq Muhammad Qureshi has been filed in support of this application. The deponent of this affidavit states that he and one Musa Khan were partners in some construction work and that Musa was a relation of the appellant and. the deponent and appellant had engaged Mr. Rizvi, Advocate, who, appeared for the appellant and filed the present appeal. He further stated in his affidavit that while accepting the case the Advocate had pointed out that he normally did not bother his clients to attend each and every Peshi or date of hearing, and that he himself would look after the case with utmost devotion. A counter-affidavit has been filed by the respondent /landlady. I have heard Mr. B.A.Khalil, learned counsel for the appellant and Mr. Habibullah Samo, learned counsel who has appeared for the respondent. Learned counsel for the respondent has correctly pointed out that in the affidavits in support of the present application no ground has been made out for non-appearance of the appellant or his Advocate on 9-10-1983, when the present applications for restoration of the appeal and condonation of delay were fixed for orders. Even in respect of the hearing on 25-5-1983 there is no satisfactory explanation for non- appearance of the appellant and his counsel and for explaining the delay that had taken place in moving the restoration application after nearly five months of the order, dated 25-5-1983 dismissing the appeal for non-prosecution. The main argument of Mr.B.A.Khalil has been that this is a case where the counsel was negligent and there was no negligence on the part of the appellant and therefore the appellant should not suffer for the negligence of his counsel. I find from the affidavits that in this case there is negligence of appellant also in the prosecution of the appeal. No doubt he has stated that it was the negligence of the counsel and in his affidavit in support of this application Ishaque Muhammad Qureshi has stated that the counsel had told the appellant that the counsel did not bother his clients to attend each and every Peshi or date of hearing and that he himself would look after' the case with utmost devotion but from the affidavits filed by the appellant in support of this application it is apparent that the appellant himself was making enquiries from the office of this Court about the progress of his appeal. The appeal had not yet been admitted and there was an ejectment order against the appellant and as such it was expected of the appellant, as a reasonable man, to enquire whether the appeal had been admitted and/or stay had been granted. The conduct of the appellant in not finding out for several months whether a stay had been obtained from this Court shows carelessness on his part. In the facts and circumstances of the case the entire blame cannot be placed solely on the counsel, who was then appearing for the appellant. Learned counsel for the appellant has relied upon the following reported judgments:

P L D 1966 S C 461 Jan Muhammad v. Abdul Ghafoor . In this case it was observed by the Supreme Court that the determination of sufficient cause for purposes of restoration under Order IX, rule 9, C.P.C. was a matter within the discretion of the Court to be exercised judiously in relation to all the circumstances of the case. (2) Shivrattan G.Mohatta v. Muhammadi Steamship Co.Ltd: P L D 1965 S C

669. In this judgment the Supreme Court affirmed the judgment of the L.P.A. Bench of High Court of West Pakistan, Karachi Bench and dismissed the appeal. The appellate Bench had found that the counsel for the plaintiff had been negligent in the prosecution of the suit but thought it would be wrong to make the plaintiff suffer on account of his professional misconduct. In concurring with the view taken by the High Court the Supreme Court added that there were other sufficient and good reasons for restoration of the suit. (3) Muhammad Haleem v. H.H. Muhammad Naim:- P L D 1969 S C

270. Reliance was placed by the learned counsel for the appellant on this judgment where it has been observed by the Supreme Court that although sufficient cause (in an application under Order IX, Rule 9, C.P.C.) is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, yet where the non-appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precautions to be present at the hearing a very strict view should not be taken. (4) Seshaingar Rajagopalan v. Unique Assurance Co.Ltd: A I R 1940 Cal.

373. In this case a defendant had no knowledge about the date fixed for hearing of the suit and was not informed about the progress of the suit by his attorney owing to the attorney's grave illness and subsequent death. The suit was decreed ex parte against the defendant. It was held by a Single Judge of the Calcutta High Court that the defendant had shown sufficient cause for not appearing on the date the suit was taken up for hearing. None of the above reported judgments comes to the aid of the appellant in the present case. This is a case, as observed earlier, where there is negligence and carelessness on the part of both the counsel, who was then appearing, and the appellant. Neither genuine efforts were made nor reasonable' precautions were taken either by the advocate or by the appellant to be present at the hearing on 25-5-1983 and 9-10-1983. In my view, sufficient cause has not been established for non-appearance on 25-5-1983 and 9-10-1983. As a result, C.M.A. No.1950/83 is dismissed. However, the appellant is granted time till 30-6-1984 to vacate the premises. M.A.K Application dismissed.