2000 PLP 263 (CLC)

K.B. Bhutto and Arshad Hussain for Respondents. Through this common order, I intend to dispose of two applications filed under Order XLI, Rule 19, C.P.C. read with section 151, C.P.C. by the appellants‑in both the above rent appeals as common questions of law and facts are involved.

2. In both the above first rent appeals, the appellant is common, he being landlord of the two tenements. His appeals were fixed for regular hearing on 19th October, 1998, when both these appeals were dismissed by this Court under the following circumstances which are incorporated in the order, dated 19‑10‑1998 which reads as follows:‑‑ "This appeal was taken up before break but none appeared for appellant, therefore, at the suggestion of the counsel for the respondent, matter was kept aside to be taken up after break. The matter is again called after break but none has appeared for appellant. No intimation is received from the appellant. I have finished mostly all cases of my board fixed today. There is no alternative open to me except to dismiss this appeal for non- prosecution. Accordingly, this appeal is dismissed for non -prosecution."

3. I have heard Mr. Abdul Hameed Lakhani, Advocate in support of these applications for restoration of appeals to their original number. I have also heard M/s K.B. Bhutto and Arshad Hussain, Advocates for the respondents. On the last date of hearing, Mr. Amir Hani Muslim, Advocate for one of the respondents appeared who was also heard at length. It was argued by Mr. Abdul Hameed Lakhani, Advocate that there are more than sufficient reasons for restoring these appeals as on 19th October, 1998, he was suffering from Diarrhoea and, therefore, was not able to attend this Court. In support of these applications, he has filed his personal .affidavit wherein he has further stated that he had no Court Clark with him and that one peon is working with him who is illiterate. In these circumstances, it was argued that his absence on 19th October, 1998, was neither willful nor deliberate. He had also mentioned in his supporting affidavit that due to his illness and due to the fact that he himself was not aware he was not able to inform his client about the date of hearing. He has placed reliance on the cases Mst. Mariam Bai and another v. Mst. Mehrunnisa Begum (1985 SCMR 2064) and Inamur Rehman Gillani v. Jalal Din and another (1992 SCMR 1895).

4. It was argued by Mr. K.B. Bhutto that the appellant is in habit of committing default in appearance and is not entitled for any discretionary or equitable relief from this Court. He has pointed out the order of this Court dated 18th May, 1998, through which both the abovementioned appeals were restored by this Court which were earlier dismissed for non‑prosecution on. 15th April, 1998. He has also referred to the contents of paras. (3) and (4) of his counter‑affidavits and contended that since no affidavit in rejoinder was filed by the appellant it is to be treated as accepted. According to Mr. Bhutto the ground mentioned in paras. 3 and 4 of his counter‑affidavit are sufficient to dismiss both these applications. Mr. Bhutto has placed reliance on tire cases Zulfiqar Ali v. Lal Din and another 1974 SCMR 162, Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223, Dhanjishaw Bahramhi Ghadialy and another v. Abdul Latif PLD 1983 Kar. 121 and the case of Bashir Ahmad etc. v. Settlement and Rehabilitation Commissioner 1982 SCMR

188. It was argued by Mr. Muhammad Arshad that ground of negligence of counsel is not a sufficient ground to restore these appeals as the parties are equally responsible to pursue and look after their case. He has vehemently prayed for dismissal of both these applications. He also placed reliance on the cases of Haji Abdul Hammeed through legal heirs v. Mrs. Mumtaz Ayub 1985 SCMR 1595 and Jhanda v. Maqbool Hussain etc. 1981 SCMR 126.

5. In support .of these applications seeking restoration of appeals, the learned counsel for the appellants had filed his personal affidavit wherein he has categorically stated that on 16th October, 1998 he was seriously suffering from Diarrhea and was confined to bed and was not able to attend his professional duties. It is further stated in the said affidavit that he was not in a position for a whole week to attend his office and that there was no other person to look after these appeals. In para. 3 he has stated that since he had no knowledge of the fixation of these appeals on 19th October, 1998, he could not inform his client about the said date. As against the affidavit of the counsel for the appellants the respondents have filed their affidavit denying the averments of the same. In para. 3 of the respondents counter‑affidavit, it is stated it is equal responsibility of the appellant himself to prosecute these appeals and that by engaging an Advocate in the appeals it does not exonerate the appellant of such responsibility in law. It was suggested that no rejoinder affidavit was filed denying averments of the counter‑affidavit and, thus, it stands admitted. It was argued that on this score as well, both these applications are liable to be dismissed. In my view, the appellant was not required to answer or rebut contents of para. 3 of the counter‑affidavit as he has already clarified his position in his supporting affidavit. Secondly, such plea is a mixed question of law and fact which is required to be determined by the Court itself. In these circumstances, I am of the considered opinion that the appellant was not required to file any rejoinder affidavit. The question which arises is as to which side's story is to be preferred. The Courts have generally upheld the affidavits filed by counsel; particularly when such facts have not been denied by the counsel for the opposite side. In the instant case, the parties have filed their counter‑affidavits denying averments of gut affidavit filed by an Advocate of this Court. As against contents of the affidavit filed by a private patty against affidavit of an Advocate of High Court, I am inclined to extend more sanctity and reliability to the affidavit filed by a counsel of this Court.

6. In the case of Mst. Mariam (supra) a Division Bench of the Supreme Court converted two petitions for leave to appeal and set aside the orders passed by this Court through which the two applications filed in two different appeals under Order XLI, Rule

19. C P.C. were dismissed. After making reference to the case of Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270, it was held; inter alia, that since suits were fixed for final arguments, presence of the parties on the date of hearing was not necessary as they world have not contributed to progress of hearing of that suit. In the case of Inamur Rehman (supra) the petitioner was seeking leave to appeal against the order of a learned Single Judge of Lahore High Court who refused to restore the revision petition filed by the petitioner. It was held, inter alia, that "normally Courts should try to adjudicate the matters placed before them on merits and deviate from this course only if they find that the process of the Court is being abused. The dismissal of cases for non‑prosecution should normally be the exception and not rule." In the case of Zulfiqar Ali (supra) Honourable Supreme Court dismissed petition for' special leave filed against the order passed by a Divisions Bench of the Lahore High Court dismissing appeal in limine from an order of learned Single Judge of the same High Court who refused to restore the second appeal dismissed for Lion‑prosecution. In that case, the plea taken by the counsel was that he left the Court ‑as he was informed by the Reader of the Judge that there is no likelihood of proceeding of the case; that in such circumstances, learned Single Judge examined the Reader who declined such allegation. In that background, it was held that the absence of counsel on the day when the revision was dismissed, was not sufficient. The case of Muhammad Nawaz and Jhanda (supra) arose from the question of condoning delay in filing appeal as provided in section 5 of the Limitation Act, 1908. In the case Bashir Ahmad (supra) restoration of Constitutional petition was not granted on the grounds, inter alia, that there were three counsels appearing for the petitioner In the instant case, there is only one counsel appearing for both the appellants who has stated to his supporting affidavit that he had no Court clerk and his peon being illiterate is not able to go through the cause list. This fact has not been denied by the respondent by producing any sufficient material from Sindh High Court Bar Association showing that such counsel had the services of a registered clerk. In the case of Abdul Hameed (supra) there was gross negligence on the part of the counsel appearing for the appellant whose appeal was dismissed on 7th May, 1981. It was found that earlier on several occasions the said counsel had not appeared. In the case of Bhanjishaw Bahramji (supra) a Division Bench of this Court declined to set aside an ex parte decree on the ground, inter alia, that it was shown through the affidavit and counter‑affidavits filed by the parties that the counsel who failed to attend the Court on the relevant date of hearing was found attending the High Court on the same day.

7. In the instant case, I am of the view that since the appeal was fixed for regular hearing, the presence of appellants in person was not necessary. It is a matter of. single day default. It has been successfully shown by the counsel for appellant that he was not in knowledge of the date of hearing and, therefore, it could not be expected from him that he was required to make alternate arrangement. His absence on that date of hearing was neither ' deliberate nor wilful. These appeals were dismissed for non‑prosecution on A 19th October, 1998 and the instant application was filed on 5th November, 1998, within a period of 15 days. In my considered view, learned counsel has shown a sufficient reason for restoration of these appeals. However, since this is the second instance, I grant both these applications subject to payment of cost of Rs.5,000 each by the appellants directly to the counsel for the respondents. Both appeals stand restored to their original numbers. H.B.T./M‑475/K Application granted.