1982 PLP 172 (CLC)

This revision application is directed against the order of the Small Cause Court dismissing the applicant's application under Order IX, rule 9, C. P. C. The suit file' by the applicant was fixed for final hearing on 20th January, 1971. Early in the morning the Advocate for the applicant made an application under Order XVII, rules 1 and 2, C. P. C. praying that the bearing may be adjourned as the Advocate would be busy m the Industrial Court, Karachi in Case No. 23/1970. It seems that leaving this application with the Reader of the Court the learned counsel went to attend the Industrial Court. When the matter was called at 9‑00 a. m. as the Advocate for the applicant and the applicant himself were not present the application was rejected and suit was dismissed. On the same day the applicant filed an application under Order IX, rule 9, C. P. C. for restoration of the suit. The application was supported by an affidavit of the Advocate for the applicant and one Syed Murad Ali the Manager of the applicant. This application was, however, dismissed by the impugned order. Although notice of today's hearing was sent by registered post A/D. to the respondents on 19‑5‑1981 no one has turned up. I have, therefore, heard Mr. S. H. Mujtaba the Advocate for the applicant. The learned counsel for the applicant has contended that the order of dismissal was passed early in the morning at about 9 a. m. when the Advocate was absent because he had gone to attend a case before the Industrial Court and to that effect the application had also been filed in the Court. He further explained that the Manager of the plaintiff who was to attend the Court could not reach in time because the bus in which he was traveling had failed and he reached Court after the order had been passed. In the counter‑affidavit the respondents have denied the averments made in the affidavits and have stated that the applicant or his Manager did not attend the Court up to 9‑30 a. m. It is, however, significant that in the counter affidavit it has not been denied that the matter was dismissed early in the morn ing at 9 a. m. Even the impugned order does not show that such a statement made by the learned counsel for the applicant in his affidavit is incorrect. The trial Court seems to have been swayed away by the fact that the Advocate for the applicant having moved the application for adjournment left the Court and this was according to him not a sufficient cause as undue preference had been given to Industrial Court. . The learned counsel has explained the reasons for his absence. Initially he had requested for adjournment but if after the adjournment was refused the matter would have been set for hearing at a later hour the same day there was every possibility that the applicants Advocate and the applicant or his representatives would have been present before the Court. The fact, however remains that the Advocate for the applicant attended the Court early in the morning and moved an application giving reasonable ground for adjournment. The learned counsel for the, applicant has contended that considering the nature and the exigencies of the professional duties performed by the Advocates they have to attend many Courts at the same time and, therefore, the absence of the Advocate at a time when the matter was called early in the morning cannot be said to be intentional. His further contended that he had attended the Court during the early hours and even presented an application. It is true that the applicant's Advocate had taken all precautions and made all efforts to be present in Court and for that reason he first attended the Small Causes Court and then leaving the application went away to attend his case before the Industrial Court. The fact that the application for restoration was moved immediately the same day shows that the learned counsel for the applicant had been vigilant enough to have come to the Court of Small Causes immediately after finishing his work and, therefore in the circumstances the learned trial Court has wrongly assumed that the absence was intentional. The absence of the applicant anal his Manager has also been explained. The learned counsel has relied on P L D 1961 B J 42 where it was held that "the omission of a counsel to appear in a case on account of his being busy in another case is not in all cases a valid ground for holding that there was sufficient cause to set aside the order of dismissal. However, in cases where the omission of a legal practitioner to attend to any of the cases is due to his unavoidable absence there is sufficient cause for setting aside the orders, which are alleged to be passed on the omission of a party or his counsel to attend at a hearing. If the reason why a counsel could not appear on a certain date is valid, his absence is, however, a sufficient cause for which his client must not be made to suffer". Reliance was further placed on P L D 1969 S C 270 where Hamoodur‑Rehman, C. J. made the following observation:‑ "It has been laid down by this Court that although sufficient cause is not succeptible of any exact definition and no hard and fast rule can be laid down to cover all possible causes, yet where 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." Reliance was also placed on the case of K. M. Sadiq v. Volkart (Pakistan) Ltd., Karachi (1979 C L C 291), where hasty action on the part of the trial Court is dismissing the suit in early hours of the morning was not approved. Suchi hasty decisions instead of disposing of the matter are likely to create additional work and delay in final disposal of the case. A reference may be] made to the case of Ghulam Muhammad v. Allay' Hussain and another (1981 S C M R 533), where relying upon the High Court rules it was held that "a matter should not be dismissed in the early hours of the day". I" is just and proper that the matters unless specifically fixed by an order, to be heard early in the morning should not be dismissed immediately after calling up in early hours. This, however, does not mean that the parties and, their Advocates, are absolved from the duty to attend the Court in early hours. It will be in the facts and circumstances of each case and according to the work available to the Court which may exercise its discretion judiciously to decide whether a matter can be dismissed in the early hours. However, hasty orders dismissing the suit or granting ex parte decree in early hours should be avoided as far as possible. In cases where it is established that the Advocate and the parties ha been making genuine efforts to attend the Court and have promptly filed application for restoration of the case it should be interred that there was no intentional default on their part and if sufficient cause for absence is mad out, the application for restoration or setting aside ex parte decree should be allowed. In such circumstances the Court should not take a strict vie of the matter as the rules of procedure are made to decide the cases on merits and advance the cause of justice instead of stiffing it on mere technical grounds. Considering the present case in the light of the judgments cited above and the observation made herein the order passed by the learned trial Court should be set aside as the applicants have made out sufficient cause for the absence which was not intentional. The ex parte order was the result of a hasty action on the part of the trial Court in dismissing the matter. In the result the revision application is allowed and the impugned order is set aside with no order as to costs. M, Y, H. Appeal allowed.