P L D 1971 Karachi 756 (PLP)

Z. H. Chishti for Defendant No.

4. The plaintiff's suit was decreed ex parte against defendants 2 and 3 on 10th February 1970, and these defendants have now filed a restoration application under Order IX, rule 13, C. P. C. which has now come up for hearing before me.

2. The facts material for this application are as follows: Issues were framed by the Court in this suit on 17th November 1969, and thereafter the suit was fixed for evidence by the Registrar on 10th February 1970. This, I may observe, was the first date for evidence in this suit and only the plaintiff and the learned counsel for the 4th defendant were present on 10th February 1970 therefore I had decreed the suit ex parte the same day, after recording the plaintiff's evidence. Nearly a month later, but within the statutory period of limitation on 5‑3‑1970 the defendants filed the aforesaid restoration appli cation and the principal ground taken in this application is that their Advocate was lying unconscious with heart attack on 10‑2‑1970.

3. Learned counsel for the plaintiff, opposed the restoration application and advanced two arguments in support of his contentions. His first argument was that the application was not maintainable, and that the only remedy of the defendants was by way of an appeal and not a restoration application, and his second argument was that the defendants as distinct from their counsel, had failed to make out a sufficient cause within the meaning of Order IX, rule 13, C. P. C. I shall now con sider these arguments.

4. As the case was fixed for evidence after issues had been framed, the suit could have been decreed either under Order XVII, rule 2, C. P. C. or under Order XVII, rule 3, C. P. C., and Mr. Nusrat conceded that, if the suit was decreed under Order XVII, rule 2, then the restoration application was maintainable, therefore the first point for determination is under which provision of law the suit was decreed on 10‑2‑1970. Order XVII, rule 2 reads as follows :‑ "

2. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit." Order XVII, rule 3 then reads as follows "

3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the atten dance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." I have pointed out that the suit had been fixed for hearing directly by the Registrar for the first time on 10‑2‑1970, there fore it cannot fall under Rule 3, and in any event that is the view taken by a Division Bench of this Court in P L D 1969 Kar.

418. The suit was therefore decreed under Rule 2 and as the provisions of Order IX are attracted, there is no doubt that the restoration application is maintainable, and the only question for determination is whether the defendants have made out a sufficient cause for restoration.

5. It is not disputed before me that learned counsel for the defendants was precluded by his grave illness from attending the Court on 10‑2‑70 so that the real point for consideration is whether the defendants have given a reasonable explanation of their own absence. In this connection, the Managing Director of the second defendant and an Accounts Assistant of the third defendant have filed affidavits. The latter has only stated that he had sought to contact his Advocate on 9‑2‑70 and has come to know that his Advocate had a heart attack. But the affidavit of the second defendant's Director is more detailed. This Director has stated in his affidavit that he had come to Karachi on 9‑2‑70, and as he had found the office of the Advocate closed, he had returned to Lahore leaving a message at his Advocate's office. As he came from Lahore to Karachi the day before the hearing of the suit, it is obvious that his learned Advocate had taken care to inform him of the case so that there was absolutely no negligence on the part of learned counsel. However, it is strange that the second defen dant's Director having come down to Karachi on 9‑2‑70 should have returned to Lahore without appearing in court the next day, despite his knowledge of his Advocate's serious illness is difficult to believe that a rational human being would behave in this manner, and the possibility that the defendants are resorting to dilatory tactics cannot be ruled out. However, as the second defendant's Director was not able to contact his Advocate at all, the possibility that he got confused cannot also be ruled out. This means that the defendants acted negligently but not with gross negligence, and there is authority for the proposition that a party should not be penalised unless lie acts with gross negligence. (See a judgment of a Division Bench of the Madras High Court in Arunachala Iyer v. Subbaramiah (A I R 1923 Mad. 63)) 1 would therefore hold that, as the defendants have been negligent, especially the third defendant, but not grossly negligent, their application should be allowed but on terms only, that they should furnish security for the decretal amount.

6. Here I have to observe that even when the suit was decreed ex parte the plaintiff had dropped his claim against the 4th defendant, and Mr. Nusrat, learned counsel for the plaintiff, admitted before me that even if the suit was restored, the case should be dropped against the 4th defendant. It is ordered accordingly. Further as to the first defendant, I have pointed out in my judgment that this is a misnomer, and as a company by the name of the first defendant was never incorporated, it cannot be sued, therefore, although the suit is restored, it will proceed only against defendants 2 and 3 who will furnish security for the decretal amount within 10 days from the date of this order. In the circumstances of the case I make no order as to costs. A.E.Orders accordingly.