P L D 1956 Lahore 75 (PLP)

AKHLAQUE HUSSAIN, J.‑This is an appeal against the order of the learned Additional District Judge, Layallpur, dismissing in limine the appellant's application for restoration of his appeal which had been dismissed in default. The order of the learned judge does not disclose any serious attempt to consider and appreciate all the relevant facts. Wali Muhammad appellant had filed an appeal against the judgment and decree of the Senior Civil Judge, Layallpur to the Court of the District judge of that District, and the 20th of December, 1954 was fixed for its hearing. The appeal, however, was transferred to the Court of the Additional District Judge on the 7th of December and on the 9th it was ordered that the appeal should be heard on the 15th of that month instead of the 20th, the date originally fixed by the District Judge. A joint power of attorney had been filed by two advocates on behalf of the appellant, namely, Chaudhry Sultan Ali and Mr. Muhammad Ahmad. Notices of the alteration in the date of hearing were sent to the appellant and his two counsel. They could not be served either on the appellant or on his counsel Chaudhry Sultan Ali. The notice to Mr. Muhammad Ahmad, however, was served on the 13th of December, 1954, who reported that he had not been engaged for the appeal. What he actually appears to have meant was that he had no instructions to appear in the appeal and was not prepared to do anything in that connection. When the appeal was called on the 15th of December, 1954, it was dismissed in default as neither the appellant nor any counsel on his behalf appeared. The appellant thereupon put in an application for restoration of the appeal accompanied by an affidavit which alleged that neither the appellant nor his counsel Chaudhry Sultan Ali had received notice of the date of hearing. It was contended by the appellant's learned counsel that the learned lower Court failed to apply its mind to the provisions of O. III, rule 5 of the Code of Civil Procedure, according to which service on a pleader of any party shall be presumed to be duly communicated by the pleader to his client. He argued that as the presumption was rebut-able the lower Court should have held either that, in view of the affidavit of the appellant and the other circum stances of the case, the presumption had been rebutted; or that it should have called upon the appellant to produce, if he so desired, further evidence in rebuttal of that presumption. For the first part of his contention he relied on a number of rulings. One of these is contained in the judgment of the Calcutta High Court in R. F. Sandys v. Upendra Chandra Sinha Roy (13 C W N 142). The decision in the case appears from the following head‑notes:‑ "On the arrival of a record from the High Court on remand to the lower Court, it was ordered that the pleaders should be informed of the date fixed for hearing. This order was brought to the notice of the pleader for the defendant, but he did not inform his client of the order; and the case was decreed ex‑parte: Held, that the presumption that notice to the pleader was good notice to the party has been rebutted by the facts in this case; that the notice in this case to the pleader was not notice to the defendant and that the ex‑parse decree ought to be set aside". This ruling only shows that where a counsel who has received notice in time fails to communicate it to his client, the presumption contained in O. III, rule 5 Civil P. C. stands rebutted. It has, however, to be determined with reference to the facts of this case whether the appellant had not been informed of the date of hearing by his counsel Mr. Muhammad Ahmad. It is true that the affidavit of the appellant does not expressly state that Mr. Muhammad Ahmad had not communi cated the information to the appellant; but the report of the pleader clearly shows that, rightly or wrongly, he was not holding himself responsible for anything in connection with the appeal and that it was extremely unlikely that he would have taken the trouble to communicate the notice to his client‑and this improbability becomes still stronger in view of the fact that the appellant did not have his residence in the city but in a village in a different Tehsil, namely, Samundri. If the learned judge was not inclined to consider these circumstances as constituting a sufficient rebuttal of presumption he ought not to have ignored the fact that the presumption, in the particular circumstances of this case, was so weak that it ought not to be acted upon without giving the appellant an opportunity to produce further evidence. It would ~e con ducive to justice that a strict view of "sufficient cause" is not taken where the defaulting party is not obviously in the wrong. This view is in keeping with the spirit of the decision of their Lordships of the Federal Court in Mumtaz Ahmad v. Amtul Habib (13 C W N 142). There is yet another aspect of the matter which escaped the notice of the learned Additional District Judge. The notice was received by Mr. Muhammad Ahmad on the 13th of December, 1954 and the appeal was to be heard on the 15th. Supposing that Mr. Muhammad Ahmad did gratuito usly undertake the trouble and expense of sending a man to the appellant's village in Tehsil Samundri, the appellant could have hardly received the information in time to appear in Court on the 15th. The notice on the face of it was too short‑a circumstance for which the Court itself, and not the appellant, was responsible. In these circumstances the Court ought to have held that there was sufficient cause for the appellant's non‑appearance on the date of hearing In fact it would have been better if the Court had itself adjourned the hearing on the 15th on the ground of inadequate notice. I, therefore, allow this appeal with costs. The learned Additional District judge will restore the appeal and proceed to dispose it of on merits. A. H. Appeal allowed.