1986 PLP 429 (CLC)

Nasimuddin Shaikh for Plaintiffs. S.M.Noorul Hassan for Defendants Nos.2 and

3. This is an application under Order IX, rule 9 read with section 151, C . P . C . praying for the restoration of another application Civil Miscellaneous Application No. 3034 of 1983 which itself was for setting aside the decree passed ex parte against the present applicants. The background of this litigation is that the plaintiffs had taken on lease the Cotton Ginning Factory belonging to the defendants for the cottor, season of 1975‑76 and 1976‑77 and had also paid a sum of Rs.l Inc as lease money to the defendants Nos.2 and

3. To the misfortune of the applicants their factory was taken over by the Government under the Nationalisation Scheme effective from 17‑7‑1976 and thus they were prevented from handing over the possession of the factory to the plaintiff in terms of the above agreement. In this changed situation the plaintiff lodged a claim with the defendant No.l in whose possession‑the factory had passed and also with the defendants Nos.2 and

3. Defendant No.l who was in possession admitted the plaintiffs claim in the sum of R.1 lac, but unfortunately the claim remained unsatisfied. In the meantime the factory was denationalised and the defendants Nos.2 and 3 have re‑appeared on the scene. The plaintiffs renewed his efforts for recovery of Rs. 1 lac, and on the failure of defendants Nos. 2 and 3 to refund this amount filed a suit. Subsequently the name of the defendant No.l was dropped from the plaint and the case remained alive against defendants Nos.2 and

3. It may be mentioned that defendant No.2 is the name of the firm and defendant No.3 is the sole Proprietor. The Additional Registrar by his order, dated 23‑12‑1978 debarred the defendant No.2 on account of the non‑appearance. On 10‑3‑1983 when the case came up for hearing in Court, a learned Judge after examining the merits of the case decreed the suit ex parte, as no appearance was made by defendants Nos.2 and 3, defendant No.l having already been dropped. As a result of passing of this ex parte decree the application, civil Miscellaneous Application No.3034 of 1983 under Order IX, rule 13, C.P.C. was noted and it was presented on 13‑9‑1983. This application was fixed in Court on 8‑4‑1984 and was dismissed for non‑prosecution, for hearing se the defendants failed to appear. It is against this order of dismissal of Civil Miscellaneous Application No. 3034 of 1983 that the present application has been filed under Order 1X, rule 9, C.P.C. praying for restoration of the application. The short point that falls for determination is whether good cause has been shown for non‑appearance of the defendants on 8-4-1984 when this application was fixed for hearing. The present application is supported by as affidavit of Mr. Rais M. Mushtaq who is an Advocate of Hyderabad and has been appearing for the defendants it, this case. The explanation offered for non‑appearance on 8‑4‑1984 is given in Tars. 3 of this affidavit and it would be proper to quote the same, which runs as under:‑

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3. That I have been enquiring about the date, but to my knowledge no date was fixed in the matter. Today, the 19‑2‑1985, I had come to Karachi, in a case, therefore, I went to the Suit Brands of this Hon'ble Court to inquire, and came to know that said application Civil Miscellaneous Application 3034 of 1983 was fixed in the Court on 8‑4‑1984 and was dismissed for non- prosecution. I humbly submit that the date in Court on 8‑4‑1984 was apparently fixed by mistake as no notice was issued/served on me about the said date." After giving this explanation the learned Advocate has further stated in his affidavit that the reason for non‑appearance of the defendants in on that date was that no notice was given by the office of this Court intimating the date of hearing to the applicants. The learned counsel in para. 5 heavily relies on the practice of this Hon'ble Court and it is better to quote it again:‑

5. That the practice of this Hon'ble Court is that notice for actual date is issued/served on Advocate who are not residing at Karachi and do not receive the lists of cases which are distributed to Advocates in Karachi. The principles of natural justice also require proper notice in such cases as in this case I being not a resident of Karachi and practising at Hyderabad, was entitled to notice for an actual date." Mr. Noorul Hassan learned counsel for the defendants Nos.2 and 3 has contended before me that a decision without notice to the party is no decision in the eye of law. It is admitted position that no notice was issued to the applicants and as such the order passed in his absence on 8‑4‑1984 should not be allowed to stand. Mr. Nasimuddin Shaikh learned counsel appearing for the plaintiff supports the order and contends that it was the duty of the defendants to check up from the office the date of hearing of the application and because the learned counsel for the defendants left everything to chance, he should not be heard to say that because he is an Advocate from outside/ Hyderabad, he could not know anything about the date of hearing. The learned counsel, vehemently argued that there is no such rule that Advocate coming from outstation should be informed by the office through a notice. According to the learned counsel special notice to an outside Advocate is a special favour or courtesy shown to such Advocate and no one can claim this courtesy as a matter of right. The contention is good so far as it goes, but the basic fact that remains to be considered is whether a party or counsel is entitled to a notice or not. There can be no opinions that every litigant has a right to notice of hearing of his cause in the Court, and no one should be condoned unheard. Due to rush of work and the volume of business in the office notices are no more issued to every litigant and the publication of the list and affixing the same on the Notice Board for the general information is deemed to be a sufficient service/notice. Even in such matters litigants, who are not represented through a counsel, are even now issued direct notices informing them about the date of hearing. The reason for holding that the general notice should be deemed to be a good and sufficient notice is that the Advocates are supposed to study the list as a part of their duty to know the dates. This assumption of knowledge attributed to the practising Advocates of Karachi is, however, restricted to cases of such Advocates who are practising and residing in Karachi. So far as the outstation Advocates are concerned, who are not practising in Karachi, notices are always sent to them and even in cases where notices have been issued, but the service has not returned, the cases are usually adjourned. This practice is known to all and whether it has the validity and force of a rule or merely the sanctity of practice, it cannot be denied that the practice is very old and its violation has never been condoned. There is, however, some substance in the argument of Mr. Nasimuddin Shaikh that the learned Advocate did come to visit Karachi in connection with some other matters and as a prudent lawyer, it was his duty to check up from the office about the progress of this case which he has admittedly failed to do. Lack of prudence or want of caution shown by an Advocate cannot justify harsh penalty on his client. The worst that can be said is that the defendant had his case to a counsel who has not proved himself to be worthy of the trust which was reposed by the client in that counsel and the counsel on his part has relied on a time honoured and practice of this Court which though quite old has not yet acquired the force of a rule. In the situation of this case and keeping the equities in view, I would allow this application, and recall the short order passed on 8‑4‑1984. The application C . M. A . No. 3034 of 1983 should be heard and disposed of on merits. The learned counsel for the plaintiff has relied on P L D 1967 Lah. 1908 and another case reported in P L D 1981 Kar. 645 but both these cases are distinguishable from the present case. In the earlier case the point involved was whether any appeal dismissed in default of appearance of the appellant, notice to the party who was represented by the counsel was essential. It was held that where the appellant was represented through a counsel it was not necessary to issue a registered notice to the party and despatch it under registered cover in terms of rule 5, Chapter I‑(f), Vol. V of the High Court Rules and Orders. It was held that listing of the appeal as a motion cause and placing it on the notice board was full compliance of the Rule. In the next case a Division Bench of this Court held that "counsel and client are duty bound to keep themselves aware of the date of hearing fixed by the Court". The Advocate practising in Karachi are expected to read regularly the cause‑list which is normally circulated by the High Court Bar Association immediately after it is prepared. This case is also distinguishable because this is not a case in which a practising lawyer of Karachi was appearing for the defendants. Quite a number of cases have been cited in the Karachi case and the balance of authority seems to be that the party should not be condemned unheard and unless there is a finding of gross and unpardonable negligence on the part of the counsel, the party should not be made to suffer even where minor lapses of the counsel are proved. As the application is moved with delay it goes to show that there was an element of indifference shown by the learned Advocate inasmuch as he did not care together information abut the dismissal, although he is proved to have visited Karachi at least 5 or 6 times. The order of restoration would be subject to payment of Rs.1,000 as cost to the counsel for the plaintiff. Cost to be paid within two weeks. H . B . T . Application for restoration allowed.