1986 PLP 178 (CLC)

ABDUR REHMAN, J.‑‑ This appeal is directed against the order of our learned brother Mr. Justice Saleem Akhtar sitting on original side, dated 24‑5‑1984, whereby he dismissed the application of the appellant for restoring his suit, which was dismissed for default. He also dismissed an application under section 5 of the Limitation Act, which was filed alongwith this application.

2. The appellants' case in brief is that they owned and possessed agricultural land bearing Survey Nos. 32. 77, 78, 80, 81 and 84 all measuring 37 Acres 1 Ghunta situated in Deh Bijar Buthi, Tapo Songal, Taluka and District Karachi (West). They did not enter into any agreement of sale with any person in respect of the land. On 11‑11‑1.980 respondent No. 1 came to their village and demanded the possession of the said land from them as she claimed to be its owner. Thereupon the appellants went to the office of the Mukhtiarkar, Taluka Karachi (West) and on verification found that the name of respondent No. 1 had been mutated in the record of rights on 1‑2‑1973 as transferee from the appellants of the above land by an oral statement and price was, shown at 88.5,000 per Acre. Hence they filed this suit against respondent No. 1 claiming that they had neither received any consideration, nor given any statement in her favour before the Revenue Authority.

3. The suit was contested by respondent No. 1 who pleaded that the appellant Ibrahim entered into an agreement of sale with her on his behalf as well as on behalf of the other co‑owners as their Special Attorney at Rs.4,000 per Acre. Subsequently the market price of the locality became less. Hence they entered into another sale agreement at the rate of Rs.2,000 per Acre. Respondent No. 1 transferred Survey No.77 to respondents Nos. 2, 3, and 4 after her name was mutated in the record of right. Hence they were also joined as party. They also contested the suit and filed similar written statement. An application for early hearing of the suit was made by the appellants which was granted on 15‑4‑1985 and the suit was directed to be fixed within one year. Hardly after 20 days of the passing of the order, the suit was fixed in weekly list for hearing on 5‑5‑1984. It was again fixed in Court on 24‑5‑1984 for hearing. The matter was called and dismissed in default as neither the appellants nor their counsel appeared on the date of hearing.

4. Mr. Abdul Majeed Khan, who appeared for the appellant has alleged that after the order of fixing the case for an early hearing within one year was passed the appellants' attorney accompanied his Advocate to suit branch, but he being an old man of 85 years remained outside the branch. After some time his Advocate came out and informed that the matter will be fixed after some time and directed him to come after 3/4 days. Accordingly he attended the office of his Advocate, who asked his clerk Farid Khan to help him in the matter. Farid Khan took him to Court and asked him to wait outside the Court office. After some time he came and told that the suit branch was not inclined to fix the case and asked him to wait for few days. He again approached the clerk after two days, who went inside the suit branch and came back and informed that the suit will be fixed some time after 15th September, 1984, and asked him to come after that date. He then went away and approached his Advocate on 16‑9‑1984 when after enquiry it was found that the suit has been dismissed on 24‑5‑1984. Mr. G.A. Brohi, the then Advocate of the appellant has also an affidavit to corroborate the statement of the appellants' attorney. He has stated that after the grant of the application for early hearing he had taken the attorney to the suit branch. As he was unable to get any date he had asked his clerk to go and find out the date. He had also stated in the affidavit that he was informed by his clerk and attorney of the appellants that the suit will be fixed after 15‑9‑1984. As regards the non‑appearance on 24‑5‑1984 he stated the he was suffering from eye trouble which compelled him to avoid reading. The cause list, therefore, was checked by his clerk, but the clerk did not mention to him about the posting of the suit in Court. He further stated that his father‑in‑law was seriously ill and he had gone to Lahore on 24‑5‑1984. Since he had no knowledge about this suit having been fixed on 24‑5‑1984 so he did not attend it. The respondent has filed counter‑‑affidavit denying all the allegations made by the appellants' Advocate as well as their attorney. He has submitted that they have failed to explain the delay of each and every date from 24‑5‑1984 till 18‑9‑1984. The respondents counsel has contended that by lapse of time a valuable right has accrued to her and applications are, therefore, liable to be dismissed.

5. We have heard Mr. Abdul Majeed Khan for the appellants and Mr. Akhtar Mahmood for the respondent at length. The main point that will arise in this case is whether sufficient cause has been shown by the appellant for their non‑appearance in the Court on 24‑5‑1984. In this connection will be useful to reproduce Order IX, rule 9, C.P.C. which reads as under:‑ "O. IX, r. 9.‑‑ Decree against plaintiff by default bars fresh suit.‑‑ (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non‑appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

6. Mr. Abdul Majeed Khan has relied upon P L D 1969 S C 270 in which it has been held that the word 'sufficient cause' for restoration of a suit dismissed for default was not susceptible of exact definition and no hard and fast rule can be laid down yet if non‑appearance is not intentional it should not be viewed very strictly. He then cited PLD 1982 Kar. 355, wherein it was held that in an application for restoration of a suit dismissed for default of appearance, it is to be seen whether the restoration would further cause of justice rather than to stifle same on procedural and technical grounds. Provisions providing remedy against defaults are to be construed in liberal manner and Courts have to see whether party seeking restoration is guilty of negligence and latches beyond explanation. He further cited P L D 1971 Kar 182. where it was held that mere neglect not amounting to gross negligence is not enough to refuse to restore a suit. He then referred to a recent well‑known Supreme Court case, reported in 1983 S C M R 1003. In this case the appellant's counsel was ill, therefore, could not notice the case in the cause list and, therefore, could not attend the Court, it was held that his failure to do so was not due to negligence and, therefore, ex parte decree was set aside subject to payment of Rs.10,000 by appellant to opposing counsel.

7. The earlier three rulings cited by Mr. Abdul Majeed Khan do not help him at all. In our opinion this is a case of gross negligence and carelessness and not a case of mere, neglect or of such negligence of latches which were susceptible to explanation. The appellants' counsel has tried to show that his case was parallel to one reported in 1983 SCMR 1003 by referring to the affidavit of previous counsel Mr. G.A. Brohi and the medical certificate.

8. Mr. Akhtar Mehmood, who has appeared for the respondent has distinguished the present case with the above ruling, with which we find ourself in agreement. In the above ruling the application was within time, whereas in the present case the application for restoration has been given much after the period of limitation and is, therefore, accompanied by an application under section 5 of the Limitation Act. Hence we will have to see whether sufficient cause has been shown and that too for the purposes of both these applications and the appellant has to perform an uphill task. In the case under ruling the suit was decreed whereas in the case before us the suit has been dismissed. In the case under ruling medical certificate was filed from the very beginning which here it is filed as an after thought when counter‑affidavit was filed by the respondents' counsel denying all the allegations. Hence it would appear that the above ruling would not apply to the present case. Mr. Akhtar Mahmood has cited 1974 S C M R 223, in which it has been held that it was an initial obligation of the counsel to enquire about the decision of case or to arrange for communication of result of case to parties of case. Counsel even if neglecting to inform client about fate of case, fact not per se sufficient ground for condonation of delay when valuable right accrued to opposite party. He has further cited 1975 S C M R 304, in which it was held that where the valuable right accrues to other side by lapse of time each day's delay is to be satisfactorily explained as of necessity.

9. Mr. Abdul Majeed Khan's main contention was that the clerk of the advocate made enquiry from the suit branch and come to know that the suit will be fixed for hearing after 15‑9‑1984. 0n this information the appellants relied upon and stayed away. In other words if this information would not have been conveyed to them they would have been vigilant in attending the matter and prosecuting it. The affidavit of the clerk has not been filed. The name of the officer of the suit branch who has conveyed such information has not been given. It is difficult to believe that any responsible officer of the Court will give such a wrong information. According to rule 20 of Sind Chief Court Rules (O . S .) . The Registrar or Deputy Registrar has .to sit at 12‑00 noon every Thursday/ Saturday in the Board. It was the duty of the Advocate to be. present or at least to have checked the cause list The affidavit does not show that any enquiry was made from the Registrar or Deputy Registrar or that the list was properly checked regularly. No clerk except the Additional Registrar can fix the hearing of the suit, which according to the above rules is to be done on every Thursday/Saturday in the Board openly which is attended by the Advocates of the parties and their Court clerk, thereafter the matter is listed in the weekly list at least two weeks before the date of hearing, and then it is posted in the daily cause list. Hence it would appear that it is not believeable that such a wrong information was given to the appellants. They have not even succeeded in establishing who had actually given such an information. In view of the procedure set out above the appellant had a number of opportunities to find out the date fixed by the Additional Registrar if they were vigilant.

10. The learned counsel for appellant has taken a ground that he was suffering from eye trouble during the month of May and, therefore, he had not been able to read. If it was so, then certainly he would not have allowed his matters to be dismissed in default, but should have made arrangements that the list is properly checked and thoroughly scrutinized so that no matter goes by default. This contention of the appellants' counsel that the Advocate in the suit had assigned this work to the Court clerk who did not mention to him about the case is not at all believable. We agree with the learned single Judge that this hardly is a ground for condoning the delay for such a long period. For the reasons shown above we are satisfied that the appellants' attorney and the person engaged by him was either interested in protracting the proceeding or in the alternative was guilty of gross negligence and latches beyond explanation. In a recent case reported in National Bank of Pakistan v. Parveen Akhtar P L D 1985 Kar. 60 after considering most of the authorities it was observed that it has been repeatedly pointed out by the superior Courts in our country that it is the duty of a party to litigation to keep himself informed of the proceedings and progress of the case by keeping in touch with his counsel, and if the counsel is negligent, it is he who should suffer. It was further observed that it is well‑settled that in civil matters on expiry of the period of limitation valuable right accrues to the other side which cannot be taken away except on making out a sufficient cause explaining delay of each day.

11. We find ourselves in agreement with the above proposition of law which has been well‑settled. Similar view was taken by the Supreme Court in P L D 1979 S C 821 where it was held that when the plaintiff was guilty of contumacy, positive mala fide or lack of bona fides, he was not entitled of any indulgence.

12. Hence we have come to the conclusion that the appellants have failed to make out a case in the light of the principle stated above to restore the suit. We, therefore, do not find any reason whatsoever to interfere with the order of the learned single Judge and therefore, dismiss the appeal with no order as to costs. A. A. Appeal dismissed.