P L D 1966 (W (PLP)
ABDUL REHMAN‑Petitioner Versus Sh. MUHAMMAD RAFIQ, SETTLEMENT AND REHABILITATION
| Citation | P L D 1966 (W (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | ABDUL REHMAN‑Petitioner Versus Sh. MUHAMMAD RAFIQ, SETTLEMENT AND REHABILITATION |
| Primary Law | (b) Constitution of Pakistan (1962), (a) Constitution of Pakistan (1962) |
Q1: What are the key laws and sections cited in P L D 1966 (W (PLP)?
This judgment primarily cites: (b) Constitution of Pakistan (1962), (a) Constitution of Pakistan (1962) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1966 (W (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1966 (W (PLP) (ABDUL REHMAN‑Petitioner Versus Sh. MUHAMMAD RAFIQ, SETTLEMENT AND REHABILITATION). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- In setting aside an order of dismissal for default of appearance by the parties, the question whether there was or was not sufficient cause is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. And the discretion exercised by a Court in determining whether there was or was not sufficient cause, though judicial in nature would not be lightly interfered with. In order to determine whether there is sufficient cause or not it is of importance to find out as to whether the counsel or his client had made genuine effort to take reasonable precautions to be present at time of hearing. To ensure that his case is not dismissed in default the counsel can send a slip to the Reader of the Court that he is engaged in such and such Court. If his client is available he can sit in the Court room and tell the Reader that he is going to call his counsel. His clerk can watch his case and request some other Advocate to inform the Court that the counsel is busy in some other Court. If none of these precautions are taken the counsel cannot depend upon the indulgence of the Court to adjourn his case on the ground that he is busy in some other Court. Unless there is sufficient cause an order dismissing a matter in default cannot be set aside on equitable consideration that the party would Infer for the fault of a counsel. That is a matter between the counsel and his client and not covered by the term "sufficient cause". Advocates who have large number of cases would do well to engage junior members of the Bar to help them. Rule 96 of the Rules of the High Court Bar Association, Lahore mentions the type of cases in which two counsel at least should be engaged for each party. In the Second Appeal to be heard by a Division Bench, even in cases where valuation is over Rs. 1,000.00 in land suits or Rs. 2,500.00 in suits of the nature of a small cause or unclassed, at least two counsel have to be engaged for each party. In cases which are to be heard by a single Bench and the proceeding in the High Court relates to its original jurisdiction two counsel have to be engaged by each party. An order passed by a single Judge in writ jurisdiction pertaining to a civil matter amounts to exercise of original jurisdiction. The Advocates must comply with the Rules that they have framed for themselves.
- 3. The contention of the learned Advocate for the appellant is that there was sufficient cause to restore the petition. At this stage we may observe that the appellant had made the application before the learned Single Judge under Order XLI, rule 17 and section 151, C. P. C. Order XLI, rule 17 has no application as the same deals with dismissal of appeals for appellants' default.
- 6. We are not inclined to interfere with the discretion of the learned Single Judge for two‑fold ground. In the first place, if the client was present on 7‑10‑1565 why did he delay to swear an affidavit up to 9‑10‑1965. There is no explanation whatsoever for this. In the second place, if the counsel appeared immediately after the case was called for why did he not request Court orally to set aside the order dismissing the petition in default. As a rule the Judges of this Court set aside an order dismissing a case in default if the Advocates concerned appear thereafter on the same day and explain their difficulty for not being present in the Court when the mater was called for. It would appear from the order of the learned Single Judge that no such request was made. That this conclusion is correct is borne out by the absence of any such statement in the application for restoration and the affidavit in support thereof.
- 8. In order to determine whether there is sufficient cause or not it is of importance to find out as to whether the counsel or his client had made genuine efforts and taken reasonable precautions to be present at the time of the hearing. To ensure that his case is not dismissed in default a counsel can send a slip to the Reader of the Court that he is engaged in such and such Court. If the client had gone to call for the Advocate and he came within a few minutes of the dismissal of the petition in default, he could have told the Reader of the Court, if not to the Court, directly, that he had gone to fetch his counsel. The absence of any such statement on the part of the client, which was very natural if he had come within a few minutes of the dismissal of the petition, coupled with the fact that the affidavit was not sworn either on 7th or 8th but on 9th October 1965, would lead one to the conclusion that the allegations in the affidavit should not be accepted without examination.
- 9. The question whether a counsel who had got a number of cases fixed for hearing on a particular day, which he knows well in advance, can be said to have taken reasonable precaution by merely depending upon tile indulgence of the Court to adjourn is cases on the ground that he is busy in some other Court requires serious consideration. It is obvious that an Advocate who has got twelve cases fixed for hearing‑on the same day (as in the case in the connected L. P. A. No. 217 of 1:65, arising out of the same property as in the present appeal which was also dismissed in default on the same day by the same learned Judge) cannot be said to have taken reasonable a precaution when he could not personal attend to all the cases on that date. He could be said to have taken reasonable a precaution only if he had engaged other Advocates along with himself to conduct some of the cases or at least to have requested some of his friends to appear on his behalf in some of the Courts. The Judges of this Court have been impressing (which is in accord with their Rules) upon those members of the Bar who have large number of cases to engage junior members of the Bar to help them. In this connection we would refer to the Rules of the High Court Bar Association, Lahore. Rule 96 mentions the type of cases in which two counsel at least should be engaged for each party. In second appeals to be heard by a Division Bench, even in cases where valuation is over Rs. 1,000.00 in land suits or Rs. 2,500.00 in suits of the nature of a small cause or unclassed, at least two counsel have to be engaged for each party. In cases which are to be heard by a Single Bench and the proceedings in the High Court relate to its original jurisdiction, two counsel have to be engaged by each party. It has been held by their Lordships of the Supreme Court in Mumtaz Khan v. Chief Settlement and Rehabilitation Commis sioner (PLD 1966 SC 276) that an order passed by a Single Judge in writ jurisdiction pertaining to a civil matter amounts to exercise of original jurisdiction. In that view of the matter the Advocates must comply with the Rules that they have framed for themselves. The non‑observance of the same has been made punishable by the Executive Committee of the Association. In the present case it appears from the record that Sheikh Jan Husain Advocate, filed his power of attorney. He has not complied with the Rules of his Association.
- 10. While disposing of this appeal, we would like to observe that the learned Advocate has not given any reason much less sufficient reason as to why he was not present in the Court when the matter was called for hearing.
Headnotes / Summary
Art. 98‑Dismissal of writ petition for default of appearance by parties‑Application for restoration‑Discretion of Court in determining sufficient cause for restoration‑Cannot be lightly interfered with‑Petition dismissed after ample opportunity given for appearance‑No sufficient cause in circumstances, for restoration ‑ Counsel, on dismissal of petition, can make oral request on same day for setting aside order--Failure leads to presumption that no genuine efforts had been made by party or his counsel to be present at time of hearing--Dismissal cannot be set aside on equitable consideration that party would suffer for fault of counsel--Single counsel engaged in conducting case required to be represented by two counsel according to Rules of High Court Bar Association--Failure cannot justify non-appearance of counsel on ground that he was busy in another case before a different Bench-Order passed Amounts to order passed in exercise of original jurisdiction-Civil Procedure Code 3 (V of 19058), S. 100 and O.IX rr. 3 & 4--High Court Bar Association (Lahore) Rules, r. 96.
Art. 98‑Petition dismissed in default‑Application for restoration made under wrong provisions of Civil Procedure Code, 1908‑Technical view, nevertheless, not taken in interest of justice‑Civil Procedure Code (V of 1908), O. IX, rr. 3 & 4.
Judgment & Decree
INAMULLAH KHAN, C. J.‑This is an L. P. A. against the order of a learned Single Judge refusing to restore the writ petition dismissed in default.
2. The petition was called for hearing on 7‑10‑1965 and was dismissed for non‑prosecution. The learned Judge in Chambers passed the following order:‑ "This case has been called two or three times but no one appears from either side. It is now 2.2 p.m. Dismissed in default." An application dated 9‑10‑1965 was filed in this Court on 11‑10‑1965, for restoration of the writ petition dismissed in default. It was dismissed on the 15th of October 1965.
3. The contention of the learned Advocate for the appellant is that there was sufficient cause to restore the petition. At this stage we may observe that the appellant had made the application before the learned Single Judge under Order XLI, rule 17 and section 151, C. P. C. Order XLI, rule 17 has no application as the same deals with dismissal of appeals for appellants' default. If it was an appeal, which it was not, the relevant provision for, 'restoration would be Order XLI, rule
19. We, however, do not propose to take a technical view in the interest of justice and proceed to examine the appeal on its own merits.
4. Before we proceed to consider the merits of the appeal, it would be useful to refer to a decision of the Federal Court of Pakistan reported as Malik Mumtaz Ahmad v. Mst. Ummat‑ul- Habib and others (P L D 1955 F C 178) in support of the proposition firstly that sufficient cause is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, and secondly, that the discretion exercised by a Court in determining whether there was or was not sufficient cause, though judicial is nature, will not be lightly interfered with. Keeping in view the principle laid down by their Lordships of the Federal Court in the above case, the question in the present case is as to whether the learned Judge in Chambers has exercised his discretion judicially in determining whether there was sufficient cause or not.
5. The main ground explaining the cause for absence is given in paragraph No. 3 of the petition for restoration. It runs as under: "That the petitioner attended the Court on these dates and watched the case. On 7‑10‑1965, No. 4 on the cause list was being argued shortly after lunch interval, when case at No. 5 was called up the petitioner went to summon his counsel but by the time the petitioner and his counsel reached the Court‑room of Mr. Justice Sh. Anwar‑ul‑Haq the case of the petitioner along with other cases was dismissed in default within a short time." The learned Judge in Chambers passed the following order on 15‑10‑1965: "Ample opportunity was given to the petitioner and his counsel to appear by calling the case several times and waiting for them until after the interval, nor was any intimation given to this Court by the client or the counsel or his clerk. In these circumstances, I see no reason to restore the petition. The application is dismissed." It is important to note that the ground mentioned in paragraph No. 3 of the application, already reproduced, and paragraph No. 4 of the affidavit to the same effect, cannot be accepted. It would appear from the facts stated in paragraph No. 3 and No. 4 of the affidavit that the writ petition was called after lunch interval. On the other hand, it appears from the order of the learned Single Judge dated 15‑10‑1965 that the case was called several times and the learned Judge waited for someone to appear on behalf of the petitioner until after the interval. The allegation made in the affidavit that the case was called after the interval does not appear to be correct in the face of the order dated 15‑10‑1965. It seems to us, firstly, that the case was called several times, and secondly that the case was called before the interval and the learned Single Judge waited until after the interval and then dismissed it at 2‑2 p. m,
6. We are not inclined to interfere with the discretion of the learned Single Judge for two‑fold ground. In the first place, if the client was present on 7‑10‑1565 why did he delay to swear an affidavit up to 9‑10‑1965. There is no explanation whatsoever for this. In the second place, if the counsel appeared immediately after the case was called for why did he not request Court orally to set aside the order dismissing the petition in default. As a rule the Judges of this Court set aside an order dismissing a case in default if the Advocates concerned appear thereafter on the same day and explain their difficulty for not being present in the Court when the mater was called for. It would appear from the order of the learned Single Judge that no such request was made. That this conclusion is correct is borne out by the absence of any such statement in the application for restoration and the affidavit in support thereof.
7. This Court takes a strict view of the absence of the counsel or the party when the cases fixed for hearing are called. We are obliged to take such a view not only because of the number of cases pending in this Court but also because they have been pending since very long. The adage "Justice delayed is justice denied" is too true in the state of pending cases. A number of second appeals are pending since 1956. Many motion cases could not come up for hearing for two to three years. The very object of writ petitions for expeditious disposal is frustrated as these could not be disposed of for three to four years. Most of these petitions are found to have no merit and are dismissed after hearing the other party but the petitioners are able to get advantage by obtaining stay orders from this Court in the meantime. Any indulgence in matters of restoration of petitions dismissed in default is prejudicial to the interests of the respondents. To our mind unless there is a sufficient cause an ardor dismissing a matter in default should not be set aside on equitable consideration like this that the party would suffer for the fault of a. counsel. This is a matter between the counsel and his client and is not covered by the term "sufficient cause".
8. In order to determine whether there is sufficient cause or not it is of importance to find out as to whether the counsel or his client had made genuine efforts and taken reasonable precautions to be present at the time of the hearing. To ensure that his case is not dismissed in default a counsel can send a slip to the Reader of the Court that he is engaged in such and such Court. If the client had gone to call for the Advocate and he came within a few minutes of the dismissal of the petition in default, he could have told the Reader of the Court, if not to the Court, directly, that he had gone to fetch his counsel. The absence of any such statement on the part of the client, which was very natural if he had come within a few minutes of the dismissal of the petition, coupled with the fact that the affidavit was not sworn either on 7th or 8th but on 9th October 1965, would lead one to the conclusion that the allegations in the affidavit should not be accepted without examination.
9. The question whether a counsel who had got a number of cases fixed for hearing on a particular day, which he knows well in advance, can be said to have taken reasonable precaution by merely depending upon tile indulgence of the Court to adjourn is cases on the ground that he is busy in some other Court requires serious consideration. It is obvious that an Advocate who has got twelve cases fixed for hearing‑on the same day (as in the case in the connected L. P. A. No. 217 of 1:65, arising out of the same property as in the present appeal which was also dismissed in default on the same day by the same learned Judge) cannot be said to have taken reasonable a precaution when he could not personal attend to all the cases on that date. He could be said to have taken reasonable a precaution only if he had engaged other Advocates along with himself to conduct some of the cases or at least to have requested some of his friends to appear on his behalf in some of the Courts. The Judges of this Court have been impressing (which is in accord with their Rules) upon those members of the Bar who have large number of cases to engage junior members of the Bar to help them. In this connection we would refer to the Rules of the High Court Bar Association, Lahore. Rule 96 mentions the type of cases in which two counsel at least should be engaged for each party. In second appeals to be heard by a Division Bench, even in cases where valuation is over Rs. 1,000.00 in land suits or Rs. 2,500.00 in suits of the nature of a small cause or unclassed, at least two counsel have to be engaged for each party. In cases which are to be heard by a Single Bench and the proceedings in the High Court relate to its original jurisdiction, two counsel have to be engaged by each party. It has been held by their Lordships of the Supreme Court in Mumtaz Khan v. Chief Settlement and Rehabilitation Commis sioner (PLD 1966 SC 276) that an order passed by a Single Judge in writ jurisdiction pertaining to a civil matter amounts to exercise of original jurisdiction. In that view of the matter the Advocates must comply with the Rules that they have framed for themselves. The non‑observance of the same has been made punishable by the Executive Committee of the Association. In the present case it appears from the record that Sheikh Jan Husain Advocate, filed his power of attorney. He has not complied with the Rules of his Association.
10. While disposing of this appeal, we would like to observe that the learned Advocate has not given any reason much less sufficient reason as to why he was not present in the Court when the matter was called for hearing.
11. For the reasons given above, we do not see any ground to interfere with the exercise of the discretion by the learned Judge in Chambers, and dismiss the appeal in limine. K. B. A. Appeal dismissed.