1994 PLP 1463 (MLD)

The appeal filed by the appellant against the order of the learned 1IIrd Senior Civil Judge and Rent Controller, Karachi East, dated 28-9-1987 was dismissed for non-prosecution by my learned brother, Abdul Rahim Kazi, J., vide order, dated 18-11-1992, because the counsel for the appellant then appearing on his behalf had pleaded no instructions from him. It appears that the learned counsel also placed an envelope before the Court which indicated that the notice sent to the appellant had been returned undelivered with an endorsement that the latter was out of the country. The learned counsel appearing for the appellant also appears to have disclosed before my learned brother that the appellant had failed to contact him for about two months. Consequently, the appeal was dismissed for non-prosecution. The grounds stated by the appellant in his application purportedly made under Order 9, Rule 9, C.P.C. seeking restoration of the said appeal are that the appellant had not been informed by Mr. Abdul Naseem Khan or Mr. Muhammad Ali Jan both of whom were the learned counsel appearing on his behalf that the appellant had to appear in person before this Court. Consequently, since he had not been informed by the said counsel to appear in person in the Court his non-appearance was neither deliberate nor intentional. As would appear from the aforesaid circumstances there can hardly be any doubt that the appellant was guilty of the gross negligence because notwithstanding that he had engaged an advocate to represent his case in the Court, he was himself obliged to pursue the case deligently. The explanation offered by him in the said application and the affidavit filed in support thereof is also not sufficient because it has not been sufficiently explained. why the appellant failed to contact his advocates or inquired about the progress of. his case. However, the contention of Mr. Muhammad Sadiq, the appellant's learned counsel is that insufficiency of the grounds taken in the application should not pose any in surmountable ' obstacle for the Court to restore the matter to its original position because, according to learned counsel, the Court always favours disposal of cases on merits rather than upon technicalities. Reliances in this regard has been placed upon the Water and Power Development Authority v. Muhammad Hayat Khan PLD 1986 Pesh.

81. In this case it was observed that:-- " .... The inadequacy of sufficient cause should not stand in the way of justice on merits. It should not culminate into the end loss to allow the dismissal of suit in default or ex parte decree in tact for the end objective of the Court is to do full and substantial justice in the cause after allowing due opportunity of hearing to the parties. The adversary who has obtained an ex parte decree must have faced the rigours and hardship of fruitless litigation but for that he can be compensated by award of adequate costs." Similar observations appear to have been made by me in Masud Zain v. Lt. Col. Muhammad Tariq Ahmed Malik PLD 1988 Kar.

154. In this case while restoring an appeal dismissed by a learned Single Judge of this Court, I while delivering judgment on behalf of the Division Bench had observed as under:-- "The next question would be, whether the respondent No.1, should be penalised on account of this lapse on his part as pointed out above. It is an accepted principle that although a party can be made to suffer on account of a gross negligence, minor lapses are generally condoned. No doubt, the respondent No.1 failed to explain the absence of both of his counsel on the relevant date, but as was held in Wali etc. v. Manak Ali, etc. P L D 1965 SC 651, the law favours adjudication on merits and a failure to do so would tantamount to refusal to the parties of their rights and adjudication will not be refused unless. there exists some insuperable practical obstacle preventing it. Such lapses, as in the instant case, on the part of the parties or their counsel are not uncommon. However, if such lapses do occur the same can be compounded by imposition of costs. Under the circumstances in our opinion the ends of justice can be sufficiently met if costs are imposed upon the respondent No.1 for this lapse. Consequently although, we dismiss this appeal and maintain the impugned order passed by the learned Single Judge but modify the same to the extent that C.MA. 2564 of 1987 shall be restored subject to the payment of Rs.2,000 as costs to the learned counsel for the appellant. There will be no order as to costs in view of the questions raised." Although Mr. Rehmat Elahi has argued that after dismissal of the case for non-prosecution a vested right has been created in favour of the respondent but in view of the principle laid down by the superior Courts which is reflected in the two judgments reproduced above, the application (C.MA. No.38 of 1993) is granted and the case is restored to its original position subject, however, to payment of costs of Rs.5,000 (Rupees five thousand) by the appellant to the learned counsel for the respondent. In view of the fact that this is an old case, the office is directed to post the same for regular hearing on 27-2-1994. AA./A-1462/K Order accordingly.