1984 PLP 2154 (CLC)

Dates of hearing : 18th and 19th June, 1983. MUHAMMAD ILYAS, J.-The facts giving rise to this civil revision are that the petitioners, Karim Bakhsh and another, filed a suit against the respondent, Husain, for possession of certain property. Mr. Mumtaz Husain Jafary, Advocate, was engaged by the petitioners as their counsel. The suit was contested by the respondent. It came up on 1st June, 1972 before the Civil Judge, Ahmadpur East, District Bahawalpur, when no one appeared on behalf of the petitioners. The suit was, therefore, dismissed in default. Subsequently, on 8th June, 1972 Mr. Abbas Raza, Advocate, made an application on behalf of the petitioners for restoration of the suit. It was explained by him that the original counsel of the petitioners, namely, Mr. Mumtaz Husain Jafary, had gone to Sialkot on having fallen ill and had directed him (Mr. Abbas Raza) to pursue the petitioners' suit. According to Mr. Abbas Raza, his mother was seriously ill and as he remained busy in making arrangements for her treatment, he could not enter appearance on the above date. The application was opposed by the respondent. It was urged by him that Mr. Abbas Raza had no authority to make the application and that there was no sufficient cause for restoration of the suit. On this, the trial Court framed the following issues :- (1) Whether the application in respect of restoration of the suit has not been properly filed by the competent person. If so to what effect ? (2) Whether there is sufficient cause for the restoration of the suit dismissed in default on 1st June, 1972. (3) Relief. The learned Civil Judge found the first two issues against the petitioners and dismissed their application. His order was challenged by the peti tioners by taking an appeal before the District Judge, Bahawalpur, which met the same fate. Hence this revision.

2. The view taken by the two Courts below was that by making application for restoration of the suit Mr. Abbas Raza had acted on behalf of the petitioners which he could not do as he had not been appointed as their counsel by the petitioners. In regard to the direction of the original counsel, namely, Mr. Mumtaz Husain Jafary requiring Mr. Abbas Raza to prosecute the suit, it was held by the learned lower Courts that on the strength of the proviso to sub-rule (5) of rule 4 of Order III of the Code of Civil Procedure, Mr. Abbas Raza could simply plead but could pot act on behalf of the petitioners. According to the learned lower Courts, it was Mr. Mumtaz Husain Jafary only who could act on behalf of the petitioners by virtue of the provisions of rule 1 of Order III of the said Code.

3. Assailing the above finding of the learned subordinate Courts, it was contended by learned counsel for the petitioners that by making the application Mr. Abbas Raza bad pleaded on behalf of the petitioners and thus there was nothing wrong with the application filed by him. He cited Mst. Karam Nishan v. Mehrban Ali Shah (P L D 1959 (W. P.) Lah. 946), Mst. Borkata v. Feroze Khan and others (A I R 1944 Lah. 131) and Mst. Azra Begum v. Piran Ditta (P L D 1967 Lah. 807) to support his arguments, It was also pointed out by learned counsel for the peti tioners that in the power of Attorney (Waqalat Nama) executed by the peti tioners in favour of Mr. Mumtaz Husain Wary, it was stated that he (Mr. Mumtaz Husain Jafary) would be competent to direct any other counsel to deal with the case on his behalf and such other counsel shall have the same powers as were possessed by Mr. Mumtaz Husain Wary. In view of these recitals in the power of attorney, it was maintained by learned counsel for the petitioners that Mr. Abbas Raza could make the application for restoration of the suit just as this could be done by Mr. Mumtaz Husain Jafary.

4. On the other band, it was urged by learned counsel for the res pondent that the making of the application like the one in hand amounted to acting on behalf of the petitioners which could not be done by Mr. Abbas Raza as he had not been appointed as counsel by the Petitioners. The application, according to him, could be made by Mr. Mumtaz Husain Wary only who had been engaged by the petitioners as their counsel by executing power of attorney in his favour. In this connection, reliance was placed by him on Mian Bashir Ahmad v. Mrs. Mary Minck (A I R 1938 Lah. 698), The Thai Development Authority v. Nisar Ahmad Qureshi (P L D 1962 (W. P.) Lah. 830), Nadella Satyanarayana v. Yamanoori Venkata Subbuah (A I R 1957 Andh, Pra. 172) and K. L. Gauba v. Indo Swiss Trading Co. Ltd. (A I R 1936 Lah. 500).

5. The cases cited by learned counsel for the parties are distinguish able from the case in hand. In the case before me the petitioners had while appointing Mr. Mumtaz Husain Wary as their counsel authorised, him to engage any other counsel to act in his place or in collaboration with him and bad authorised such other counsel to exercise the same authority which had been conferred on Mr. Mumtaz Husain Jafary. Relevant recitals in the power of attorney read as follows;

There is nothing to show that in the cited cases also there were similar stipulations in the powers of attorney involved in these cases. It is evident from the statements of Mr. Mumtaz Husain Jafary and Mr. Abbas Raza, who entered the witness-box as P. W. 1 and P. W. 2. res pectively, that Mr. Mumtaz Husain Wary had asked Mr. Abbas Raza to pursue the case of the petitioners. There is no evidence to the contrary. I am, therefore, convinced that Mr. Abbas Raza had been directed by Mr. Mumtaz Husain Jafary to pursue the petitioners' suit, and in view of the above stipulations in the power of attorney Mr. Abbas Raza could do all that could be done by Mr. Mumtaz Husain Jafary. It is not dis puted that Mr. Mumtaz Husain Jafary could act on behalf of the petitioners and, therefore, could make application for restoration of the suit. This could also be done by Mr. Abbas Raza who, by virtue of the above recitals in the power of attorney, was in the same position as Mr. Mumtaz Husain Wary. In view of the circumstances of the present case, therefore, I need not go into the question whether on the strength of the proviso to sub-rule (5) to rule 4 of Order III of the Code of Civil Procedure Mr. Abbas Raza could make the application in question.

6. Now I proceed to examine if the petitioners had shown sufficient cause for restoration of their suit. Their original counsel, namely, Mr. Mumtaz Husain Wary had deposed as P. W. 2 that he was taken ill and had, therefore, directed Mr. Abbas Raza to look after the suit. Mr. Abbas Raza appeared as P.W. 2 and stated that he had gone to Sialkot in connection with the illness of his mother and, therefore, could not attend to the suit on 1st June, 1972 when it was dismissed in default. The petitioners had appointed Hafiz Allah Bakhsh as their special attorney. He stated as P. W. 3 that he had developed fever and, therefore, could not enter appearance on the above date. In regard to the petitioners it was stated by him that they were old and infirm persons. In rebuttal, there are statements of Karim Bakhsh (R. W. 1), Baggu (R.W. 2) and Husain (R. W. 3) to the effect that Hafiz Allah Bakhsh and the petitioners were alright on the aforementioned date. Husain is respondent in this case while the other witnesses examined by him are admittedly, his close relatives. I am, therefore, not impressed by their evidence. It has also been ruled in Abdur Rehman v. Allah Ditta and others (P L D 1957 (W. P.) Lah. 619) that in "pan application for restoration of a suit dismissed in default Courts are not to be very strict. It is not necessary that a high degree of care must have been exercised before a suit is restored." It was also observed by the Supreme Court in Muhammad Haleem and others v. H. H. Muhammad Naim and others (P L D 1969 S C 270) that every "party who has instituted a case or matter in a Court has a right to have his case decided on merits. A dismissal for non-prosecution should, therefore, be an exception and not a rule". I feel that in view of the evidence produced by the petitioners there was sufficient cause for restoration of the suit as the absence of all concerned had been sufficiently explained by means of evidence adduced by the petitioners.

7. Resultantly, I hold that the two Courts below had committed a material irregularity in refusing to order restoration of the petitioners' suit. I, therefore, accept this civil revision, set aside their orders and restore the suit. There shall be no order as to costs.

8. The trial Court is directed to rehear the suit from the stage it was dismissed in default. Since the suit has become very old by now it shall be re-decided, in accordance with law, within six months. M.B.A Revision accepted.