P L D 1965 Supreme Court 669 (PLP)

MUHAMMAD YAQUB ALI, J.‑This is a certificated appeal from the order of a Division Bench of the High Court of West Pakistan, Karachi reversing the order of a learned Single Judge of that Court and restoring the suit instituted by the Mohammadi Steamship Company (respondent) against Seth Shivrattan G. Mohatta and another (appellants) dismissed in default of appearance on the 1st of May 1957.

2. The impugned order being discretionary in nature and made in aid of substantial justice would not have been ordinarily considered fit for further appeal, but the learned Judges of the High Court in the view that it affected property of the value of more than Rs. 15,000 thought that the appellants were as a matter of right entitled to a certificate under Article 158(1) (b) of the 1956‑Constitution.

3. The view adopted by the learned Judges of the High Court was with due respect erroneous as an order restoring a suit cannot in law be regarded as affecting the subject-matter of the suit,, the reason being that the plaintiff is merely allowed to pursue his claim in the suit without affecting the merits of the defence set up by the defendant. Alternately, if the suit is not restored no indefeasible right in the subject matter of the suit is vested in the defendant, because in law the plaintiff can raise the same claim by way of defence in a subsequent suit between the parties. It, thus, becomes manifest that the order in appeal before us did not affect property of the value of more than Rs. 15,000 to entitle the appellants to a certificate under Article 158 (1) (b) of the 1956 Constitution.

4. On merits, too, we find little scope for interference. It is true that the plaintiff had committed more than one default in the prosecution of the suit and the application for restoration was at one time allowed to be dismissed in default of appearance, but as those defaults were on their merits condoned by the Court it will be wrong to take those defaults into consideration in judging the sufficiency of cause for non‑appearance of the .plaintiff on the 1st of May 1957. In reversing the order, of the Single Judge, the learned Judges of the appellate Bench found that Mr. S.. A. Rafique counsel for the plaintiff, had B been negligent in the prosecution of the suit, but thought it would be wrong to make the plaintiff suffer on account of his professional misconduct. In the circumstances of the case, we concur in the view and would add that there were other sufficient and good reasons for restoration of the suit. The 1st May 1957, on which date the suit was dismissed‑in default, had been declared an Eid holiday but the Court remained open because the moon was not sighted on the previous evening. This, by itself, constituted a sufficient cause for excusing default in appearance by the plaintiff on that day and, in any case, a counsel had put in appearance on their behalf though only to task for adjournment for filing a power of attorney in his name, a request which in view of the fact that Mr. S. A. Rafique, learned counsel of the plaintiff, had in the meantime gone abroad for treatment of his failing eyesight merited to be accepted by the learned Single Judge.

5. In the view expressed above, the appeal is dismissed, but there will be no order as to costs. S. Q, Appeal dismissed.