1989 PLP 256 (CLC)

This application moved under Order IX Rule 4, C.P.C., should have actually been moved under Order IX, Rule 9, C.P.C. However quoting the wrong rule would not disentitle the appellant but it would be the substance and the prayer made in the application that would be considered. His prayer is for setting aside the order of dismissal and it will be useful to re‑produce the provisions of Order 11, Rule 9, C.P.C., which read as under:‑

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. The above rule lays down that the party has to show sufficient cause for the non‑appearance in order to get the ex parte order or order of dismissal set aside. Such order can be set aside if sufficient B cause was shown and the various principles have been laid down by this Court in the case of Joint Secretary, Ministry of Religious and Minority Affairs and 2 others v. Mobina Begum 1985 C L C 231 at paragraph 19 of the judgment which are as under:

19. However, the broad principles which can be deducted from the above judgments, more particularly of the Supreme Court, may be summarised as below:‑ (a)The matter dismissed for default can be restored or ex parte decree. set aside.‑‑‑ (i) Even without payment of costs if there is no negligence of the party and its counsel and the circumstances are such that there was show sufficient cause for their non‑appearance. (ii)On payment of costs, in appropriate cases, if the unintentional negligence is that of the counsel and not that of the party. (b)That matter cannot be restored or ex parte decree set aside if the party and its counsel or any one of them have been grossly negligent in pursuing the matter. From the contentions of the Advocate for the appellant and his own affidavit, I find that it was necessary for him to have file the affidavits of his witness Mr. M.A. Manzoor and the said Abdull Ghaffar to substantiate his contentions. No plausible excuse has been given for the non‑appearance of the said witness and no explanation has come on record as to why the said Abdul Ghaffar was not present; at the time when the case was called. All that is said in paragraph of the affidavit is that the aforesaid Mr. Abdul Ghaffar did attend this Honourable Court. But it seems that the applicant s name was not called out outside the court room and therefore he could not intimate this Honourable Court as stated above in para. 3 . It will be seen that it is not a definite statement but a mere surmise which is not supported by Abdul Ghaffar as he has not filed any affidavit. The Advocate for the appellant has further pointed out to an document application made by him earlier on 21‑10‑1986 in order to show that the Advocate had personal knowledge of illness of the witness and therefore, his personal affidavit to this effect should have been accepted by the Rent Controller. I am afraid this will not help the appellant as this application was made one year before the impugned order and subsequent to this application the affidavit in evidence has been filed which shows that M.A. Manzoor was very much present in Pakistan, and it was M.A. Manzoor who had to be cross‑examined. The Advocate for the respondent repelling the above contentions has submitted that no sufficient cause for the non‑appearance of the party, witness and the Advocate for the appellant has been shown and as such the order of the learned Rent Controller was quite proper and in accordance with the long line of decisions given by the Honourable superior Courts. He has further contended that this is a clear cut case of negligence on their part and they would not be entitled to restoration as prayed. He has placed reliance on Mst. Shirin Begum v. Habib Bhai 1988 SCMR 670, Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474 and Haji Muhammad Sharif v. Settlement and Rehabilitation Commissioner and others 1975 SCMR

86. From the above discussion it is obvious that the appellant has been negligent in pursuing his case as he was required to be in the knowledge of various stages in the case and to prosecute the same with due diligence. Not only the appellant but his attorney Mr. M.A. Manzoor and their employee Abdul Ghaffar have also been negligent. For the above reasons, I find no substance in the present appeal, which is dismissed in limine. H.B.T./E‑20/K. Appeal dismissed.