P L D 1966 Supreme Court 467 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is from an order of a Division Bench. of the High Court of West Pakistan at Lahore dismissing a Letters Patent Appeal on the 18th of October 1963. The order appealed against is in these terms: "Mr. M. A. Mannan appears and states that Mr. S. M. Zafar is not available and, therefore, the case be adjourned. We are not going to entertain such requests. If such requests have to be made, they should be made in advance before the fixation of the case. Dismissed in default." An application for restoration of the appeal was filed on the 2 i st of October 1963. The reason for the non‑appearance of counsel given therein was that the Letters Patent Appeal was originally fixed for hearing on the 17th of October‑ 1963, but as no Bench had been constituted for the purpose the matter could not be taken up. It was then fixed for the next date. The learned counsel engaged in the case went to the High Court at 9‑30 a.m. but as another case in which he was engaged in this Court was to come up for hearing, he was called at 9‑40 a.m. He left requesting Mr. Mannan, another learned counsel, to pray for an adjournment on his behalf. The Letters Patent Appeals was called on at 9‑45 a.m. after‑ kacha peshi matters and. Mr. Mannan duly prayed for an adjournment on the ground that the learned counsel engaged in the case had been called by the Supreme Court where another case of his, which had been earlier fixed for hearing on that date, was due to come up for hearing. The statements in this application were duly verified by an affidavit of the special‑ attorney of the appellants but this application for restoration was also summarily rejected by the following order:‑ "There is no good ground for setting aside the order of dismissal in default. Dismissed." Leave was granted in this case to consider whether in the above circumstances the High Court was justified in dismissing the appeal for default. It will not be proper at this stage to say anything concerning the merits of the Letters Patent Appeal, for, we have come to the conclusion that for the reasons hereinafter given the order dismissing the Letters Patent Appeal for default must be set aside and the appeal restored to the file of the High Court for disposal on merits. Order XLI, rule 19 of the Code of Civil Procedure gives the requisite power to the appellate Court to re‑admit an appeal dismissed for default, "where it is proved that he (the appellant) B was prevented by sufficient cause from appearing when the) appeal was called on for hearing'". As to what is or is not sufficient cause for the purposes of this rule must necessarily depend upon the facts and circumstances of each case, for, a explained by the Federal Court in the case of Malik Mumtaz Ahmad and others v. Umtul Habib and others(1) P L D 1955 F C 178 these words are "not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. Each case must be judged upon its merits and its peculiar circumstances. While it cannot be tolerated that the counsel should be remiss in the discharge of their duties and leave the Court waiting for them, it is equally desirable, and even necessary, that the case should be heard and decided on merits, and where the non appearance was not intentional and the counsel or his client had made genuine efforts in taking reasonable precautions to be present at the hearing, a very strict view as to `sufficient cause' should not put him out of the Court." In the above‑mentioned case the counsel engaged in the appeal before the High Court had been told upon enquiries made by him that the appeal immediately preceding his appeal was likely to take about two hours. He left the Court but it so happened that the preceding appeal was adjourned, as there was some talk of compromise. His appeal, which was No. 2 on the list, was then called on and dismissed for default at 11‑30 a.m. The counsel engaged in the case appeared soon after and tendered an apology for his non‑appearance. He submitted that his non‑appearance was due to mis‑information and mis‑calculation on his part regarding the time the preceding appeal would have ordinarily taken and, as such, his absence was not intentional. An application for restoration of the appeal was also made the same day, but it was dismissed by the High Court. The Federal Court, however, reversed the order and remitted the case to the High Court to give an opportunity to the appellants therein to prove by evidence whether there was "sufficient cause" to justify the re‑admission of the appeal. There is also abundant authority from the West Pakistan High Court itself for the proposition that the unintentional omission of a legal practitioner to attend in time to any of the cases in which he is engaged due to unavoidable circumstances may be treated as "sufficient cause" for setting aside an order of dismissal for default. (Vide: Abdul Aziz v. Punjab National Bank Ltd. (2) A I R 1929 Lah. 96 and Khan Muhammad Khan and others v. Mir Sardar Ali and others (3) P L D 1961 B J 42 ). Both of these were cases in which the counsel's non appearance was due to the fact that he was at the relevant time appearing in another Court. In the first case it was observed that in exercising the discretion to restore or not to restore regard must also be "had to the nature of the duties of the counsel towards his other clients and the other Courts." In the second case too a Division Bench restored the appeal, as the omission of the counsel to appear was considered to be "unavoidable", because, "he was busy with one of his other cases in another Court". Learned counsel appearing for the appellants has argued with some force that the averments in the petition for restoration of the appeal not having been controverted by any one, clearly indicate that this was an eminently fit case for the restoration of the appeal. The High Court has not said anything in its order rejecting the application for restoration as to the truth or falsity of these averments. On a reference to the register of this Court, however, it is found that the learned counsel concerned actually appeared in two matters in this Court (Civil Review Petitions No. 18 of 1962 and No. 15 of 1963). The first was heard at 10‑15 a.m and the second at 10‑31 a.m. It is patent, therefore, that in the circumstances of the present case there was no intentional omission by counsel. Apart from this, no request for adjournment could have been made in the High Court before the fixation of the appeal, as on the 17th of October there was no Bench available before which such a request could be made. If the case had been taken up for hearing on that date counsel would have been free to argue it. On the next day there was no time to make the request, as the case in the Supreme Court had been fixed earlier and its date could not be shifted. It was actually taken up for hearing at 10‑15 a.m. The learned counsel was called from the High Court at 9‑40 a.m. The High Court was at that time engaged in hearing kacha peshi matters. The application for adjournment could not, therefore, be made even on that date. The omission was, as such, also unavoidable. Learned counsel engaged in the case could not but have given priority to his case in this Court, for he was reasonably) entitled to expect that this Court would have precedence in such matters in the same manner as the High Court expects that it should have prior claim to the assistance of counsel when they happen to be engaged in cases both in the High Court and Courts subordinate thereto. The determination of the question as to whether there is or is not a "sufficient cause" in a particular case is no doubt a matter within the discretion of the Court itself, but it has to be remembered that this discretion too, like all other discretions exercised by a Court, must be exercised in a judicious manner having regard to all the facts and circumstances of each case and that a litigant should not be lightly deprived of the right of having his case heard by the Court nor, as observed by the Federal Court in the case of Mumtaz Ahmad should the discretion be exercised in such a way as to "make it extremely difficult, if not impossible, for a counsel to discharge his obligations towards the Court and towards his client." Some distinction should be made between negligent or careless performance of duties by counsel and unavoidable omissions, particularly, when such omission is due to no fault of his and he has taken all reasonable steps possible in the circumstances to avoid any disrespect or lack of courtesy to the Court. We have no reason to doubt the correctness of the averments made in the affidavit filed in support of the petition for the restoration of the appeal which was moved within four days of the order dismissing the appeal for default by the same learned counsel, for, we have ourselves verified that he did in fact appear in the forenoon of the 18th October 1963, in this Court in two cases. The High Court has also said nothing in its order dismissing the application which would show that any of these averments is false. In the order dismissing the appeal for default it is clearly mentioned that Mr. Mannan had actually made a request for an adjournment, but the learned Judges of the High Court were not prepared to entertain the request on the ground that such requests should be "made in advance before the fixation of the case." In making this observation, however, it was overlooked that in the particular case such a request could not have been made in advance, for, on the 17th there was no Bench available for the purpose and on the 18th this was the first appeal to be taken up after the kacha peshi. The request was, therefore, we are satisfied, made at the earliest opportunity available and the facts recited above clearly indicate that non appearance of the counsel was due wholly to unavoidable circumstances over which be had no control. In exercising its discretion to refuse the restoration of the appeal the High Court should, as has already been in dicated by this Court in the case of Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others (1) PD 1966 S C 471 Civil Appeal No. 58 of 1962 heard on the 27th of October 1965 also have kept in view that due "weight should be given to the difficulties of counsel who have to appear in more than one cases in different Courts on the same day." In making these observations, however, we should not be understood to be laying down any general rule that engagement in another case or in another Court must, in all circumstances, be treated as "sufficient cause" so as to give unlimited or unreasonable latitude to counsel in this respect. While counsel are normally expected to so arrange their work as to avoid the possibility of their cases cling up for hearing on the same date in different Courts, the Courts should also not adopt too rigid an attitude in such cases or be too quick to take umbrage where none is intended. In view of the above we have come to the conclusion that in this case there was "sufficient cause" for non‑appearance of the counsel in the present case and that the High Court bad, in exercising its discretion to dismiss the appeal for default, not acted upon sound judicial principles after taking all relevant into consideration. The counsel appearing in the appeal v s, in no way, negligent or remiss in the discharge of his duties. therefore, set aside both the orders of the High Court refusing to re‑admit the appeal for hearing and dismissing the appeal for default and restore the appeal to the file of the High /Court for disposal on merits. There will, however, be no order for costs, for, the respondent has not appeared to oppose the appeal. K.B.A. Appeal accepted.