P L D 1969 Supreme Court 270 (PLP)

His clients filed supporting affidavits saying that they were sitting in the verandah of the Court after delivering the slip, given by the learned counsel, to the Sarishtadar of the Court but neither the name of their learned counsel nor their names were called out by the peon of the Court. At 10‑45 a. m., however, when the learned Single Judge rose for the day and they saw the learned counsel for the opposite‑parties leaving the Court room, they went inside and on enquiry from the Sarishtadar, learnt that their case had been dismissed for non‑prosecution. The learned Single Judge dismissed the application for restoration, with costs, on the 27th January 1964, holding that no sufficient ground had been made out for the restoration of the case. This order again reiterated that the case had been called on thrice but neither the petitioners nor their learned counsel bad appeared but only a chit was sent to the Reader requesting that the case may not be taken up as the learned counsel was busy before the Supreme Court. On receiving the chit the case was called on again when all other work was finished. The Court also observed that engagement of the learned counsel before the Supreme Court was no ground for him to absent himself in his cases pending in the High Court, particularly since the Court had already accommodated him on this very ground twice before and the 27th November 1963, had been fixed for arguments on the definite understanding that no further adjournment will be prayed for even on the ground of engagement before the Supreme Court. The assertion of the clients that they were present in Court was characterized as being "absolutely false", but unfortunately it is not clear from the order as to whether the names of the parties or of the learned counsel appearing for them were called outside the Court room as well. From this order the petitioners went in Letters Patent Appeal but a Division Bench upheld the order of the learned Single Judge, observing that in spite of "the great respect that the High Court offers to the proceedings that are conducted before the Supreme Court and all interest in the discharge of duties by the Attorneys of the Supreme Court" it could not help feeling that its "respect towards the Supreme Court should issued of the High Court, it thought, also deserved "respect and attention" and it was necessary that in view of the undertaking given by the learned counsel and the conduct of his clients, "the view which is conducive to the smooth working of the High Court should be taken." Leave was granted in this case, because, it was felt that the defaulting counsel was placed in an embarrassing situation through being required to enter appearance at the same time in his capacity as an Attorney of the Supreme Court in the hearing of an appeal which had been proceeding from day to day and was not concluded till the 28th November 1963. There can be no doubt that the failure of the learned counsel to appear before the High Court was not deliberate. Neither was the excuse presented for such non‑appearance wholly frivolous. But even so, the question that arises for consideration is as to whether P,*n Attorneys of this Court are entitled to absent themselves their pending matters in the High Court on the ground that they have to be present in this Court during the hearing of their matters. The rules of this Court require that for the purposes of taxation the Attorney must have his appearance recorded in this Court and he is ordinarily also expected to be in attendance in the Court to instruct his learned counsel should the necessity arise. But at the same time it must be remembered that once the hearing of an appeal has commenced before this Court an the learned counsel engaged to argue the appeal are on their feet addressing the Court, the Attorney has no other function to perform. He comes into the picture only when the learned counsel seeks instructions on some particular point with regard to which he has not already been briefed. There is nothing in the Rules of this Court also to prevent an Attorney from leaving the Court with its permission if he is ever placed in any difficulty. This Court would be extremely unlikely to placed any Attorney in such an embarrassing situation if it is apprised of the fact that a prayer for adjournment has been refused by the High Court, because, it is not essential for an Attorney to be present throughout to assist learned counsel actually arguing a matter. Learned counsel appearing on behalf of the appellants herein has, however, sought to put his case a little higher and to contend that a matter should not be dismissed for default unless there is some negligence which is directly attributable to the parties in the proceeding or matter concerned, for, otherwise the result would be that the party would be punished for no fault of his own and may even have to suffer irreparable loss for something which is neither in his control nor due to any remissness on his part. If any one is at fault it is the learned counsel. The latter, on the other hand, it is maintained, should not be visited with such punishment unless his default is deliberate or savours of lack of respect for the High Court. But where, at worst, it is due only to a miscalculation on his part about the time which the appeal was likely to take for hearing in the superior Court a dismissal for non‑prosecution would not be just or fair. This Court has no desire to lay down any rule which would encourage counsel to accept briefs in this Court by neglecting their previous commitments in the High Court, although for the harmonious working of the Courts it has always been accepted as a salutary and desirable convention that if it so happens that a learned counsel is actually engaged in arguing a case in a superior Court like the Supreme Court or the Court of Appeal all other Courts below should, ungrudgingly, spare the services of the learned counsel engaged before them even if :it necessitates a short adjournment of the matter or matters before them. It has been laid down by this Court that although "sufficient cause" is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, yet where the non‑appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precautions to be present at the hearing, a very strict view should not be taken. In the case of Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others (P L D 1966 S C 461), this Court made pointed reference to the above dictum laid down by the Federal Court in the case of Malik Mumtaz Ahmad and others v. Mst. Umtul Habib and others (P L D 1955 F C 178), and sought to impress upon the Courts below that in addition when dealing with applications for restoration of matters dismissed for default "weight should be given to the difficulties of counsel who have to appear in more than one cases to different Courts on the same day". Again in the case of Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan (P L D 1966 S C 467), it was observed that "there is abundant authority from the West Pakistan High Court itself for the proposition that the unintention 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". In the case of Seth Shivrattan G. Mohatta v. Muhammadi Steamship Company Limited (P L D 1965 S C 669), this Court refused to interfere with an order of restoration granted by the High Court even after finding the learned counsel negligent, because, this Court approved of the principle that even in such a case "it would be wrong to make the plaintiff suffer" on account of the counsel's "professional misconduct". Learned counsel appearing in support of this appeal has also referred to several other reported decisions of the West Pakistan High Court itself as also from the Indian jurisdiction in support of his contention but it appears to us that there is another important aspect of this case which has totally escaped the notice of the High Court. The High Court's order dismissing the application under section 247 of the Companies Act, 1913, does not indicate under which particular provision of the Code of Civil Procedure or the rules of the Court the matter was dismissed for non‑prosecution. The learned counsel appearing on behalf of the respondents concedes that the provisions of Order IX, of the Civil Procedure Code were not attracted in the circumstances, of the case, for, the evidence had concluded and the matter was fixed only for arguments. The presence of the parties was, therefore, not necessary. Submissions had only to be made by the counsel engaged in the case upon the evidence already adduced. The only provisions of the Civil Procedure Code, therefore, which became attracted to this case were the provisions of Order XVII, rule 2 of this Order provides as follows :‑ Where, on any day to which the hearing of the suit is, adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. But rule 3 of the same Order prescribes that :‑ Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. It would, therefore, appear that there is a distinction between these two Rules and it lies in this that rule 2 would be attracted to a case where the adjournment has been granted generally fore one of the purposes mentioned in that Rule but where the entire' evidence has been recorded and the case is posted only for the: hearing of arguments, the more appropriate Rule to follow would be rule 3 and not rule

2. The consensus of judicial opinion appears to be in favour of the view that if it is possible for a Court to base a decision on merits upon the materials already brought on the record; ; it should proceed under rule 3 of Order XVII and not under rule

2. This appears to us also to be sound on principle. Every party who has instituted a cause 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. If it is at all possible for a Court to decide the matter as indicated in rule 3, then it should adopt that course and not dismiss the, proceeding for non‑prosecution and leave the parties to start a second ground of litigation. In the facts and circumstances of the case before us we have no hesitation in coming to the conclusion that this was not an. appropriate case in which the Court, acting in the proper exercise of its judicial discretion, should have dismissed it for non‑prosecu tion. The entire evidence had been led and the Court should have come to a decision on merits in the matter. While saying so we should not be understood to be laying down any rule which would have the tendency of encouraging learned counsel to treat a superior Court with disrespect and not fulfill their commitments undertaken in that Court. Learned counsel should not as a rule accept more engagements than what they are capable of fulfilling. If for any unforeseen reason it so happens that they are called upon to appear in two Courts, more or less simultaneously, then even though a superior Court has a preferential right to their services, they should, out of respect for the lower Court, take the precaution of taking its permission, so that the latter Court is not unduly inconvenience or left with no work, as was the case in the matter now before; us. We must also make it clear that while this privilege may be claimed by counsel engaged for argument in both the Courts, it ought not to be extended in equal measure to their juniors or to Attorney instructing them. Neither the juniors nor the Attorney concerned can be reasonably expected to be present throughout the period of the argument of a cause or matter by the senior in the superior Court. We cannot also help observing that the procedure adopted by the Attorney in the present case, of sending a chit to the High Court was wholly improper and disrespectful to the High Court. It was his duty to appear before the High Court at its first sitting and to inform the Court that due to an unfortunate miscalculation the appeal was still continuing and if the High Court was not prepared to accommodate him, then he should have sought accommodation from the Supreme Court or retired from the case in the High Court. The main reason which has compelled us to allow this appeal is the fact that, in our view, the High Court had not exercised its discretion on sound judicial principles in dismissing the matter for non‑prosecution. It should have proceeded under Order XVII, rule 3, C. P. C., directed that since the learned counsel for the petitioners was not present, his argument must be taken as closed, then called up the learned counsel for the respondents to address the Court and given a decision on the merits of the case. We, therefore, feel that this appeal should be allowed, for, otherwise it would result in inflicting a very harsh penalty upon the parties for no fault of their own. At the same time, however, we wish to record our disapproval of the conduct of the Attorney concerned by directing that the costs of this appeal, both of the petitioners and the respondents, should come out of his pocket, but since there are several respondents in this appeal, the respondents will be allowed only one set of costs. In the result the Miscellaneous Application No. 7 of 1963 will now be restored to the list and disposed of in accordance with law as indicated in this judgment. K. B. A. Appeal accepted.