P L D 1959 (W (PLP)

WAHIDUDDIN AHMAD, J.‑This is an appeal from the order of Agha, J., dated the 9th of October 1950, dismissing the appellant's application to restore the suit. On the 31st of August 1949 the appellant filed a suit for the recovery of Rs. 5,000 against the respondent on the Original Side of the Chief Court of Sind. The suit was fixed for issues on the 7th of August 1950. Neither the appellant nor his counsel appeared and it was dismissed for default. On the 11th of August 1950 the appellant made an application under Order IX, Rule 9, C. P. C. for the restoration of the said suit. This application was supported by an affidavit of Mr. Iqbal Ahmad, an advocate of this Court. The grounds on which the ex parte order was sought to be set aside were that the plaintiff had gone out of Karachi leaving the matter in charge of his advocate, that from the 5th to 8th August 1950 the Advocate suffered from acute dysentery and was bed ridden and therefore could not make any arrangement for representation on behalf of the plaintiff at the time of hearing. A counter affidavit was filed on behalf of the respondent in which it was disclosed that the power given on behalf of the plaintiff was in favour of two advocates namely Mr. Iqbal Ahmad and Mr. Naqvi. The learned Judge, after considering tile affidavits of the parties, disbelieved the advocate for the plain tiff and dismissed the application for restoration of the suit. Mr. Zia Chishti, the learned advocate for the appellant, has urged two grounds in support of his appeal. Firstly, that as the suit was fixed for settlement of issues, the learned Judge on the Original Side was not justified in dismissing it. Secondly, that the advocate for the plaintiff was prevented by a sufficient cause to put in an appearance in Court at the time when the case was called for settlement of issues, and that there was not such gross negligence on the part of. the plaintiff which required dismissal of the suit. We have considered both the points and in our opinion the appeal cannot succeed on any of the grounds taken before us. The affidavit filed by Mr. Iqbal Ahmad that he was ill from 5th to 8th August 1950 is supported by a medical certificate, and we have no doubt that the advocate concerned was ill during this period. The fact however remains that the advocate for the plaintiff did not make proper arrangement to find out the actual date fixed by the Registrar for the settlement of issues in Court. If it would have been a case of the absence of Mr. Iqbal Ahmad alone most probably we would have accepted this appeal. It was the duty of the other advocate, in whose favour the appellant gave power, to find out in the absence of Mr. Iqbal Ahmad what cases were fixed in Court which required his attendance. The learned counsel for the appellant argued that Mr. Naqvi, the partner of Mr. Iqbal Ahmad, advocate was only entrusted with criminal work and could not be aware of the civil cases fixed in Court. This explana tion is not satisfactory. The appellant had appointed Mr. Naqvi also as his lawyer. It was his duty to find out, during the illness of his partner, about the civil work from the diary and the files lying on the table of Mr. Iqbal Ahmad. In our opinion counsel for the appellant in the lower Court did not discharge their duty and the illness of Mr. Iqbal Ahmad by itself is not sufficient cause to restore the suit. We have full sympathies with the appellant but find no ground to interfere with the discretion of the learned trial Judge. The next ground taken up by learned counsel for the appellant is that the date for the settlement of issues is not a date for the hearing of the suit and the suit could not be dismissed for default on such hearing. The rules under consideration however show that the date of the settlement of issues is also the date for the hearing of the suit. Rule 3 (4) of the Rules of the Chief Court of Sind, Original Side defines "first hearing" as including "the hearing of a suit for settlement of issues and any adjournment thereof". It was pointed out that cases for settlement of issues are fixed on a miscellaneous day, but that does not mean that the case is not fixed for the hearing of the suit in Court. The practice in the Chief Court of Sind is that in the first instance summons are issued to the parties for appearance before the Registrar (O. S.). The case is fixed for the first time in Court after the defendant has filed the written statement and the parties have closed the directions namely discovery of documents, affidavits of documents and other connected matters. It is for this reason that the rules of the Chief Court treat the fixation of a suit for settlement of issues as a first hearing. According to the provision of Order XIV, rule 1 (5) C. P. C. the issues are to be framed at the first hearing of the suit. It is thus obvious that this date is a hearing within g the meaning both of the rules of the Chief Court and Civil Proce dure Code. Now Order IX, rule 8, C. P. C. contemplates that if the plaintiff fails to appear when the suit is called for hearing the Court shall make an order that the suit be dismissed unless the defendant admits the claim. It was therefore open and com petent for the learned Judge on the Original Side to non‑suit the plaintiff for failure to appear on the day fixed for settlement of issues. The learned counsel for the appellant has invited our attention to a decision of the Indian Supreme Court in Sangrnm Singh v. Election Tribunal, Kotah and another (A I R 1955 S C 425). The facts of that case are however distinguishable. In that case the election Commis sioner refused to permit a party to participate in the proceeding without getting the ex parte order set aside. Chat is a different question altogether. Their Lordships of the Indian Supreme Court were perfectly justified in observing that the parties are entitled, even after an ex parte order has been passed against then, to parti cipate in the proceeding from the stage they put up appearance in Court. In that context their Lordships further observed that the Court cannot pass an exparte order against the defendant who is present before it, and that would be the position even if the case is fixed for the settlement of issues. Nobody can question this exposition of law. This authority also does not support the appellant's counsel's contention. We therefore find no force in this ground. For the reasons given above, the appeal is dismissed wit costs. A. H. Appeal dismissed