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Civil Appeals Nos, 10 and 11 of 1953, decided on 8th March 1955. .
(On appeal from the judgment and orders of the High Court of Judicature at Lahore, dated the 26th October, 1950, in. Regular First Appeal No.. 100 of 1947, and dated the 28th May 1951, in Civil Miscellaneous No. 113/C of 1950).
O. XLV, r. 19-"Suffi cient cause"-Not susceptible of exact definition-Each case to be judged on its own peculiar circumstances.
"Sufficient case"-is 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.
Where the non-appearance was not intentional and the counsel or his client had made genuine efforts and taken reasonable precautions to be present at the hearing, a very strict view as to "sufficient cause" should not put him out of Court.
At the same time the discretion allowed to the Court in determining whether there was or was not "sufficient cause", though judicial in nature and capable of control by the superior Court, will not be lightly interfered with.
In this case the application for. rehearing of appeal was disposed of by the High Court by the single word "dismissed" without setting out reasons for dismissal. The counsel for defaulting appellant before the High Court had grounded his application on the plea of misinformation about and miscalcu lation of the time the preceding case on the cause list was expected to take, but, the counsel had not fn his affidavit before the High Court referred to the source (i.e., Counsel engaged in the preceding case) from whom he had made inquiries about that time: .The case was therefore . remanded to the High Court for a fresh decision on the sufficiency of the cause for non-appearence after allowing an opportunity to counsel to prove the circumstances which prevented his appearance.
Bashir Ahmad, Senior Advocate, Federal Court (Ghias Muhammad, Advocate, Federal Court, with him) instructed by M. Siddiq, Attorney, for appellants.
Mahmud Ali, Advocate, Federal Court, instructed by Naair-ud-Din, Attorney, for Respondent, No. 1.
Respondents Nos. 2 to 6: Not present; ex parte against them.
Date of hearing: 17th February 1955.
.-Civil Appeals Nos. 10 and 11 of 1953 by our special leave arise out of the same matter and shall be disposed of by this order.
The facts are quite simple. On. 16th of December 1930, Malik Nasir-ud-Din, the father of the appellants, mortgaged 864 kanals 6 marlas of agricultural land for Rs. 25,000 in favour of Khan Sahib Munshi Rahmant Ullah. On 8th of March 1939, the above area was sold for Rs. 37,000 to Mst. Umtul Habib alias Sardar Begum. The plaintiff appellants brought a suit for possession under custom on the grounds that the land alienated was ancestral qua them; that they were governed by custo mary law under which an alienation of ancestral property could .not be made without consideration and necessity; that the alienor was a man of extravagant habits and a profligate and had no necessity to mortgage or sell the property in dispute. The trial Court dismissed the suit on 2nd of January 1947. A regular first appeal was filed in the High Court of Judicature at Lahore which was numbered 100 of 1947.
The appeal was to be heard on 26th of October 1950, by a Division Bench. At the time the case was called, the appellants, counsel, Mr. Fazal . Din, was not present, while the respondents' counsel was present. It was dismissed in default. The order says: "We waited for Mr. Fazal Din, counsel for the appellants, but he failed to appear. It is now 12 o' clock. This appeal is dismissed for default with costs."
Mr. Fazal Din, the counsel for the appellants, appeared in Court soon. after the above order of dismissal was made and actually argued the next appeal in which he was also appear ing us a counsel. An application under O. XLI, r. 19 of the C. P. C., was made the same day to set aside the order of dismissal and to re-admit the appeal to hearing. It was stated that the above Regular First Appeal No. 100 of 1947 was fixed at No. 5 in the list of the 24th October 1950. It was not heard that day.. On the 25th of October 1950, it was put down as No. 3 on the list but it could not be reached. On the 26th of October 1950, the appeal was No. 2 on the list and was dismissed in default at about 11-30 a.m. It was further stated that the counsel appeared soon after the order of dismissal, tendered apology for his non-appearance and submitted that he had been watching the coming up of the appeal all ' along and on inquiries made as to the time the preceding appeal was likely to take, he was told that it might take about two hours. It so happened that the appeal at No. 1 on the list was immediately adjourned as there appeared to be some talk of a compromise. In the end, it was submitted that the non-appearance was due to misin formation and miscalculation regarding the time that would have been ordinarily taken in the hearing of the appeal at No. 1 of that day. The absence was not intentional and it was prayed that the order of dismissal for default be set aside and the appeal be re-heard.
The above allegations were supported by an affidavit of the counsel in similar terms. This application came up for hearing on 7th of November 1950 and the order passed is; "Dismissed".
On 13th of December 1950, an application under sections 109 and 110, C. P. C., for leave to appeal to the Federal Court was presented to the High Court. This was also dismissed on 20th of 'May 1951. The appellants moved two petitions for special leave to appeal; one against the order of dismissal, refusing to restore the appeal, and the other against the order refusing leave to appeal. The petitions for special leave to appeal were granted on 29th of May 1952. Civil Appeal No. 10 of 1953 relates to the order of the High Court, dated 7th of November 1950, refusing to restore the appeal, and the other appeal No. 11 of 1953 is against the order refusing leave to appeal to the Federal Court.
The appeal against the order, refusing leave to appeal to the Federal Court can be immediately dismissed on the short ground that there was 'no decree passed by the High Court and the conditions laid down under sections 109 and 110 of the C. P. C., did not exist.
The other appeal No. 10 of 1953 against the order of the High Court, dated the- 7th of November 1950, refusing to readmit the appeal to hearing may now be dealt with.
In explanation of the reasons for non-appearance enumera ted in the petition presented to the High Court on 26th of October 1950, by Mr. Fazal Din and which was dismissed on 7th of November 1950, Mr. Bashir Ahmad, the learned counsel for the appellants, on instructions from Mr. Fazal Din, Advocate, (who was also present in the Court room) submitted that Mr. Fazal Din had made the inquiry from D;. Shuja-ud Din, who was appearing in the case at No. I in the list of 26th of October 1950 as to the time his case was likely to take and, on his saying that it might fake about two hours, Mr. Fazal Din went to the Court of Mr. Muhammad Salim, Civil Judge, to attend to another case pending in his Court. When Mr. Fazal Din returned, he learnt to his surprise that case No. 1 was not started and did not occupy more than a few minutes and that in his absence his appeal had been dismissed for non-appearance as mentioned above.
Mr. Bashir Ahmad urged that there was no intentional non appearance ; that there was a "sufficient cause" for the same ; that Mr. Fazal Din was misled through no fault, of his about the time he could be away from the High Court; that if a very stringent view were to be taken as to "sufficient cause" it Would make it extremely difficult, if not impossible, for a counsel to discharge his obligations towards the Court and towards his client and that as far as possible, litigants should not be deprived of the right of hearing in their cases in Court. _
Reference was made by both sides to a large number of decided cases dealing with what was or was not held to be "sufficient cause". It would serve no useful purpose to discuss them in detail. Suffice it to say. that "sufficient cause" is not susecptible 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 and taken reasonable precau tions to be present at the hearing, a very strict view as to "sufficient cause" should not put him out of Court. It might however, be added that the discretion allowed to the Court in determining whether there was or was not "sufficient cause", e though it is judicial in nature and capable of control by the superior Court, cannot be lightly interfered with.
The one-word order of 7th of November does not indicate as to what weighed with the learned Judges in making it. In the petition for setting aside the order of dismissal for default, the source. of the information as to the time which might be taken up by the case above on the list, was not disclosed, perhaps in the belief that the counsel would have a further opportunity to supplement his affidavit and produce evidence in support of the facts contained therein. This has now been done. Dr. Shuja-ud-Din, the counsel appearing in the case at No. 1 on the list of 26th of October 1950, is a senior and experienced member of the Bar and there could be no reason to think that his estimate of the time, his case was likely to occupy, was wholly wrong- or extremely exaggerated., It could not be foreseen that case No. 1 would collapse immediately and, but for this, Mr. Fazal Din would have been in time to argue his appeal. We are not in a position to say what might have been the decision of the learned Judges of the High Court on the application for restoration of the appeal, if all the facts narrated above, had been placed before them.
In the circumstances of the case, we accept this appeal and remit the case to the High Court to give an opportunity to the appellants to prove the circumstances which prevented Mr. Fazal Din from appearing at the hearing of the appeal on 26th of October 1950 and to produce such evidence as might be considered necessary and then to decide whether "sufficient cause" justifying the re-admission of the appeal was or was not made out. Evidence may be taken in the usual way or by affidavit or by statements from the Bar as the High Court considers proper. The costs in this Court shall abide the result of the application in the High Court.
Civil Appeal No. 11 of 1953 is dismissed with costs.
A. H. Order accordingly.
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