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(a) Civil Procedure Code (V of 1908)‑

‑‑ O. 3tLI, r. 19 ‑ Appeal ‑ Dismissal for default ‑ Re‑admission Appellant taking specific stand of having gone to call her counsel, busy in another Court, when case called up‑Such application signed by counsel but particular allegation not controverted by respondent in his reply‑Either lower Court, in circumstances, ought to have accepted such position as correct and proceeded to decide application on such basis or have afforded opportunity to parties to prove diverging stand taken in matter‑Such not being done conclusion irresistible that lower Court failed to properly consider application‑Record showing appellant's mother to have gone to call her counsel and that she along with her counsel reached when order was being written‑Such. fact uncontroverted and unrebutted ‑ Impugned order of dismissal of appeal for default of appellant's appearance, held, liable to set: aside.‑[Appeal (civil)].

(b) Civil Procedure Code (V of 1908)‑

0. XLl, r. 19 ‑ Appeal ‑ Dismissal for default of appearance ‑Restoration‑Necessity of being very careful in dismissing cases for default and of being more considerate and accommodating‑Caution to lower Courts.‑[Appeal (civil)].

The lower Courts must be very careful in dismissing a case in default as the proceedings arising out of it consume much more time of the Court than it would normally take if they had waited for the counsel or the parties till the closing hours of the Court time. Such a practice would not only be in compliance with the High Court Rules but would advance the cause of justice as some time, a the parties or their counsel may be genuinely delayed in reaching the Court. Therefore, in view of the volume of pending files and the ever increasing fresh litigation it would also save more time and effort ultimately, if the lower Courts are more considerate sad accom modating. They may, how ever, compensate the more vigilant party, who has to wait, by payment of costs, if it is found that the delay on the part of the other party was not for very sound reasons.

Riaa Anwar for Appellants.

Malik Talib Hussain for Respondents.

Date of hearing: 27th November 1975.

The appellants filed a suit for a declaration that they are owners of 10 kanals of land in Khata 11 of village Inayatpur Mohatta, Tehsil and District Multan and that the entries in the revenue record are inoperative. They also sought for a perpetual injunction by way of consequential relief restrain ing the defendants‑respondents from interfering with their possession. The suit was dismissed by the learned Civil Judge, Multan on 10th of May 1973. The appellants filed an appeal but the same was dismissed in default on 21st of January 1975. An application for re‑admission of the same under Order XLI, rule 19 filed on 1st of February 1975, also failed on 7‑6‑1975, and hence this appeal.

2. It is contended by the learned counsel that the 21st of February 1975 had been fixed only for the purpose of the receipt of the record and, therefore, it being not a date of hearing, the order of dismissal in default was unlawful. I have checked up the record to find that the record of the lower Court had been received in the Court of the learned Additional District Judge on the relevant date. The case was thus ripe for arguments and c‑ uld be heard and decided on that date. The contention raised is thus not acceptable.

3. The learned counsel then submitted that it was specifically stated in the application under Order XLI, rule 19, C. P. C. that Mst. Bano mother of appellant No. 1 was present outside the Court on the date of hearing since 8‑00 O'clock in the morning. She, on knowing that the case had been called, is stated to have appeared and after seeking permission went to inform the learned counsel who was present in the other Court. When she came back along with her counsel, the order dismissing the appeal in default was being dictated. This application is also signed by the learned counsel who apparently endorsed the contents of it.

4. The application was filed on 1‑2‑1975. An affidavit of Mst. Bano had also been placed on the record which supports the contents of the

application. In reply to para. 2 of the application the respondents did not specifically deny the appellant's plea that she along with her counsel appeared when the order was being dictated by the Court. The learned Additional District Judge also did not advert to this averment. He, however, without allowing the parties to adduce any evidence in the matter proceeded to dismiss this application on the 7th of June 1975.

5. It is contended by the learned counsel that as the absence of a counsel, for being busy in another Court, when a case is called, has been held to be a sufficient cause for the restoration of a case dismissed in default, by the Supreme Court in a number of cases, the impugned order is unlawful. He referred to Mohd. Hakeem and others v. H. H. Muhammad Naim and others (PLD 1969 SC 270) in which their Lordships of the Supreme Court approved their previous orders in Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan (PLD 1966 SC 467) and Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others (PLD 1966 SC 461) on the same point. The relevant observations in this case are as under:‑

"It has been laid down by this Court 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. Amtul Habib and others (PL D 1955 F C 178) and sought to impress upon the Courts below that in addition when dealing with applications of restoration of matters dismissed for default 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'.

Again in the case of Salamat Bibi and others v. Settlement and Rehabili tation 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 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."

The learned counsel also relied on rule 6, Chapter I‑J, Volume I, to say that a case cannot be dismissed in default in the early hours of the day. He also cited Dhunda v. The Punjab Province (Now Province of West Pakistan) (P L D 1960 Lah. 786) to state that as the power under Order XLI, rule 17 is purely discretionary, the Court while exercising it must be conscious and should apply his mind. It is submitted that as'there were three minors in the case and it was only 11‑00 O'clock, the learned Court should have either waited for further time or should have restored the case after these facts were brought in its notice.

6. The learned counsel for the respondents contested this appeal and submitted that the stand taken by the appellant that Mst. Bano was present in the case and that on the case being called she appeared to seek permission to call her counsel, was absolutely incorrect. He supported the order of the learned Additional District Judge to say that as the case had been called three times and no body appeared, the Court was well within its power to dismiss the appeal for non‑prosecution.

7. It will be seen that the appellant had taken a specific stand that she had gone to call her counsel, who was busy in another Court, when the case was called. This application had been signed by the learned counsel but this particular allegation was not controverted by the respondent in his reply. In the circumstances either the learned lower Court should have accepted that

position as correct and proceeded to decide the application on that basis or it should have afforded the parties an opportunity to prove the diverging stan taken by them. This, however, was not done. In view of this I am con strained to hold that the learned District Judge had not properly considere the application before him.

8. The record as it is before me shows that the allegation that Mst. Bano had gone to call her counsel and that she along with her counsel had reached the Court when the order was being written, stands uncontroverted and unrebutted. The rule laid down by the Supreme Court in the above cases thus

applies with full force and the impugned order is liable to be set aside on that score alone. I may also remark here that the lower Courts must be very careful in dismissing a case in default as the proceedings arising out of it consume much more time of the Court than it would normally take if the

had waited for the counsel or the parties till the closing hours of the Court time. Such a practice would not only be in compliance with the High Court

Rules referred to above but would advance the cause of justice as sometim the parties or their counsel may be genuinely delayed in reaching the Court.

Therefore, in view of the volume of pending files and the ever increasing fresh litigation it would also save more time and effort ultimately, if the lower Courts are more considerate and accommodating. They may, however, com pensate the more vigilant party, who has to wait, by payment of costs, if it i found that the delay on the part of the other party was not for very sound reasons.

9. This appeal is thus accepted, the impugned order is set aside and the appeal is ordered to be readmitted to be heard and decided in accordance with law. The parties are, however, left to bear their own costs in view of the circumstances of the case.

S. A II. Appeal accepted.

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