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Civil Petitions for Leave to Appeal Nos. K‑468 and 469 of 1984, decided on 20th November, 1984.

(On appeal from the judgment and order of Sind High Court, dated 8‑8‑1984 in C.M.A. Nos. 1333 and 1334 of 1984 in F.R. Appeals Nos. 357 and 358 of 1983).

‑‑‑O. XLI, r. 19‑‑Constitution of Pakistan (1973), Art. 185‑‑Petition for leave to appeal against order of High Court dismissing application for restoration of appeals of petitioners dismissed in default‑‑Question of absence of counsel for petitioners for sufficient reason not contested before High Court and impugned order of High Court mainly proceeding on basis that petitioners themselves remained absent without sufficient cause‑‑Neither impugned order nor record showing that any counter affidavit was filed in reply to affidavit filed by petitioners testifying to their illness‑‑Reasons for absence of petitioners on ground of illness appearing to have been established on record‑‑No finding existing in impugned orders about negligence against counsel for non‑appearance on date of hearing‑‑Petitioners engaging a counsel to appear and argue their appeals on their behalf‑‑Petitioners' presence on date of hearing would not have contributed to progress of hearing fixed for that date and, therefore, their absence could not be held to be intentional‑‑Held, having found no reason to question cause shown by counsel for petitioner for his absence on relevant date, Court ought to have accepted application and restored appeals to file in circumstances‑‑Petitioner's succeeding to establish Sufficient cause for non‑appearance on date of hearing when their appeals were dismissed for non‑prosecution‑‑Petitions for leave to appeal converted into appeals and impugned order, of High Court set aside and cases remanded to High Court for hearing and disposal of appeals.

‑‑‑O. XLI r. 19‑‑Re‑admission of appeal dismissed in default for non appearance‑‑Sufficient cause Expression sufficient cause' used in O.XLI, r. 19, Civil Procedure Code, held, not susceptible of an exact definition and no hard and fast rule could be laid down to cover all possible cases‑‑Question must of necessity depend on facts and circumstances of each case and lies within discretion of Court which must be exercised on judicial principles‑‑Main consideration which weighs with Court, held further, should be to find out whether non‑appearance was intentional or result of negligence, so that where such non appearance is not intentional or result of negligence and counsel or his client had made genuine efforts to be present at hearing, a very strict view should not be taken.

Muhammad Haleem and others V . H . H. Muhammad Naim and others P L D 1969 S C 270 rel.

Syed Ahmed Hasnain, Advocate Supreme Court instructed by Faizanul Haq, Advocate‑on‑Record for Petitioners.

Nazir Ahmad Siddiqui, Advocate‑on‑Record for Respondent.

Date of hearing: 20th November, 1984.

.‑‑These two petitions for leave to appeal arise out of similar orders passed by a learned Judge of the Sind High Court, Karachi, dismissing the applications of the two petitioners under Order XLI, rule 19 of the Code of Civil Procedure for re‑admission of appeals earlier dismissed in default of appearance.

The petitioners had filed separate appeals, through a common Advocate Mr. S. Zamirul Haque, against their orders of eviction passed by the Rent Controller in the High. Court which were admitted to regular hearing. According to the impugned orders these appeals came up for final disposal on 24‑5‑1984 but at the request of the learned counsel for the petitioners on the ground that parties wished to negotiate for settlement of their disputes, the hearing was adjourned to 27‑5‑1934. On the latter date, however, neither the learned counsel for the petitioners nor the petitioners themselves were present when the appeals were dismissed for non‑prosecution on the said date. Three days thereafter the learned counsel for the petitioners filed applications under Order XLI, rule 19 of the Code of Civil Procedure, praying that the appeals be re‑admitted, on the ground that the counsel was suffering from high blood pressure and was not in a fit condition to come to Court. Also the absence of the petitioners was explained on the ground of sickness. The learned Judge in the High Court, however, found no sufficient ground to allow the prayer as in his opinion, the absence of the parties, namely, the two petitioners, was not explained or proved sufficiently.

We have heard the learned counsel for the parties on the question' whether the High Court was justified in refusing to re‑admit the appeals for the reasons stated. It seems to us that the question of the absence of the learned counsel for the petitioners for a sufficient reason was not contested before the High Court and, therefore, the impugned orders mainly proceed on the basis that the petitioners themselves remained absent without sufficient cause. There is nothing in the impugned orders or on the record showing that any counter‑affidavit was filed in reply to the affidavits filed by the petitioners testifying their illness. Ordinarily, therefore, the reason for the absence of tilt petitioners on the ground of illness deems to have been established the record.

However, there is an aspect of the matter, which seems to have escaped the notice of the learned Judge in the High Court. As a broad proposition of law, it may be stated that the expression "sufficient cause" as used in Order XLI, rule 19 of the Code of Civil Procedure is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. The question must of necessity depend on the facts and circumstances of each case and lies within the discretion of the Court. But this discretion must be exercised on judicial principles. The main consideration, which weighs with the Court is to find whether the non‑appearance was intentional or the result of negligence, so that where such non‑appearance is not intentional or negligent and the counsel or his client has made genuine efforts to be present at the hearing, a very strict view should not be taken. See Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 S C 270.

There is no finding in the impugned orders of negligence against the counsel for non‑appearance on the date of hearing. In the case referred to above it was held by this Court that where the suit was only fixed for final arguments after the close of evidence the presence of parties was not necessary. In the present case, the petitioner had engaged a counsel to appear and argue their appeals on their behalf. The question of their non‑presence on the date of hearing is to be considered in the context of these facts. The petitioner's presence on the date of hearing would not have contributed to the progress of the hearing fixed for that date. Their absence, therefore, could not be held to be intentional. In the circumstances, having found no reason to question the cause shown by the learned counsel for the petitioners for his absence on the relevant date, the Court ought to have accepted the application and restored the appeals to the file. In the facts and circumstances of this case we feel that the petitioners have succeeded in establishing sufficient cause for the non‑appearance on the date of hearing when their appeals were dismissed for non‑prosecution. At the conclusion of the argument learned counsel for the respondent also very fairly conceded to this position.

We, therefore, convert these petitions into appeals, set aside the impugned orders and remand the cases for hearing of the appeals afresh. In the circumstances of this case the High Court is requested to hear and dispose of the appeals at an early date. The parties are directed to appear before the High Court on 2‑12‑1984. There will be no order as to costs.

M. Y. H. Appeals allowed.

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