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Miscellaneous Appeal No. 67 of 1956, decided on 2nd May, 1958.
O. IX, r. 13‑"Sufficient cause"‑Definite understanding between counsel for plaintiff and defendant to inform each other of dates fixed for final hearing of suit‑Failure of plaintiff's counsel to inform counsel for defend ant the date so fixed‑Failure of defendant's counsel to note date of hearing fixed for because of serious illness of son‑Held to be sufficient cause for non‑appearance.
The important factor for consideration in an application under O. IX, Civil Procedure Code is whether there was sufficient ground for the absence of the party on the date fixed for the hearing of the case. The insufficiency of the cause can be gathered from the gross negligence of the party or his advocate in the conduct of the suit.
Where the counsel for the defendant made a definite statement in his affidavit before the Court that there was an explicit understanding between him and the counsel for the plaintiffs, that they will inform each other of the dates fixed for the final hearing of the suit but the counsel for the plaintiffs failed to inform him of the date so fixed, it cannot be held that under the circumstances the counsel for the defendant was negligent in discharge of his duties in not attending the case on the date of hearing. So also where the absence of counsel on the date of hearing was on account of his being upset and not diligently attending to his work because of the serious illness of his son and so failing to note the date of hearing fixed for the suit.
O. IX, r. 13‑Party should not be penalised for negligence of his counsel.
Sharifuddin on behalf of Syed Moinullah for Appellant.
Jan Muhammad for Respondents.
‑This order will dispose of Miscellaneous Appeal No. 67 of 1956 and Miscellaneous Appeal No. 68 of 1956 as they arise out of the two connected cases i n which the dispute between the parties is on the same cause of action.
These two appeals have arisen out of an order of Munshi, J. dated the 24th of October 1956 by which he refused to set aside the ex parte decrees passed in Suits Nos. 64 of 1954 and 65 of 1954 against the appellant. The ex parte decrees were passed as the defendant and his counsel failed to appear before the trial Court on the 6th of January 1956. when these two suits were fixed for final hearing. The grounds on which the ex parte decrees were sought to be set aside were that Mr. Moinullah, the counsel for the appellant appearing in the lower Court, was upset on account of the serious illness of his son and that due to this was not diligently attending his work and failed to note the date of hearing fixed for the two suits. The learned Judge con sidered this ground as insufficient and therefore refused to set aside the ex parte decrees.
We have heard the learned counsel for the appellant and respondents and we are of the opinion that in the circumstances of the present case the order of Munshi, J. dated the 24th of October 1956, cannot be upheld. The most important factor for consideration in an application under Order IX, C. P. C. is whether there was sufficient ground for the absence of the party on the date fixed for the hearing of the case. The insufficiency of the cause can be gathered from the gross negligence of the party or his advocate in the conduct of the suit. In this case we are unable to hold that Mr. Moinullah was negligent in the discharge of his duties or his client was also negligent in not attending the cases on the date of hearing. Mr. Moinullah has made a definite statement in his affdavit that there was an explicit understanding between him and the counsels for the respondents that they will inform each other of the dates fixed for the final hearing of the suit. This fact has not been denied on oath by the counsel appearing on behalf of the respondents in the two suits. The state ment of Mr. Moinullah stands unrebutted and there is no reason to disbelieve him in this respect. It is quite possible that Mr. Moinullah was upset on account of the serious illness of his son and for this reason was not paying so much attention to his work as is ordinarily expected from a counsel.
It further appears to us that a party should not be penalised for the negligence of his counsel. The appellant was not aware about the dates fixed for the hearing of the suits. He was not expected to know about it except through his counsel, as the dates on the original side of this Court are fixed on Saturday by the Registrar. Ordinarily on this day only the counsel and their clerks attend before the Registrar. It is therefore clear that the appellant's absence on the date fixed in the two suits was not deliberate but accidental. On the whole we consider that there, was sufficient cause for the non‑appearance of the appellant on 6‑I‑1956 before the trial Court. On the facts of this case it will not meet the ends of justice if we penalize the appellant for lack of diligence on the part of his counsel.
We will therefore, accept the two appeals and set aside talk, ex parte decrees on condition of payment of Rs. 100 as cost it each case. The parties are directed to appear before the Judge on the original side on the 20th of May 1958 for the final hearing of the two suits. They will summon evidence in support of their claim for the date and should be ready with the case in all respects. The appeal is allowed with no order as to costs.
K. B. A./A. H. Appeal allowed.
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