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Civil Miscellaneous Appeal No. 15 of 1985, decided on 10th November, 1985.

‑‑‑O.IX, R.9‑‑Civil suit‑‑Restoration of‑‑Sufficient cause‑‑Suit fixed for statement of plaintiff‑‑Dismissed in default‑‑Application for restoration of suit also dismissed in default‑‑Application to restore such application, dismissed by trial Court‑‑No cause for non‑appearance of plaintiff shown‑‑Plaintiff found negligent in persuing his matter‑‑Counsel preferring other cases and not attending to this case‑‑Order of appellate Court, not exercising discretion fur restoration, held, was not in violation of any principle of law or unsound in circumstances.

Bashir Ahmed 1982 S C M R 188; Aung Gigi v. Government of Burma A I R 1940 Rang. 162; Zulfidar Ali v. Lal Din and others 1974 S C M R 162 and 1976 S C hl R 399 ref.

Basharatullah fir Appellant.

Messrs Muhammad Nawaz Ahmed with Khasnood Ahmed for Respondent.

Dates of hearing: 6th, 7th and 14th October, 1985.

This appeal is directed against the order, dated 13‑5‑1984 passer by the Additional District Judge‑1, Quetta whereby the application moved on behalf of the plaintiff /appellant seeking the restoration of the application filed for setting aside the order of dismissal of the suit hay, been dismissed.

2. A suit for declaration, perpetual injunction, possession and rendition of Account was filed by the plaintiff /appellant on or about 30‑7‑1975 in the Court of the District Judge, Quetta which was later referred to the Additional District Judge‑1, Quetta. The plaintiff could not produce his witnesses in spite of being afforded seven adjournments for that purpose with the result that the evidence was closed on 2&‑2‑1984 and the case was fixed for the statement of the plaintiff to be recorded on 7‑4‑1984. On this date the plaintiff did not put in appearance nor his counsel with the result that the suit was dismissed. The application for the restoration of the suit was filed on 9‑4‑1984 and the same was fixed for 26‑4‑1984 but on this date none appeared for the plaintiff, and this application was also dismissed. For the restoration of this application an application was moved on 13‑5‑1984 but it has been dismissed on 9‑10‑1984. Against this order the present appeal has been filed. The learned Additional District Judge, Quetta recorded his observation and came to the conclusion that the explanation offered for the non‑appearance did not constitute the sufficient cause.

3. Mr. Basharatullah the learned counsel for the appellant has urged that the cause shown was sufficient in law. It has, therefore, become, necessary to refer the minutes of the proceedings recorded by the Court the issues in the suit were framed on 8‑4‑1979 and upto 26‑2‑1984 in spite of adjournments obtained by the counsel for the production of the evidence on seven different dates no evidence was tendered with the result that on 26‑2‑1984 the following order was recorded:‑‑

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on 7‑4‑1984 the order passed reads:‑

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The application filed on 9‑4‑1984 for the restoration of the ‑UIV did not show any cause for non‑appearance of the plaintiff whose statement was to be recorded, and it was stated in para. 2 of the application:‑

"That it was fixed as being the last one on the cause list. It was called and has been dismissed in default in presence of the counsel for the defendant. At that time, the counsel for the plaintiff was in High Curt and further the clerk was not present, as he had gone for his marriage. The other clerk who was deputising informed the counsel for the plaintiff but by the time he could go to attend the case it was dismissed in default."

The application filed on 13‑5‑1984 is also re-produced:

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This application was signed by the counsel and the Affidavit sworn in support thereof was signed by the clerk and was in these words:‑

This application was opposed and it was contended in the reply that the affidavit was not in accordance with law, and since the clerk has no concern with the case the affidavit filed by him is not justified. The counsel has not mentioned the title of the case in which the counsel had gone to attend in the Court of the District Judge, the application needs amendment. It was further brought to the notice of the Court that the assertions contained in the application are vague. The main grounds on which the cause shown by the applicant was contested by the respondent is couched in these words:‑

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The learned Additional District Judge relying on the cases of Bashir Ahmed 1981 S C M R page 188 did not consider the ground sufficient for the acceptance of the application and declined to restore the suit.

From the perusal of the record it is found that on 26‑2‑1984 the counsel for the plaintiff was present and thus was aware of the proceedings which were to be taken on 7‑4‑1984. The plaintiff did not appear as usual with him nor showed any ‑cause for his absence. The application made on 9‑4‑1984 does not show any cause for his absence. Engagement of a counsel to appear on behalf of the litigant does not absolve him of his responsibility. The litigant is also under duty to see that his matter properly and diligently being prosecuted. The plaintiff has himself been negligent in not keeping in touch with his counsel and has to thank himself. If the counsel was engaged in other Court he certainly could have asked somebody to inform the Court and to request him to postpone the matter for some‑time. Such a request obviously would have been granted but neither the plaintiff put in .appearance nor the counsel in whom he reposed confidence made any arrangement for any appearance on behalf of the plaintiff as such it cannot be said that there was sufficient cause for non‑appearance for the plaintiff or anyone on his behalf. 7"he plantiff has not shown any cause at all for his own absence. It was pointed out by the counsel for the defendant that the plaintiff carries on business at Jinnah Road, a few paces away from the Court premises and he could have attended personally. His presence was required on 7‑4‑1984 at., he had to appear for his own statement. This aspect of the matter has not been rebutted. A full Bench of the Rangoon High Court in case Aung Gigi v Government of Burma reported in A I R 1940 Rangoon page 162 has explained the . duty of the pleader and observed "Advocates who are engaged in cases which are fixed for hearing at a given time and place cannot be debwed to treat the Court before which the hearing is to take place with indifference and then apply for re‑instatement of the suit dismissed in their absence they hoped or believed that they might attend the hearing. They must make reasonable precaution and the provisions of Order IX, rule 9 become meaningless if it can afterwards be urged that although none was taken and there was no sufficiant cause for their non‑attendance the suit can still be restored to a file because the litigant would suffer if it were not."

4. The Hon'ble Supreme Court in Bashir Ahmed's case referred eariler has observed that:‑

"In showing an indulgence, in exercising a discretion and in affording relief in such matters the Court was well justified to see conduct of the petitioners in diligently pursuing the case before the Court. If there was material to establish that the conduct of the petitioners was wanting and deficient the discretion could as well be exercised against them.''

I feel bound to follow the principle laid down by the Supreme Court. I find that the learned Additional District Judge has attended to all the relevant factors and has chosen not to exercise the discretion in favour of the appellant in the matter of restoration. The order is thus not in violation of any principles of law or shown to be unsound in the circumstances of the case. The plaintiff has been himself negligent in not keeping in touch with his counsel and did not comply with the orders of the Court and absented on 7‑4‑1984 and even thereafter. There counsel did not attend to the case and preferred other cases. The observations of Hamoodur Rehman, C.J. in Zulfiqar Ali v. Lal Din and others 1974 S C M R page 162 which apply t9 the present case is reproduced:‑

"The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligenly prosecuted. IS' he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."

Similar view was taken in Chiragh Din's case 1976 S C M R 399.

5. For the above reasons, I find no force in the appeal which is dismissed. The respondent must have his costs as against the appellant; Advocate's fee in this Court is fixed at Rs.1,000.

S.A. Appeal dismissed.

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