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Revision Application No. 248 of 1986, decided on 24th September, 1986.

‑‑‑0. XLI, R. 21‑‑Ex parte order passed in appeal‑‑Re‑hearing of appeal‑‑Sufficient cause‑‑Bona fide mistake of counsel‑‑Effect‑‑Bona fide mistake of counsel in entering incorrect date of hearing of appeal in his diary, held, would amount to sufficient cause for re‑hearing of appeal‑‑Failure of applicant and his counsel to appear before Court not intentional but due to bona fide mistake of counsel‑‑Ex parte order passed by Court against applicant was set aside and re‑hearing of appeal ordered in circumstances.

Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan P L D 1966 S C 467 and Municipal Committee v . Muhammad Sarwar 1968 S C M R 817 ref.

Iqbal Ahmad for Applicant.

S.A.Muslim Naqvi for Respondent.

Date of hearing: 24th September, 1986.

The applicant above-named being aggrieved by order, dated 12‑8‑1986 passed by the IIIrd Additional District Judge (West) Karachi in Civil Miscellanous Application No. 42 of 1985 by which the application under Order IX, Rule 13, Order XLI, Rule 21 read with section 151, C . P. C . filed by the applicant was dismissed, has filed this revision application on the grounds mentioned in the memo of Revision.

The facts which give rise to this Revision application are that on 5‑10‑1978 the applicant was declared a successful bidder and was allotted two open spaces bearing Nos. 1 and 2 adjacent to staff quarters, Aquarium, Clifton, Karachi. It is the case of the applicant that he paid to the respondent amount of Rs.2,820 and Rs.2,760 and thereafter possession of the plots was handed over to him on 1‑11‑1978. It is the case of the applicant that without issuing any notice the respondent threatened him to dispossess him. The applicant filed Suit No. 182 of 1984 in the Court of XIVth Senior Civil Judge, Karachi, alongwith an application under Order XXXIX, Rules 1 and 2, C.P.C. in which the learned Civil Judge confirmed ad interim injunction. The respondent being aggrieved against the order filed Civil Miscellaneous Application No. 42 of 1985 in the Court of District Judge, Karachi which was ultimately transferred to the Court of IlIrd additional District Judge. It is the case of the applicant that this appeal was fixed for hearing on 2‑7‑1986 and it was adjourned to 2‑8‑1886. It is the case of the applicant that his counsel noted inadvertantly 8‑8‑1986 instead of 2‑8‑1986. As 8‑8‑1986 was Friday, as such his counsel alongwith him appeared on the next working day, that is, 9‑8‑1986 on which date they were informed that the said appeal was actually fixed for hearing on 2‑8‑1986 and the same was allowed. On 10‑8‑1986 the applicant filed the application for re‑hearing which was dismissed on 12‑8‑1986 as stated earlier.

I have heard the learned counsel for the parties and perused the impugned order and the application for re‑hearing.

In this case the appeal was heard in the absence of the learned counsel for the applicant. I have perused the case diary of the learned counsel for the applicant and from its perusal it appears that he had by mistake or inadvertantly entered the hearing of appeal for 8‑8‑1986. It, therefore, cannot be said that omission by him and his counsel to appear before the learned Additional District Judge on 2‑8‑1986 was intentional.

I am of the view that the bona fide mistake of the counsel would amount to 'sufficient' cause for re‑hearing of the appeal. In this connection the observation of the Supreme Court in Salamat Bibi and others v . Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467 may quoted which reads as under:‑

"The determination of the question as to whether there is or is not a 'sufficient cause' in a particular case is not doubt a matter within the discretion of the Court itself, but it has to be A remembered that this discretion too, like all other discretions exercise by a Court, must be exercised in a judicious manner having regard to all the facts and circumstances of each case and that a litigant should not be lightly deprived of the right of having his case heard by the Court nor as observed by the Federal Court in the case of Mumtaz Ahmad should the discrexion be exercised in such a way as to 'make it extremely difficult, if not impossible, for a counsel to discharge his obligations towards the Court and towards his client.' Some distinction should be made between negligent or careless performance of duties by counsel and unavoidable omissions, particularly, when such omission is due to no fault of his and he has taken all reasonable steps possible in the circumstances to avoid any disrespect or lack of courtesy to the Court."

The above observations were followed in the case of Municipal Committee v. Muhammad Sarwar 1968 S C M R 817.

Mr.Muslim Naqvi, the learned counsel for respondent has fairly conceded the factual and legal position that the learned counsel for the applicant gave a plausible explanation for his absence from the Court and his absence was not intentional and this is a fit case for setting aside the impugned order.

For the aforesaid reasons, I accept this Revision Application, set aside the order of the learned Additional District Judge and remand it and direct that Civil Miscellaneous Application No. 42 of 1985 pending for disposal in accordance with law. Parties are directed the appear before the learned Additional District Judge on 9‑10‑1986. I direct that the Civil Miscellaneous Application 42 of 1985 shall be accorded priority by the learned Court and shall be disposed of within a period of six weeks from the date of this judgment.

H . B . T . Revision accepted.

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