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Before Haider Ali Pirzada J
Miss ABIDA RIASAT--Appellant
versus
S. SEQUEIRA-Respondent
First Rent Appeals Nos. 52 and 53 of 1984, decided on 15th December, 1986.
----O. IX, R. 8-High Court (Lahore) Rules and Orders, Vol. 1, Chaps. I to J, Part J, Rr. 4, 5 & 6-High Court of West Pakistan Letter dated 23-12-1961-Sind Rented Premises Ordinance (XVII of 1979), Ss. 15 & 21-Ejectment application-Absence of counsel-Dis missal in default-Affiliation for restoration.----Duty of Court stated.
The duty of the Court/Controller is to administer justice in accordance with law. The Court/Controller ought not to exercise a punitive jurisdic tion by dismissing the suit/eviction application or by declaring the defen dant/opponent ex parte in such circumstances. The proper course for the Court/Controller is to pass over the suit/ rent case or appeal in order to enable the Advocate to finish his case in the other Court and appear before it.
Courts/Controllers would ordinarily be inclined to restore the suit/rent case/appeal or set aside ex parte order/decree unless there has been gross negligence on the part of the party because the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right.
In case the pleader of a litigant is not available and is sent for the Controller/Court should not straightaway proceed to dismiss the eviction application/suit for default, but should call the case again in the later part of the day.
Restoration of a case dismissed for default should not ordinarily be denied unless the party is found guilty of contumacious negligence or wilful default.
The very fact that the eviction applications were dismissed at 10-35 a. m, and the appellant and his counsel appeared at 11 a. m. within half an hour on the same day, the applications for restoration were also moved on the same day show that it was not a case of contumacious negligence or wilful default. In this view of the matter the orders of the Controller dismissing the eviction applications for default as also her refusal to restore the same were liable to set aside.
Srinivas Prasad Singh v. Keshava Prasad Singh and others A I R 1936 PC9ref.
Aftab Kizilbash for Appellant.
A. Aziz Khan for Respondent.
Dates of hearing : 14th and 16th October, 1986.
These two first rent appeals under section 21 of the Sind Rented Premises Ordinance, 1979 are directed against the order of the XIIth Senior Civil Judge/Rent Controller, Karachi delivered on 30th November, 1983, whereby she dismissed the applications filed by the appellant for setting aside the dismissal order dated 23-4-1983.
The dispute in the instant case is in respect of two flats bearing Nos. 3 and 4, First Floor, Bismark Building, situated on Plot No. 38/1-SB-3, Mir Karam Ali Talpur Road, Sadar, Karachi. The appellant is the owner/ landlady of the said building while the respondents are the tenants of the said flats. The appellant filed two Eviction Applications bearing Nos. 534 of 1974 and 535 of 1974 against the respondents on the ground of personal requirement. The respondents resisted the eviction applications.
On the pleadings of the parties, the Controller framed the following issues :----
"(1) Whether the applicant requires the disputed premises in good faith for her own personal bona fide use
(2) What should the order be "
The attorney of the appellant filed affidavit-in-evidence in support of the eviction applications on 18-2-1980. The cases were adjourned from time to time. After the matters thus underwent adjournments without the cross-examination of the attorney of the appellant, the same were posted for cross-examination on 31-3-1982. The attorney was partly cross-examined on 31-3-1982 and the cases were adjourned to 29-4-1982 for want of documents. The cases were again adjourned to 23-4-1983 when the matters were dismissed in default at 10-35 a. m. on account of absence of the attorney. The applications for recalling the order dated 23-4-1983 were moved on the same day. The attorney filed his affidavit in support of the applications. It is advantageous to reproduce paras. 2 and 3 of the affidavit which read as under :-
"(2) That the case was fixed today for my further cross-examination. I came to Court with my Advocate Mr. Mirza Aftab, I. Alam Kizilbash, Advocate at 9-30 a. m. The Advocate informed the learned XIIth Rent Controller in chamber that he was before the Vth Additional District Judge.
(3) That, I and my Advocate came to the Court again at 11 a. m. and were informed that the case had been dismissed for default."
The respondent filed counter-affidavit and resisted the applications. The case of the respondent as revealed in the counter-affidavit is that there was no reason or justification for the attorney to have allegedly gone and waited in the chambers of his Advocate awaiting call from him as and when his counsel would be free. The respondent also denied that the attorney and his counsel had come at 9-30 a. m. on 23-4-1983 in the Court.
The learned Controller after taking into consideration the arguments of the learned counsel for the parties dismissed the application vide order dated 30-11-1983. The learned Controller held that the counsel for the appellant attended the Court at 9-30 a. m. and he had also been informed about fixing the case at 10 a. m. She also observed that the matters were fixed for the cross-examination of the appellant's attorney and for this purpose the presence of the Advocate was not required. The appellant being aggrieved against the order dated 30-11-1983 of the Controller has preferred two separate appeals on the grounds mentioned in the memo of appeals.
I have heard the learned counsel for the parties and perused the diary sheet and gone through the impugned order and the cases cited by both the learned counsel for the parties in support of their respective contentions. The only question that arises for decision in these appeals is whether the absence of a lawyer is not a sufficient cause to recall the dismissal order.
The facts set out above clearly show that the learned counsel for the appellant appeared before the Controller at 9-30 a. m. In the affidavit the attorney stated that his counsel informed the Controller in chamber that he was busy before the Vth Additional District Judge in Civil Miscellaneous Application No. 63 of 1982 which was fixed for evidence and would be able to attend after he is free from the Court of Vth Additional District Judge and the Advocate told him to wait in his chamber from where he would be called. The attorney further stated that he and his Advocate came again at 11 a. m. and were informed that the cases were dismissed for default.
The learned counsel for the appellant had Riven a valid excuse for his absence, viz. that he was busy before the Vth Additional District Judge I have perused the diary sheet for 23-4-1983. A perusal thereof shows that the learned counsel for the appellant appeared before the Controller in the morning but the diary sheet nowhere shows that the learned counsel for the appellant was informed that the cases were fixed at 10 a. m.
It is not possible for the Advocate to be present before the Controller as well as before the Vth A.D.J. at the same time. The duty of the Court/Controller is to administer justice in accordance with law. The Court/Controller ought not to exercise a punitive jurisdiction by dismissing the suit/eviction application or by declaring the defendant/opponent parte in such circumstances. The proper course for the Court/Controller is to pass over the suit /rent case or appeal in order to enable the Advocate to finish his case in the other Court and appear before it.
I am of the view that Courts/Controllers would ordinarily be inclined to restore the suit/rent case/appeal or set aside ex parte order/decree sinless B there has been gross negligence on the part of the party because the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right.
The Privy Council in the case of Srinivas Prasad Singh v. Keshava Prasad Singh and others (AIR 1936PC9) laid down as follows :-
"Every litigant has the right to have his case heard and disposed of, but that right must not be abused, even though the defendant, for reasons of his own, is not anxious to complain of the plaintiff's delay. But the Court is not entitled to deprive the litigant of his right, except on clearly ascertained grounds and to the exclusion of grounds which rest only on suspicion. The history of the suit and its delays, the champertous agreement-which is lawful in India and the financial difficulties of one of the parties to that agreement, along with the cause of those difficulties, rested on material which the learned Judge was entitled to take into consideration. But their Lordships are unable to find any material such as would Justify the learned Judge in the very serious charge which he makes in the last two sentences of his judgment, and, in their Lordships' opinion, it was an unjustifiable and improper consideration to take into account in the judicial exercise of the discretionary power of dis missal under R. 36. It appears that before 19th January, 1932 when the notice was issued, a letter was received, which was dated 8th December, 1931 and was addressed to the learned Judge and signed by a name, which cannot be identified as that of any real person. This letter is endorsed Lord Williams, J. :---Let this be kept with the records of the suit'."
A perusal of the Controller's record indicates that the eviction applica tions were dismissed in default on 23-4-1983 at 10-35 a. m. The question which calls for determination is as to whether the Controller was justified in acting in this manner. So far as the subordinate Courts under the con trol of this Court are concerned; certain specific guidelines have been issued to them as prescribed in the High Court Rules and Orders. Rules 4, 5 and 6 Part J. Chapters I to J, Volume 1 thereof, are to the following effect :----
"(4) Order IX, rule 8, lays down that if the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order dismissing the suit, unless the claim is admitted wholly or in part, in which case the claim shall be decreed only to the extent to which it is admitted.
(5) The above rules must be worked in a reasonable manner, otherwise they will result in a number of applications for setting aside orders passed in the absence of one or both parties. A litigant may have gone away for a few minutes to call his pleader, or to refresh him self. It is impossible to expect a man to remain in constant atten dance for the whole of the time during which the Court is sitting. (A convenient method is to lay aside a case when it is found that both the parties are not present, and to call it a second time later on in the day, when all other cases have been called and those in which parties are present have been disposed of and though it is not desirable to lay down any hard and fast rule as applicable to all cases, the above course should ordinarily be followed. Occasionally, when it is brought to the notice of the Court that both the parties to a case which has been held over are in attendance, it may be found convenient to call up the case before all other cases have been disposed of).
(6) Some judicial officers are inclined to dismiss cases in default hastily in order to show an increased outturn. This tendency must be strongly deprecated. No case should be dismissed without giving a party reasonable opportunity to appear as indicated above and if this is done, the number of successful applications for setting aside dismiss-sale in default will be appreciably reduced. The same remarks apply to proceedings taken ex parte and applications to set aside ex parte orders. When a suit or application is dismissed in default, the exact time of dismissal should be noted in the order by. the Presiding Officer in his own hand."
The then High Court of West Pakistan Karachi Bench, Karachi also forwarded a letter dated 23-12-1961 to the same effect.
It appears that the learned Controller did not attract her attention to the above rules of procedure particularly rule 5 and proceeded to dismiss the cases for default at 10-35 a. m. primarily for the reason that the appellant's attorney was not present on that day. It has been stated in rule 5 that in case the pleader of a litigant is not available and is sent fort the Controller/Court should not straightaway proceed to dismiss the eviction application/suit for default, but should call the case again in the C later part of the day. There is nothing to show if this has been done.) The learned Controller should have also taken note of the fact that the learned counsel for the appellant appeared before her in the morning and submitted that he was busy before Vth Additional District Judge and would appear as soon as he would be free. The learned Controller observed that the presence of the pleader was not necessary as the cases were only fixed for the purposes of cross-examination of the appellant's attorney. However, the practice is contrary. The attorney in his affidavit had given a valid excuse for his absence, viz. that he was advised by his counsel to wait in his chambers and he followed the advice. It has been held by' the superior Courts that restoration of a case dismissed for default should not ordinarily be denied unless the party is found guilty of contumacious, negligence or wilful default.
Even on merits, the very fact that the eviction applications were dismissed at 10-35 a. m. and the appellant and his counsel appeared at 11 a.m. within half an hour on the same day, the applications for restoration were also moved on the same day show that it is not a case of contumacious negligence or wilful default. In this view of the matter the orders of the Controller dismissing the eviction applications for default as also their refusal to restore the same are liable to be set aside and it is ordered accordingly. The rent cases shall be restored at their original numbers and the Controller shall proceed to dispose of the same on merits in accordance with law.
It is unfortunate that the Controller refused to restore the rent cases and the eviction applications have to be tried afresh after a lapse of three years. If only the Controller had restored the eviction application, they would have been disposed of on merits long ago. The eviction applications are directed to be disposed of as expeditiously as possible.
The parties through their counsel have been directed to appear before the Vth Senior Civil Judge/Rent Controller, District South, Karachi on 17-1-1987 for proceeding further in the matter. There shall be no order as to costs in the present appeals.
M. B. A./5166/K Order accordingly
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