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High Court Appeal No.117 of 1986, decided on 18th November, 1986.
‑‑‑Ss. 6 & 12‑‑Civil Procedure Code (V of 1908), 0. IX, R.4 & O.XXXVII, R. 3‑‑Dismissal of application for leave to appear and defend suit‑‑Application for restoration‑‑Application filed under O.XXXVII, R.3, C.P.C.‑‑Negligence of counsel for applicant in conduct of case having been established, application filed by applicant under O.IX, R.4, C.P.C. for setting aside dismissal order and for restoration of case, held, was rightly dismissed by Trial Court‑‑Order of Trial Court based on cogent reasons could not be interfered with.
Mumtaz Ahmed Shaikh for Appellant.
This High Court Appeal is from the order dated 31st March, 1986, whereby the learned Single Judge dismissed the application under Order IX, Rule 4, C.P.C., which was for setting aside the order dated 24‑11‑1985 by which Misc. A. No. 1898/83 under Order XXXVII, Rule 3, C.P.C. filed by the appellant was dismissed. The application under Order IX, Rule 4, C.P.C. was dismissed in the following circumstances.
The application was filed on the ground that on 23‑2‑1985 the advocate for the appellant had gone to Gambat for attending a case fixed before the Senior Civil Judge, Gambat and he had instructed his clerk to check the daily cause list for 24‑11‑1985 and obtain adjournment as he would not be available in Karachi on the said date. It was further alleged that the clerk of the counsel checked the cause list but he could not trace out the case and, therefore, no one appeared in the Court on 24‑11‑1985. It was further stated that the name of the advocate was wrongly typed as Mumtaz Ahjed instead of Mumtaz Ahmad. The counsel further stated that he had employed the clerk only some time back and he was not aware of his cases.
The reasons which weighed with the learned Single Judge in dismissing the application were that the cases for hearing of the applications are fixed by the Additional Registrar (O.S) in open Court at least two weeks before the date of hearing and on such date parties and their advocates are expected to be present to note down the date fixed by him. This opportunity was not availed of by the advocate for the appellant. He observed if proper care would have been taken to find out the date of hearing, the default would not have been committed. The learned Single Judge further observed that the counsel for the appellant was aware of the fact that the matter was likely to be fixed on 24‑11‑1985 and yet he had gone to Gambat. The learned Judge found that the counsel for the appellant had not given the particulars of the case pending in the Court at Gambat and he had not explained the urgency in that case and reasons for giving preference to that case in a subordinate Court to the case pending in the High Court. He, therefore, was of the view that it was a case of clear negligence in the conduct of the case. The learned Judge also enquired from the Counsel for the appellant as to what was the defence of the appellant to the suit and he was informed that the suit was barred by time. The learned Judge further found that from the scrutiny of the documents the plea of the bar of the limitation was untenable because the appellant had not denied his signature on the letter of the guarantee and the balance confirmation slip executed in respect of the outstanding balance on 1‑12‑1979. The execution of the registered mortgaged deed dated 27‑6‑1979 was also not denied. It may be mentioned here that the other two defendants had not contested the suit.
After hearing the leaned counsel, we are of the opinion that the view taken by the learned Judge of the facts is correct, particularly as to the negligence of the counsel in his conduct of the case and we fully share his view. The learned Judge has for cogent reasons dismissed the application and we do not find any good reasons for interfering with the order impugned in this appeal. We, therefore, dismiss this appeal in limine.
H.B.T./T‑17/K Appeal dismissed.
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