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Civil Revision No.390 of 1983, heard on 3rd July, 1984.

---O.IX, R.13 & S.115--Ex parte decree--Setting aside of--Pre occupation of counsel before some other Court--Absence not intentional and wilful--Counsel himself appearing in witness-box to support his version--No reason to disbelieve such evidence--Sufficient cause for recalling ex parte proceedings--Order setting aside ex parte proceedings challenged in revision--Exercise of discretion by trial Court, held, neither arbitrary nor capricious--Revisional jurisdiction not to be utilized for removal of discretionary orders--Recall of ex parte orders upheld.

M. A . Latif Faruqui v. National Bank of Pakistan P L D 1981 Kar. 645; Dhanjishaw Bahramji Ghadialy v. Abdul Latif P L D 1983 Kar. 121; Salamat Bibi v . Settlement & Rehabilitation Commissioner, Multan P L D 1966 S C 467; Babu Jan Muhammad v. Dr. Abdul Ghafoor P L D 1966 S C 461; Firm of J.E. Billimoria and Sons Nagpur v. Gopinath Sunderlal Bharga A I R. 1938 Nag. 370; Seth Shivrattan G. Mohatta v. Messrs Muhammadi Steamship Co. Ltd. PLD 1965 S C 669 and Abdur Rehman v. Allah Ditta P L D 1957 Lah. 619 ref.

Faiz Muhammad Sadiq for Petitioner.

Muhammad Iqbal for Respondents.

Date of hearing: 3rd July, 1984.

The facts are that the petitioner entered into a contract with the Punjab Government, through Rural Development Department, for construction of two roads. The agreement inter alia provided that the disputes relating to the contract arising between the parties, would be decided through arbitration. As the authority named in the arbitration- agreement failed to nominate the arbitrator, the petitioner moved the Civil Court under section 8 of the Arbitration Act. In the course of these proceedings, ultimately the Court, with the consent of the parties, referred the dispute to an arbitrator, agreed upon by them. The latter made an award dated 28-2-1981 for Rs. 3,70,878.08, in favour of the petitioner and filed the same in the Court.

2. The learned trial Court invited objections to the award. The respondents preferred certain objections which were opposed by the petitioner. This led to the formulation of an issue as to whether the award was liable to be set aside. The case, was, for the first time, fixed for 11-6-1981 for respondents' evidence, but no evidence was led and the matter adjourned to 18-6-1981. It is discernible from the available record that on that date the petitioners' counsel was present but the counsel for the respondents, was, absent. One Muhammad Amin, Assistant Engineer, appeared on behalf of the latter and made a statement that no evidence, was, to be produced on the objections. The learned trial Court, thereupon fixed the case for 21-6-1981 for production of the petitioner's evidence.

3. No one appeared on behalf of the respondents on 21-6-1981. Consequently, they were proceeded against ex parte. The petitioner tendered some documents in evidence. The learned trial Court proceeded to deliver the order dated 21-6-1981 and made the award rule of the Court.

4. On 16-7-1981, the respondents moved an application under Order IX, Rule. 13 CPC for setting aside the ex parte proceedings and the decree dated 21-6-1981 on the ground that their counsel as well as they, were, unaware of the date of hearing and thus, their non-appearance in the Court, was, not intentional and wilful. This application was contested by the petitioners. Both the parties led evidence in. support of their respective contentions; on examination whereof, the learned Civil Judge was of the view that the Assistant Engineer was not competent to make statement on behalf of the respondents. The fact that only one adjournment had been granted to the Punjab Province to produce evidence also influenced his decision. He further maintained that though the respondents did not pursue their cause diligently but the justice demanded that the matter should be decided on merits. Accordingly, by his order dated 8-12-1982, the learned Civil Judge allowed the application. This order is under challenge in this revision.

5. I have heard the learned counsel for the parties and examined the available record. The learned counsel for the respondents has supported the impugned order. On the other hand, it has been argued on behalf of the petitioners, that the only reason given by the respondents in their application for setting aside the ex parte order and the decree, was, that their counsel was not aware of the date of hearing. The petitioner's learned counsel, went on to argue that the application itself showed that Muhammad Amin Assistant Engineer, appeared in the Court, on behalf of the Department and as the case was adjourned to 21-6-1981, in his' presence, the Department could not be said to be unaware of the date of hearing. As regards the arguments that Muhammad Amin had no authority to make any statement it was submitted that this ground was never taken up by the respondents in their application. It was further urged that the facts obtaining on the record fully smacked, of lack of diligence on the part of the respondents land their counsel and, thus, no indulgence could be shown to them. In support of these submissions, he heavily relied on M.A. Latif Faruqui v. National Bank of Pakistan P L D 1981 Kar. 645 and Dhanjishaw Bahramji Ghadialy v. Abdul Latif PLD 1983 Kar. 121.

6. For evaluation of the arguments of the parties, I have gone through the entire available record. In order to discharge the burden of proof, that there was sufficient cause for setting aside the ex parte proceedings, the respondents examined Muhammad Amin (A.W.1) who deposed 'that he had no authority to make the statement dated 18-6-1981; and he informed the counsel's clerk that the case had been adjourned to 21-6-1981. The latter appeared in the witness box as A.W.3 to state that he forgot to inform the counsel of the said date of hearing. The counsel namely Ch. Muhammad Sadiq Rafi Advocate, w is, examined by the respondents as A.W.2. He stated that on 18-61-1981, when the case was taken up for hearing he was busy before 'the learned Senior Civil Judge in another matter; the moment, he 'was free, he came to the trial Court, but by that time, the courts' time was over. He corroborated his clerk's version that the date of hearing, was, not conveyed to him. In rebuttal Mr. Hafiz-ud-Din, Advocate, who represented the petitioners in the trial Court entered the witness box. Besides this, another Advocate namely, Mian Bilal Anwar and Muhammad Ashfaque Ali Qureshi, the managing partner of the petitioners' concern were also examined. The gist of their evidence, is that the Department and their counsel, were, fully a are of the fixation of the case for 21-6-1981 and Muhammad Amin get his statement recorded under the advice of the counsel.

7. The question falling for consideration in this case is, as to whether or not there was sufficient cause for respondents' non-appearance in the Court on 21-6-1981. The term "sufficient cause" is not susceptible of any precise definition and each case has to be decided on its own facts. The respondents' learned counsel did not appear in the Court on two occasions; firstly, on 18-6-1981 and secondly on 21-6-1981. In respect of the first date, his explanation is that he was busy in the Court of learned Senior Civil Judge, in another case and as soon as, he was free therefrom, he appeared in the trial Court, but by then that Court had arisen. The counsel himself appeared in the witness-box to support this version. There is no reason to believe him. The pre-occupation of a legal practitioner before : me other Court has often been held as a sufficient cause for recalling ex parte proceedings. A reference in this connection may be made to Salamat Bibi v. Settlement & Rehabilitation Commissioner, Multan (P L D 1966 S C 467) and Babu Jan Muhammad v. Dr. Abdul Ghafoor (P L D 1966 S C 461).

8. As regards, the date of hearing of 21-6-1981 the respondents' case, is, that Muhammad Amin informed the counsel's clerk, namely Muhammad Sharif (AW. 2) of the said date of hearing, but the latter did not convey it to the counsel, and in his statement admitted this lapse. Ch. Muhammad Sadiq Rafi, Advocate has categorically stated that his clerk did not tell him that the case was fixed for 21-6-1981. The respondents, were not expected to pursue the case themselves, and they engaged an advocate for this purpose. It is a common practice, in the District Courts, that in case the counsel is not available, the client contacts his clerk. Indeed the counsel's clerk, is, the medium of contact between the counsel and his client. Thus, there was nothing unusual, if Muhammad Amin communicated the date of hearing to the clerk, for onward transmission to the counsel. There is no justification either to blame the counsel or the respondents, for the clerk's carelessness, I am of the view, that in the circumstances of the case, the clerk's failure to inform the counsel of the date of hearing constitutes sufficient cause. I may refer here with advantage to the case of Firm of J. E. Billimoria and Sons Nagpur v. Gopinath Sunderlal Bharga (A. I . R . 1938 Nagpur 370).

9. It has not been shown that under the rules of business, Muhammad Amin Assistant Engineer, had authority to represent the Department, before the Court. Such authority, however, vested in the counsel. There is ample authority for the rule that even if there is some negligence on the part of the counsel, the litigant should not be made to suffer for it. This view finds support from Seth Shivrattan G. Mohatta v. Messrs Muhammadi Steamship Co. Ltd. (P L D 1956 S C 669). Further in such cases, as held in Abdur Rehman v. Allah Ditta (P L D 1957 Lah. 619) a litigant is not expected to have exercised a high degree of care to entitle him to the recall of the ex parte order.

10. I have considered the precedents relied upon by the learned counsel for the petitioners. In M. A. Latif Farooqui v. National Bank of Pakistan, on the basis of rule 281 of the Sind Chief Court Rules (OS) it has been maintained that a counsel is duty bound to acquaint himself with the fixation of his case by examining the weekly cause list pasted on the notice board. In the case of 'Dhanjishaw Bahramji Ghadialy v. Abdul Latif' the explanation given by the counsel that he failed to notice the suit from the cause list, on account of his poor health was, not accepted by the Court and it was considered, a case of gross negligence. Both these rulings are distinguishable. In the instant case, the counsel entered the witness box and submitted himself to lengthy cross-examination by the opposite party and there is no cogent material on the record to justify discarding of the explanation given by him. I am of the view that in the circumstances of the instant case, the absence of the respondents' counsel was not wilful and they have succeeded in showing that there was sufficient cause for their or for that matter their counsel's. non-appearance. The recall of the ex parte proceedings and the decree by the learned trial Court, is, therefore, upheld.

11. There is another weighty reason for refusal to interfere with the impugned order, under section 115 CPC. The setting aside of the ex parte proceedings, was, within the discretion of the Court below. There is no good ground to regard the exercise of discretion by the learned trial Court, as arbitrary or carpicious. The revisional jurisdiction cannot be utilized for removal of discretionary orders.

12. For the foregoing reasons this revision petition is found without merit and thus dismissed but with no order as to costs.

M.I./3519/L Petition dismissed.

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