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Second Appeal from Order No. 11 of 1958, decided on 4th April 1960.

O. III, r. 3‑Service on counsel is to be deemed service on party as well.

Notice served on counsel is service in accordance with law on the party, and in the absence of any fraud or collusion on the part of the counsel, the mere fact that information was not given to the party, is not sufficient for relieving the party of the consequences of his absence.

The counsel is the agent of the party for whom he appears and acts, and the party is bound to suffer the consequences of his negligence. It is only in cases where there is collusion or fraud that the party can be relieved of the consequences of the act of counsel.

O. IX, r. 8 & O. XVII-- Suit must be dismissed when plaintiff does not appear in Court on first hearing ‑‑Procedure to be followed on hearings other than first contained in O. X VII.

Under Order IX, rule 8, C. P. C. when the plaintiff does not appear, the suit must be dismissed for default for the word used in that provision is "shall". But this applies only to the appearance on the first hearing, and all subsequent hearings are governed by Order XVII. Under the provisions of Order XVII, a Civil Judge, when there is absence on the part of the plaintiff may either dismiss the suit for default or may make such other order as he thinks fit. He is not bound to dismiss the suit for default.

O. XLI, rr. 17 & 19 --Court is not bound to dismiss appeal for default of appearance of appellant‑When appeal can be restored.

Under Order XLI, rule 17, C. P. C. 1908 the Court is not bound to dismiss an appeal for default of appearance of the appellant. In cases where a discretion vests in the Court but the order does not show and there are otherwise no grounds for presuming that the Judge who passed the order was conscious of the discretion and that he actually exercised the discretion, the High Court may set aside the order. It is the right of a party that the Judge who exercises powers in his case should be conscious of the extent of those powers. If he is not conscious of all the powers that he has, then that is tantamount to a misconception of his powers and his order is liable to be set aside. If a Civil Judge be not conscious of the fact that he need not dismiss a suit or appeal in default and he dismisses the suit or appeal assuming that he is bound to do so his order can be set aside on the ground if he was conscious of his discretion, he may have exercised it in favour of the plaintiff or the appellant.

Kamal Mustafa for Appellant.

Ihsanul Haq for Respondent.

Date of hearing: 4th April 1960.

This is an appeal against the order of the District Judge, Sialkot, to restore an appeal dismissed in default.

2. The suit out of which this appeal arises had been filed by Dhunda, the present appellant. The relief claimed was an injunc tion to the effect that two sums of money, Rs. 1,050 and Rs. 944, which were being claimed from him by the Rehabilitation Depart ment as the price of certain crop sold to him, should not be recovered from him. The suit was dismissed by the trial Court. The appeal by the present appellant had been fixed by the District Judge, Sialkot, for 24th of April 1956. On that date it was adjourned sine die. After that a notice was served on counsel for the appellant on the 20th of December 1956 for appearance in the appeal on the 2nd of February 1957. On the 1st of February 1957, an application was submitted to the District Judge by Mr. Hafiz Ahmad, Pleader, on behalf of Ch. Nazir Ahmad Bajwa, Advocate, who was counsel for the appellant, to the effect that Ch. Nazir Ahmad had gone to Muzaffarabad for appearance in a case and, therefore, the hearing of the appeal may be adjourned. The Clerk of Court directed on the same day that it should be placed the next day, i.e. the 2nd of February 1957, before the District Judge. On the 2nd of February 1957, nobody appeared when the appeal was called and the learned District Judge passed the following order:‑--

"The case was called thrice but nobody has appeared on behalf of the appellant. Mr. Hafiz Ahmad, Pleader, presented an application for adjournment on behalf of the appellant yester day. It was ordered to be placed before me today. He has not appeared. The application is neither signed by the appellant, nor his counsel. I do not see any reason to adjourn the hearing of the appeal. The same is, therefore, dismissed with costs for the non‑appearance of the appellant."

On the 27th of February 1957, an application was put in for restoration of the appeal. The reasons for restoration mentioned in this application were that the counsel for the appellant had gone to Muzatfarabad for appearance in a case, that the appellant himself did not know of the date of hearing and that the absence was not deliberate. In support of this application, Mr. Hafiz Ahmad, Pleader, was examined as a witness. He stated that Mr. Nazir Ahmad Bajwa‑had asked him to apply for an adjourn ment as he had gone to Muzaffarabad. He put in the application for adjournment one day before the hearing. On the 2nd of February 1957, i.e. the date of the hearing, the District Judge told him that as he had no written authority from counsel for the appellant, he could not appear. So the witness went away and was not present when the appeal was called.

3. No other evidence was led either by the petitioner or by the respondent. The learned District Judge did not find sufficient cause and dismissed the application for restoration.

4. With respect to the plea in the application for restoration that notice had not been served personally on the appellant, and, therefore, he did not know of the date of hearing, it is sufficient to say that notice on counsel is service in accordance with law on the party, and in the absence of any fraud or collusion on the part of the counsel, the mere fact that information was not given to the A party, is not sufficient for relieving the party of the consequences of his absence. At the same time, there is no evidence in support of the allegation that in fact the appellant did not know of the date of hearing. The appellant did even not go into the witness‑box to make that statement. The next point to consider is whether there was sufficient cause for absence. That sufficient cause will be there, if Mr. Nazir Ahmad Bajwa, counsel for the appellant, had done all that was reasonably possible for him to do in the circum stances and in spite of that he was unable to appear. What I have stated above is the criterion for determining whether this is a sufficient cause in a case where a proceeding is dismissed in default on account of the absence of counsel. Mr. Nazir Ahmad Bajwa did not put himself in the witness‑box and did not state the circumstances under which he went to attend a case at Muzaffar abad. In any case, when he went to Muzaffarabad, it was his duty to make arrangements for the conduct of this appeal. It becomes clear when we read the statement of Mr. Hafiz Ahmad that Mr. Nazir Ahmad Bajwa had given him instructions not for arguing the appeal, but for putting in an application for adjourn ment. True, there is a sentence in the statement of Mr. Hafiz Ahmad to the effect that the learned District Judge was not prepared to allow him to argue the case as he had no written authority from Mr. Nazir Ahmad Bajwa, but this is not quite consistent with what he has stated in the earlier part of his depo sition. He did not categorically state that Mr. Nazir Ahmad Bajwa had ever given him any instructions to argue the case and in fact stated that the instructions to him were to apply for adjourn ment. I would not expect the learned District Judge to say that without written authority the case could not have been argued. The learned District Judge would presumably be aware of the provisions of the C. P. C. which allow a counsel to argue a case without there being any written authority in his favour. Then there is the order by the learned District Judge by which he dismissed the appeal and that order does not at all refer to any counsel expressing his willingness to argue the case on behalf of the appellant. On the other hand, that order shows that although on the previous day an application had been put in by Mr. Hafiz Ahmad, he had not appeared on the date of hearing of the appeal. Had Mr. Hafiz Ahmad appeared before the learned District Judge on that day, this fact would have found a mention in the order of the learned District Judge. I am not prepared to accept the statement of Mr. Hafiz Ahmad that the learned District Judge would not allow him to argue the appeal on account of want of written authority.

5. If I find that Mr. Nazir Ahmad Bajwa had not made any arrangements, can this appeal still be restored It is argued on behalf of the appellant that a party should not be penalised on account of the negligence of his counsel. However much we may want not to penalise the party on account of the fault of his counsel, I am afraid we are forced to do it, for to hold otherwise would lead to chaos. In all cases, where a proceeding is to be restored or an ex parte decree order is to be set aside, the simple plea to take would be that counsel was negligent. Generally, the plea would be correct on facts, and the opposite party would be without any reply to an application for restoration of the setting aside of the ex parte decree.

6. The counsel is the agent of the party for whom he appears and acts, and the party is bound to suffer the consequences of his negligence. It is only in cases where there is collusion or fraud that the party can be relieved of the consequences of the act of counsel.

7. When I found that I could not accept this appeal, I con sidered, on account of the natural sympathy which I have with the appellant in a case like the present, whether I could not set aside the original order of dismissal for default in exercise of my revisional powers. I would explain here that learned Civil Judges do not always keep in mind the provisions of the Civil Procedure Code which give them discretion in the matter of dismissal for default. Under Order IX, rule 8, C. P. C. when the plaintiff does not appear, the suit must be dismissed for default for the word used in that provision is "shall". But this applies only to the appearance on the first hearing, and all subsequent hearings are governed by Order XVII. Under the provisions of Order XVII, the learned Civil Judge, when there is absence on the part of the plaintiff may either dismiss the suit for default or may make such other order as he thinks fit. He is not bound to dismiss the suit for default. Similar is the case of appeals. Under Order XLI. rule 17, the Court is not bound to dismiss an appeal for default of appearance of the appellant. In cases where a discretion vests in the Court but the order does not show and there are otherwise no grounds for presuming that the learned judge who passed the order was conscious of the discretion and that he actually exercised the discretion, I would ordinarily set aside the order. It is the right of a party that the Judge who exercises powers in his case should be conscious of the extent of these powers. If he is not conscious of all the powers that he has; then that is tantamount to a miscon ception of his powers and his order in liable to be set aside. If a learned Civil Judge be not conscious of the fact that he need not dismiss a suit or appeal in default and he dismisses the suit or appeal assuming that he is bound to do so his order can be set aside on the ground if he was conscious of his discretion, he may have exercised it in favour of the plaintiff or the appellant.

8. In the present case, however, after reading the order of the learned District Judge I cannot say that he was not exercising his discretion. He refers to the fact that the application for adjourn ment is not signed even by the counsel or the party. He then goes on to say that under the circumstances he is not prepared to grant an adjournment. So it does not appear that he felt bound to dismiss the appeal in default In any case, I do not regard this as a fit case for the exercise of revisional powers.

9. This appeal is dismissed, but there is no order as to costs.

K.M.A. Appeal dismissed.

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