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Miscellaneous Appeal No. 70 of 1962, decided on 23rd January 1963.

Not susceptible of exact definition. Each case to be judged upon merits and its peculiar circumstances Appellants Advocate, on account of certain differences arising between him and appellants, intimating them late on day fixed for hearing that he would no longer continue to do their work and that they should make necessary arrangements‑Non‑appearance of appellant in circumstances, held, for "sufficient cause"‑Appeal restored‑[Abdul Rehman v. Federation of Pakistan P L D 1955 Sind 248 not applicable].

Malik Mumtaz Ahmad v. Mst. Umtul Habibi and others P L D 1955 F C 178 ; P. D. Shamdasani and others v. The Central Bank of India Ltd. A I R 1938 Bom. 199 ; Motichand v. Ant Ram A I R 1952 Bhopal 33 ; Abdur Rehman v. Allah Ditta and others P L D 1957 Lah. 619 ; Abdul Hamid Ismail v. Messrs Abdul Rehman‑Abdul Ghani P L D 1959 Kar. 376 ; U. Aung Gyi v. Government of Burma and another A I R 1940 Rang. 162 ; Rang Behari Lal and others v. Racheya Lal A I R 1916 Pat. 388 and A I R 1934 Mad. 49 ref.

Abdul Rehman v. Federation of Pakistan P L D 1955 Sind 248 not applicable.

A. K. Brohi Sadiq and Ghulamali with him for Appellant.

Fakhruddin G. Ibrahim for Respondents.

Date of hearing : 14th January 1963.

This is a miscellaneous appeal under Order LXIII, rule 1, C. P. C. from an order dated the 26th of November 1962, passed by the learned District Judge Karachi, refusing to re‑hear Appeal No. 72 of 1962, dismissed by him under Order LXI, rule 17, C. P. C. in default of the appearance of the appellants on the 18th of October 1962.

2. The appellants are the tenants of the respondents of an office premises in a building known as Bandukwala Building. They have been in occupation in furtherance of an allotment for several years at a rental of Rs. 525 per month, a sum decided by mutual agreement between the parties. Some years after this agreement, a portion of the premises rented out to the appellants fell into disrepair, and the appellants contended that they had spent a certain sum of money to restore and reconstruct those portions. The respondents, it is contended, did not agree to a proportionate reduction of rent, and ultimately filed a suit against the appellants for recovery of arrears of rent that fell due, and for their ejectment. The learned F. C. Sub‑Judge, Karachi, decreed the suit against the appellants. The appellants then filed an appeal in the High Court, which was first registered as Appeal No. 174 of 1960. In furtherance of the appeal, the appellants deposited a sum of Rs. 29,000 as arrears of rent due up to March 1961. On the enactment of the West Pakistan Civil Courts Ordinance, 1962, appeal No. 174 of 1962 was transferred to the District Court, Karachi. Mr. M. A. I. Lakhani represented the appellants. The appeal was set down for hearing on the 18th of October 1962. On that day, the appellants and their counsel were absent, and the appeal was dismissed in default. The Respondents' Advocate, however, was present. Thereafter, an application under Order LXI, rule 19, read with section 151, C. P. C. and section 1‑A, C. P. C. and under Order LXI, rule 5 (sic), C. P. C. was filed by the appellants, which was heard by the learned District Judge, who after hearing both the sides, dismissed it on the 26th of November 1962. It is with this order that the appellants are aggrieved.

3. It is the case of the appellants that on the 18th of October 1962, at about 11 a.m. Mr. Lakhani sent back the brief of the appellants intimating to them that he would not continue to do their legal work, and that the appellants should make the necessary arrangements. At the time, no responsible persons were present in the office of the appellants, and when Mr. Latif, the Director of the appellants' firm, came to the office, the matter was referred to him. He sent a repre sentative to the Court of the District Judge, who informed him that the appeal had been dismissed for default. Thereafter, and on the following day, the application under Order LXI, Rule 19, read with section 151, C. P. C. and 1‑A, C. P. C. previously referred to, was filed, supported by the affidavit of Mian Muhammad Latif, the Managing Director of the appellant's firm.

4. In the affidavit, Mr. Latif contended that Mr. M. A. Lakhani, who had been appearing for them, had heretofore been duly attending the Court on all hearings, that owing to certain differences, Mr. Lakhani had declined to appear for the appellants, and returned the brief to the appellant's office on the morning of the 18th of October 1962 at 11 a.m. Mr. Latif himself did not know that the case had been fixed for hearing on the 18th October, and when the matter was brought to his notice on that day he at once sent a man to make enquiries, and learnt that the appeal had been dismissed in default. The default, therefore, according to Mr. Latif's affidavit, was merely .accidental, and not due to any negligence on the part of the appellants, and that the appeal arose out of a suit for ejectment of the appellants from his office premises, and in case the appeal and the stay order were not restored, the appellants would suffer irreparable loss.

5. In the counter affidavit filed by Yar Muhammad, who contends he is a Rent Collector of the respondents, it was contended that the appellants had been grossly and wilfully negligent in the prosecution of the appeal, that no one repre senting the appellants was present on the due date, and that the appellants had failed repeatedly to deposit the cost for the preparation of the Paper Book, and also the rent in terms of the consent order of the High Court, that both the appellants and their Advocate were negligent, and were purposely delaying the disposal of the appeal in order to delay their ejectment from the premises.

5. I have heard Mr. Brohi for the appellants, and Mr. Fakhruddin for the respondents. It is conceded by Mr. Fakhruddin, for the respondents, that the presence of the appellants in person was not necessary on the 18th October 1962, before the learned District Judge of Karachi. It is also conceded that if sufficient cause was made out by the appellants, the appeal must be restored to its original status. I can do no better than refer to Malik Mumtaz Ahmad v. Mst. Umtul Habibi and others (P L D 1955 F C 178) where Muhammad Sharif, J. remarked as follows

"Suffice it to say that sufficient cause' is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases. Each case must be judged upon its merits and its peculiar circumstances. While it cannot be tolerated that the counsel should be remiss in the discharge of f their duties and leave the Court waiting for them, it is equally desirable, and even necessary, that the case should be heard and decided on merits, and where the non‑appearance was not intentional and the counsel or his client had made genuine efforts and taken reasonable precautions to be present at the hearing, a very strict view as to sufficient cause' should not put him out of Court."

6. P. D. Shamdasani and others v. The Central Bank of India Ltd. (A I R 1938 Bom. 199) a Special Bench of three Judges of that Court held that an application for restoration should only be refused if there is gross negligence or gross carelessness. They remarked in passing that in all cases in which applications are made to restore matters summarily dismissed, there is nearly always some degree of carelessness or negligence on the part of the applicant. But if a person, whose suit has been dismissed summarily, appears on the same day, and produces not some unreasonable excuse for his absence, prima facie the Court ought to exercise its discretion in his favour.

7. In the light of these rulings, it is necessary to examine the reasons on account of which the learned District Judge Karachi, decided against the appellants. In the course of his, order, the learned District Judge states that the main ground of the appellants is that on the date of the hearing the case‑papers were received back from their Advocate in the office at about 11 a.m. without any prior notice, and in the circumstances no affidavit of Mr. Lakhani, the Advocate who represented the appellants in his Court, has been filed to support this version, and under the rules any Advocate, before he gives up the brief, has to inform the Court and also give such notice to his clients. "In the instant case, there is nothing on the record to suggest that at any stage of the proceedings, such statement was made before me by Mr. Lakhani, Advocate, nor the applicant has produced any notice served upon him by his Advocate, namely, Mr. Lakhani. He has not even produced the case‑papers to show that 18th October 1962 was not mentioned as date of hearing." The learned Judge concluded that no sufficient cause had been made out which prevented either the appellant or his Advocate from attending the Court on the date of hearing, vie., 18th October 1962, and dismissed the application with costs.

8. There appears to be some 'substance in the ground contended by Mr. Abdul Latif in paragraph 3 of his affidavit dated the 19th of October 1962 that there were certain differences between him and his Advocate, Mr. Lakhani, on account of which Mr. Lakhani, on the date fixed for hearing of his appeal, intimated to the appellant that he would not appear in their case, and that they should make arrangements for themselves for the future. The trend of the order of the ‑ learned District Judge would appear to penalise the appellants for the conduct of the appellants' Advocate, Mr. Lakhani. As contended in Motichand v. Ant Ram (A I R 1952 Bhopal 33), a party should not be deprived of a nearing unless there is‑ an indication of misconduct or gross negligence on his part, the main question to be examined being only whether he intended to be present at the hearing of the suit and did his best to do so, and where the plaintiff who was throughout appearing in the suit through his Pleader could not be informed of the date of hearing owing to the sudden illness of his Pleader and the suit was dismissed for default, it was held that there was sufficient cause for non‑appearance. In Abdur Rehman v. Allah Ditta and others (P L D 1957 Lah. 619), it was held in an application under Order IX, rule 9, if there be sufficient cause for personal non‑appearance of the plaintiff, that is a good ground for restoration of the suit even though it may have been possible for a plaintiff to make, arrangements for appearance through somebody else, for no party to a suit is under any obligation to engage counsel. Restoration of a suit may be granted where there was sufficient cause for personal non‑appearance of a party, even though a counsel for the party was negligent in appearance. In Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani (P L D 1959 Kar. 376) in respect of a matter that was dismissed in default of the appearance of the Advocate of one of the parties, it was held that the import ant factor for consideration in an application under Order IX, C.P.C. is whether there was sufficient ground for the absence of the party on the date fixed for the hearing the case. The insuffici6ncy of the cause can be gathered from the gross negligence of the party or his Advocate in the conduct of the suit. In the course of the judgment it was remarked in passing that "a party should not be penalised for the negligence of a counsel. The appellant was not aware about the dates fixed for the hearing of the suits. He was not expected to know about it, except through his counsel." It is further clear that the order of the learned District Judge dismissing the application of the appellants for restoration has been passed solely on the ground of the absence of the appellants' Advocate, Mr. Lakhani. It is not for me here to discuss what are the responsibilities of Mr. Lakhani as an Advocate towards his client, or what his absence on the date amounts to. Suffice it to say that as far as the appellants are concerned, they had no doubt established at the proper stage that they had been duly diligent in the prosecution of their appeal, and that their absence on the 18th of October 1962, was primarily and solely due to the absence of their Advocate, Mr. M. A. Lakhani, and to the intimation that he would not appear for them, reaching them late on that day. This is not a case where, Mr. Fakhruddin for the repondents has remarked, negligence of the Advocate is negligence of the party. U. Aung Gyi v. Government of Burma and another (A I R 1940 Rang. 162) and Rang Behari Lal and others v. Racheya Lal (A I R 1916 Pat. 388), in my view, do not apply.

9. I, therefore, allow the appeal, and set aside the order of the learned District Judge, Karachi, dated the 26th November 1962, and in consequence of my holding that the appellants had made out sufficient cause in terms of Order LXI, rule 19, the appeal must, therefore, be considered to be restored.

10. Mr. Brohi, for the appellants, has urged that if the plea of the appellants is upheld, this Court must in consequence restore the appellant to the same status vis‑a‑vis the premises in dispute as pertained before the impugned order was passed. He has referred to P L D 1955 Sind 248, where Inamullah, J. based his view on A I R 1934 Mad. 49, as one which was equitable, and in the interest of justice and that "unless anything appears on the face of the order, that all interlocutory matters were not restored, everything that may have been done in between an order dismissing the suit and the restoration should be deemed to have been restored."

11. Chitaley in his commentary under Order IX, rule 13 opined that

"Any attachment that has been issued or any sale that has taken place in pursuance of the ex parte decree becomes null and void, and the Court can also order restitution, except as against a stranger auction purchaser of anything taken in execution of the decree."

12. In the instant case, the appeal was filed in this Court on the 8th of December 1962. On that date, I heard Mr. Sadiq who was then appearing for the appellants, and my order reads thus

"Heard Mr. Sadiq. Stay of ejectment from such part of the premises in dispute of which possession has not yet been taken over by the Respondents, with notice for 10/12. Costs today."

It is obvious that even on the date that the appeal was filed, a part of the disputed premises had passed out of the hands of the respondents. Further orders up to the 11th of December 1962, will indicate that possession of the entire premises had been taken by the respondents in furtherance of the decree previously passed in their favour. These orders are based on the reports of the Nazir of this Court, and of the First Class Sub-Judge, Karachi, who decreed the suit against the appellants. In P L D 1955 Sind 248, Inamullah, J. further remarked

"In the present case, it is not contended by the defendant, Federation of Pakistan, that a third party interest has come into being and therefore he would be prejudiced by putting the plaintiff in possession of the premises in question."

The facts in this ruling referred to are not on all fours with that of the present case, and the additional plea of Mr. Brohi, for the appellants, in consequence of my finding that sufficient cause had been made out in favour of the appellants, is not tenable. Mr. Fakhruddin, for the respondents, has contended at the Bar that besides the disputed premises having passed into the possession of the respondents, these premises have been let out to a third party on rent, and that third party is now in occupation of them. However, if the appellants still contend that they have a case for consideration, a proper application may be made to the learned District Judge, Karachi at the relevant time.

13. In these terms, this miscellaneous appeal is disposed of.

K. B. A.

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