' KARRAR HUSSAIN ZAIDI, J.-This judgment shall dispose of cross L. P. A. 23/C of 1971 and 11/C of 1972 both filed against the same order dated 22-10-1971 passed by the learned Single Judge in Chamber in F. A. O. No, 210/64.
2. The brief facts are that Nasar-ud-Din and others, the plaintiff-appellants sought the enforcement of an agreement to sell regarding the agricultural land in dispute for a consideration of Rs, 1,20,000, by a suit for specific performance of the contract filed in the Court of Senior Civil Judge, Montgomery (now Sahiwal) somewhere in the year 1964, against Mueen-udDin and others, respondents in L. P. A. No, 23/C of 1971. According to the plaintiff/appellants they had already paid sum of Rs, 52,000 as advance towards the sale consideration.
3. The respondent, filed their written statement and resisted the suit on various legal an. Factual grounds giving rise to a number of preliminary issues. The suit was fixed for evidence on 9th July, 1964. On this date the case was called at 12.40 p. m. And the following order was passed :- -{{URDU TEXT}} -
4. An application to set aside the dismissal of suit was filed under Order IX, rule 9, C. P. C. On the same day at 1-00 p. m., i. e. Within ten minutes of recording of the impugned dismissal order. That application was dismissed in limine by the learned Senior Civil Judge on 11-7-1%4 on the ground that there was no explanation for the absence of the plaintiffs and that the diet money of the witnesses was deposited with a delay of 21 days.
5. This order was challenged by the plaintiffs by F. A. O. No, 210/ 1964. The learned Single Judge who heard the appeal, first announced the restoration of the suit on payment of costs on 22-9-1971 after hearing the learned counsel for the parties. However, it appears that after hearing some further arguments the learned Single Judge modified his aforesaid order and after setting aside the impugned order of the trial Court remanded the matter for a fresh decision.
6. The order of remand is assailed by both parties. The plaintiffs have filed L. P. A. 23/C of 1971 praying for restoration of the suit while the defendants have filed L. P. A. 11/C of 1972 with the object that after setting aside the order of remand, the order of the trial Court be maintained.
7. The learned Single Judge justified the remand order on the following aspects :-
(1) The plaintiffs had to account for their absence particularly when the cese was fixed for evidence on the 9th July, 1964.
(2) There were two counsel for the plaintiffs and it was necessary for them to explain the reason for the absence of the second counsel.
(3) It was urged that the application for restoration was filed by the counsel although he was not authorised to file it.
' It was argued that the plaintiffs had deposited the process fee after a long delay and they were not entitled to any indulgence. But this was repelled by the learned Judge on the ground that notwithstanding the late deposit of the process fee the summons had been received back in Court unserved.
' From this last finding it is clear that the learned Single Judge was not in agreement with the learned trial Court that late deposit of diet money was at all a ground for dismissing the application for restoration of the suit.
8. We have heard the learned counsel for the parties at length and perused the impugned judgment and record carefully. After going through the record as well as the impugned judgment, the following concrete facts are patently borne out :-
(1) That the suit was for the first time fixed for evidence of the plaintiff on 9-7-1964 and that notwithstanding the late deposit of process fee, the summons had been received back in Court unserved. In view of this factual position the case was destined to be adjourned to a next date and that the presence of the plaintiff/appellants was not necessarily required by the Court on 9-7-1964.
(ii) That on 9-7-1964 when the case was called the defendant/respondents or any counsel on their behalf were too not present in the Court. The suit could be dismissed under Order IX, rule 3 and not under Order IX, rule 8, C. P. C.
(iii) That on the appointed date the case for the first time was called at 12-40 p. In. And after waiting only for ten minutes it was dismissed for non-prosecution at 12-50 p. m. The application for restoration under Order IX, rule 9, Code of Civil Procedure was submitted within ten minutes at 1-00 p. m. At the time of passing of the order of dismissal of the suit the Court was seized of a number of other cases. If it had taken up some other case and had waited for the plaintiffs' learned counsel for a reasonable time to enable him to finish his case in the other Court it would not have been necessary to pass the order of dismissal in default in the suit.
(iv) That the plaintiff/appellants had engaged counsel for prosecuting this case and had not left the matter entirely unattended to. They had deputed one of their close relatives (a son of their paternal aunt) obviously for calling the counsel. Even the clerk of the learned counsel, was present when the case was called by the trial Court.
(v) That actual pre-occupation of the learned counsel for the plaintiff/ appellants before another Civil Judge in a different specified case at the time when the instant case was called, has been controverted, and denied by the respondents.
9. The learned counsel for the appellant argued that the explanation of the learned counsel who appeared in Court within ten minutes was sufficient for the restoration of the suit particularly when the application was submitted the same day without any loss of time. He submitted that the absence of the plaintiffs, in the circumstances of the case, was not material. He also argued that the counsel has the power to file an application for restoration without any further authorization. He relied upon certain authorities of the Supreme Court to which reference will be made later.
' The learned counsel for the respondent, on the other hand, supported the judgment of the learned Single Judge except to the extent that according to him it was unnecessary to remand the case. He did not controvert the plea that a counsel has a right to apply for restoration of the suit on behalf of his client but he took a new point in arguments that Mr. Asghar Hamid, Advocate, who filed the application was not the plaintiff's counsel.
10. This point involving, as it does, a question of fact cannot be allowed to be raised for the first time at the stage of a Letters Patent Appeal. It is A clear from the impugned order that the point taken during the arguments of the F. A.
0. Was that the counsel was not authorised to file a petition which means that it was conceded that the learned Advocate who filed the application for restoration was a counsel of the plaintiffs.
The respondents cannot be allowed to revoke this admission and urge this new point.
11. We agree with the arguments of the learned counsel for the appellant that in the circumstances of this case which have already been described in detail, the explanation for the absence of the learned counsel was sufficient. It is clear from the facts of the case that it was Mr. Asghar Hamid, who had to appear on that date and he did put in appearance with an application within ten minutes of the dismissal of the suit in default. The plaintiffs had made arrangement for calling the counsel in Court when the case was called and the counsel bad also left his Clerk. These facts clearly prove that the plaintiff and their counsel both were vigilant. The plaintiff's own absence B is not material in the circumstances of the case, when on account of want of service of their witnesses the case had to be adjourned. We do not agree, in the circumstances of this case, that it was necessary to remand the case for further evidence.
12. Order 1X, rule 9, C. P. C. Lays down that if the plaintiffs whose suit has been dismissed for default, satisfy the Court that there was sufficient cause for the non-appearance when the suit was called for hearing, the Court shall make an order of setting aside the dismissal upon such terms as to costs. In deciding that a suit dismissed in default should be restored under Order IX, rule 9, Code of Civil Procedure what has really to be considered, is, whether the party was really trying to appear, on the date fixed for the C case ; and if he honestly intended to be present, not being guilty of misconduct or gross negligence, then he should not be deprived of his chance of being heard.
Under this Rule pre-occupation of a counsel in another Court is often considered as a sufficient cause.
13. As stated above in the present case the plaintiff/appellants were through out diligent in prosecuting their case. It was not in their own interest to remain deliberately absent on the date of hearing. In Babo Jan Muhammad and others v. Dr. Abdul Ghafoor and others (1), their Lordships of the Supreme Court dealing with a case which was dismissed for default for absence of the counsel, observed that weight should be given to the difficulties of counsel who have to appear in more than one case in different Courts on the same date. Again in the case of Salamat Bibi and others v.
Settlement and Rehabilitation Commissioner Multan (2), it was observed that there is abundant authority from the West Pakistan High Court itself for the proposition that an unintentional omission of legal practitioner to attend in time to any of the case in which he is engaged, due to un avoidable circumstance may be treated "as sufficient cause" for setting aside the order of dismissal for default". In PLD 1965 SC 669, the same principle was affirmed by the Supreme Court though it was also held that "it would be wrong to make the plaintiff suffer" on account of the counsel's "professional mis-conduct". In Muhammad Haleem and others v. H. H. Muhammad Naeem and others (3) the same principle was approved of with this observation that "a dismissal for non-prosecution should, therefore, be an exception and not a rule".
14. In view of the facts mentioned above we feel that in this case tile learned Advocate of the plaintiff/appellants in the trial Court, had been
(1) PLD 1966 SC 461 (2) P I D 1966 SC 467
(3) PLD 1969 SC 270 discharging his duties with full sense of responsibility. There is no doubt that it is the duty of every Advocate, to be present at the time when a case is called on for hearing except for a sufficient cause. In our opinion the Court will not countenance an application for restoration where the party or his counsel does not appear in Court on account of sheer negligence but later on files an application merely alleging that his Advocate was busy in another Court and he could not appear in time. It will not do for an Advocate to get the case dismissed for default with impunity and then file an application for restoration stating that his absence was accidental. But this principle will not apply where the Counsel is not negligent. It was observed by the Privy Council in 63 I A 12 (P C) that "every litigant has a right to have his case heard and disposed of but the right must not be abused".
15. The learned Senior Civil Judge in the instant case has seriously erred in dismissing the suit in default mechanically without taking into account this most important aspect of the Judicial system that the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right. Had he accommodated the learned counsel for the plaintiff/appellants by waiting for a reasonable time, the matter in dipute would not have lingered on in High Court for about fifteen years.
16. It is evident from the above that in the present case there was no wilful default on the part of the learned counsel for the plaintiff/appellants and the suit should have been restored. Since the defendants were also not present when the case was called, they are not entitled to any costs.
17. For the foregoing reasons we allow L. P. A. No, 23-C/71 filed by the plaintiff/appellants, reject L. P.
A. No, 11-C/72 lodged by Mueenud-Din and others (the defendant/respondents), set aside the order of the dismissal of suit dated 9-7-1964 passed by the learned Senior Civil Judge, Sahiwal, modify the impugned order dated 22-10-1971 passed by the learned Single Judge in Chamber in F: A.
0. No, 210/1964, and hereby direct the restoration of the plaintiff's suit and the trial on merits. The parties are left to bear their own costs.