1. KHAWAJA NAVEED AHMED, J.---This petition has been filed by Mr. S.A. Jalib Chaudhry on behalf of Malik Zahid Attique against the orders, dated 13-5-2006, 16-10-2006 and 20-2-2007 passed by the learned VII Additional District Judge, Karachi South in FRA No.115 of 2003, dismissing the First Rent Appeal as well as the restoration Application due to absence of the Advocate for the Appellant.
2. ' The learned counsel for the petitioner has filed his personal affidavit stating therein that he was busy in the High Court on that day but the learned Appellate Judge did not accept the same and passed the impugned order. In support of his contention he has relied upon the case of Federation of Pakistan v. Muhammad Hanif reported in 1981 CLC 130 wherein a learned single Judge of the Lahore High Court has observed as under:-- "(4) All Rules/Regulations/procedures of Courts are intended to secure the proper administration of justice and should be subordinate to that purpose and the Court should lean in favour of adjudication on merits rather than stifling proceedings on technicalities and in this regard I would refer to the view taken in the Thal Engineering Industries Ltd. v. The Bank of Bahawalpur Ltd. 1979 SCM R 32.
3. ' In akin circumstances it was held to be a sufficient ground for the restoration of the matter by the Supreme Court of Pakistan in Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCM R 817 and by the Lahore High Court in Maulvi Abdul Qasim v. Haji Abdul Razzaq PLD 1957 Lah.
4. 204.
5. ' Once the appeal was admitted to hearing the learned District Judge should have disposed of the matter on merits and not on the short ground of default. While there can be some justification for dismissing an appeal exclusively on ground of default where the case of the defaulting party is likely to be prejudiced because of absence of proper legal assistance, there is no justification for not deciding an appeal on merits in favour of the party committing default when the appeal calls for a decision in his favour on the basis of the evidence and other material already existing on record, as in my humble view the rendition of justice is not an act of grace on the part of the Court but a solemn duty enjoined upon it. I am of the view that the principle incorporated in Order XVII, rule 3 and Order XLI, rule 19, C.P.C. Would be attracted to the facts of the case and I find support for my view on the analogy of principle stated in Manzoor Ahmed Bhatti v. Road Transport Corporation PLD 1973 Lah. 659 wherein the scope of Order IX, rule 7, C.P.C. Has been examined in detail."
6. ' Secondly, Mr. Jalib has relied upon the case of Suhail Printing Press v. Aley Eba Zaidi reported in 2005 SCM R 882. In this case, though the facts of the case are different but the conclusion is that their lordships of the Supreme Court were pleased to set aside the impugned order of High Court and remanded back the case for deciding it on merits, after hearing the Advocate for the Appellant who was absent when the High Court had decided the case.
7. ' The third authority cited by the learned counsel for the petitioner is in the case of N.Q. Industries v.
8. Bapai Kaikhusro (PLD 1968 Kar. 589), wherein it has been held as under:-- "(10) Lastly, it is to be considered whether there are grounds to set aside the Controller's order, dated 22-5-1965, by which he refused to set aside the ex parte order of eviction made by him on 30-11-1964. I have gone through the record of the proceedings before the Controller, and find that the application made under Order IX, rule 13, C.P.C. Was made the very day the order of eviction was passed by the Controller and was supported by the affidavit of Mr. Abdur Rauf Khan, Advocate, who represented the appellant in the eviction proceedings. Mr. Abdur Rauf Khan stated in his affidavit that on 30-11-1964 he was busy in the High Court in connection with Suit No.105 of 1960, and that the previous day he had instructed his junior to attend the case before the Controller, but that the junior failed to turn up in the Court due to his illness. It is further stated that Mr. Abdur Rauf Khan was informed in the High Court by his clerk at 11-30 a.m. That the Controller would proceed with the hearing of the eviction case before him, but that when he reached the Controller's Court at 12-00 in the noon, he found that the matter had already been decided ex parte. In my opinion, these grounds constitute sufficient cause, for which the Controller should have recalled his ex parte order of 30-11-1964. It is not denied that Mr. Abdur Rauf Khan did turn up before the Controller at 12-00 in the noon on the very day the order of eviction was made. His engagement in the High Court should have been taken into consideration, particularly when the learned Advocate gave specific reference to the number of suit in which he was busy in the High Court. For these reasons, I am of the view that the ex parte order of the Controller made on 30-11-1964 for the appellant's eviction, the Controller's order, dated 22-5-1965 refusing to set aside the ex parte order, and the order of the First Appellate Authority, dated 30-9-1965, cannot be sustained. I would accordingly accept this appeal, and set aside these orders and would remand the case to the Controller for decision on merits on the respondent's application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. In the circumstances of this case each party is left to bear its own costs."
9. ' In reply to the above contention of Mr. Jalib, Advocate, Mr. Naeem Suleman, Advocate for the Respondent has relied upon the case of Zulfiqar Ali v. Lal Din reported in 1974 SCM R 162 wherein the Honourable Supreme Court has observed as follows:-- "The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibilities. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side.
10. ' In the circumstances of this case, when no one appeared when the appeal was called on, the Court had no alternative but to dismiss the appeal in default. The refusal to restore was also fully justified in view of the fact that the ground made out in the petition for restoration was found to be untrue. The petitioner could not legitimately take any exception to this order. The appeal was, therefore, rightly dismissed by the Division Bench and we see no reason to interfere. This petition is, accordingly, dismissed."
11. ' The facts of the cited case are different from the facts of the case of the petitioner in this case. In the cited case the statement made by the learned counsel was contrary to the grounds taken in the application for restoration and as such the Honourable Court had refused to restore the appeal and had dismissed the application for restoration.
12. ' As far as the present case is concerned, the learned counsel for the petitioner, who is also a senior lawyer of this Court, has sworn his personal affidavit and has explained that he was busy in the High Court when the case was called in the Appellate Court, however, his junior had remained in the Appellate Court, which shows his bona fides. In my humble view, the cases should be decided on merits. No doubt the procedural law plays a vital role in handling and streamlining the matters in a proper and disciplined way. In any event, procedural law should not prevail upon the justice.
13. The litigants come to the Court for getting justice and not for learning the Court procedures or disciplines. No doubt Courts should be strict in following the procedures as well as maintaining the discipline but not at the cost of justice. The foremost and primary duty of the Court is to dispense justice based on facts, law and on the principles of equity. In the present case, the petitioner has not been heard by the Appellate Court on merits of the case.
14. In view of the above discussion. I set aside the impugned orders and remand back the case to the Appellate Court to heard the Advocate of both sides and decide the matter on merits. In order to avoid further delay, I direct the learned Advocates for the parties to appear before the learned Appellate Court on 16-4-2008 and the learned Additional Sessions Judge is directed to hear arguments of both the Advocates and decide the case on merits within one month of receipt of this order.
15. ' C.P. No.S-126 of 2007 along with the listed Application stands disposed of in above terms.