This appeal is directed against the impugned order dated 7-5-1977 passed by learned District Judge, Tharparkar @ Mirpurkhas dismissing application under Order. XLI, rule 9, C. P. C. Filed for restoration of appeal dismissed for non-prosecution.
2. Briefly stated the facts are that appeal was fixed for hearing in the Court of learned District Judge on 10-7-1976 when the appellant before me and his Advocate were called absent and he Advocates for respondents were present with the result that the appeal was dismissed for default.
On 22-7-1976 the present appellant filed an application under Order XLI, rule 19, C. P. C. For restoration of his appeal on the ground that he came to the Court on 15-7-1976 and was informed that his appeal was dismissed on 10-7-197~J and that was due to the reason that by mistake he had noted the date of hearing as 15-7-1976 instead of 10-7-1976, hence due to mistake in date, he could not appear on 10-7-1976, when his appeal was dismissed for default. In affidavit in support of the application, the appellant has re-iterated the same facts on solemn affirmation as stated above. It is further stated by the appellant that he, is illiterate man and resides in village in Deh Phant, taluka Diplo of District Mirpurkhas: Against this affidavit of the appellant, objections were filed on behalf of respondent No. 2 asking questions as to who informed the appellant that the date of hearing was 15-7-1976 and when was tie so informed. It is also alleged in the objections that appellant was not present on the preceding date also. Any way the learned District Judge in his impugned order appears to have been influenced by the fact that appeal was dismissed on two occasions before for default and has come to the con--clusion that sufficient cause for non- appearance is not shown and further that the appellant has failed to reveal as to who informed him of the wrong date. Consequently application for restoration was dismissed.
3. It was contended by Mr. Muhammad A.I Sheikh that appellant has made a statement on oath .By way of affidavit that his non-appearance was due to bona fide mistake in noting the date of hearing of appeal and this statement on oath could be rebutted or controverted by statement on oat in counter-affidavit, which was not filed, hence it can be said that the state--ment of appellant on oath stands unchallenged. Furthermore deponent was available and could have been put- in the box for cross-examination but this was also not done, which indicates that his statement is not disputed. The learned counsel has referred to the case of the President v. Mr. Justice Shoukat A.I PLD1971SC585with relevant portion at page 654 wherein it is held that the principle of law has been correctly laid down in Lahore decision reported in PLD 1966 Lah. 16 that in proceedings, which are not of an interlocutory nature, the admission of affidavit evidence is subject to the proviso to Order XIX, rule 1, of Civil Procedure Code (which is an important safeguard for the truth) that in case the opposite-party controverts the allegations by filing a counter---affidavit or demands the attendance of deponent for his cross-examination, the party relying on the affidavit must produce him in the witness-box and if the deponent fails to submit to the cross-examination, the affidavit shall loose all its force as a probative piece of evidence in the case and cannot be acted upon. On this premise it is submitted by Mr. Shaikh that in the instant case after the affidavit of, the appellant neither counter-affidavit was filed by the opposite-party to controvert the statement on oath of the appellant nor a request was made to subject the deponent to cross-examination, which proves that statement of appellant is not challenged.
4. In the context of whatever is stated above Mr. Ahmed A.I Memon has conceded that this is the correct legal position and statement on oath in affidavit could be controverted by filing counter- affidavit and it was not done in the instant case for the reason that burden was upon the appellant to prove that there was sufficient cause which prevented him from appearing on the date of hearing, which burden he has failed to discharge and in that case objections filed were adequate and even if they are considered as not sufficient still the appellant has failed to give satisfactory explanation to show sufficient cause for default. It is further submitted by the learned counsel that because the appellant had failed to give satisfactory explanation to show sufficient cause for default, it was not considered necessary to put him in the box for cross--examination. In these circumstances I am of the view that the statement of the appellant on oath by way of affidavit goes unchallenged and the explana--petition given by him that he did not appear on the date of hearing because of bona fide mistake in noting the correct date is sufficient, particularly when e it is not challenged in the manner prescribed by the law. Secondly the stand taken in the objections filed by the opposite-party and observation made by the learned District Judge in the impugned order as to who informed the appellant of the wrong date, has no force or substance for the reason that although the appellant has stated in his application for restoration as well as affidavit in support thereof that he was informed that his appeal was fixed for 15-7-1976 but has not categorically stated as to who had informed him but inference can be drawn that he was informed about hearing on 15-7-1976 by the reader of the Court on the preceding date. Perusal of the order- sheet of 15-5-1976 of the record of District Judge clearly shows at the bottom that appellant had appeared late and was informed about the next date. This order-sheet is signed by the reader of the District Judge. It appears that this part has been added after the order-sheet was signed by the reader. Now the only question remains whether the reader informed the appellant correctly about the next date, which was 10-7-1976 or the appellant mis--takenly noted next date as 15-7- 1976 instead of 10-7-1976 as asserted by him for which his affidavit is sufficient proof.
5. One other important auspect of his case is that the appeal was dis--missed for default on 10-7- 1976 and this date was given on the preceding date i.e. 15-5-1976, when the Presiding Officer was absent. Order XVII, rule 5, C. P. C., provides that when on any day the Presiding Officer of the Court is absent by reason of illness or, any other cause the parties to the suit or proceeding set down for that day (notwithstanding the knowledge that the Presiding Officer would be absent) shall appear in the Court, on that day and the ministerial officer of the Court authorised in that behalf shall hand-over to the parties slips or paper specifying the other date fixed for proceeding with the suit and signed by him. In the instant case the case diary of 15-5-1976 clearly mentions that the case was adjourned for the reason that the Presiding District Judge was out of station to attend a .Meeting in the High Court, hence date was given by the reader. Appellant had appeared on that date though late and was informed about the next date fixed but there is nothing on the record to show that appellant was given the slip with next date mentioned on it and duly signed by the reader as per the mandatory requirement of Order XV II; rule 5, C. P. C. As stated above. The word `shall' is used for the ministerial officer to handover to the parties slips of paper specifying the order date fixed for proceeding and signed by him. C This is a very useful provision introduced to meet such contingency when the date is allowed to be given by the reader in the absence of the Presiding Officer and the mandatory requirement of written slip to be handed over to' the parties ensures safe and handy communication of the next date to avoid confusion and inadvertent mistake with regard to the next date. Non-com--pliance of this mandatory provision is more than sufficient cause to set aside the order of the dismissal of restoration application. In the result I set aside n the impugned order and remit the case to the Court of the District Judge with direction that appeal be restored to its original number and be heard according to law after notice to both the parties on a date to be fixed by that Court, Appeal is allowed.
Parties to bear their own costs.