1. MUSHIR ALAM, J.---Instant High Court Appeal impugns order, dated 6-10-2008, whereby application filed by plaintiff/appellant for restoration of the suit was dismissed for non-prosecution on 22-1- 2008, was also dismissed on the ground, inter alia, that "the counsel appearing on behalf of the plaintiff has not filed personal affidavit to explain his non-availability on the said dates. The cause list of general adjournment filed along with application is also of no help as the counsel was on general adjournment on 9-10-2007 and 6-11-2007", and the Court observed that the negligence of the counsel is the negligence of the party, therefore, no A sufficient cause is available to restore the suit.
2. ' Mr. K.A. Wahab learned counsel for the appellant contends that in the instant matter the Commissioner was appointed to record evidence. However matter could not proceed before Commissioner, therefore, Court recalled the order vide order dated 16-10-2006 for recording evidence. In Court, on 21-2-2007, examination-in-chief was recorded and plaintiff was partly cross- examined and for want of time matter was adjourned from time to time and on 9-8-2007 the appellant was partly cross-examined and on 9-10-2007 and 6-11-2007 when this matter was fixed in Court since the plaintiff had no intimation and the counsel was not in attendance matter was adjourned. However on 22-1-2008 suit was dismissed for non-prosecution. It was contended that the then counsel Mr. Latif-ur-Rehman was admitted in hospital under precarious condition and later on he succumbed to his ailment. It is stated that learned counsel was on general adjournment from 15-1-2008 to 29-2-2008. It is further urged that learned counsel Mr. Latif-ur- Rehman on come to know of the above had also filed an application under Order IX, rule 9, C.P.C.
3. Incidentally on the same date i.e, 16-2-2008 when the listed application was also filed by the new counsel engaged by the plaintiff on which application objections were noted by the office and not placed in Court, therefore, learned Single Judge observed that there is no affidavit of the previous counsel. According to the learned counsel had the office placed such application on record, the Court would have certainly considered such aspect and not dismissed the case on the ground of negligence. He further urged that it was not negligence, but on account of ailment and admission of the learned counsel in the hospital such unfortunate mishap has occurred. While placing reliance on the case of Seth Shivrattan G. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669, it was contended that once the earlier default has been condoned by the Court it cannot form the basis for consideration default on the fateful date which ought be decided on merits and according to Mr. K.A. Wahab on the date when the matter was dismissed as per cause list attached, the learned counsel was on general adjournment which fact has escaped the attention of the learned Single Judge since the application of the deceased counsel was not placed on record.
4. ' Mr. Ashiq Ali Anwar Rana learned counsel for the respondent No,5 Javaid Akhtar Mughal has vehemently opposed the application. According to him there is blatant negligence of the plaintiff which would not entitle any indulgence of the Court. According to him earlier application was dismissed for non-prosecution, later on court has shown indulgence and restored the same.
5. According to him in the case reported as Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar.252, the Court has held that where negligence of a counsel is established, the party has to suffer and not the other side. Mr. Dilawar Hussain learned counsel for the respondents Nos.8 and 10 also supports the contention of Mr. Ashiq Ali Anwar Rana and prays for dismissal of the appeal.
6. ' We have heard the learned counsel and perused the record.
7. ' From the record that has been made available to us, which is not controverted, the application of Mr. Laufur-Rehman has been placed on record as at page 31. From perusal thereof, in the affidavit he has specifically sworn that he preceded on general adjournment since 15-1-2008 to 29-2-2008 due to developing heart pain so admitted in the Jinnah Cardio Vascular Hospital in semi unconscious condition, subsequently taken general adjournment as per doctor advise because he refused to allow moving and working. In para.3 it was stated that in view of the odd situation, I could not intimate the plaintiff directly or having no alternative source because I was myself not aware as to why instant matter was fixed through roster branch as it was fully aware that I was on general adjournment but the fact prevailed upon the Court was non-filing of the affidavit of the deceased counsel and the Court attributed such negligence on the appellant. In the case reported in PLD 2006 Karachi 252, it was held that restoration application was filed after more than 2 years of the dismissal of the petition. In the instant case we have noted that suit was dismissed for non- prosecution on 22-1-2008, the application was made on 16-2-2008 much before expiry of 30 days and in fact affidavit of the deceased counsel is also filed.
8. Under given facts and circumstance, we are of the view that indeed it is duty of the litigant to follow up the matter diligently but one may not be oblivious of the facts that a party usually depends on the counsel for the purposes of keeping up track of the case. Where B counsel shows negligence invariably the Court impose heavy cost while undoing any order. However where absence is sufficiently explained the Courts take relatively lenient view for law favours adjudication on merits.
9. In the instant case there is no denial of the fact that the learned counsel then appearing for the plaintiff was admitted in hospital and had in fact succumbed to the ailment later on, which fact is sufficient to exercise discretion for the restoration of the case. Had such been in the knowledge or brought to the notice of the learned single Judge, the order might have been different.
10. ' Under the facts and circumstances, we would set aside the impugned order, restore the matter to its original position as on 22-1-2008, direct the appellant to appear before learned single Judge on