1. ' MUHAMMAD ALI MAZHAR, J.---The plaintiff has filed two applications, one under Order IX, Rule 9, C.P.C. And another application under section 5 of the Limitation Act. The application under Order IX Rule 9, C.P.C. Has been moved for setting aside an order dated 18-12-2009. According to the plaintiff, the matter was fixed for arguments on 18-12-2009 and his advocate could not attend the court on account of his ailment and the suit was dismissed in non prosecution on 18-12-2009, the fact of dismissal of the suit came into the knowledge of plaintiff on 25-1-2010 and without wasting further time he moved application under Order IX Rule 9, C.P.C. On 27-1-2010 along with another application for condonation of delay.
2. ' The defendant filed counter affidavits to both the applications. The contents of both the counter affidavit are identical. The defendant has taken the defence that the illness of advocate is no ground for restoration and if the learned counsel was ill the plaintiff should have attended the court, but neither the plaintiff was present nor his advocate, therefore, the suit was rightly dismissed. It was further urged that the Court had not dismissed the suit on the absence of plaintiff on 18-12-2009, but also keeping in view the previous absence. It is further mentioned in the counter affidavit that the application has been filed by the plaintiff after delay of one month and eight days and the plaintiff has not explained delay of each and every day.
3. ' Heard learned counsel for the parties. Learned counsel for the plaintiff argued that the suit was dismissed on 18-12-2009 on account of illness of previous counsel and as soon as it came into the knowledge of plaintiff on 25-1-2009, he immediately approached him and without any further delay within two days the applications were filed along with Vakalatnama of the learned counsel on 27-1-2010. In addition to the above arguments, the learned counsel further submitted that in the suit, evidence was recorded and instead of dismissing the suit in non-prosecution, the matter should have been decided by this court on its own merits as according to him at the stage of arguments, the suit could not be dismissed for non-prosecution in which the evidence was concluded by the parties. In support of his arguments learned counsel for the plaintiff relied upon following judgments:--
(1) PLD 1969 SC 270 (Muhammad Haleem and others v. t1 H. Muhammad Naim and others). In this judgment the Hon'ble Supreme Court has discussed the term sufficient cause for restoration and held that sufficient cause for restoration though not susceptible yet non-appearance if not intentional should not be viewed very strictly. Evidence in case concluded and matter fixed only for arguments. Provisions of Order IX, C.P.C. Not attracted. It is further held that the consensus of judicial opinion appears to be in favour of the view that if it is possible for a court to base a decision on merits upon the materials already brought on the record, it should proceed under Rule 3 of Order XVII and not under Rule 2. Every party who instituted a cause or matter in a Court has a right to have his case decided on merits. A dismissal of non-prosecution should, therefore, be an exception and not a rule. If it is at all possible for a Court to decide the matter as indicated in Rule 3, then it should adopt that course and not dismiss the proceeding for non-prosecution and leave the parties to start a second round of litigation. It should, however, be remembered that the counsel should not as a rule accept more engagements than what they are capable of fulfilling. If any unforeseen reason it so happens that they are called upon to appear in two courts, more or less simultaneously, then even though a superior court has a preferential right to their services, they should, out of respect for the lower court, take the precaution of taking its permission, so that the latter court is not unduly inconvenienced or left with no work.
(2) 1998 CLC 1128 (Mst. Shamshad Begum alias Sharam Khatoon v. District and Sessions Judge, Dadu). In this judgment also learned D.B. Of this court has held that parties have admittedly adduced evidence in support of their respective case, trial Court was required to decide the same on merit, irrespective of fact whether counsel for parties had advanced their arguments or not.
4. ' Trial Court on failure of counsel of parties to address arguments had dismissed suit for non- prosecution ignoring fact that evidence of parties in suit had already been concluded. Provision of Order XVIII Rule 2, C.P.C. Would not necessarily require advancing of arguments. Parties, however, if so desired, could advance arguments and court in that case would afford them opportunity to do so, but hearing of arguments before disposing of case was not a legal requirement.
(3) 1998 CLC 1383 (Karachi) (Convell Laboratories Ltd. v. m.v. Alexanders Faith A Vessel or Greek Flag). In this matter, the learned Single judge of this Court has held that hearing of arguments was not enjoined on Court by C.P.C., where parties or their counsel wanted to address arguments, court would give them opportunity to do, but hearing of arguments was not essential before disposing of case. Where entire evidence had been recorded and case was posted only for hearing of arguments, case should not be dismissed but adjourned or decided on merits. The application for restoration of suit was allowed and the suit was restored to file on payment of costs.
5. ' In rebuttal, the learned counsel for the defendant argued that through out proceedings, the conduct of the counsel for the plaintiff was reckless and on many dates he was not present, therefore, this court had dismissed the suit not only for absence on particular date but previous conduct was also taken into consideration. He further argued that illness of counsel, is no ground of restoration as in the absence of advocate, it was the responsibility of the plaintiff to attend the court but he was totally negligent in performance of his duty. He also opposed the application moved for condonation of delay on the ground that the application was moved after the delay of one month and eight days and the plaintiff has failed to explain the delay of each and every day.
6. After dismissal of suit in default, valuable rights are accrued in favour of defendant. In support of his arguments, the learned, counsel for the defendant relied upon the following judgments:--
(1) PLD 1979 SC 821 (Mst. Walayat Khatoon v. Khalil Khan and another). In this case, it was held that where a plaintiff puts ridiculously low court-fee, or where the plaint appears to have been filed not for any bona fide object of its serious pursuit, but to tease or harass another or others concerned, then a court will not be justified to allow time for validating such a plaint and destroy the plea of limitation which may have been perfected in favour of a defendant in the meantime sheerly due to non seriousness of the plaintiff or causes of similar nature. A plaintiff who is guilty of contumacy, positive mala fides, or lack of bona fides will not be entitled for any indulgence. In this respect, similarly poverty or ignorance will also be no excuse.
(2) 1986 CLC 178 (Muhammad, Rahim and 16 others v. Mst. Begum Kaniz Fatima Hayat and 3 others). In this matter, the learned counsel for the appellant raised contention that he was suffering from eye trouble during the month of May and, therefore, he had not been able to read. His contention that he had assigned this work to the Court Clerk who did not mention to him about the case is not at all believable. The learned D B. Of this Court has held that this hardly is a ground for condoning the delay for such a long period. The learned D.B. Also quoted another judgment reported in PLD 1985 Kar. 60 in which it was observed that it is the duty of a party to litigation to keep himself informed of the proceedings and progress of the case by keeping in touch with his counsel, and if the counsel is negligent, it is he who should suffer. It was further observed that it is well-settled that in civil matters on expiry of the period of limitation valuable right accrues to the other side which cannot be taken away except on making out a sufficient cause explaining delay of each day. The appeal was dismissed. The reliance placed on PLD 1979 SC 821 in which it was held that when the plaintiff was guilty of contumacy, positive mala fide or lack of bona fides, he was not entitled of any indulgence.
7. ' The learned counsel for the plaintiff advanced two fold arguments, one relates to the dismissal of the suit in non- prosecution, which requires satisfaction of the court with sufficient cause for non- appearance of the party on the day fixed for hearing. For that reason, he had rightly moved an application for restoration and in order to cover up the delay if any, he has also filed application under section 5 of the Limitation Act. In addition thereto, he also argued that since the matter was fixed for arguments, therefore, this court was not empowered to dismiss the suit in non prosecution and instead of non suiting the plaintiff on technical grounds, the suit should have been decided on merits. In support of arguments he relied upon PLD 1969 SC 270, in which the Hon'ble Supreme Court has held that the provisions of Order IX of the C.P.C. Are not attracted where the evidence had concluded and the matter was fixed only for arguments. It was further held that the presence of the parties in such a case is not necessary and submission had only be made by the counsel engaged in the case upon the evidence already adduced. The only provision of the C.P.C. Which became attracted to such a case would be, provision of Order XVII. Similarly in another judgment relied upon by the learned counsel for the plaintiff, reported in 1998 CLC 1128, it has been held that parties having admittedly adduced evidence in support of their respective case, trial Court was required to decide the same on merits irrespective of fact whether counsel for parties had advanced their arguments or not. It is further held in the same judgment that provisions of Order XVIII Rule 2, C.P.C. Would not. Necessarily require advancing of arguments. Parties, however, if so desired, could advance arguments and court in that case would afford them opportunity to do so, but hearing of arguments before disposing of case was not a legal requirement. In the same sequence, the learned counsel further relied upon one more judgment reported in 1998 CLC 1383, in which, the learned Single Judge of this Court has held that hearing of arguments was not enjoined on court by C.P.C. It was further held in the same judgment that where parties or their counsel wanted to address arguments, court would give them opportunity to do, but hearing of arguments was not essential before disposing 'of case. By referring to the aforesaid judgments, the learned counsel developed the proposition that there is no provision in C.P.C. For arguments. Which is not correct position. In order to scrutinize the correct legal position, I need to reproduce Order XX Rule 1, C.P.C. As it was prior to the promulgation of Civil Laws (Reforms Act, 1994) (Act IV of 1994) in which there was no specific provision for arguments. For the convenience and ready reference, Order XX Rule 1, C.P.C. Prior to the 1994 amendment is reproduced as under:-- "Judgment when pronounced. The court, after the case has been heard shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their pleaders."
8. ' After promulgation of Civil Laws (Reforms Act 1994), Order XX Rule 1 was amended as under:-- "Judgment when pronounced.---(1) On completion of evidence, the court shall fix date, not exceeding 15 days, for hearing of arguments of parties.
(2) the court shall after the case has been heard, pronounce judgment in open court, either at once or on some future day not exceeding 30 days, for which due notice shall be given to the parties or their advocates."
9. ' After amendment in Order XX Rule 1, C.P.C., it has become clear without any hesitation or doubt that the legislature has created vested right for the parties to address the arguments and it has become mandatory requirement of law that on completion of evidence, the court shall fix a date for hearing of arguments. This amendment came in the year 1994, therefore, the judgment of Hon'ble Supreme Court reported in PLD 1969 SC 270 is totally based on different criteria, in which it was held that the provision of Order IX, C.P.C. Are not attracted where the evidence had concluded and the matter was fixed only for arguments. The above amendment came into existence in the month of July, 1994 but other judgments cited by the learned counsel for the plaintiff were delivered in the year, 1998 much after the date of amendment made in the law, as a result, it appears to me that Order XX Rule 1 C.P.C. In the amended form was not pointed out to this court for proper analysis and discussion, therefore, in the judgment reported in 1998 CLC 1128, the court held that hearing of arguments before the disposing of a case was not legal requirement, while in the judgment reported in 1998 CLC 1383, it was held that hearing of arguments was not enjoined on court by C.P.C, and where the parties or their counsel want to address arguments, court would give them opportunity to do, but hearing of arguments was not essential before disposing of case. In my humble view, the exact legal position is that after making an amendment in. The Order XX, Rule 1, C.P.C, in the year, 1994, the opportunity of addressing arguments has become a legal requirement and vested right for the parties and it is obligatory and essential for the court to fix a date for hearing of arguments of parties on completion of evidence. Keeping in view the amendment made in the Order XX Rule 1, C.P.C. In the year, 1994, in all conscience, I am not convinced to bold that at the stage of final arguments, the court can not dismiss the suit for non prosecution.
10. ' However, there is another aspect of the case which cannot be lost sight for the restoration of suit.
11. The plaintiff has pleaded that the suit was dismissed for non-prosecution due to illness of his counsel and the factum of dismissal came into his knowledge on 25-1-2010, thereafter, he immediately rushed to the advocate for filing a proper application in aid of restoration. - It is also clear from the contents of application that the plaintiff has pleaded the knowledge of dismissal of suit on 25-1-2010 and within two days time, he filed application for restoration along with condonation application on 27-1-2010. This important aspect relating to the knowledge of dismissal of suit has not F been controverted by the defendant in its counter affidavit, but the application was objected on the ground that the ailment of counsel is no ground and it was further submitted that the plaintiff was responsible to get in touch with the advocate. The application under Order IX Rule 9, C.P.C. For restoration of suit dismissed in default is governed by Article 163 of the Limitation Act, as such, the application has to be moved within 30 days from the date of dismissal, while restoration application in this matter was moved by the plaintiff after one month and eight days from the date of dismissal and plea of condonation is that the plaintiff came to know dismissal of suit on 25-1-2010 and he immediately rushed to his advocate and filed restoration application in this case on 27-1-2010. It is clear from the Order IX Rule 8, C.P.C. That where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed, unless the defendant admits the claim. In the Black's Law Dictionary, the word "hearing" has been defined "the trial of the case including introduction of evidence, argument of counsel and decree of Court. According to Whyton's Law Lexicon, "hearing" means "Investigation of a controversy". In Chamber's 20th Century Dictionary, it is defined as "judicial investigation, and hearing of arguments especially of trial without a jury". According to Oxford Dictionary, "hearing" means "to listen judicially in a Court of law." (Limitation Act, 1908, M.
12. Mahmood, Third Edition 2002). The restoration of suit G dismissed in default may be ordered to be restored if sufficient cause for non-appearance is shown. The terms sufficient cause should be liberally G interpreted so as to advance the cause of substantial justice and while considering the sufficient cause for restoration the previous default cannot be taken into the consideration. In civil cases issue of fact are to be decided on the principle of pre-ponderance of evidence the words "sufficient cause" for restoration of suit dismissed in default is not H susceptible of any exact definition and no hard and fast rule can be laid down if non appearance is not intentional it will not be viewed very strictly. The rule of procedure are not to be too technically applied but are reconstructed to foster the cause of justice. A party shall not be visited with penalty being deprived of a fair trial on merits not by way of penalty except when there is a positive evidence of negligence on the I part of the advocate or the party. I would like to quote a landmark judgment of the Hon'ble Supreme Court reported in PLD 1963 SC 382 (Imtiaz Ahmed v. Ghulam Ali), in which, it was held that the proper place of procedure in the system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to apply with them on ground of public policy. Any system which by giving effect to the form and not the substance defeats substantive rights and is defective to that a extent. At this juncture I would also like to rely upon another judgment reported in PLD 2000 SC 94, (KESC v. Lawari and others) in which, the Hon'ble Supreme Court has held that diligence is a state of human conduct. What should be the standard for assessing the behavior of an appellant to style him as diligent. Because of fluidity of the notion of diligence, it is difficult to set up a precise yardstick. Whether or not litigant has acted diligently and with care, would differ from case to case. Speaking broadly, a person may be said to have acted diligently, when he has informed, himself of all relevant factors taken all obvious steps and precautions, characterized by a degree of effort, as in a given situation, a reasonable person would do. But the epithet of reasonable opens wide the measure of application of this yardstick, on the factual plane, for the word "reasonable", is not susceptible of any precise definition. Etymologically, it signifies according to reason, which expression itself is open to difference of opinion. Whether or not a person has acted diligently in ultimate analysis, would depend on the circumstances of each case and cannot be determined on the foundation of any judicial syllogism.
13. ' Learned counsel for the defendant relied upon the judgments in which the court has considered that on expiry of period of limitation valuable rights accrue to the other side could not be taken away except on making out sufficient cause explaining of delay of each day. Out of two judgments one is reported in PLD 1979 SC 821, which is in fact a judgment related to deficiency in court fee and grant of time for which the Hon'ble Supreme Court has considered whether in all cases, court is first bound to grant time to plaintiff to make up the deficiency in the court fee under Order VII Rule 11, C.P.C. Before proceedings to take any further action on an insufficient stamped. The facts and circumstances of this judgment are distinguishable. In the next judgment reported in 1986 CLC 178, the facts of the case were that an application was moved on 15-4-1985 for early hearing and the suit was directed to be fixed within one year. Hardly after 20 days of passing of the order, the suit was fixed in the weekly list for hearing on 5-5-1984 and it was again fixed in court on 24-5-1984 for hearing. The matter was called and dismissed in default. The application in this case for restoration of suit was moved on 18-9-1984 and the respondent's counsel took the plea that by lapse of time the valuable right has accrued in favour of the respondent. Due to filing of application after inordinate delay the court held that the plaintiff in the above case was guilty of contumacy, positive mala fide or lack of bona fide, therefore, he was not found entitled for any indulgence. The facts of above case are also distinguishable to the facts and circumstances of the present case in hand. The plaintiff has clearly mentioned in the supporting affidavit of condonation application that the factum of dismissal of suit in non prosecution came into his knowledge on 25-1-2010 and he rushed to his advocate for filing present application. In the counter affidavit, the defendant has taken the plea that the plaintiff has moved the application for restoration with the delay of one month and eight days. The statutory period for applying restoration was available to the plaintiff as a matter of right, however, he is guilty for the delay a eight days. He has already mentioned this fact clearly that he came to know about the dismissal on 25-1-2010 and within two days, he filed proper application for restoration of suit. The evidence has already been recorded in this matter and it would be in the interest of justice that the issues involved in the present suit be decided on the principle of pre ponderance of evidence. The rule of procedure are not to be too technically applied but are re-constructed to foster the cause of justice. Parties engage counsel with the hope and assurance that their case will be properly looked after and attended by their advocates and this is not possible for each party in all circumstances to become so vigilant and attentive to personally appear on each and every day of hearing and some time due to inaction and disinterest of the counsel, party has to suffer a lot. Unless the Bar and Bench both perform their sacred duties with due care, diligence and devotion, the purpose of National Judicial Policy will not be achieved. So it is necessary that advocates should perform their duties diligently and in the best interest of their client, which will be a great help in curtailing the backlog of cases. I have also examined the file and previous orders, in which the earlier counsel was repeatedly being called absent and this was the reason that on 16-8-2008, a direct notice was issued to the plaintiff for 26- 11-2008, on which date the earlier counsel for the plaintiff was present and the matter was adjourned to be fixed after Eid, and on the next date again, nobody was present and the suit was dismissed for non-prosecution. In the judgment reported in PLD 2006 Karachi 377, (Shafique Ahmed v. The State), it has been held that advocates are duty bound to appear before the Court when it takes up the case pending before it and they are not expected to remain absent without informing the Court or showing sufficient or reasonable cause. One of the professional duties of Advocates is also to assist the Court being basically the Officers of the Court and their first duty and responsibility is towards the Court and then towards their clients. Advocates remaining absent from the Court without any intimation or sufficient cause expose themselves to be tackled by Bar Council on account of such misconduct, which may entail cancellation of their practicing license.
14. ' Since in the resotration application the plaintiff has taken the ground that due to ailment his counsel could not appear to argue the matter and in the condonation application also plaintiff has pleaded that he came to know the factum of dismissal on 25-1-2010, and moved restoration application immediately on 27-1-2010, it is also a fact that the evidence has already been recorded, so in my view, at this stage, instead of non-suiting the plaintiff on technical knock out, it would be in the interest of justice that the suit be restored with a last and final chance to the plaintiff to appear and argue the case on the next date without any excuse or default, so that the matter may be decided on merits.
15. ' Keeping in view the above discussion, I allow the listed applications of the plaintiff subject to payment of cost of Rs,20,000 to the defendant. The suit is restored to its original position with caution to the plaintiff to proceed the matter on the next date without seeking any adjournment.
16. Office is directed to fix the suit for arguments in the first week of November, 2010.