1. NAIMUDDIN, J.-This Inter-Court Appeal under clause 3(1) of the Law Reforms Ordinance, 1972, as amended, is directed against the Judgment of a learned Single Judge of this Court, dated 16-12- 1974, whereby he dismissed the application under Order IX, rule 13 read with section 151, C. P. C. Filed by the appellant for setting aside the ex parte decree passed against him on 17-5-1975, in Suit No. 273 of 1967.
2. The learned Single Judge by the impugned order held that no sufficient cause for setting aside the ex parte decree was made out.
3. We have heard Mr. M. G. Dastgir Advocate for the appellant and Mr. Mansoorul Arfin, Advocate for the respondent.
4. It is submitted by the learned counsel for the appellant that appellant had shown sufficient cause and therefore, the learned Single Judge ought to have set aside the ex parte decree.
5. It is therefore necessary first to consider the facts leading to the making of the impugned order, The suit was fixed for regular hearing on 16-5-1974 when Mr. Sammo Advocate holding brief for Mr. Mansoorul Arfin, Advocate for the respondent/ plaintiff was present but none was present for the defendant. However, the hearing was adjourned for next day when again the defendant and his counsel were absent. An affidavit in ex parte proof was filed and the suit was decreed ex parte as prayed.
6. On 1-6-1974, Mr. Talmiz Burney, Advocate for the appellant moved an application under Order IX, rule 13 read with section 151, C. P. C. For setting aside ex parte decree. The application was supported by two affidavits, one of Mr. Syed Ahmed Farooqui Advocate and other of Mr. M. Aslam Qureshi, a clerk in the office of Mr. Talmiz Burney. In his affidavit Syed Ahmed Furooqui stated that he was not a member of the High Court Bar Association as such he was not supplied daily cause list of the High Court cases therefore, he could not know the date of hearing. He further stated that between 15th to 18th May, 1974 he was extremely busy in his professional work in his chamber besides attending normal cases in the lower Courts. Therefore, he could not contract with the Roser Office and Original side office to know the date in his cases. Mr. M. Aslam Qureshi, the Clerk in the office of Mr. Talmiz Burney stated that the defendant and his counsel had no knowledge about the date of hearing and that he was not conversant with the name of the party and number of suit mentioned in the cause lists of 16th and 17th May, 1974. He explained that since the name of Mr. Talmiz Burney, Advocate was not mentioned he could not know the date of hearing of the suit. He further stated that on 16-5-1974 in the afternoon Mr. Talmiz Burney had left Karachi for Quetta to appear before the Circuit Bench of the erstwhile High Court of Sind & Baluchistan, there--fore non- appearance of the defendant and his Advocate on 16th and 17th May, 1974 was not intentional and deliberate but due to bona fide mistake and non-appearance of the name of Mr. Talmiz Burney in the cause lists of 16th and 17th May, 1974. The defendant also filed his affidavit but much after filing of the application stating that he is an old man and patient and due to ill-health he could not contact his counsel and since the name of hi,- counsel Mr. Talmiz Burney was not mentioned, therefore, he could not be informed by his counsel. He also supported the statement of Mr. Syed Ahmed Farooqui made in the affidavit filed by the 'latter that he was not a member of the High Court Bar Association.
7. Mr. M. G. Dastagir, Advocate for the appellant submitted that on the facts stated in the affidavit sufficient cause was shown. He further submitted that unless the negligence was gross and deliberate a party should not suffer. He further submitted that a party should not suffer for the negligence or professional. Misconduct of his Advocate., He relied on the following cases in support of his submissions :-
(1) Abdul Hamid Ismail v. Messrs Abdul Rehman-Abdul Ghani PLD 1959 Kar. 376.
(2) Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. PLD 1966 SC 669.
(3) Muhammad Haleem and others v. H. H. Muhammad Naim and others PLD1960SC270.
(4) Messrs S. M. Rafi Allawalla v. Kayser (Pakistan) Managing Agency Co. Ltd. PLD 1971 Kar. 756.
(5) Muhammad Akram Khan v. Mst. Shahzadi Begum 1972 SCMR 410.
(6) Hafts Shah Muhammad v. Walt Muhammad PLD 1978 Lah. 936.
(7) Mst. Rehmat and 3 others v. Messrs Samz Shipping Co. Panjoo Ltd., Karachi through its Principal Officer PLD 1976 Kar. 953.
8. Before we proceed to examine the cases cited by the learned counsel for the appellant we may mention that Mr. Syed Ahmed Farooqui, Advocate and Mr. Talmiz Burney, Advocate had filed separate powers in the years 1970 and 1973 respectively. We may also mention that the name of Mr. S. A. Farooqui, Advocate had appeared in the cause list who incidentally happen to be the son of the appellant as admitted. His explanation that he was extremely busy in his professional work in his chamber besides attending normal cases in the lower Courts shows that he gave little attention to the case although it was his own father's case which conduct induces us to believe that he was not interested in defending the suit. We are led to believe so far the further reason that in reply dated 16-8-1966 to respondent's notice dated 8-8-1966 the appellant had admitted the claim and had in a way pleaded for time. In the written statement also the appellant bad inter alia pleaded as follows :- "The defendant submitted a viable programme for settlement of his account and later as confirmed in his letter dated 23-8-1969 addressed to the Bank. It is also submitted that the balance amount, if any, outstanding against the defendant is due to the Force Majeure and circumstances that developed since War of September, 1965 and which were beyond the control of the defendant, which ultimately forced the defendant to close down his business total from March, 1965. Thus he was unable to make payment to the plaintiffs. The plaintiffs were explained of the position invariably personally and as well as through correspondence immediately after the outbreak of War of September, 1965, and also in reply to the legal notice of plaintiffs. The reply is dated 16-8-1966, and thereafter subsequent correspondence is also witness to the same."
9. "281.-(i) On the last working day in every week a list of suits, mis--cellaneous applications and interlocutory applications appointed to be heard on each day of the second following week shall be pasted on a notice board of the Court, showing the day of the week and date, the number of suit or miscellaneous application, names of parties and the purpose for which they are fixed."
10. The Advocates must have also come to know of the fixing of the case from the Weekly Cause List which is normally circulated by the. High Court Bar Association immediately after it is prepared. We may here refer to Muhammad Munawar v. Ch. Khurshid Alam 1978 SCMR 266wherein the Honourable Judges of the Supreme Court have observed that `an advocate is required to verify the position of a case from the Weekly Cause List as well as from the daily cause list, published outside the Court Rooms.
11. The affidavits filed by and on behalf of the counsel for the appellant are silent on these sources of acquiring knowledge of fixation of date of(8 hearing of the suit. We, therefore, feel that the Advocates had knowledge of the dates of hearing. The plea of Mr. S. A. Farooqui that h.- is not a member of the High Court Bar Association, therefore, he did not get the daily cause list is of no avail to him for he or his client was duty bound to keep himself aware of the date of hearing fixed by the Court. When more than one Advocate appear in a case for a party each Advocate has to explain his absence satisfactorily. Reliance is placed upon Hafiz Ghulam Ahmed v. Mst. Shah Bibi (1). In the instant case we, for the reasons already stated do not find the explanation of Mr. S. A. Farooqui at all satisfactory. In our opinion it is either a case of gross negligence or complete lack of interest on the part of Mr. S. A. Farooqui Advocate. We must here state the expression `sufficient cause' is not susceptible of an exact definition and' no bard and fast rule can be laid down to cover all possible cases. The question has to be decided with reference to particular facts of each case and generally speaking facts are seldom same or identical. Therefore precedents on such question as one under consideration are not generally of much assistance.
12. However, we would consider the cases cited by the learned counsel for the appellant. The first case is Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghai (2). In this case, for setting aside the ex parte decree the sufficient cause shown was that the Advocate for the appellant was upset on account of serious illness of his son, and that due to this reason he was not deligently attending his work and failed to note the dates of hearing fixed for the two suits. He further explained that there was an explicit understanding between him and the counsel for the respondents that they would inform each other of the date fixed for the final hearing of the suits, but no such information was conveyed which fact was not denied on oath by the counsel for the respondent. On these facts it was found that absence of the Advocate on the dates fixed for hearing of the suit was not deliberate but accidental. It was observed by the Division Bench; "On the facts of this case it will not meet the ends of justice if we penalise the appellant for lack of deligence on the part of his counsel."
13. The observations relied upon by the learned counsel have to be understood in context of the facts of the case and not in isolation, for the discretion was exercised on the peculiar facts of that case and the cause shown was accepted by the Court as sufficient within the meaning of Order IX, rule 13, C. P. C.
14. Seth Shivrattan G. Mohdtta and another v. Messrs Muhammadi Steamship Co. Ltd., the suit was dismissed in default of appearance but the Division Bench had restored the suit, on the case being taken up to the Supreme Court, it was observed by the learned Judge `that the impugned order being discretionary in nature and made in aid of sub--stantial justice would not have been ordinarily considered fit for further appeal, but the learned Judges of the High Court had certified the case' The learned Judge of the Supreme Court further' observed that `the learned Judges of the Division Bench bad found that the counsel for the plaintiff had been negligent in the prosecution of the suit but thought that it would be wrong to make the plaintiff suffer on account of his professional mis--conduct'. Therefore, the Judges of the Supreme Court, in the circumstances of the case concurred with the view taken by the Division Bench but added that there were other sufficient and good reasons for restoration of the suit which was that lst May, 1957, on which date the suit was dismissed in default, bad been declared an Eid Holiday but the Court remained open because the moon was not sighted on the previous evening, and it was observed that this by itself constituted a sufficient cause for excusing default in appearance by the plaintiff on that day and in any case the counsel had put in appearance on his behalf though only to ask for adjournment for filing a power of attorney in his name, a request which in view of the fact that Mr. S. A. Rafique, learned counsel for the plaintiff, had in the meantime gone abroad for treatment of his failing eyesight merited to be accepted by the learned Single Judge. Thus this case is distinguishable on facts.
(1) PLD 1951 B J 46(2) PLD 1959 Kar. 376 Muhammad Haleem and others v. H. H. Muhammad Nairn and others PLD 1969 SC 270evidence was already recorded when the suit was dismissed for non-prosecution due to absence of the counsel who was busy in another Court. It was observed that `on the facts of the case the provisions of Order IX of the Code of Civil Procedure were not attracted'. .It was further observed as follows :- "It has been laid down by this Court that although `sufficient cause' is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases, yet where the non--appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precautions to b-. Present at the hearing, a very strict view should not be taken."
15. Page 276; "It would, therefore, appear that there is a distinction between these two Rules and it lies in this that rule 2 would be attracted to a case where the adjournment has been granted generally for one of the purposes mentioned in that Rule but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate rule to follow would be rule 3 and not rule 2."
16. Page 277; "The main reason which has compelled us to allow this appeal is the fact that, in our view, the High Court had not exercised its discretion on sound judicial principles in dismissing the matter for non- prosecution. It should have proceeded under Order XVII, rule 3, C. P. C. Directed that since the learned counsel for the petitioners was not present, his argument, must be taken as closed, then called up the learned counsel for the respondents to address the Court and given decision on the merits of the case. We, therefore, feel that this. Appeal should be allowed, for, otherwise, it would result in 'inflicting a very harsh penalty upon the parties for no fault of their own. At the same time, however, we-wish to record our disapproval of the conduct of the Attorney concerned by directing that the costs of this appeal, both of the petitioners and the respondents, should come out of his pocket, but since there are several respondents in this appeal the respondents will be allowed only one set of costs."
17. This case is, therefore, again distinguishable on facts for in the present case no question of application of any particular arose. In case of Messrs S. M. Rafi Allawalla v. Kayser (Pakistan)
18. Managing Agency Co. Ltd. And 3 others, it was observed that the defendant should not be penalised except for gross negligence. In this case the ground for setting aside the ex parte decree was that the Advocate for the defendant was lying unconscious with heart attack on 9-2- 1970. After discussing the facts it was found that the defendant had acted negligently but not with gross-- negligence and following Arunachala lyer v. Subbaramiah (1) it was observed that the party should not be penalized unless he acted with gross negligence.
19. The case of Muhammad Akram Khan v. Mst. Shahzada Begum is not at all relevant for in this case it was held that after a decree had once been made in a suit, should not be dismissed unless the decree was reversed in appeal. It was further observed at page 412 of the report as follows "It was added that the parties bad, on the making of the decree, acquired rights or incurred liabilities which are fixed unless or until the decree was varied or set aside. It was further held that Order XVII, rule 2 also did not apply, that there could be no dismissal after decree and that the order was made without jurisdiction and thus liable to be set aside by the High Court in revision."
20. In case of Haji'z Shah Muhammad v. Walt Muhammad (2) it was found that the absence of the respondent was not intentional rather was due to bona fide mistake about the actual date of hearing of the application.
21. In the case of Mst. Rehmat and 3 others v. Messrs Samz Shipping Co. Panjoo Ltd., Karachi through Its Principal Officer, the application was dismissed in default of appearance of the plaintiff's counsel but was restored on the ground that his name did not appear in the cause list of the date despite his power being already on the file."
22. It will be seen that none of the cases relied upon by the counsel for the appellant helps the appellant and each case is distinguishable on facts.
23. After having considered all the relevant facts and the cases cited by the learned counsel for the appellant we have reached the conclusion that the learned Single Judge has exercised his discretion properly and the order does not call for any interference. We therefore, dismiss this appeal but under the circumstances of the case leave the parties to bear their own costs.
24. M. Y. M.
(1) AIR 1923 Mad. 63 (2) PLD 1978 Lab. 936