1. ' MUHAMMAD TASNIM, J.---Through this order, I shall dispose of application (C.M.A. No, 5771 of 2010) under Order IX, Rule 9, read with section 151, C.P.C. Filed by Advocate for the applicant, praying therein that this Court may be pleased to recall the order dated 29-11-2010 for the reasons and circumstances mentioned in the accompanying affidavit. Notice of this application was issued to the respondents. Respondent No,1 filed counter-affidavit to the application resisting the restoration of the revision application.
2. ' Mr. Anwar Mansoor Khan, learned counsel for the applicant has submitted that on 29-11-2010 when matter was called at 12-20 p.m., no one was present from the side of applicant and there was no intimation available with the Court explaining the absence of the applicant and its counsel, revision application was dismissed for non-prosecution. Learned counsel further submitted that along with application, learned counsel for applicant Mr. Asim. Mansoor Khan, Advocate has filed his own affidavit as on that day he was appearing on behalf of the applicant in the above matter. Learned counsel for the applicant has invited my attention to the paragraph-2 of the affidavit, wherein it has been stated that on 29-11-2010 Mr. Yasir Ali, Administrator of the applicant contacted him to make an appearance in the aforesaid matter and requested him to give an undertaking to file vakalatnama on behalf of New Model High School, the applicant in the present proceedings. It is further stated in the affidavit that this matter was fixed before the Court at Serial No,28 of Katcha Peshi list, but till 12-10 p.m. This case was not taken up. It has further been stated by the learned counsel for the applicant that upto 12-10 p.m. He was present in Court, but this matter was not called. It is further stated in the affidavit of Mr. Asim Mansoor Khan, Advocate that he had other cases before Other benches of this Court, additionally he was not feeling well and was under fever, in the circumstances, he left the Court and failed to remember to inform the honourable Court or the counsel already appearing in the matter. Learned counsel further submitted that non- appearance of the Advocate before the Court when this matter was called was not deliberate, intentionally or malafidely, but due to oversight and being busy before other benches of this Court coupled with ailment of learned counsel, who was attending the Court on that day non- appearance has occasioned when matter was called. Learned counsel further submitted that there is no negligence on the part of the Advocate hence this application be allowed and case may be restored. He further submitted that it is consistent view of the Superior .Courts that matters should be decided on merits and technicalities are to be avoided. In support of his contentions, learned counsel for the applicant has placed reliance on the following case-law:
(1) Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others (PLD 1966 SC 461);
(2) Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan (PLD 1966 SC 467);
(3) Muhammad Ashraf v. District Judge Jhelum and others (PLD 2005 SC 29); and
(4) Abdul Majid and others v. Mst. Zubeda Begum and others (2007 SCM R 866).
3. ' On the other hand Mr. Qamar-ul-Islam, learned counsel for the respondent No,1 has vehemently opposed the grant of this application. He has submitted that restoration application was filed after 24 days of the dismissal hence it is, prima-facie, afterthought and application be dismissed.
4. Leaned counsel for the respondent No,1' further submitted that applicant's Advocate Mr. Asim Mansoor Khan has not produced any proof with his application or affidavit to show that he was present in Court till 12-10 p.m. Learned counsel for the respondent No,1 has also submitted that this application should have been argued by Mr. Asim Mansoor Khan himself.
5. ' I have heard the learned counsel for the parties and have perused the record so also case-law cited by learned counsel for the applicant.
6. From the perusal of record, it appears that present revision application was dismissed on 29-11- 2010 and restoration application was filed on 11-12-2010, the application is within time. The reasons disclosed by the learned counsel for the applicant that it was first date of hearing for him and he had to file vakalatnama in this case on behalf of the applicant. He further stated in the affidavit that upto 12-10 p.m. He was sitting in the Court room, but this case was not taken. It is stated in the affidavit of the Advocate for the applicant that for attending other cases before this Court he left the Court at 12-10 p.m. And was busy before other benches. It has been further stated in the affidavit that Advocate was also not feeling well and that he has filed to remember to inform the honourable Court or the counsel previously appearing in the matter to appear in Court in his absence. No doubt counter-affidavit has been filed by respondent No,1, but it has not been denied that learned counsel for applicant was present in Court upto 12-10 p.m. And waiting for his turn.
7. Remaining busy before other benches of the same Court has always been considered sufficient cause while disposing of a restoration B application. It is consistent view of the Superior Courts that matters are to be decided on merits and technicalities are to be avoided. The point C that Advocate was busy before another bench of the same Court and was not present in Court when matter was taken up in his absence and adverse orders were passed, such point has been dealt with by the honourable Supreme Court of Pakistan in the case of Salamat Bibi and others (supra), as under:-- "There is also abundant authority from the West Pakistan High Court itself for the proposition that the unintentional omission of a legal practitioner to attend in time to any of the cases in which he is engaged due to unavoidable circumstances may be treated as "sufficient cause" for setting aside an order of dismissal for default (Vide: Abdul Aziz v. Punjab National Bank Ltd. (2) and Khan Muhammad Khan and others v. Mir Sardar Ali and others (3)).
8. ' Both of these were cases in which the counsel's non-appearance was due to the fact that he was at the relevant time appearing in another Court. In the first case it was observed that in exercising the discretion to restore or not to restore regard must also be "had to the nature of the duties of the counsel towards his other clients and the other Courts." In the second case too a Division Bench restored the appeal, as the omission of the counsel to appear was considered to be "unavoidable", because, "he was busy with one of his other cases in another Court".
9. ' The Hon'ble Supreme Court of Pakistan went on say:- "The determination of the question as to whether there is or is not a "sufficient cause" in a particular case is no doubt a matter within the discretion of the Court itself, but it has to be remembered that this discretion too, like all other discretions exercised by a Court, must be exercised in a judicious manner having regard to all the facts and circumstances of each case and that a litigant should not be lightly deprived of the right of having his case heard by the Court nor, as observed by the Federal Court in the case of Mumtaz Ahmad should the discretion be exercised in such a way as to "make it, extremely difficult,. If not impossible, for a counsel to discharge his obligations towards his client." Some distinction should be made between negligent or careless performance of duties by counsel and unavoidable omissions, particularly, when such omission is due to no fault of his and he has taken all reasonable steps possible in the circumstances to avoid any disrespect or lack of courtesy to the Court.
10. ' We have no reason to doubt the correctness of the averments made in the affidavit filed in support of the petition for the restoration of the appeal which was moved within four days of the order dismissing the appeal for default by the same learned counsel, for, we have ourselves verified that he did in fact appear in the forenoon of the 18th October, 1963, in this Court in two cases. The High Court has also said nothing in its order dismissing the application which would show that any of these averments is false. In the order dismissing the appeal for default it is clearly mentioned that Mr. Mannan had actually made a request for an adjournment, but the learned. Judges of the High Court were not prepared to entertain the request on the ground that such requests should be "made in advance before the fixation of the case." In making this observation, however, it was overlooked that in the particular case such a request could not have been made in advance, for, on the 17th there was no Bench available for the purpose and on the 18th this was the first appeal to be taken up after the kacha peshi. The request was, therefore, we are satisfied, made at the earliest opportunity available and the facts recited above clearly indicate that nonappearance of the counsel was due who. Ily to unavoidable circumstances over which he had no control."
11. ' Finally, the Hon'ble Supreme Court of Pakistan has concluded as under:-- "In view of the above we have come to the conclusion that in this case there was "sufficient cause" for non-appearance of the counsel in the present case and that the High Court had, in exercising its discretion to dismiss the appeal for default, not acted upon sound judicial principles after taking all relevant facts into consideration. The counsel appearing in the appeal was, in no way, negligent or remiss in the discharge of his duties. We, therefore, set aside both the orders of the High Court refusing to re-admit the appeal for hearing and dismissing the appeal for default and restore the appeal to the file of the High Court for disposal on merits."
12. ' This point has also come up for consideration before the honourable Supreme Court of Pakistan in the case of Babu Jan Muhammad and others (supra), which is quoted as under:-- The determination of sufficient cause is a matter within the discretion of the Court, to be exercised judicially in relation to all the circumstances of the case. The fact of Mr. Shah Muhammad Mohsin being engaged in the High Court was not the only reason given for his absence, when the Senior Civil Judge called the present case. It had been explained that his clerk had tried to estimate the probable time at which the suit was likely to be called, and had left himself what he thought was a reasonable margin in which to fetch the lawyer from the High Court, where he knew that he would be present. His judgment proved wrong, but that could be for a variety of reasons over which he, namely the clerk, had no control. It may be that some of the intervening cases occupied much less time of the Court than he had estimated. Mr. Shah Muhammad Mohsin appeared in the trial Court at 11 a.m., which is a sufficiently early hour in the Court's working time, and it is impossible therefore to avoid the conclusion that the suit must have been called early in the day. Mr. Shah Muhammad Mohsin's clerk stated that when he left the Court to call the lawyer, there were still six cases to be heard before the present case was to be called. He did not have very far to go from the Senior Civil Judge's Court, to the High Court, and it cannot be said that his estimate was wholly inadequate. A case with a greater degree of relevancy to the facts of the present case than the earlier High Court decisions aforesaid is that of Mumtaz Ahmed v. Mst. Umtul Habib where certain observations were made in allowing an appeal against a similar order refusing to restore a case that had been dismissed for default for absence of counsel. These go to indicate that weight should be given to the difficulties of counsel who have to appear in more than one cases in different Courts on the same day. That was a case of the opposite kind to the present case, namely, that the counsel was absent when his case was called in the High Court, because at that time he was appearing in the Court of a Civil Judge. A reason had been given why counsel had thought that it would be early enough for him to appear at the time when he did appear, this being that he had obtained from counsel in the case before his own an estimate of the time that case was likely to take, and had relied on that estimate. The Federal Court observed that there was no reason to think that the estimate given by the other counsel "was wholly wrong or extremely exaggerated". In the present case, we see no reason to think that in proceeding to fetch Mr. Shah Muhammad Mohsin when there were still six cases on the list of the Senior Civil Judge to be dealt with before the present case was called, the clerk left the matter until too late.
13. ' We allow this appeal, and setting aside the order made by the High Court, we direct that the suit be restored to its original place in the list of the Senior Civil Judge, and that it should be proceeded with according to law."
14. ' Thirdly the term sufficient cause while dealing with the restoration application has also been a subject-matter before the Honourable Supreme Court of Pakistan in the case of Muhammad Ashraf (supra), which is also quoted hereunder:-- "6 ..Admittedly it is nobody's case that petitioner's learned counsel was negligent or he had not shown sufficient cause. In Begum and others v. Mst. B1gum Kaniz Fatima Hayat and others 1989 SCMR 883 the suit was dismissed for non prosecution by a learned Single Judge of High Court of Sindh as neither the party nor the counsel was present. The application for setting aside the ex parte order was also dismissed and a Division Bench of the said Court upheld the order. This Court allowed the appeal against those concurrent orders. The affidavit of the counsel that he was suffering from acute pain due to trachoma and that he had no notice for fixation of the case for the said date was considered to be sufficient cause and the appeal was allowed. A separate explanation or "sufficient cause" for the absence of the party was not called. While interpreting the expression "sufficient cause" this Court at page 887 held as follows:- ".............. It has been laid down by this Court that the words 'sufficient cause' for restoration of suit dismissed for default are not susceptible of any exact definition and no hard and fast rules can be laid down and if non-appearance is not intentional it should not be viewed very strictly. This Court has also emphasized that the rules of procedure are not to be too technically applied but are re- construed to foster the cause of justice. It, therefore, follows that a party is to be visited with the penalty of being deprived of a fair trial on merits not by way of penalty except when three is positive evidence of negligence beyond explanation. In the light of these principles the facts on record do not make out a case of gross negligence on the part of the Advocate or the appellants, even if their conduct leaves something to be desired in the matter of meticulous care in ascertaining the date for the fixation of the suit."
15. ' The case of the petitioner rests on a stronger footing i,e, the explanation given by his learned counsel duly supported by affidavit that he was appearing before another Bench of Lahore High Court in the same premises has been conceded to be a "sufficient cause" even by respondent's learned counsel so far as the absence of the counsel was concerned."
16. Applying the above rule laid down by the honourable Supreme Court of Pakistan to the case in hand, it will be noticed that learned counsel for the applicant has filed. His own affidavit, stating therein categorically that he was present in Court upto 12-10 p.m. And this case though fixed at Serial No,28 was not called by that time. As per learned counsel he had number of cases before the different benches of this Court and he had to attend the same, he left the Court room at 12-10 p.m.
17. It has further been stated in the affidavit of the learned counsel for the applicant that he was not feeling well and that he had forgot to communicate to the previous counsel to attend the Court in his absence or to leave intimation to the Court for his busyness before the other benches of the Court. This aspect of the matter has not been rebutted by the learned counsel for the respondent No,1 in his counter-affidavit.
18. ' The examination of the affidavit of the learned counsel for the applicant clearly demonstrates that his non-appearance when order dated 29-11-2010 was passed was not deliberate nor intentional nor he was negligent, but the same has occasioned due to his busyness before the other benches of this Court, which has been considered by the Superior Courts as sufficient cause for the non- appearance. Following the dicta laid down by the honourable Supreme Court of Pakistan, I find merits in this application and allow the same. Order dated.29-11-2010 is hereby recalled and revision application is restored to its original position and number. Office to fix this case by consent of the parties on 9-9-2011.
19. ' Learned counsel for the respondent No,1 has filed counter-affidavit to C.M.A. No,2309 of 2011, which has been taken on record, copy whereof has been supplied to other side. Learned counsel for the applicant says that Execution No,4 of 2010 is pending before the Court of IIIrd. Civil Judge, Karachi East, in which writ of possession with police aid has been issued, if some interim orders are not passed, the execution will take place and this revision application will become infructuous, in the circumstances, learned counsel says that the execution proceedings be stayed till the next date of hearing. On the other hand learned counsel for the respondent No,1 requested for adjournment on the ground that he is not feeling well today and will not be able to make his submissions on C.M.A.
20. No,2309 of 2011. Learned counsel for the applicant asked for fixation of case for hearing of stay application as well as main case on 15-8-2011. Learned counsel for the respondent No,1 did not agree to such date of hearing on the ground that nowadays he is not keeping well and he will not be in a position to make his submissions prior to 9-9-2011. In the circumstances, matter is adjourned, by consent of the parties, to 9-9-2011. Since execution proceedings are in progress and writ of possession has been issued with police aid, in the circumstances, till the next date of hearing parties shall maintain status quo.