1. The applicant filed a suit against the respondent in the Court of 8th Civil Judge, Karachi which .
2. Was administratively transferred to the Court of 6 Civil Judge, Karachi. Thereafter in the year 1968 it was transferred to the Court of 9th Civil Judge, IInd Class. Consequently, a notice was issued on 26th July, 1969 for appearance on 29.7-1979 Mr. Mokarrim, Advocate for the applicant appeared in Court and made the following endorsement on the diary-sheet under his signature;-- "The file has beep withdrawn from me.
3. The .Plaintiff be served personally."
4. In these circumstances the same day the Court passed the following order;-- "The plaintiff's counsel present. He reports no instructions, plaintiff absent, suit dismissed. The counsel for defendant No. 1 present."
5. On Ist August, 1969 the applicant filed an application under Order IX, rule 9, C. P. C. In the affidavit it was explained that the applicant had been making enquiries from his Advocate and also from the Court but he was told that be would be intimated of the date of hearing by notice to be issued by the Court. He has stated that he had taken away the file from his Advocate merely to instruct an Advocate in respect of another matter in which the applicant was a party. He further stated that he had no notice for appearance on 29-7-1969 and that when he came to know about the ex parte order passed against him he filed the application without any loss of time. The learned trial Court by its order dated 27-9-1969 held that as the power of Mr. Mokarrim Advocate had not been terminated the service of notice for appearance on 29-7-1969 was proper and, therefore, no ground for restoration of the suit was made out and the application was rejected. Against this order an appeal was filed which was dismissed by the impugned order for the same reasons.th Mr. Zia Qureshi the learned counsel for the applicant has conceded that it - is an admitted position that the power of Mr. Mokarrim had not been terminated nor it was withdrawn by the applicant and, therefore, the statement made by him was under some misunderstanding of facts. This is, however, a disputed question whether the file had been taken away with intention to terminate the power and to supersede him by another counsel. But the fact remains that the Vaklatnama was not terminated as provided by the Rules. Rules 42 and 43 of Sind Civil Court Rules provide a procedure for termination of Vakalatnama by a client or withdrawal of Vakalatnama by an Advocate. The rules are reproduced hereunder;--- "42. A party desiring to obtain an order for change of his pleader on record in a suit or matter shall first give notice of his intended appli--cation for change to that pleader, and the fact of such notice having been served shall be stated in the affidavit in support of such application.
43. A pleader on record in a suit or matter desiring to obtain an order for his discharge, shall first give notice of his intended application for discharge to his client and the fact of such notice having been served shall be stated in the affidavit in support of such, application."
6. In order to change the Advocate it is incumbent upon .The party to first give notice of his intention for change of that Advocate and after the notice has been served an application should be filed duly supported by an affidavit. Likewise if an Advocate wants to withdraw his power he has to serve a notice on his client thereafter he has to file an application supported by his affidavit stating. That such notice has been served and then he may be allowed to withdraw. The rules provide a procedure for termination and withdrawal of Vakalatnama. It is well settled that if the Rules provide an act to be done in a particular manner then compliance of such mandatory provision is essential to the validity of the act or proceedings. A statement made by an Advocate particularly in the absence of his client reporting n instructions will not in effect amount to withdrawal of Vakalatnama. It has become a practice that the courts usually accept the statement o f the Advocates for withdrawal of Vakalatnama and do not insist on compliance with the Rules. This may perhaps be permissible provided such statement is made in the presence of his client so that he may have notice of such withdrawal and make necessary arrangements. It is, therefore, necessary that before Vakalatnama is withdrawn or the party is allowed to terminate the Vakalatnama of his Advocate it should be seen that proper procedure has been followed. In the absence of compliance with the prescribed procedure, the Vakalatnama existing on the file shall be deemed to be valid and for all intents and purposes the Advocate shall be deemed to represent his client in the proceedings. Considering from this view point the service effected on Mr. Mokarrim was valid and proper.
7. Mr. Zia Qureshi did not dispute this legal position but he contended that the notice was issued for the first time after the transfer of the suit and it specifically provided that it required appearance of the parties. According to him the suit was not fixed for hearing or for evidence but it was fixed for appearance of the parties on which date necessary orders would have been passed for future proceeding. In these circumstances the learned counsel contends that the learned trial Court had no jurisdiction to dismiss the suit even after the statement of the Advocate for the plaintiff, reporting no instructions. The learned counsel has relied on the case of Messrs Ghulam Farid Muhammad Latif v. The Central Bank of India Limited (PLD 1954 Lah. 575where after considering a host- of judgments of our High Courts as well as of the Indian Jurisdiction the following observation was made:- "A reference to the authorities cited above would show that it has beenconsistently held up to the present time that the Court has no jurisdiction to dismiss a suit on a date which is not fixed for the hearing of the suit but is fixed only for the purpose of determining some interlocutory matter for the further conduct of the suit."
8. Applying this principle to the present case it becomes clear that the not was issued for appearance and not for any hearing. The matter had bee received on transfer from the Court of the 6th Civil Judge and on that date it was fixed for the purpose of determining the future conduct of the suit. The learned trial Court having accepted the statement of Mr. Mokarrim Advocate did not have the jurisdiction to dismiss the suit. Even if on that date the applicant and his Advocate would not have appeared in Court, the suit could not have been dismissed. After holding the service of notice proper the Court should have fixed the matter for hearing. In the case of Syed Nazir Hussain Shah v. Allah Ditta (1973 SCMR 103the parties had reached a compromise and their statements were recorded by the trial Court whereby the decree was to be passed in favour of plaintiff against payment of Rs. 65,000 and time was granted for payment of money up to 30th January, 1964 when rest of the proceedings were to take place on that date. The plaintiff deposited the money in Court before 30th January but did not appear on that date and the suit was dismissed under Order IX, rule 8, C. P. C. It was held that as 30th January was not the date fixed for the hearing of the suit, it could not be dismissed. Mr. Ilyas Ahmed the learned counsel for the respondent has endeavoured to distinguish these judgments by pointing out that Order IX, rule 8, C. P. C. Applies when a party make's default on the first date of hearing whereas Order XVII, rule 2, C. P. C. Applies when the plaintiff or defendant has already appeared but has failed to appear at the adjourned hearing of the case. According to him the order was passed under Order XVII, rule 2, C. P. C. And not under Order IX, rule 8, C. P. C. The argument has no force as Order XVII, rule 2, C. P. C. Also provides that where on any date to which the hearing of the suit is adjourned the parties or any of them fails to appear the Court may proceed to dispose of the suit in one of the modes -directed in that behalf by Order IX or make such other order as it thinks fit. The prerequisite for exercise of jurisdiction under Order XVII, rule 2, is . That the case should be fixed for hearing and it is adjourned to any other date. The word "hearing" means the taking of evidence or hearing of arguments or the consideration of questions relating to the suit which would enable the Court to finally come to an adjudication upon it, and not the consideration of inter--locutory matters. It therefore follows that Order XVII, rule 2, C. P. C. Will apply when the day to which a suit has been adjourned is a date fixed for the hearing of trial of, the case. In the circumstances Order XVII, rule 2, C. P. CJ was not applicable.
9. Mr. Zia Qureshi the learned counsel for the petitioner has alternatively argued that the applicant has made out sufficient cause for his non-appearance on 29-7-1979 and in any event appearance had been made by the Advocate whose power had not been terminated and the statement was made under some misunderstanding. He, further contended that the applicant has made application under Order IX, rule 9, C. P. C. Without any loss of time. In these circumstances he has submitted that the suit should have been restored. Reference has been made to PLD 1957 Lab. 619 where Justice Kaikaus, as he then was, observed that "in an application for restoration of the suit dismissed in default we are not to be very strict. It is not necessary that a high degree of care must have been exercised before a suit is restored". Again in PLD 1966 Lab. 356 Justice Muhammad Gul, as he then was, made the following observation : "A number of cases were cited at the Bar for and against the proposition as to whether in the circumstances of this case, the suit should be restored. Each such case proceeded on its peculiar facts. But one thing that stands out clearly from the perusal of the cases is this, that in the great majority of these cases the Courts, in the absence of special reasons to the contrary have always leaned in favour of substantial justice. This is because law favours adjudication of disputes on merits."
10. The rules of procedure laid down by C. P. C. Are intended to further the cause of justice rather than to stifle it on procedural and technical grounds. Such provisions which provide remedy against defaults should be construed in a liberal manner and it should be seen whether the party seeking restoration is .Guilty of negligence and ]aches beyond explanation. This, however, does not give a premium to the defaulting party to completely ignore the duties cast upon it. Every case has to be decided on to its own merits. The Court has to consider the facts and circumstances of each case to determine whether sufficient cause has been made out for restoration of the suit. I the present case the petitioner seems to be sufficiently vigilant and was making enquiries about the proceedings from all the relevant quarters. His non-appearance has also been explained and the statement made by the learned counsel was due, to misunderstanding created due to the fact that the file had been taken away from him. In these circumstances according to the applicant sufficient case was made out. The learned counsel for the applicant has relied upon the case of Municipal Corporation of the City of Karachi v. Messrs Dalmia Cement Limited PLD 1959 Kar.
11. 395,where it was held that "the Courts do not sit as disciplinary bodies to punish for inapt procedure when their right is clear and no misunderstanding, surprise or prejudice can occur to the other side. The duty of the Court is to do justice between the parties. The procedure prescribed is for the purpose of doing justice between them and should not come in the way of doing substantial justice." It was further held that the paramount consideration for a Court of law is to do justice between the parties and in the absence of any express bar merely on technical grounds they should not hesitate to grant proper relief. In the present case the learned trial Court has not only acted without jurisdiction but has taken a hasty action in dismissing the suit without properly considering the nature of proceedings before him and the effect of the statement made by the learned counsel for the petitioner. In these circumstances I allow the revision application, set aside the order of both the Courts below, restore the suit and order that the trial Court should proceed with the suit expeditiously and endeavour to dispose of within the shortest possible time.