' This is an application under Order IX, rule 13, C. P. C. For setting aside the ex parte decree passed on 17-12-1977. The plaintiffs have filed suit for recovery of Rs, 1,08,267.60 in respect of the price of goods supplied to the defendant. All the three defendants filed their written statement. Defendants Nos. 1 and 2 filed a joint written statement in which the defendant No, 2 stated that he is not the partner of defendant No, 1 and he is only a commission agent and a separate Suit No, 603/75 is pending between the plaintiff and the defendant No,
2. The defendants Nos. 1 and 2 denied the claim of the plaintiff. Defendant No, 3 in his written statement stated that he has wrongly been sued. He stated that his name is Muhammad Naqi and not M. Naqvi. In effect his contention was that he has wrongly been sued. However, after the written statement was filed the matter was fixed on 17th December, 1977, for statement of issues and as the defendants were not present ex parte decree was passed against them. The defendants Nos. 1 and 2 filed application on 21-2.1978 while defendant No, 3 filed his application on 25-2-1978. The application of defendants Nos. 1 and 2 is supported by affidavit filed by their Advocate in which he has stated that when the matter was fixed on 15-12-1977 before the Registrar he could not attend the case and was not able to obtain the next date of hearing. According to him he went to the office and made enquiries several times but he was advised that the file has been misplaced and on 6-2-1978 he came to know from the office that the suit had been decreed on 17-12-1977. To the same effect affidavit has been filed by Najumuddin the defendant No, 3 who has stated that he was relying upon the information to be received from the Advocate for defendants Nos. 1 and 2 on enquiries being made he was informed by the said Advocate that the file had been misplaced therefore, he also could not attend the Court on 17-12-1977. He also came to know about the ex parte decree on 6-2-1978.
' The plaintiffs have filed counter affidavit and have only stated that the application is barred by time and further that no sufficient cause has been made out. The facts stated in the affidavit filed in support of the applications have not been specifically controverted by the plaintiffs.
So far as the question of limitation is concerned Rahmania Weaving Factory's case, is a complete answer and I need not dilate further upon it.
' The defendant No, 2 in his written statement has categorically denied the claim of the plaintiffs. He has also denied the relationship of being a partner of defendant No, 1 and stated that a suit is pending between the plaintiff and defendant No,
2. The defendant No, 3 has stated that he has been wrongly sued. In these circumstances according to the defendant No, 3 no decree could have passed against him nor against any of the defendants. These facts can be considered only when the decree is challenged in appeal. However, for purpose of the present application the only fact which is relevant is that the defendant No, 3 has specifically stated that he has wrongly been sued and has wrongly been served.
It has to be seen whether a sufficient cause has been made out by the defendants for non- appearance on the date of hearing. The facts stated in the affidavit have not been controverted and remain unchallenged. If on that basis the statement of the learned counsel for the defendants Nos. I and 2 is accepted then in my opinion sufficient cause has been made out because if on enquiries being made the office is not able to inform the Advocate about the date of hearing and information is given that the file has been misplaced it is possible that the counsel may have been led away by such information and may not have cared to look in the cause list being in the impression that as file has been misplaced it cannot be fixed for hearing. Coupled with this fact the fact remains that defendant No, 3 has raised the plea that he had been wrongly sued as the name mentioned in the plaint is different. This plea will be available to the defendant No, 3 even in execution proceeding to show that, no decree has been passed against him. However, in these peculiar circumstances of the case I find that sufficient cause has been made out. The object of the Code of Civil Procedure is not to deprive a litigant of hearing unless there has been something equivalent to misconduct or gross negligence; on his part. In the facts and circumstances of the case I set aside the ex parte decree passed on 17-1-1977 on payment of Rs, 500 as costs which will meet the ends of justice. PLD 1981 SC 21