Rasaal Hasan Syed, J. This judgment will decide civil revision that seeks annulment of order dated 09.5.2018 of the learned Addl. District Judge, Multan whereby application of the petitioner dated 07.7.2017, for restoration of his earlier application to set aside an ex parte decree dated 18.2.2017, was declined.
2. Facts relevant for decision of this petition are that a suit under Order XXXVII, C.P.C. based on three cheques was instituted by the respondent against the petitioner for recovery of Rs.7,00,000/- wherein personal service of petitioner could not be effected and, based on substituted service, the petitioner was proceeded against ex parte vide order dated 25.4.2015. Petitioner moved an application for setting aside of the order for ex parte proceedings.
Pending disposal thereof another application seeking leave to defend the suit was filed. The applications were fixed for arguments on 11.2.2017, when it appears, they were dismissed for non-prosecution and later on 18.2.2017 the suit was decreed ex parte.
3. Petitioner applied for setting aside of ex parte decree dated 18.2.2017 as also the order dated 17.2.2017 of ex parte proceedings against him and, at a stage when it was fixed for arguments, the same was dismissed for non- prosecution vide order dated 07.6.2017. Petitioner thereafter filed another application dated 07.7.2017 for restoration of his earlier application to set aside ex parte decree. Respondent resisted the application. Reply thereof was filed by respondent after number of adjournments. On 07.6.2017 when the application was fixed for arguments, none appeared before the court, in result the application was dismissed for non-prosecution and for non-appearance of both sides. Petitioner filed application dated 07.7.2017 seeking restoration of his application to set aside the ex parte decree. The application was dismissed by the learned Addl. District Judge vide order dated 09.5.2018, which is under challenge in the instant revision petition.
4. Learned counsel for the petitioner submitted that the learned Addl. District Judge fell in error in dismissing the application despite the fact that sufficient cause was shown for restoration of the main application; that law favours adjudication on merits rather than non-suiting the parties on mere technicalities; that there was sufficient reason for non appearance of the petitioner and that good grounds were made out for its restoration but the learned Addl.
District Judge illegally and unjustifiably dismissed the application. The petition was opposed on respondent' s behalf, terming the same to be unworthy of any consideration.
5. Copy of record appended with the civil revision has been thoroughly examined with the able assistance of both learned counsel. On due consideration of the matter it is observed that the only question for determination before the learned Addl. District Judge was as to whether there was any sufficient reason for non-appearance of petitioner on 07.6.2017 when the application seeking restoration of earlier application to set aside ex parte decree was dismissed for non-prosecution. The explanation of the petitioner was that there was some misunderstanding about the date of hearing as the learned counsel had due to some misunderstanding noted the next date as 07.7.2017 in his diary instead of 07.6.2017 and the same date was communicated to the petitio ner. It was explained that on the last date the Reader of the Court had communicated the next date as 07.7.2017 which he had noted in his diary .
The application was supported by an affidavit and also copies of the relevant pages of the diary where the case was entered in the list of cases fixed for 07.7.2017 instead of 07.6.2017. In this backdrop the petitioner 's claim was that his non appearance as also the non-appearance of his counsel was neither intentional nor deliberate.
6. The court in the given circumstances was required to satisfy as to whether the plea raised was supported by some authentic document and whether the explanation would fall within the scope of the term "sufficient cause".
The petitioner, as noted supra, annexed with the application, copy of the respective pages of diary of the lawyer which corroborated the stance that the counsel representing him had noted the next date of hearing as 07.7.2017. This was supported by the affidavit that the Reader of the Court had communicated the same date which, under bona fide belief, was entered in the case diary. It has been consistently ruled that inadvertent wrong noting of the date by the Advocate in the diary will be a "sufficient cause" to explain the default and to seek restoration of the case. In "Municipal Committee, Rawalpnidi, through the Secretary, Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan" (1968 SCMR 817) it was observed by the honourable Supreme Court to the effect that the bona fide mistake of counsel or his clerk in noting the next date of hearing would amount to "sufficient cause" for restoration of appeal. It has been consistently ruled that the assertion of a counsel in his affidavit in the matter of restoration of cases shall ordinarily be accepted as against the mere denial of such assertion by the opposite side. The words "sufficient cause" for restoration of suit dismissed for default are not susceptible to any exact definition and no hard and fast rule can be set down; and if non-appearance was not intentional, the matter ought not to be viewed very strictly . Reference in this regard can also be made to the rule laid in "Mst. Begum and others v . Mst. Begum Kaniz Fatima Hayat and others" (1989 SCMR 883 ).
7. The learned Addl. District Judge took note of the fact that the petitioner had specifically pleaded in his application for restoration of the earlier application that non-appearance resulted due to incorrect recordation of next date in his diary caused by erroneous communication of the next date by the Reader of the Court. Copy of the relevant pages of diary in support of the explanation, was annexed with the application. Yet the learned Addl.
District Judge ignored the explanation outright, on mere denial by the opposite party. If the learned Addl. District Judge had any reservation, at best he could have framed an issue and allowed the parties an opportunity of evidence to prove their stance, and in any case outright dismissal of application or summary disposal thereof on mere denial by the opposite party, in the presence of copy of diary and also the affidavit, could not possibly be approved.
8. Another important aspect of the case which was overlooked by the learned Addl. District Judge was that on the date of dismissal of application for non-prosecution, none of the parties was present as such it was a dismissal for non-prosecution under the provisions of Order IX, Rule 3, C.P.C. The order could have therefore been recalled even without notice to the other side. The fact that even the respondent' s counsel was absent fortified petitioner 's plea that there was genuine confusion about the date of hearing due to erroneous communication by the Reader; otherwise there was no reason for non-appearance of respondent' s counsel at the time of the order . There being no explanation for the absence of even respondent' s counsel, the petitioner 's stance as to the noting of incorrect date due to the communication of wrong date by the Reader , was not liable to be mechanically disbelieved.
9. Another important factor which was relevant for the decision of the application ignored by learned Addl. District Judge was that it was the respondent who took certain adjournments to file reply to the application whereafter the reply was filed. Matter was set up for arguments on certain dates. On all these dates the petitioner was being represented by his counsel, who regularly appeared in court. In this backdrop the conduct of the petitioner and his counsel was reflective of due responsibility and could not be termed as negligent in proper prosecution of the matter.
If all of a sudden counsel disappeared and the application was dismissed, then the explanation of the counsel that it was due to the wrong intimation of date and its consequential noting in the diary , did not warrant outright rejection.
10. It is also observed that in dealing with the application of the petitioner for restoration of his earlier application, the learned Addl. District Judge was influenced by certain extraneous factors and grounds that could not possibly be either urged or considered in the course of deciding the matter before him. The court was only examining as to whether there was a reason for non-appearance; whether it was bona fide or not; and whether any "sufficient cause" existed for restoration of the application . The application under consideration was not regulated by the provisions of Article 163 of the Limitation Act, 1908 which applies to restoration of suits and not to miscellaneous application for restoration of application for setting aside of ex parte decree. Such applications are regulated by the residuary Article 181 of the Limitation Act, 1908 which provides a period of three years from occurrence of cause of action. The application being within time, it could not be dismissed by making reference to the earlier application which was neither before the court nor could be considered while deciding the application for restoration of earlier application. The question as to whether the application for setting aside of ex parte decree was within limitation or not, shall of course be considered by the court but only after the application for its restoration is allowed and the earlier application is fixed for final disposal. In deciding the same the court will of course consider as to whether Article 164 of the Limitation Act 1908 or residuary articles thereof will apply to the applications under Order XXXVII, Rule 4, C.P.C. for setting aside of a decree and for grant of leave to defend the suit by proving special circumstances. Any observation on the question at this stage could prejudice the decision of the said application which is being avoided. For the present, the application seeking its restoration being within time, it could not be declined by making reference to the earlier application.
11. Even otherwise law favours adjudicati on of the cases on merits. Non-suiting a party on mere technicalities has never been approved. Reference can be made to "Anwar Khan v. Abudul Fazal Manan" (2010 SCMR 973). The consistent rule is that in the matter of restoration generous consideration should weigh with the court and every possible attempt shall be made to allow the parties opportunity of producing evidence and seeking decision on merits. The impugned order having been passed in oblivion to consistent rules and relevant factors, suffers from serious error of law and jurisdiction; and is a result of nonapplication of correct law.
12. The revision petition is therefore allowed . In consequence the impugned order dated 09.5.2018 of the learned Addl. District Judge is set aside and the application for the restoration of the application to set aside ex parte decree filed by the petitioner shall be deemed to be pending, which shall be decided by the learned Addl. District Judge on its own merits and in accordan ce with law after giving due hearing to the parties. Since this is an old matter learned Addl. District Judge shall proceed with the case expeditiously and shall discourage unnecessary adjournments so as to conclude the proceedings by finally deciding the application within two months from the date of receipt of copy of this Order under intimation to the Dy . Registrar (Judicial) of this Court.