1. ' MUNAWAR ALI KHAN, J.-This appeal under section 3 of Law Reforms (Amendment) Act, 1972, is directed against the order dated 3-12-78 whereby Single Judge of this Court (S. A. Nusrat, J. As he then was) dismissed the application for setting aside the ex parte judgment and decree passed in the Suit No, 206 of 1971.
2. ' The factual background giving rise to this Appeal is that in 1971, the respondent Abdul Latif Khan filed a suit against the appellants for recovery of Rs, 91,480.40. After the suit became ripe, its hearing was fixed for 19-4-78. The date of the hearing was mentioned both in the weekly list of 15- 4-79 and daily cause list of 19-4-78. When the case was called on the said date none was present on behalf of the appellants/respondents. However the Court proceeded with the case and the respondent/plaintiff examine himself and his Munshi in support of the suit. After hearing of the suit ex parte it was reserved for judgment on 26-4-78 which date too appeared in the daily cause list.
3. The suit was decreed ex parte on the said date, for R. 91,420.40, with interest at 10% per annum and costs. On 13-5-78 the appellants filed application under Order IX, rule 13 read with section 151, C. P.
4. C. For setting aside the ex parte judgment and decree. The learned Judge who heard the application dismissed it by the order which has been impugned in this appeal.
5. ' The learned counsel for the parties were heard in support of their respective view points. The chief contention raised on behalf of the appellants was that their counsel Mr. Syed Ali Nazar, is a patient of high blood pressure and, therefore, on account of his weak health the date of hearing mentioned in both weekly list and daily cause list escaped his notice. It was further submitted that the learned counsel came to know about the fate of the case when he was intimated by the Defendant No, 1 on 13-5-78 that the suit had been decreed ex parte on 26-4-78. Further argument in support of the appeal was that even if the appellant's counsel had committed the default, it was not intentional. In any case, it was argued, the appellants could not be made to suffer due to the default on the part of their counsel.
6. ' As required by Order IX, rule 13, C. P. C. We have to see if the appellants or their counsel were prevented by "sufficient cause" from appearing in the suit. What is meant by "sufficient cause" depends upon facts and circumstances of each individual case. No particular meaning can be assigned to the expression to cover all possible cases. In other words it is not susceptible of an exact definition.
7. ' We have gone through the affidavit dated 6-7-78 sworn by Syed Ali Nazar, the counsel of the appellants. It would appear that he has taken the entire blame of the ex parte decision in the suit upon himself. He has however attempted to explain that the absence was not deliberate.
8. According to him it was sheer oversight that he did not notice the date of hearing either in the weekly list or daily cause list and thus remained in the dark until 13-5-78 when Mr. D. B. Ghadialy, defendant No, I, contacted him and apprised him of the latest position of the suit. His assertions have been challenged by the respondent Abdul Latif in his counter-affidavit, wherein he has stated that Mr. Syed Ali Nazar has been regularly attending the Courts and have even come to the High Court on the date of hearing in connection with his other engagements and was seen by him and his exMunshi Qadeer with whom he had even exchanged greetings on that day. He is supported by Qadeer Ahmed who has stated in his affidavit that on. 19th April, 1978, he accompanied by Abdul Latif Khan was coming to the High Court when Mr. Syed Ali Nazar met them in the High Court building and exchanged greetings. Mr. Syed Ali Nazar has not denied having attended the Court on the above date vide his affidavit-in-rejoinder. But he has stated that he had come only to seek adjournment in the Constitutional Petition No, 191 of 1971 fixed before Mr. Justice Abdul Hafiz Memon and as soon as it was adjourned, he returned home because of his indifferent health. In the same rejoinder he has further admitted that he has vague impression of having once met Qadeer Ahmed in the Court premises. considering the assertions made in the affidavits and counter affidavits of the parties we are left in no doubt that Mr. Syed Ali Nazar, the learned counsel for the appellants had attended this Court on the date on which the hearing of the suit was fixed. The learned Single Judge has rightly observed that "if he had noticed the constitutional petition which was listed in the same cause list surely he should not have missed the suit." A We are also in agreement with the learned Judge that the sickness of the learned counsel was not so serious as to prevent him from adjournment in one case he could do the same in the other case also. But to say that h missed the suit in the cause list due to indifferent health, even though he made no such mistake in noticing the petition in the very list cannot be easily accepted.##TE# ' We may here refer to rule 281(1) of the Sind Chief Courts Rules (0. S.). It reads as under: - "281(i) On the last working day in every week a list of suits miscellaneous applications, and interlocutory applications appointed to be heard on each day of the second following week shall be pasted on the 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."
9. ' In Muhammad Munawar v. Ch. Khursheed Alam (1), the Supreme Court was pleased to observe:- "an Advocate is required to verify the position of a case from the weekly cause list published outside the Court rooms."
10. ' As already pointed out we are not satisfied with the explanation given in the affidavit of Mr. Syed Ali Nazar that he failed to notice the suit on account of his poor health. In our opinion counsel has shown either gross negligence or complete lack of interest.
11. ' The next point urged in support of the appeal was that appellants could not be penalized for the negligence of their counsel. In this connection reference was made to some authorities. The first case relied upon is of Abdul Hameed Ismail v. Abdul Rehman Abdul Ghani (2). It was held:- "Mr. Moinullah has made a definite statement in his affidavit that there was an explicit understanding between him and the counsel for the respondents that they will inform each other of the dates fixed for the final bearing of the suit. This fact has not been denied on oath by the counsel appearing on behalf of the respondents in the two suits. The statement of Mr. Moinullah stands unrebutted and there is no reason to disbelieve him in this respect. It is quite possible that Mr. Moinullah was upset on account of the serious illness of his son and for this reason was not paying so much attention to his work as is ordinarily expected from a counsel . . . .
12. ' It further appears to us that a party should not be penalised for the negligence of his counsel. The appellant was not aware about the dates fixed for the hearing of the suits. He was not expected to know about it except through his counsel, as the dates on the original side of this Court are fixed on Saturday by the Registrar. Ordinarily on this day only the counsel and their clerks attend before the Registrar. It is, therefore clear that the appellant's absence on the date fixed in the two suits was not deliberate but accidential. On the whole we consider, that there was sufficient cause for the non- appearance of the appellant on 6-1-1956 before the trial Court. On the facts of this case it will not meet the ends of justice if we penalise the appellant for lack of diligence on the part of his counsel.
13. ' Obviously the above reported case is distinguishable from the instant case inasmuch as that even the counsel of the defendant was held not to blame for his absence in the suits.
14. ' Another case on which reliance has been placed is Shivrattan G. Mohatta v. Muhammadi Steamship Co. Ltd. (3). In this case the Supreme Court was pleased to observe:- "4. On merits, too, we find little scope for interference. It is true that the plaintiff had committed more than one default in the prosecution of the suit and the application for restoration was at one
(1) 1978 SCM R 266 (2) PLD 1959 Kar. 376 (3) PLD 1965 SC 669 time allowed to be dismissed in default of appearance, but as those defaults were on their merits condoned by the Court it will be wrong to take those defaults into consideration in judging the sufficiency of cause for non-appearance of the plaintiff on the 1st of May, 1957. In reversing the order of the Single Judge', the learned Judges of the appellate Bench found that Mr. S. A. Rafique counsel for the plaintiff, had been negligent in the prosecution of the suit, but thought it would be wrong to make the plaintiff suffer on account of his professional misconduct. In the circumstances of the case we concur in the view and would add that there were other sufficient and good reasons for restoration of the suit. The 1st May, 1957, on which date the suit was dismissed in default, had been declared an Eid holiday but the Court remained open because the moon was not sighted on the previous evening. This, by itself, constituted a sufficient cause for excusing default in appearance by the plaintiff on that day."
15. ' It would be noticed that in this case too, the Court was not influenced only by the argument that the party should not be made suffer on account of professional misconduct of his counsel. There were additional factors which were also taken into consideration for restoration of the case.
16. In the third the case of Muhammad Haleem and others v. H. H. Muhammad Naim and others (i, evidence 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,-##TE# "It has been laid down by this Court that although 'sufficient cause is susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible causes, yet where the non-appearance is not intentional and the counsel or his client has made genuine efforts or taken reasonable precutions to be present at the hearing, a very strict view should not be taken."
17. ' In the instant case neither the appellants nor their counsel made efforts less genuine efforts to be present at the bearing. Therefore, abovelB reported case is distinguishable.
18. ' However in the latest authority of Supreme Court Zulfiqr Ali v. Lal Den (2), the Supreme Court has observed:- "The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court it is he who should suffer and not the other side."
19. There is nothing on record to indicate that the defendants in spite of having engaged the counsel, pursued the case with due diligence, if their counsel was found wanting in the professional responsibility, the other party should not suffer for that reason.##TE# ' In view of above, we do not find any merit in the appeal which has already been dismissed on 20- 9-82 with costs, for reasons to follow. Above are the reasons for the dismissal of the appeal.
(1) PLD 1969 SC 270 (2)1974 SCMR 16