1. SHAFIUR RAHMAN, J.--The petitioners are the defendants against whom an ex parse decree for a sum of Rs. 91,420 has been passed by the High Court of Sind at Karachi. They seek leave to appeal against the judgment of the appellate Bench of that Court dated 20th September, 1982 whereby their appeal against the refusal to set aside the ex parte decree was dismissed.
2. The plaintiff/respondent filed civil suit on 10th August, 1971 claiming recovery. Of Rs. 91,420 from the petitioners on the basis of an oral contract for work done as a Labour Contractor. The petitioners appeared in response to the summons in, the suit, filed their written statement and contested the claim. On the pleadings of the parties five issues Were framed for trial on the original side of the High Court of Sind. After the framing of the issues in 1972 the case was listed for hearing on 19th of April, 1978. On that date neither the petitioner nor his counsel was present and hence the plaintiff's evidence was recorded ex parte against them. The case was adjourned to 26th April, 1978 for orders. An ex parte decree was passed on that date for the claim made by the plaintiff/respondent with 10 per cent. Interest. On the 13th May 1978 the petitioner No. 1 submitted an application dated 11-5-1978 under Order IX, rule 13, C. P. C. For setting aside the ex parte decree on the ground that he had no notice of the hearing in suit. Subsequently an affidavit of Syed A.I Nazar, Advocate, dated 6th July, 1978 was filed in support of the application. In this affidavit the learned counsel for the petitioners gave the following reasons in paras. 2 and 3 of the application for his failure to attend the Court on the date fixed in the suit:- "(2) That I am a patient of high blood pressure with complication of serious nature for the last six months. On account of which I have had to seek the adjournments in other matters fixed in the High Court and also where from occasions to occasions.
(3) That in weak state of my health, the above suit escaped my notice by oversight from the weekly as well as daily lists and I have had no information of the above suit being fixed for evidence until I was contacted by Mr. D. B. Ghadially, the defendant I on 13-5-1978 afternoon informing me that the above suit was declared ex parte on 26-4-1978.
3. Mr. D. B. Ghadially the petitioner No. 1 filed a supporting affidavit on 29-8-1978. His Manager Muhammad Hanif Anwar filed on the next day. Counter-affidavits were filed by plaintiff/respondent, Abdul Qadeer, and Abdul Qadir Khan. Supplementary affidavit was then filed by Syed A.I Nazar Advocate.
4. The learned Single Judge hell that the explanation furnished by the learned counsel for the petitioners was not satisfactory and found no explana--petition as to why the petitioner No. 1 also remained absent on the date of hearing. Finding no sufficient cause for restoration of the suit on setting aside of the ex parte decree the application was dismissed.
5. The Intra-Court Appeal was then filed by the petitioners. The learned Judges held that the counsel was either careless or extremely negligent in missing the case from the list though he had noticed another case in the same list and had appeared in Court. Finding that there was no sufficient cause for non-appearance on 19th April, 1978 and also on 26th April, 1978 the appeal was dismissed.
6. The learned counsel for the petitioners contended that what the counsel pleaded through his affidavit was not his physical incapacity or infirmity to appear in Court on that date. He in fact pleaded that his failing health and reduced capacity disabled him from noticing this particular case in the list though he had noticed the other case in which he had- -appeared to seek an adjournment on the ground of failing health.
7. The fact that the learned counsel was having as indifferent health with reduced physical capabilities has not been seriously disputed in any of the affidavits except one filed by Qadir Ahmed who claimed that Mr. A.I Nazar met him on the date fixed in the suit, that is, 9th April, 1978 and "appeared to be hale and hearty". What the counsel for the petitioners pleaded as a sufficient cause for setting aside of the ex parse decree was his own incapacity, his own infirmity and his own failure to notice the case in the list. He bad received the list, he had examined it, he had noted one case in which he had appeared on that very date It was not his case that he was bed-ridden, was not attending the Court or had taken note of no other case in the list. His case was confined to a human failure to notice the case in the list on account of his impaired health. It is somewhat unsual that a counsel should miss the case in the same month in at least three lists, the weekly list, the daily list and the list for 26th April 1978. Nevertheless, in view of the affidavits of the counsel himself and also the fact that he was advanced in age and his health was somewhat impaired we would consider that this was more a case of human failing aggra--vated it appears, on account of impaired health then a case of carelessness or negligence on. His part. In any case it was not a deliberate or wilful attempt to avoid the case of his professional responsibilities.
8. As for the personal responsibility of the party itself we cannot omit to take note of the fact that the case was listed after about six years of its last date of hearing by the Court and that it was concluded within about a week of such a listing. The contact of the party with the case was in the circum--stances through the counsel and not independently to him.
9. We had given in this petition notice to the respondent and Mr. S. M. Sadiq, Advocate, has appealed.
10. He has only pointed that rule 20, sub-rule (i) provided for. Preparation of lists, weekly and daily and apart from it the practice. Is that the lists are pasted on the notice board outside the Court rooms, supplied to the High Court Bar and also delivered at the chamber of each learned Advocate who is a member of the High Court Bar. With these precautions being taken with regard to the notice of cases fixed in the High Court, particularly so on the original side, it is somewhat surprising and unbelievable that the learned counsel, whatever be the state of his health, would have missed this case alone of all others in the lists.
11. We have attended to all aspects of the case and consider that a substantial sum of money is involved in the suit, that the counsel in his personal affidavit showed himself to be suffering from ailment, such as to partially impair hi faculties and reduce his efficiency and alertness which accounted for hi failure to notice the case in the list. Such a failure on the facts of the case cannot necessarily be attributed to his negligence and carelessness. We, there fore, convert this petition into appeal, allow it and set aside the ex part decree against the appellant subject to his paying within six weeks a sum o rupees ten thousand to the opposing counsel in this appeal.